Metro Exporters Private Limited v. The Assistant Commissioner Of Income Tax, Range 6(3

IN THE HIGH COURT OF JUDICATURE AT BOMBAYORDINARY ORIGINAL CIVIL JURISDICTION INCOME TAX APPEAL (L) NO.838 OF 2011 Metro Exporters Private Limited..Appellant. Versus The Assistant Commissioner of Income Tax, Range 6(3) ..Respondent. Ms.Vasanti B. Patel for the appellant.Mr.Abhay Ahuja for the respondent. CORAM : J.P. Devadhar & K.K. Tated, JJ. P.C. : DATE : 30[th] August, 2011. 1.Office objections waived. Office to register the appeal. 2.Although four questions are raised by the appellant – assessee in this appeal, counsel for the appellant states that the first three questions are covered against the assessee by the decision of this Court in the case of Commissioner of Income Tax V/s. Kalpataru Colours & Chemicals reported in (2010)328 ITR 451 (Bom). Accordingly, first three questions cannot be entertained. 3.As regards fourth question is concerned, the Income Tax Appellate Tribunal has disallowed the claim of the assessee by following the decision of this Court in the case of Commissioner of Income Tax V/s. Dresser Rand India Private Limited reported in (2010)323 ITR 429 (Bom). 4.The dispute in the present case relates to the balance written back in respect of the expenditure incurred by the assessee. The Commissioner of Income Tax (Appeals) in his order has recorded a finding that in the facts of the present case, the balance written back in respect of the expenditure incurred amounting to Rs.6,53,961/- is liable to be considered as business income eligible for deduction under Section 80HHC. In such a case, whether the decision of this Court in the case of Dresser Rand India Private Limited (supra) would apply is the question. 5.Since this aspect of the matter is not considered by the Income Tax Appellate Tribunal, by consent, the order of the Income Tax Appellate Tribunal is set aside on the fourth question and the said issue is restored to the file of the assessing officer for fresh consideration and in accordance with law. While passing fresh order, the assessing officer shall also take into consideration, the decision of this Court in the case of Commissioner of Income Tax V/s. Pfizer Limited reported in (2011) 330 ITR 62 (Bom). 6.The appeal is accordingly disposed off with no order as to costs. (J.P. Devadhar, J.)