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TAXAP/1564/2008 3/ 3 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
TAX
APPEAL No. 1564 of 2008
=========================================================
COMMISSIONER
OF INCOME TAX-III - Appellant(s)
Versus
LAKHAMBHAI
DAMJIBHAI BHENSALA - Opponent(s)
=========================================================
Appearance
:
MRS
MAUNA M BHATT for
Appellant(s) : 1,
None for Opponent(s) :
1,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE K.A.PUJ
and
HONOURABLE
MR.JUSTICE RAJESH H.SHUKLA
Date
: 10/02/2010
ORAL ORDER
(Per
: HONOURABLE MR.JUSTICE K.A.PUJ)
The Commissioner of
Income-tax III Rajkot has filed this Tax Appeal under Section-260A
of the Income Tax Act, 1961.
At the time of hearing of
this Tax Appeal Mr. B.B.Naik, learned Senior Counsel appearing for
the revenue has reframed the following substantial questions of law.
(i)
Whether, on the facts and in the circumstances
of the case, the Income Tax Appellate Tribunal is right in law in
coming to the conclusion that only the profits of transfer of DEPB
credit can be considered for the purpose of Section 28(iii)(d) and
Explanation (baa) of Section 80 HHC of the Income Tax Act ?
(ii)
Whether, on the facts and in the circumstances of the case, the
Income Tax Appellate Tribunal is right in law in coming to the
conclusion that DEPB credit can be said to have been a cost and
value and DEPB credit itself granted under the relevant scheme
would constitute a cost for the purpose of arriving at profit of
transfer of DEPB credit ?
(iii)
Whether, on the facts and in the circumstances of the case, the
Income Tax Appellate Tribunal is right in law in coming to the
conclusion that the income of the assessee by sale of DEPB license
under Section 28 of the Income Tax Act and 90% of any sum referred
in Clauses (iiia), (iiib) and (iiic) of Section 28 of the Income
Tax Act to be treated as profit of business as provided in
Explanation (baa) of Section 80HHC of the Income Tax Act ?
Heard Mr. B. B. Naik,
learned Senior Counsel appearing for the Revenue and perused the
orders passed by the authorities. We are of the view that the
substantial questions of law do arise out of the order of the
Tribunal. We, therefore, formulate the above referred questions as
substantial questions of law for determination and consideration of
this Court, after the Appeal being admitted.
Notice to the other side.
Additional paper book, if any, is to be filed within three months
from today.
To be heard with Tax
Appeal No.1413 of 2008 and other cognate matters.
(K. A. PUJ, J.) (RAJESH
H. SHUKLA, J.)
kks
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