Commissioner Of Income Tax v. M/S Omsons International

IN THE HIGH COURT OF PUNJAB AND HARYANA ATCHANDIGARH. I.T.A. No.746 of 2010 Date of decision: 6.1.2011 Commissioner of Income Tax. Vs. M/s Omsons International. -----Appellant. -----Respondent CORAM:- HON'BLE MR. JUSTICE ADARSH KUMAR GOELHON'BLE MR. JUSTICE AJAY KUMAR MITTAL Present:-Mr. Vivek Sethi, Advocatefor the appellant. for the appellant. --- ADARSH KUMAR GOEL, J. 1. This appeal has been preferred by the revenue underSection 260-A of the Income Tax Act, 1961 (for short, “the Act”)against the order of the Income Tax Appellate Tribunal, Amritsarin I.T.A. No.335(ASR)/2009 for the assessment year 2004-05proposing to raise following substantial questions of law:- “(i)Whether on the facts and circumstances of the case, theITAT was right in law in not holding that total saleconsideration inclusive of face value of DEPB andpremium amount received thereof represents profitchargeable under sections 28(iiid) and 28(iiie) of theIncome Tax Act, 1961?ITAT was right in law in not holding that total saleconsideration inclusive of face value of DEPB andpremium amount received thereof represents profitchargeable under sections 28(iiid) and 28(iiie) of theIncome Tax Act, 1961? (ii)Whether on the facts and circumstances of the case, theITAT was right in law in not holding that profit on transferof DEPB entitlement represents the entire amountinclusive of premium of sale of such DEPB?ITAT was right in law in not holding that profit on transferof DEPB entitlement represents the entire amountinclusive of premium of sale of such DEPB? (iii)Whether on the facts and circumstances of the case, theITAT was right in law in holding that the word “profit”referred to in Sections 28(iiid) and 28(iiie) of the IncomeTax Act, 1961 means the difference between the sale priceof DEPB and the face value of DEPB ignoring the fact thatthe entire amount represents the profit in the hands ofassessee?ITAT was right in law in holding that the word “profit”referred to in Sections 28(iiid) and 28(iiie) of the IncomeTax Act, 1961 means the difference between the sale priceof DEPB and the face value of DEPB ignoring the fact thatthe entire amount represents the profit in the hands ofassessee? (iv)Whether on the facts and circumstances of the case, theITAT was right in law in deducting the face value of DEPBfrom its sale price for calculating profit under Sections 28(iiid) and 28(iiie) of the Income Tax Act, 1961 as if the facevalue is the cost incurred by the assessee to acquire theDEPB?ITAT was right in law in deducting the face value of DEPBfrom its sale price for calculating profit under Sections 28(iiid) and 28(iiie) of the Income Tax Act, 1961 as if the facevalue is the cost incurred by the assessee to acquire theDEPB? (v)Whether on the facts and circumstances of the case, theITAT was right in law in holding that the word profitreferred to in Sections 28(iiid) and 28(iiie) of the IncomeTax Act, 1961 requires any artificial cost to be interpolatedto the extent that the face value of DEPB/DFRC should bededucted from the sale proceed for the purpose ofdetermination of deduction under Section 80HHC of theIncome Tax Act, 1961?ITAT was right in law in holding that the word profitreferred to in Sections 28(iiid) and 28(iiie) of the IncomeTax Act, 1961 requires any artificial cost to be interpolatedto the extent that the face value of DEPB/DFRC should bededucted from the sale proceed for the purpose ofdetermination of deduction under Section 80HHC of theIncome Tax Act, 1961? (vi)Whether on the facts and circumstances of the case, theITAT has failed to appreciate that deduction u/s 80HHC ofthe Income Tax Act, 1961 was rightly computed inaccordance with amendment made by the Taxation Laws(Amendment) Act, 2005 with retrospective effect from01.04.1998?” (vi)Whether on the facts and circumstances of the case, theITAT has failed to appreciate that deduction u/s 80HHC ofthe Income Tax Act, 1961 was rightly computed inaccordance with amendment made by the Taxation Laws(Amendment) Act, 2005 with retrospective effect from01.04.1998?” 2. Learned counsel for the appellant states that the matter iscovered in favour of the revenue by orders of this Court dated16.8.2010 in I.T.A. No.301 of 2010 CIT v. M/s Victor ForgingsandI.T.A. No.299 of 2010CITv. F.C. Sondhi, wherein after noticingthe judgment of the Bombay High Court in CITv. KalpataruColours & Chemicals2010 (42) DTR 193, the matter was remanded to the Tribunal for fresh decision in accordance withlaw. 3. Since we find that the matter is covered by earlierorders of this Court, we dispose of this appeal in same terms.For this purpose, we have not considered it necessary to issuenotice to the respondent, but we give liberty to the respondent tomove this Court if they have any grievance against this order. (ADARSH KUMAR GOEL) JUDGE January 06, 2011ashwani ( AJAY KUMAR MITTAL ) JUDGE