Betts India Pvt. Ltd.,L-78, Verna Electronic City, Verna, Salcete, Goa 403 722 v. The Asstt. Commissioner Of Income Tax, Circle L, …..Margao, Goa

1 Santosh IN THE HIGH COURT OF BOMBAY AT GOA TAX APPEAL NO.15 OF 2009 Betts India Pvt. Ltd.,L-78, Verna Electronic City, Verna, Salcete, Goa 403 722. ….. Appellant. Versus The Asstt. Commissioner of Income Tax, Circle l, …..Margao, Goa. Respondent. Ms. Priyanka Kamat, Advocate for the Appellant. Ms. Susan Linhares, Standing Counsel for the Respondent. Coram : M.S. Sonak & C.V. Bhadang, JJ. Date : 5th November, 2019. ORAL JUDGMENT: (Per M.S. Sonak, J.) Heard Ms. Priyanka Kamat for the Appellant and Ms.Susan Linhares for the Respondent. 2. By our order dated 07/09/2009, this appeal was admittedon the following substantial questions of law : " 1. Whether the ITAT erred in upholding the validity ofthe Assessment Order dated 28th February, 2005 passed bythe Respondent under Section 143(3) read with Section147 of the Act ? 2 2. Whether the ITAT erred in upholding that it wasmandatory for depreciation to be granted whiledetermining the Appellant's entitlement to the deductionunder Section 80IB of the Act, even though the Appellanthad not claimed such depreciation ?" 3.Ms. Kamat, learned Counsel for the Appellant quitecorrectly presses for adjudication on the second substantial questionof law which, in fact, really the only substantial question of lawwhich arises for determination in this matter. 4.Ms. Kamat points out that when this Appeal was admittedon 7/9/2009 and the aforesaid questions of law were formulated, theorder made by the Division Bench of this Court dated 19/12/2008in Income Tax Appeal No.1282/2007 was undertaken to be placedon record. She points out that the impugned Judgment and Ordermade by the ITAT in the present case, entirely relies upon thedecision of yet another Division Bench of this Court in ScoopIndustries Pvt. Ltd. vs. I.T.O. & Ors.1. She further points out thatby order dated 19/12/2008 in Income Tax Appeal No.1282/2007,another Division Bench of this Court noticed conflict between thedecisions in the case of Grasim Industries Limited vs. ACIT[2]andScoop Industries Pvt. Ltd. (supra) and, therefore, directed that thematters be placed before the Hon'ble the Chief Justice for reference 1289 ITR 195 (Bom.) 3 txa15-09-dt. 05-11-19 to a Full Bench. Ms. Kamat submits that if the Full Bench were todecide that the law laid down in Scoop Industries Pvt. Ltd. (supra) isno longer a good law then, the substantial question of law pressed forby her will have to be decided in favour of the Appellant and againstthe Revenue. She submitted that she is unaware as to whether theFull Bench has already decided the matter or not and, on this ground,applied for deferment of the proceedings. 5.Since the matter has been adjourned from time to time andon one occasion the same was even dismissed for non-prosecution, wewere quite reluctant to defer the hearing in this matter, any further. 6.Ms. Linhares, learned Standing Counsel for the Respondentalso stated that she is unaware as to whether the Full Bench hasalready disposed of the reference made to it. 7.In a matter of this nature which has been pending since2009 and adjourned on several occasions, least that we expect wasthat the learned Counsel for the parties at least make efforts to findout whether the reference before the Full Bench has been disposed oror not. At the present stage, this is not at all difficult, because all theJudgments and Orders delivered by the Bombay High Court areinvariably uploaded on the dedicated website made for the purpose. 8.Whilst the matter was proceeding, the CourtSuperintendents themselves accessed the internet and produced 4 before us the Judgment and Order dated 16.10.2009 delivered bythe Full Bench of this Court in Income Tax Appeal No.1282/2007.We note that this was an exercise which could have been easilyundertaken by the learned Counsel for the parties, but the same wasnot undertaken despite several adjournments. 8.Whilst the matter was proceeding, the CourtSuperintendents themselves accessed the internet and produced 4 before us the Judgment and Order dated 16.10.2009 delivered bythe Full Bench of this Court in Income Tax Appeal No.1282/2007.We note that this was an exercise which could have been easilyundertaken by the learned Counsel for the parties, but the same wasnot undertaken despite several adjournments. 9.From the perusal of the Judgment and Order dated16.10.2009 in Income Tax Appeal No.1282/2007, it is apparent thatthe Full Bench has held that there is really no conflict as such in thedecisions of this Court in the cases of Grasim Industries Limited(supra)and Indian Rayon Corporation Ltd. vs. CIT[3]which is infact the decision followed in Scoop Industries Pvt. Ltd. (supra). TheFull Bench has held that the ratio laid down in both the cases, is inconsonance with the ratio laid down by the Hon'ble Apex Court inthe case of Distributors (Baroda) P. Ltd. vs. Union of India4.Upon analysis of the legal position, the Full Bench concluded that forthe purposes of deduction under Chapter VIA, the gross total incomehas to be computed inter alia by deducting the deductions allowableunder Section 30 to 43D of the Act, including depreciation allowableunder Section 32 of the Income Tax Act, even though the Assesseemay have computed the total income under Chapter IV bydisclaiming the current depreciation. This, according to us, affords afull answer to the substantial question of law, now pressed in this 3261 ITR 98 (Bom) 4155 ITR 120 (SC) 5 Appeal. 10.Since, the ITAT in the impugned Judgment and Order,has merely followed our decision in Scoop Industries Pvt. Ltd. (supra)and, since, the Full Bench has now noted that there is no conflictwhatsoever between the decisions in Scoop Industries Pvt. Ltd.(supra) and Grasim Industries Limited (supra), the substantialquestion of law, now framed, is required to be answered against theAppellant and in favour of the Revenue. 11.As a result, this Appeal fails and is dismissed. There shall,however, be no order as to costs. C.V. Bhadang, J. M.S. Sonak, J.