GIRISH SONI, MUMBAI V. ITO 25(2)(4), MUMBAI

ITA 2083/MUM/2010

• Counselvise Citation: 208319914 RSA 2010
• Duration Of Justice: 1 year(s) 29 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 13-04-2011
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: G
• Next Hearing Date: 16-03-2011
• Assessment Year: 2004-2005
• Appeal Filed On: 15-03-2010
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: A K MAYAK

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES, G, MUMBAI BEFORE SHRI R V EASWAR, PRESIDENT AND SHRI PRAMOD KUMAR, ACCOUNTANT MEMBER I T A NOS : 2082/MUM/2010 AND 2083/MUM/2010 (ASSESSMENT YEARS : 2003-04 AND 2004-05) MR GIRISH SONI, MUMBAI APPELLANT (PAN: AMYPS0274J) VS INCOME TAX OFFICER 25(2)(4), MUMBAI RESPONDENT APPELLANT BY: NONE RESPONDENT BY: MR A K MAYAK O R D E R R V EASWAR, PRESIDENT: THESE ARE TWO APPEALS FILED BY THE ASSESSEE FOR TH E ASSESSMENT YEARS 2003-04 AND 2004-05. NOBODY APPEA RED FOR THE APPELLANT WHEN THE APPEALS WERE CALLED FOR HEARING. WE THEREFORE PROCEED TO DISPOSE OF THE APPEALS ON THE BASIS OF T HE RECORD AND AFTER HEARING THE LEARNED DR. 2. BOTH THE YEARS INVOLVE COMMON GROUNDS. THE APPE ALS ARE ALSO DELAYED BY 3 YEARS AND 11 MONTHS. IT HAS BEEN STATED IN THE APPLICATION FOR CONDONATION OF THE DELAY FILED ALON G WITH THE MEMORANDUM OF APPEAL THAT THE ASSESSEE WAS MISLED B Y THE VARIOUS PROFESSIONALS WHO ALLEGEDLY STATED THAT THE RE WAS NO NEED TO FILE ANY APPEALS AND THAT IT WAS ONLY MUCH LATER THAT THE ASSESSEE REALIZED THAT APPEALS OUGHT TO HAVE BEEN FILED IN O RDER TO SUCCESSFULLY CLAIM THE RELIEFS. CONSIDERING THE RE ASON ADVANCED, THE DELAY IS CONDONED AND THE APPEALS ARE ADMITTED. ITA NO: 2082/MUM/2010 ITA NO: 2083/MUM/2010 2 3. THE FIRST ISSUE WHICH IS COMMON TO BOTH THE YEAR S IS WHETHER THE ASSESSEE IS ENTITLED TO THE DEDUCTION UNDER SEC TION 80-IB IN RESPECT OF THE INCOME EARNED BY WAY OF SALE OF DEPB LICENSE. THE DEPARTMENTAL AUTHORITIES HAVE TAKEN THE VIEW THAT T HE AFORESAID INCOME IS NOT ELIGIBLE FOR THE DEDUCTION SINCE IT I S NOT PROFIT DERIVED FROM THE INDUSTRIAL UNDERTAKING. THEY HAVE RELIED ON THE JUDGMENT OF THE SUPREME COURT IN THE CASE OF CIT VS. STERLIN G FOOD (1999) 237 ITR 579 (SC). WE HAVE TO UPHOLD THEIR ORDERS R ESPECTFULLY FOLLOWING THE JUDGMENT OF THE SUPREME COURT CITED A BOVE AS ALSO THE JUDGMENT OF THE SUPREME COURT IN THE CASE OF LI BERTY INDIA VS. CIT (2009) 317 ITR 218 (SC), IN WHICH IT HAS BEEN H ELD THAT PROFITS DERIVED BY THE SALE OF DEPB LICENSE CANNOT BE CHARA CTERIZED AS PROFITS DERIVED FROM THE INDUSTRIAL UNDERTAKING. U NDER SECTION 80-IB, THE ASSESSEE CAN AVAIL OF THE DEDUCTION ONLY IF THE PROFITS AND GAINS ARE DERIVED FROM THE INDUSTRIAL UNDERTAKING. SINCE THE PROFITS ON THE SALE OF DEPB LICENSE DO NOT MEET WITH THIS REQUIREM ENT, WE CONFIRM THE VIEW TAKEN BY THE DEPARTMENTAL AUTHORITIES FOR BOTH THE YEARS AND DISMISS GROUND NO: 1. 4. THE SECOND GROUND WHICH IS ALSO COMMON TO BOTH T HE YEARS RELATES TO THE REBATE ALLOWABLE UNDER SECTION 88 IN RESPECT OF LIFE INSURANCE PREMIA PAID. THE STAND OF THE ASSESSEE I S THAT THE PROOF OF PAYMENT WAS ATTACHED WITH THE RETURN OF INCOME B UT STILL THE DEDUCTION WAS NOT GIVEN. THE ASSESSING OFFICER IS DIRECTED TO LOOK INTO THE ASSESSEES CLAIM AND ALLOW THE DEDUCTION I N CASE THE ASSESSEE PRODUCES THE PROOF OF PAYMENT OF THE PREMI A. THIS GROUND IS DISPOSED OF ACCORDINGLY. ITA NO: 2082/MUM/2010 ITA NO: 2083/MUM/2010 3 5. IN THE RESULT, BOTH THE APPEALS ARE PARTLY ALLOW ED. ORDER PRONOUNCED IN THE OPEN COURT ON 13 TH APRIL 2011. SD/- SD/- (PRAMOD KUMAR) (R V EASWAR) ACCOUNTANT MEMBER PRESIDE NT MUMBAI, DATED 13 TH APRIL 2011 SALDANHA COPY TO: 1. MR GIRISH SONI C-803, YAMNOTRI, MAHAVIR NAGAR KANDIVALI (WEST), MUMBAI 400 067 2. ITO 25(2)(4), MUMBAI 3. CIT-XXV, MUMBAI 4. CIT(A)-XXV, MUMBAI 5. DR G BENCH TRUE COPY BY ORDER ASSTT. REGISTRAR, ITAT, MUMBAI