Commissioner Of Income Tax-Ii v. Klockner Desma Machinery Pvt Ltd....opponent(S

O/TAXAP/2244/2009 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD TAX APPEAL NO. 2244 of 2009 FOR APPROVAL AND SIGNATURE: HONOURABLE MR.JUSTICE KS JHAVERI and HONOURABLE MR.JUSTICE K.J.THAKER ==================================== ==================================== COMMISSIONER OF INCOME TAX-II....Appellant(s) Versus KLOCKNER DESMA MACHINERY PVT LTD....Opponent(s) ==================================== Appearance: MRS MAUNA M BHATT, ADVOCATE for the Appellant(s) No. 1MR MANISH J SHAH, ADVOCATE for the Opponent(s) No. 1 ==================================== CORAM: HONOURABLE MR.JUSTICE KS JHAVERIand HONOURABLE MR.JUSTICE K.J.THAKER Date : 19/12/2014 ORAL JUDGMENT(PER : HONOURABLE MR.JUSTICE KS JHAVERI) 1.By way of this appeal, the appellant has challenged the judgment and order of the Tribunal, whereby, the Tribunal has partly allowed the appeal preferred by the department. While admitting the matter, this Court has framed following substantial questions of law: “Whether the Appellate Tribunal is right in law and on facts in holding that only the net service charges, after allowing the expenses relateable thereto, are required to be excluded while computing deduction u/s. 80 IB of the Act?” 2.The identical question to the question of law raised in this appeal had come up for consideration before this Court in Tax Appeal No. 874 of 2008 and the Court, while deciding the said identical case by judgment and order 21/12/2013, has held in paragraph No. 7 as under: “7.Applying the ratio laid down by the Hon’ble Supreme Court in the case of Lakshmi Machine Works (Supra) and Shiva Tex Yarn Ltd. (Supra) as well as recent decision of this Court in Tax Appeal No. 884 of 2006 and other allied appeals, to the facts of the case on hand the question raised in the present Tax Appeal is answered against the revenue and it is held that the learned Tribunal has not committed any error in holding that the components of sales tax and central excise do not form part of sale proceeds for the purpose of Section 80HHC of the Act despite insertion of Section 145 A of the Act.” 3.There is no dispute amongst both the learned counsels that the aforesaid decision will apply in the facts of this case also, as the facts and the question of law raised, are identical and therefore, we are not giving elaborate reasons. 4. Accordingly, the question, Whether the Appellate Tribunal is right in law and on facts in holding that only the net service charges, after allowing the expenses relateable thereto, are required to be excluded while computing deduction u/s. 80 IB of the Act?”, is answered in favour of the assessee and against the department. The appeal stands dismissed accordingly. [ K. S. Jhaveri, J. ] [ K. J. Thaker, J. ]