Commissioner Of Income Tax-1 v. Hindustan Lever Ltd

sbw *1* IN THE HIGH COURT OF JUDICATURE AT BOMBAYORDINARY ORIGINAL CIVIL JURISDICTION INCOME TAX APPEAL NO.306 OF 2012WITHINCOME TAX APPEAL NO.1026 OF 2013 Commissioner of Income Tax-1 ..Appellant -Versus- Hindustan Lever Ltd...Respondent ........... Mr. Suresh Kumar for the Appellant. Mr. P. J. Pardiwalla, Senior Counsel, with Mr. Nishant Thakkar i/b. Mulla & Mulla & C.B. & Caroe for the Respondent. ........... CORAM: S.C. DHARMADHIKARIAND A. K. MENON, JJ. DATE :- 18[th] SEPTEMBER, 2014 P.C.: 1]There are three questions which are termed as substantial questions of law and arising out of the order of the Tribunal impugned in this Appeal. That order of the Tribunal is dated 21[st] September, 2011 and is pertaining to the assessment year 1989-90. The substantial questions of law are as follows:- “(a) Whether on the facts and in the circumstance of the case and in law, the ITAT was right in deleting the disallowances of Rs.4,95,323/- on account of sales tax set-off u/s 43B? (b) Whether on the facts and in the circumstance of the case and in law, the ITAT was right in directing the Assessing Officer to exclude from total turnover the distribution cost received for computing the deduction u/s 80 HHC of the Act? (c) Whether on the facts and in the circumstance of the case and in law, the ITAT was right in upholding the directions of Commissioner of Income Tax (Appeals) to rework the deductions u/s 80HH in respect of Haldia unit without adjusting the brought forward losses and unabsorbed depreciation in respect of the same unit?” 2]When this Appeal was argued before us by Mr. Suresh Kumar, learned counsel, appearing for the Revenue and Mr. Pardiwalla, learned Senior Counsel, appearing for the Assessee, the Revenue's counsel fairly brought to our notice the order passed in the case of this very Assessee on 1[st] April, 2014 by a Division Bench of this Court in Income Tax Appeal No.5794 of 2010. To this order one of us (S. C. Dharmadhikari, J.) was a party. We dealt with an identical issue and which is referred in questions (a) and (b) reproduced above. We followed the judgment of this Court in the case of Commissioner of Income Tax V/s. Geoffery Manners & Co. Ltd. in Income Tax Application No.10 of 2002 decided on 13[th] December, 2005. Both sides fairly conceded that questions (a) and (b) reproduced above stand answered in favour of the Assessee and against the Revenue by these two set of orders. 3]In relation to question (c), what we have noted is that the Tribunal in the impugned order and particularly para 27.1 thereof (page 145 of the *3* 6.itxa306.12 paper book) referred to the factual position. The factual position as emerging from the record was identical to the earlier assessment year 1988-89. The Revenue raised the same issue and relied on a judgment of the Hon'ble Supreme Court before the Tribunal. That judgment was distinguished by the Tribunal in holding in favour of the Assessee for above assessment year. The facts of the case pertaining to the present assessment year, are also held to be identical by the Tribunal. Hence, the Tribunal followed its own factual conclusions for the assessment year 1988-89 and in the case of the very Assessee. It confirmed the order of the Commissioner of Income Tax (Appeals) in relation to the deduction under section 80HH. However, it proceeded to set aside the order of the Commissioner of Income Tax (Appeals) in relation to section 80I. The same question and in identical circumstances was raised in the case of this very Assessee in Income Tax Appeal No.1440 of 2011 which we decided on 17[th] April, 2014. Question (E) of the Revenue's Appeal in that matter was identically worded to question(c) reproduced above. We have been shown our order of 17[th] April, 2014 and particularly para 5 thereof. 4]Since the controversy and factual being identical to the earlier assessment order, no distinguishable feature being pointed out, we apply the same reasons as recorded by us in para 5 of our order dated 17[th] April, 2014 and conclude that question (c) also cannot be termed as substantial question of law. 5]For the aforesaid reasons, the Appeals fail and they are, accordingly, dismissed. There would be no orders as to costs. (A. K. MENON, J.) (S.C. DHARMADHIKARI, J.) wadhwa