Asst. Commissioner Of Income Tax. Circle 4 v. Vipro Chemicals Pvt. Ltd.....opponent(S

O/TAXAP/567/2007 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD TAX APPEAL NO. 567 of 2007 FOR APPROVAL AND SIGNATURE: HONOURABLE MR.JUSTICE KS JHAVERI and HONOURABLE MR.JUSTICE K.J.THAKER ================================================================ 1 Whether Reporters of Local Papers may be allowed to see the judgment ?the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ?judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the Constitution of India, 1950 or any order made thereunder ?to the interpretation of the Constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ================================================================ ASST. COMMISSIONER OF INCOME TAX. CIRCLE 4.....Appellant(s) Versus VIPRO CHEMICALS PVT. LTD.....Opponent(s) ================================================================ Appearance: MR KM PARIKH, ADVOCATE for the Appellant(s) No. 1 MR RAMNANDAN SINGH, ADVOCATE for the Opponent(s) No. 1 ================================================================ CORAM: HONOURABLE MR.JUSTICE KS JHAVERIandHONOURABLE MR.JUSTICE K.J.THAKER Date : 11/12/2014 ORAL JUDGMENT (PER : HONOURABLE MR.JUSTICE KS JHAVERI) 1. Being aggrieved and dissatisfied with the impugned order passed by the Income Tax Appellate Tribunal, Ahmedabad Bench ‘A’ (hereinafter referred to as ‘the Tribunal’) dated 18.08.2006 in ITA No. 1417/Ahd/2006 for the Assessment Year 2002-03, the revenue has preferred the present Tax Appeal. 1.1This appeal was admitted by this Court on 28.09.2007 for consideration of the following substantial question of law: “Whether on the facts and in the circumstance of the case, the ITAT was right in holding that sum relatable to sales tax and excise duty do not form part of the total turnover for the purpose of computing profits derived from export for claiming benefit under Section 80HHC of the Income Tax Act, 1961” 2. The assessee firm is engaged in the business of manufacturing and exporting bulk drugs and fine chemicals. During the course of assessment proceedings, the assessing officer noticed that the assessee had not included excise duty and sales tax in turn over for the purpose of calculating deduction u/s 80HHC of the Act. The Assessing Officer held that these receipts are required to be included in total turnover. On appeal the CIT (Appeals) reversed the finding of Assessing Officer. 2.1 On appeal before the Tribunal, by impugned order, the Tribunal upheld the order of CIT(A). Being aggrieved and dissatisfied with the impugned order passed by the Tribunal, the revenue has preferred the present Tax Appeal for consideration of the aforesaid substantial question of law. 3.An identical issue had come up before this Court wherein this Court vide order dated 19.03.2014 passed in Tax Appeal no. 678 of 2006 answered the question in favour of the assessee. This Court vide order dated 19.03.2014 held as under: 2.1 On appeal before the Tribunal, by impugned order, the Tribunal upheld the order of CIT(A). Being aggrieved and dissatisfied with the impugned order passed by the Tribunal, the revenue has preferred the present Tax Appeal for consideration of the aforesaid substantial question of law. 3.An identical issue had come up before this Court wherein this Court vide order dated 19.03.2014 passed in Tax Appeal no. 678 of 2006 answered the question in favour of the assessee. This Court vide order dated 19.03.2014 held as under: “2. Counsel for the assessee pointed out that the question of excise duty for the purpose of total turnover while computing the export benefit under section 80HHC of the Income-Tax Act, 1961 in the present case arose even prior to the introduction of section 145A of the Act. He submitted that in that view of the matter, the issue would be covered in favour of the assessee by virtue of judgment of the Supreme Court in the case of Commissioner of Income-tax vs. Lakshmi Machine Works reported in [2007]290 ITR 667(SC). He further pointed out that even post amendment, by virtue of section 145A of the Act, this Court by judgment dated 3.12.2013 in Tax Appeal Appeal No.884 of 2006 and connected appeals in the case of Commissioner of Income-tax vs. Pogagen AMP Nagarsheth Powertronics Ltd. has held the issue in favour of the assessees. In either case, therefore, the question has to be answered in favour of the assessee. Revenues Tax Appeal, is therefore, dismissed.” 4.Mr. K.M. Parikh, learned advocate on behalf of the revenue is not in a position to dispute the above and is not in a position to show and/or point out any contrary decision. 5. Having heard learned advocates appearing on behalf of the parties and the question posed for consideration before us reproduced hereinabove and considering the decision of this Courtrendered in Tax Appeal No. 678 of 2006, the question which is raised in the present appeal is required to be answered in favour of the assessee. We are not giving further elaborate reasons for the same as in the aforesaid case,this Court has already answered the question in favour of the assessee. Accordingly, the question is answered in the affirmative i.e. against the appellant – revenue and in favour of the assessee. 6. In view of the above, the impugned judgment and order passed by the Tribunal is confirmed. Hence, the present Tax Appeal is dismissed. (K.S.JHAVERI, J.) divya (K.J.THAKER, J)