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TAXAP/1507/2010 3/ 3 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
TAX
APPEAL No. 1507 of 2010
=========================================================
THE
COMMISSIONER OF INCOME TAX - Appellant(s)
Versus
HIRAVATI
& COLD STORAGE, - Opponent(s)
=========================================================
Appearance
:
MRS
MAUNA M BHATT for
Appellant(s) : 1,
None for Opponent(s) :
1,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE AKIL KURESHI
and
HONOURABLE
MS JUSTICE SONIA GOKANI
Date
: 20/09/2011
ORAL
ORDER
(Per
: HONOURABLE MR.JUSTICE AKIL KURESHI)
Revenue
is in appeal against the judgment of the Tribunal dated 30th
November, 2009. Following questions are presented for our
consideration.
(A) “Whether
the Appellate Tribunal is right in law and on facts in holding that
while computing the profit of the business under Explanation (baa) of
section 80HHC, 90% of the profits on transfer of DEPB should be
excluded, not the total amount received by the assessee on the
transfer of DEPB credit?”
(B) “Whether
the Appellate Tribunal is right in law and on facts in holding that
the cost of acquisition in the case of DEPB cannot be NIL but it will
be the credit value given to the assessee under the scheme as that
represents the incidence of the customs duty on the import content of
the export product which the assessee has already paid at the time of
import?”
The
issue pertains to the benefit of deduction under Section 80HHC of
Income Tax Act, 1961 for the receipts of the assessee upon sale of
DEPB Credits. The Tribunal in the present judgment followed the
decision of Special Bench of Mumbai Tribunal in case of Topman
Exports v. ITO (Mumbai), 318 ITR 87 (AT)(Mumbai) and further
restored the matters to the Assessing Officer to follow such
decision in case of Topman Exports (Supra).
Counsel
for the revenue pointed out that the decision in case of Topman
Exports (Supra) carried in appeal before the Bombay High Court. The
Bombay High Court in case of CIT v. Kalpataru Colours and
Chemmicals, (2010) 328 ITR 451 (Bom.) reversed the decision of the
Tribunal. It was pointed out that in a judgment dated 10.8.2011 in
Tax Appeal No.507 of 2010 in case of COMMISSIONER OF INCOME TAX
V/s. RINKESH EXPORTS,
we had also taken a similar view.
When
the Tribunal restored the issue before the Assessing Officer to
follow the judgment of Topman Exports (Supra)
and when we find that the judgment itself has been reversed by
Bombay High Court and this court has also taken a similar view,
surely, Assessing Officer will take into account such further
development also.
With
above observations, the Tax Appeal is disposed of.
(AKIL
KURESHI, J.)
(Ms.
SONIA GOKANI, J.)
(ashish)
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