High Court Punjab-Haryana High Court

Commissioner Of Income Tax vs M/S Nice Overseas on 24 August, 2009

Punjab-Haryana High Court
Commissioner Of Income Tax vs M/S Nice Overseas on 24 August, 2009
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH


                                       ITA No. 206 of 2009 (O&M)
                                       Date of decision: 24.8.2009


Commissioner of Income Tax, Karnal
                                                      ......Appellant
                                Vs.

M/s Nice Overseas, 41, Sector 25, HUDA, Panipat.
                                                       ...Respondent


CORAM:- HON'BLE MR.JUSTICE ADARSH KUMAR GOEL
        HON'BLE MRS.JUSTICE DAYA CHAUDHARY


PRESENT: Mr.Sukant Gupta, Standing Counsel for revenue.

            Mr.Pankaj Jain, Advocate, for assessee.

                                ****


ADARSH KUMAR GOEL, J. (Oral)

1. The revenue has preferred this appeal under section 260A of the

Income Tax Act, 1961 ( for short, “the Act”) against the order of Income Tax

Appellate Tribunal, New Delhi, Bench ‘SMC’ passed in ITA No.

821/DEL/2006 on 25.7.2006 for the assessment year 2002-03, proposing to

raise following substantial questions of law:

“1. Whether on the facts and in the

circumstances of the case, the Hon’ble ITAT

was right in law in confirming the order of

the CIT(A) directing the AO to allow

deduction under Section 80IB on the

amount of duty drawn back received by the
ITA No. 206 of 2009 [2]

assessee which cannot be termed as income

“derived from” an industrial undertaking as

held by the Hon’ble Supreme Court of India

in the case of CIT v. Sterling Foods (1999)

237 ITR 579 (SC)”?

2. Whether on the facts and

circumstances of the case the Ld. ITAT is

right in law in allowing deduction under

Section 80IB of the Income Tax Act, 1961

on the total business profits which includes

duty drawn back/export incentives without

considering the provisions of section 80IB

under which the deduction is allowable

only from the income derived from the

industrial undertaking having direct nexus

with the activity of industrial

undertaking?”

2. The assessee received export incentives and claimed deduction

under Section 80IB of the Act. The claim of the assessee in respect

thereof was disallowed following judgment of the Hon’ble Supreme Court

in CIT v. Sterling Food, (1999) 237 ITR 579. The said view has been

affirmed by the CIT(A) and allowed the claim of the assessee but the

Tribunal restored the same, which view was affirmed by the Tribunal.

3. It is not disputed that the matter is covered against the assessee
ITA No. 206 of 2009 [3]

by the judgment of the Hon’ble Supreme Court in Sterling Food, (supra)

and order of this Court dated 9.9.2008 in ITA No. 629 of 2007 (M/s Raj

Oversease v. The Commissioner of Income Tax, Ludhiana.)

Accordingly, the appeal is allowed. The order of the Tribunal

is set aside and that of Assessing Officer is restored.




                                                   (ADARSH KUMAR GOEL)
                                                          JUDGE



                                                     (DAYA CHAUDHARY)
August 24, 2009                                            JUDGE
raghav




Note: Whether this case is to be referred to the Reporter? ……..Yes/No