ADDL CIT 20(1), MUMBAI V. ARISTO EXPORTS, MUMBAI

ITA 4478/MUM/2009

• Counselvise Citation: [2010] 136 COUNSELVISE.COM (IT) 1188 (ITAT-MUMBAI)
• Duration Of Justice: 11 month(s) 1 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-06-2010
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2005-2006
• Appeal Filed On: 28-07-2009
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: K K MAHAJAN

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES, A, MUMBAI BEFORE SHRI R V EASWAR, PRESIDENT AND SHRI B RAMAKOTAIAH, ACCOUNTANT MEMBER I T A NO: 4478/MUM/2009 (ASSESSMENT YEAR: 2005-06) ASSISTANT COMMISSIONER OF INCOME TAX 20(1) APPELL ANT MUMBAI VS M/S ARISTO EXPORTS, MUMBAI RESPONDENT (PAN: AAAFA8394B) APPELLANT BY: SHRI K K MAHAJAN RESPONDENT BY: NONE O R D E R R V EASWAR, PRESIDENT: THERE WAS NO REPRESENTATION FROM THE ASSESSEE WHO IS THE RESPONDENT, WHEN THE APPEAL WAS CALLED FOR HEARING. WE THEREFORE PROCEED TO DISPOSE OF THE APPEAL ON THE BASIS OF TH E RECORD AND AFTER HEARING THE LEARNED DEPARTMENTAL REPRESENTATIVE. 2. THE ONLY ISSUE WHICH ARISES IN THIS APPEAL BY TH E DEPARTMENT IS WHETHER THE CIT(A) WAS RIGHT IN DIRECTING THE ASSES SING OFFICER TO ALLOW DEDUCTION OF RS.15,42,588/- UNDER SECTION 80-IB OF THE INCOME TAX ACT, 1961. THE AFORESAID AMOUNT REPRESENTS THE DUT Y DRAWBACK RECEIVED BY THE ASSESSEE. THE QUESTION IS WHETHER THE DUTY DRAWBACK CAN BE TERMED AS PROFIT DERIVED FROM THE INDUSTRIAL UNDERTAKING WITHIN THE MEANING OF THE SECTION. THIS ISSUE HAS BEEN RE SOLVED NOW IN FAVOUR OF THE DEPARTMENT BY THE JUDGMENT OF THE SUP REME COURT IN THE CASE OF LIBERTY INDIA VS. CIT (2009) 317 ITR 218 (S C). IT HAS BEEN HELD THAT THE DUTY DRAWBACK CANNOT BE CONSIDERED AS PROFITS DERIVED ITA NO: 4478/MUM/2009 2 FROM THE INDUSTRIAL UNDERTAKING. RESPECTFULLY FOLL OWING THE JUDGMENT OF THE SUPREME COURT, WE REVERSE THE DECISION OF THE C IT(A) AND HOLD THAT THE ASSESSEE IS NOT ENTITLED TO THE DEDUCTION UNDER SECTION 80-IB IN RESPECT OF THE DUTY DRAWBACK. IT MAY BE CLARIFIED THAT THE ACTUAL DUTY DRAWBACK RECEIVED IS RS.45,10,351/- AND THE DEDUCTI ON ON THE SAME AMOUNTS TO RS.15,42,588/- WHICH HAS BEEN DISALLOWED . 3. IN THE RESULT, THE APPEAL OF THE DEPARTMENT IS A LLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 29 TH JUNE 2010. SD/- SD/- (B RAMAKOTAIAH) (R V EASWAR) ACCOUNTANT MEMBER PRESIDENT MUMBAI, DATED 29 TH JUNE 2010 SALDANHA COPY TO: 1. M/S ARISTO EXPORTS 129, MITTAL INDUSTRIAL ESTATE, SANJAY BLDG. NO.6 SAKINAKA, ANDHERI KURLA ROAD ANDHERI (EAST), MUMBAI 400 059 2. ACIT 20(1) 3. CIT-20 4. CIT(A)-XX 5. DR A BENCH TRUE COPY BY ORDER ASSTT. REGISTRAR, ITAT, MUMBAI