ITO 20(1)(1), MUMBAI V. ANITA DESAI, MUMBAI

ITA 470/MUM/2009

• Counselvise Citation: [2009] 115 COUNSELVISE.COM (IT) 1594 (ITAT-MUMBAI)
• Duration Of Justice: 9 month(s) 27 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 17-11-2009
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: 2005-2006
• Appeal Filed On: 21-01-2009
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: VIKRAM GAUR

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, MUMBAI BENCH A,MUMBAI BEFORE SHRI G.C.GUPTA (J.M) & SHRI S.V.MEHROTRA(A .M) ITA NO.470/MUM/2009(A.Y. 2005-06) THE ITO 20(1)(1), 7 TH FLOOR, PIRAMAL CHAMBER, LALBAUG, MUMBAI 12. (APPELLANT) VS. SMT. ANITA DESAI, PROP. STI INDUSTRIES, 503, VASTU SHUBH, RAJMATA JIJABAI ROAD, PUMP HOUSE, ANDHERI (E), MUMBAI 93. PAN:AADPD 9227F (RESPONDENT) APPELLANT BY : SHRI VIKRAM GAUR RESPONDENT BY : SHRI NIKHIL TIWARI ORDER PER G.C.GUPTA,J.M THIS APPEAL BY THE REVENUE FOR THE ASSESSMENT YEAR 200 5-06 IS DIRECTED AGAINST THE ORDER OF THE CIT(A). THE GROUND S OF APPEAL OF THE REVENUE ARE AS UNDER:- I. THE LEARNED CIT(A) HAS ERRED ON FACTS AND IN LAW A ND IN THE CIRCUMSTANCES OF THE CASE IN DIRECTING THE ASSESSING OFFICER TO COMPUTE THE DEDUCTION U/SEC. 80-IB BY TREATING THE INCOME FROM DEPB AND DUTY DRAW BACK AS INCOME DERIVED FROM THE INDUSTRIAL UNDERTA KING. II. THE LEARNED CIT(A) HAS ERRED ON FACTS AND IN LAW I N THE CIRCUMSTANCES OF THE CASE IN NOT APPRECIATING THE FACTS THAT THE DEPB INCOME HAS ARISEN OUT OF THE EXPORT ACTIVITY OF THE ASSESSE E AND NOT FROM THE MANUFACTURING OF PRODUCTION ACTIVITY OF THE A SSESSEE ND THE SAID INCOME IS NOT DERIVED FROM THE INDUSTRIAL UNDERTAK ING. III. THE LEARNED CIT(A) HAS ERRED IN NOT APPRECIATIN G THE FACTS OF DECISION OF THE HONBLE SUPREME COURT IN THE CASE OF STE RLING FOODS 237 ITR 579 AND PANDIAN CHEMICALS 262 ITR 278. ITA NO. 470/M/09(A.Y 2005-06) 2 2. BOTH THE PARTIES BEFORE US SUBMITTED THAT THE ISSUE IN THE GROUNDS OF APPEAL OF THE REVENUE IS COVERED IN FAVOUR OF THE R EVENUE WITH THE DECISION OF THE HONBLE SUPREME COURT IN M/S. LIBERTY INDIA, 317 ITR 218(SC). 3. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS. WE FIND TH AT THE ISSUE OF COMPUTATION OF DEDUCTION UNDER SECTION 80 IB WITH REGAR D TO INCOME FROM DEPB AND DUTY DRAW BACK WHETHER INCOME DERIVED FROM T HE INDUSTRIAL UNDERTAKING IS COVERED IN FAVOUR OF THE REVENUE WITH THE DECISION OF THE HONBLE SUPREME COURT IN THE CASE OF M/S. LIBERTY INDI A (SUPRA) AND ACCORDINGLY THE ISSUE IS DECIDED IN FAVOUR OF THE REVENU E AND THE GROUNDS OF APPEAL OF THE REVENUE ARE ALLOWED. 4. IN THE RESULT, THE APPEAL OF THE REVENUE IS ALLOWE D. ORDER PRONOUNCED ON THE 19 TH DAY OF NOV., 2009. SD/- SD/- (S.V.MEHROTRA) (G.C.GUPTA) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI, DT. 19 TH NOV. 2009 COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT(A)XX 4. THE CIT.XX,MUMBAI 5. THE D.RA BENCH. (TRUE COPY) BY ORDER ASST. REGISTRAR, ITAT , MUMBAI BENCHES MUMBAI. VM. ITA NO. 470/M/09(A.Y 2005-06) 3 DETAILS DATE INITIALS DESIGNATION 1 DRAFT DICTATED ON 19.11.09 SR.PS/PS 2 DRAFT PLACED BEFORE AUTHOR 19.11.09 SR.PS/PS 3 DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER JM/AM 4 DRAFT DISCUSSED/APPROVED BY SECOND MEMBER JM/AM 5. APPROVED DRAFT COMES TO THE SR.PS/PS SR.PS/PS 6. KEPT FOR PRONOUNCEMENT ON SR.PS/PS 7. FILE SENT TO THE BENCH CLERK SR.PS/PS 8 DATE ON WHICH THE FILE GOES TO THE HEAD CLERK 9 DATE OF DISPATCH OF ORDER ITA NO. 470/M/09(A.Y 2005-06) 4 ITA NO. 470/M/09(A.Y 2005-06) 5