The DCIT, Circle-2, RAJKOT-GUJARAT V. Turbo Bearing Pvt. Ltd., RAJKOT-GUJARAT

MA 32/RJT/2010

• Counselvise Citation: [2010] 124 COUNSELVISE.COM (IT) 7345 (ITAT-RAJKOT)
• Duration Of Justice: 9 month(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 31-12-2010
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 24-12-2010
• Assessment Year: 2003-2004
• Appeal Filed On: 31-03-2010
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: AVINASH KUMAR
• Section: 80IB

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL RAJKOT BENCH, RAJKOT BEFORE SHRI A.L. GEHLOT (AM) AND SHRI D.T. GARASIA (JM) M.A. NO. 32/RJT/2010 (ASSESSMENT YEAR 2003-04) DY.CIT, CIR.2 VS TURBO BEARING PVT LTD RAJKOT 250/251 Q ROAD GIDC-III, AJI INDL ESTATE RAJKOT PAN : AAACT7854N (APPLICANT) (RESPONDENT) APPLICANT BY : SHRI AVINASH KUMAR RESPONDENT BY: NONE O R D E R A.L. GEHLOT : THIS MISCELLANEOUS APPLICATION IS FIL ED BY THE REVENUE. NONE IS PRESENT ON BEHALF OF THE ASSESSEE. WE PROCEEDED TO DECIDE THE MISCELLANEOUS APPLICATION ON MERIT. 2. THE ITAT, VIDE ORDER DATED 07-08-2009 IN ITA NO. 51/RJT/2008 FOR ASSESSMENT YEAR 2003-04 WHILE DECIDING THE ISSUE FO LLOWING THE JUDGMENT OF THE JURISDICTIONAL HIGH COURT IN THE CASE OF IND IAN GILLETIN & CHEMICAL UNIT 275 ITR 284 (GUJ) HAS HELD IN FAVOUR OF THE AS SESSEE TREATING THAT DEPB INCOME IS DERIVED FROM INDUSTRIAL UNDERTAKING. IT IS POINTED OUT IN THE MISCELLANEOUS APPLICATION THAT THE APEX COURT IN TH E CASE OF LIBERTY INDIA LTD VS CIT 317 ITR 218 (SC) HELD THAT DEPB / DUTY D RAW BACK ARE INCENTIVE WHICH FLOWS FROM THE SCHEME FRAMED BY THE CENTRAL GOVERNMENT THROUGH INCENTIVE PROFITS AND ARE NOT PROFIT DERIVE D FROM THE ELIGIBLE BUSINESS AND THEREFORE, DEPB / DUTY DRAW BACK RECEI VED DO NOT FORM PART OF NET PROFIT OF THE INDUSTRIAL UNDERTAKING FOR THE PURPOSE OF DEDUCTION U/S MA NO. 32/RJT/2010 2 80IA / 80IB OF THE ACT. THE CONTENTION OF THE REVE NUE IS THAT THE JUDGMENT OF THE JURISDICTIONAL HIGH COURT IN INDIAN GILLETIN & CHEMICAL UNIT (SUPRA) IS THUS IMPLIEDLY REVERSED BY THE APEX COURT AND THERE FORE THERE IS A MISTAKE APPARENT IN THE IMPUGNED ORDER OF THE TRIBUNAL. 3. AFTER HEARING THE LD.DR WE FIND THAT THE ITAT HA S DECIDED THE ISSUE FOLLOWING THE JUDGMENT OF HONBLE GUJARAT HIGH COUR T IN THE CASE OF INDIAN GILLETIN & CHEMICAL UNIT (SUPRA) WHICH HAS BEEN IMP LIEDLY REVERSED BY THE APEX COURT IN THE JUDGMENT OF LIBERTY INDIA LTD (SU PRA). IN THE LIGHT OF LAW LAID DOWN BY THE APEX COURT WE RECALL OUR ORDER DAT ED 07-08-2009. THE REGISTRY IS DIRECTED TO FIX THE CASE FOR HEARING IN DUE COURSE. 4. IN THE RESULT, THE MISCELLANEOUS APPLICATION FIL ED BY THE REVENUE IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 31-12-2010 SD/- SD/- (D.T. GARASIA) (A.L. GEHLOT) JUDICIAL MEMBER ACCOUNTANT MEMBER RAJKOT, DT : 31 ST DECEMBER, 2010 PK/- COPY TO: 1. THE APPLICANT 2. THE RESPONDENT 3. THE CIT(A)-I, RAJKOT 4. THE CIT-I, RAJKOT 5. THE DR (TRUE COPY) BY ORDER MA NO. 32/RJT/2010 3 ASSTT.REGISTRAR, ITAT, RAJKOT