Jyoti Ceramic Industries Private Limited v. The Asstt. Commissioner Of Income Tax, Circle 5 (2

IN THE HIGH COURT OF JUDICATURE AT BOMBAYORDINARY ORIGINAL CIVIL JURISDICTION INCOME TAX APPEAL NO.1041 OF 2008 Jyoti Ceramic Industries Private Limited..Appellant. Versus The Asstt. Commissioner of Income Tax, Circle 5 (2) ..Respondent. Mr.Prakash Shah with Mr.Jas Sanghavi i/by PDS Legal for the appellant.Mr.P.S. Sahadevan for the respondent. CORAM : J.P. Devadhar & Mrs.Mridula Bhatkar, JJ. P.C. : DATE : 17[th] January, 2011. 1.This appeal was admitted on 30-01-2009 on the following substantial questions of law : i)In the facts and circumstances of the present case, whether the Appellate Tribunal was right in holding that for the purpose of computing relief under Section 80HHC of the Act, the relief granted to the appellant under Section 80IB of the Act should be reduced ?Appellate Tribunal was right in holding that for the purpose of computing relief under Section 80HHC of the Act, the relief granted to the appellant under Section 80IB of the Act should be reduced ? ii)Whether the Tribunal was right in following the judgment of Chennai Special Bench passed in the case of Rohini Garments reported in 108 ITD 49 in the light of judgment of the Chennai High Court in the case of SCM creations holding that deduction can be claimed both under sections 80HHC and 80IB simultaneously ?Special Bench passed in the case of Rohini Garments reported in 108 ITD 49 in the light of judgment of the Chennai High Court in the case of SCM creations holding that deduction can be claimed both under sections 80HHC and 80IB simultaneously ? iii)In the facts and in the circumstances of the present case, whether the Tribunal was right in holding that the income earned from sample testing charges does not form part of the business profits for working out the deduction under Section 80HHC ?Tribunal was right in holding that the income earned from sample testing charges does not form part of the business profits for working out the deduction under Section 80HHC ? iv)Whether the Tribunal erred in following the decisionj in the case of Salgaocar Mining Industries Limited V/s. Dy. Commissioner of Income Tax (Assessment) reported in 61 ITD 105 (Pune) and confirming inclusion of packing and forwarding charges as a part of the total turnover for computation of deduction under Section 80HHC of the Act?Salgaocar Mining Industries Limited V/s. Dy. Commissioner of Income Tax (Assessment) reported in 61 ITD 105 (Pune) and confirming inclusion of packing and forwarding charges as a part of the total turnover for computation of deduction under Section 80HHC of the Act? 2.Counsel for the parties state that the first two questions are answered against the Revenue and in favour of the Revenue by the decision of this Court in the case of Associates Capsules Limited V/s. Dy. Commissioner of Income Tax (Income Tax Appeal No.3036 of 2010) decided on 10-01-2011. Accordingly, both the questions are answered in favour of the assessee and against the Revenue. 3.As regards third question is concerned, Counsel for the assessee states that in view of smallness of the tax effect involved, he does not press the question for the assessment year in question. Accordingly, third question is not answered in view of the statement made by the learned Counsel for the Appellant. 4.As regards fourth question is concerned, the matter is remanded back to the Tribunal to decide the question in the light of the decision in the case of Salgaoncar Mining Industries Limited V.s. Deputy Commissioner of Income Tax reported in 63 ITD 104, as it is contended that the decision of the Tribunal is in favour of the assessee. 5. The appeal is accordingly disposed off with no order as to costs. (Mrs.Mridula Bhatkar, J.) (J.P. Devadhar, J.)