The CIT, Ahmedabad V. Atul Limited, Ahmedabad

MA 3/AHD/2010

• Counselvise Citation: [2011] 123 COUNSELVISE.COM (IT) 6782 (ITAT-AHMEDABAD)
• Duration Of Justice: 1 year(s) 8 month(s) 3 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 16-09-2011
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: D
• Assessment Year: 2003-2004
• Appeal Filed On: 12-01-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: MRS URVASHI SHODHAN
• Section: 80IB

Judgement Text

- 1 - IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD BENCH D AHMEDABAD BEFORE S/SHRI G. D. AGRAWAL, V.P. AND D.K. TYAGI, J M DY. CIT (OSD), RANGE-1, AHMEDABAD. ATUL LIMITED, 3 RD FLOOR, ASHOKA CHAMBERS, RASALA MARG, ELLISBRIDGE, AHMEDABAD APPELLANT VS. RESPONDENT APPELLANT BY :- SHRI SAMIR TEKRIWAL, DR RESPONDENT BY:- MRS. URVASHI SHODHAN, AR DATE OF HEARING 9/9/2011 DATE OF PRONOUNCEMENT -16/9/2011. O R D E R PER D.K. TYAGI, JUDICIAL MEMBER . THIS MISCELLANEOUS APPLICATION ARISING OUT OF ORDE R OF THE TRIBUNAL IN ITA N0.157/AHD/2007 DATED 24.7.2009 HAS BEEN FIL ED BY THE REVENUE WHEREIN IT IS STATED THAT THE ISSUE OF EXCLUSION OF DEPB ENTITLEMENT FOR COMPUTATION OF DEDUCTION U/S 80IB OF THE ACT IS NO MORE RES-INTEGRA IN VIEW OF THE DECISION OF HONBLE SUPREME COURT IN TH E CASE OF M/S LUBERTY INDIA VS. CIT DATED 31.8.2009 ARISING OUT O F SLP (VC) NO.5827/07 WHEREIN THE HONBLE COURT HELD THAT DUTY DRAW BACK RECEIPT /DEPB BENEFITS DO NOT FORM PART OF NET PROFITS OF E LIGIBLE INDUSTRIAL UNDERTAKING FOR THE PURPOSES OF SECTION 80I/80IA/80 IB OF THE ACT. M.A. NO.3/AHD/2010 IN ITA NO.157/AHD/2007 ASST. YEAR 2003-04 M.A. NO.3/AHD/2010 IN ITA NO.157/AHD/2007 ASST. YEAR 2003-04 2 THEREFORE, THE ABOVE ISSUE MAY KINDLY BE RECONSIDER ED IN VIEW OF THE DECISION OF THE HONBLE APEX COURT AND PASS NECESSA RY ORDER ACCORDINGLY. 2. AT THE TIME OF HEARING AT THE OUTSET THE LD. COU NSEL FOR THE ASSESSEE POINTED OUT THAT THE REVENUE HAD FILED AN APPEAL AG AINST THE ORDER OF THE TRIBUNAL DATED 24.7.2009 IN ITA NO.157/AHD/2007 BEF ORE THE HONBLE GUJARAT HIGH COURT. (COPY OF ORDER IS PLACED ON REC ORD). THE HONBLE GUJARAT HIGH COURT IN TAX APPEAL NO.2534 OF 2009 VI DE ITS ORAL ORDER DATED 18.07/2011 HAS REVERSED THE DECISION OF THE T RIBUNAL BY OBSERVING AS UNDER :- 1. REVENUE HAS CHALLENGED THE JUDGMENT OF THE TRIB UNAL DATED 24.7.2009 RAISING FOLLOWING QUESTION FOR OUR CONSID ERATION :- WHETHER THE APPELLATE TRIBUNAL IS RIGHT IN LAW AN D ON FACTS IN REVERSING THE ORDER PASSED BY CIT(A) AND THEREBY DE LETING THE DISALLOWANCE OF CLAIM OF RS.1,29,46,027/- MADE U/S 80IB OF THE ACT. 2. COUNSEL FOR THE REVENUE POINTED OUT THAT THE TRI BUNAL RELIED ON THE DECISION OF DELHI HIGH COURT IN THE CASE OF CIT VS. ELTEK SGS P LTD. REPORTED IN (2008) 300 ITR 6 (DEL) TO HOLD THAT THE BENEFITS OF DEPB WOULD QUALIFY FOR REDUCTION UNDER SECTION 80IB OF T HE INCOME-TAX ACT, 1961. BEFORE THE TRIBUNAL THE DECISION OF PUNJAB AN D HARYANA HIGH COURT IN THE CASE OF LIBERTY INDIA VS. CIT REPORTED IN (2009) 317 ITR 218 (SC) APPROVING THE VIEW OF THE PUNJAB AND HARYANA H IGH COURT WAS CITED BY THE REVENUE TO CONTEND THAT PUNJAB AND HAR YANA HIGH COURT HAD TAKEN A DIFFERENT VIEW FROM THAT OF THE DELHI H IGH COURT. HOWEVER, THE TRIBUNAL FOLLOWED THE DECISION IN THE CASE OF D ELHI HIGH COURT. 