Commissioner Of Income Tax-Iii, Chennai v. M/S.rajkumar Impex Pvt. Ltd., B-603, Keshav Dugar Apartments

IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 30.04.2021 CORAM THE HON'BLE MR.JUSTICE M. DURAISWAMYANDTHE HON'BLE MRS.JUSTICE R. HEMALATHA Tax Case Appeal No.516 of 2010 Commissioner of Income Tax-III,Chennai. ... AppellantVs. M/s.Rajkumar Impex Pvt. Ltd.,B-603, Keshav Dugar Apartments,No.1, East Avenue,Keshav Perumal Puram,R.A.Puram, Chennai – 600 028. ...Respondent Tax Case Appeal filed under Section 260A of the IncomeTax Act, 1961 against the order of the Income Tax AppellateTribunal, Chennai "B" Bench, dated 16.10.2009 passed inI.T.A.No.93/Mds/2009 against the order of the Commissioner ofIncome Tax (Appeals)-V Chennai-34 dated 09/06/2008 madein ITANo.592/2006-07 and against the order of the Income Tax Officer(OSD), Company Circle -V(3), Chennai dated 27/12/2006 inP.A.No.GIR No.AAACR35773/53088-R for the assessment Year 2004-05. For Appellant : Mr.T.Ravikumar Senior Standing Counsel and Mrs.R.Hemalatha Standing Counsel For Respondent : Mr.R.Venkata Narayanan for M/s.Subbaraya Aiyar PadmanabhanJ U D G M E N T(Delivered by M.DURAISWAMY, J.) This appeal filed by the Revenue under Section 260A ofthe Income Tax Act, 1961 ('the Act' for brevity), is directedagainst the order dated 16.10.2009 passed by the Income TaxAppellate Tribunal, Chennai "B" Bench, ('the Tribunal' forbrevity) in I.T.A.No.93/Mds/2009 for the assessment year2004-05. The above appeal has been admitted on 29.06.2010 onthe following Substantial Questions of Law: https://hcservices.ecourts.gov.in/hcservices/ "1.Whether on the facts and in thecircumstances of the case, the Income Tax AppellateTribunal was right in holding that the assessee wasentitled to the deduction u/s.80IA on thedisallowance made u/s.40A(3) even though suchdisallowance could not be considered as income'derived' from the eligible industrial undertakingin the light of the decisions of Supreme Court inCambay Electric Supply Industrial Co. Ltd. v.Commissioner of Income Tax (113 ITR 84). PandianChemicals Ltd. v. Commissioner of Income Tax (262ITR 278) and Commissioner of Income Tax v. SterlingFoods (237 ITR 579)? 2.Whether on the facts and in the circumstancesof the case, the Income Tax Appellate Tribunal wasright in holding that the face value of DEPB ischargeable to tax on accrual basis and that theprofit on sale of DEPB representing the excess ofsale proceeds of DEPB over its face value is liableto be considered u/s.28(iiid) at the time of itssale? 3.Whether on the facts and in the circumstancesof the case, the Income Tax Appellate Tribunal wasright in not holding that the scheme of DEPB is notan automatic benefit to an exporter in the form ofcash assistance; but arises only on makingapplication to the concerned authority pursuant toexports and is in the nature of 'benefit ofperquisite arising out of business' and therefore ischargeable to tax u/s.28(iv)?” 2. We have heard Mr.T.Ravikumar, learned Senior StandingCounsel and Mrs.R.Hemalatha, learned Standing Counsel for theappellant/Revenue and Mr.R.Venkata Narayanan for M/s.SubbarayaAiyarPadmanabhan,learnedcounselfortherespondent/assessee. 3. It may not be necessary for this Court to decide theSubstantial Questions of Law framed for consideration onaccount of certain subsequent developments. The Government ofIndia enacted the Direct Tax Vivad Se Vishwas Act, 2020 (Act 3of 2020) to provide for resolution of disputed tax and formatters connected therewith or incidental thereto. The Act ofthe Parliament received the assent of the President on 17[th]March 2020 and published in the Gazette of India on 17[th] March2020. https://hcservices.ecourts.gov.in/hcservices/ 4.Learned counsel for the respondent/assessee submittedthat the assessee had availed the Vivad Se Vishwas Scheme andthat the respondent/assessee had already been issued withForm–5 on 22.04.2021. 3. It may not be necessary for this Court to decide theSubstantial Questions of Law framed for consideration onaccount of certain subsequent developments. The Government ofIndia enacted the Direct Tax Vivad Se Vishwas Act, 2020 (Act 3of 2020) to provide for resolution of disputed tax and formatters connected therewith or incidental thereto. The Act ofthe Parliament received the assent of the President on 17[th]March 2020 and published in the Gazette of India on 17[th] March2020. https://hcservices.ecourts.gov.in/hcservices/ 4.Learned counsel for the respondent/assessee submittedthat the assessee had availed the Vivad Se Vishwas Scheme andthat the respondent/assessee had already been issued withForm–5 on 22.04.2021. 5.Since the respondent/assessee had been issued withForm-5, nothing survives for adjudication in the above appeal.Recording the submission made by the learned counsel for therespondent/assessee, the Tax Case Appeal stands disposed of.No costs. Sd/-Assistant Registrar//True copy//Sub Assistant RegistrarmknTo1. Income Tax Appellate Tribunal, Chennai "B" Bench 2.The Commissioner of Income Tax-III, Chennai.3. The Commissioner of Income Tax(Appeals)-V Chennai.4. The Income Tax Officer(OSD) Company Circle -V(3), Chennai.+1cc to Mr.T.Ravikumar, Advocate SR.No.26523 Tax Case Appeal No.516 of 2010 GP(CO)GMY(01/07/2021)