3. LEARNED COUNSEL FOR THE REVENUE FURTHER POINTED OUT THAT ULTIMATELY IN APPEAL THE APEX COURT IN THE CASE OF LIBERTY IND IA VS. CIT (SUPRA) APPROVING THE VIEW OF THE PUNJAB AND HARYANA HIGH C OURT, HELD THAT BENEFIT OF DEPB AND DUTY DRAW BACK WOULD NOT FORM P ART OF THE NET PROFIT FOR COMPUTING DEDUCTION U/S 80IB OF THE ACT. 4. COUNSEL FOR THE REVENUE WAS NOT IN A POSITION TO DISPUTE THIS FACT, NAMELY THAT THE ISSUE NOW STANDS SQUARELY COVERED I N FAVOUR OF THE M.A. NO.3/AHD/2010 IN ITA NO.157/AHD/2007 ASST. YEAR 2003-04 3 REVENUE BY VIRTUE OF THE DECISION OF THE APEX COURT IN THE CASE OF LIBERTY INDIA VS. CIT (SUPRA). 5. IN THE RESULT, THE QUESTION IS ANSWERED IN FAVOU R OF THE REVENUE. THE TRIBUNALS JUDGMENT TO THE ABOVE EXTENT IS REVE RSED. THE APPEAL IS DISPOSED OF ACCORDINGLY. IN VIEW OF ABOVE, THE LD. AR SUBMITTED THAT THE M.A . FILED BY THE REVENUE HAS BECOME INFRUCTUOUS AND THE SAME MAY BE DISMISSED. THE LD. DR DID NOT OBJECT TO THIS SUBMISSION OF THE LD. COU NSEL OF ASSESSEE. 3. AFTER CONSIDERING THE RIVAL SUBMISSIONS AND PERU SING THE RECORD, WE ARE OF THE VIEW THAT SINCE THE HONBLE HIGH COURT V IDE ITS ORDER HAS REVERSED THE ORDER OF THE TRIBUNAL AND THE ISSUE HA S BEEN DECIDED IN FAVOUR OF THE REVENUE, THE MISCELLANEOUS APPLICATIO N FILED BY THE REVENUE HAS BECOME INFRUCTUOUS AND HENCE THE SAME I S DISMISSED. 5. THE MISCELLANEOUS APPLICATION FILED BY THE REVEN UE IS DISMISSED. ORDER WAS PRONOUNCED IN OPEN COURT ON 16/9/2011. SD/- SD/- (G. D. AGRAWAL) (D.K. TYAGI) VICE PRESIDENT JUDICIAL MEMBER AHMEDABAD, DATED : 16/9/2011. MAHATA/- M.A. NO.3/AHD/2010 IN ITA NO.157/AHD/2007 ASST. YEAR 2003-04 4 COPY OF THE ORDER FORWARDED TO :- 1. THE ASSESSEE. 2. THE REVENUE. 3. THE CIT(APPEALS)- 4. THE CIT CONCERNS. 5. THE DR, ITAT, AHMEDABAD 6. GUARD FILE. BY ORDER, DEPUTY / ASSTT.REGISTRAR ITAT, AHMEDABAD 1.DATE OF DICTATION 9/9/11. 2.DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE TH E DICTATING MEMBER 9/9/11. /OTHER MEMBER. 3.DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR. P.S./P.S. 4.DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE DICTATING MEMBER FOR PRONOUNCEMENT.. 5.DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR .P.S./P.S 6.DATE ON WHICH THE FILE GOES TO THE BENCH CLERK .. 7.DATE ON WHICH THE FILE GOES TO THE HEAD CLERK . 8.THE DATE ON WHICH THE FILE GOES TO THE ASSTT. REG ISTRAR FOR SIGNATURE ON THE ORDER 9.DATE OF DESPATCH OF THE ORDER..