Mr. Nitin Sardessai, Senior Advocate With Mr v. Oral Judgment ( Per F.m. Reis, J

IN THE HIGH COURT OF BOMBAY AT GOA.Tax AppealNo. 29 of 2015 M/S. SHAIV DISTILLERIES (P) LTD.,A Company incorporated under the Companies Act, 1956, having its Registered Office at Plot No.101-104, BicholimIndustrial Estate, Bicholim,Goa, represented by its Authorised Signatory Shri Pravin Kerkar, major of age, Indian National, having office at the above address .. Appellant Versus THE ASST. COMMISSIONER OF INCOME TAX,Circle – 2(1), having office at Aaykar Bhawan, Patto Plaza, Panaji, Goa. …. .. Respondent Mr. Nitin Sardessai, Senior Advocate with Mr. V. Amonkar,Advocate for the appellant. Ms. Asha Desai, Advocate for the respondent. ….. CORAM : F.M. REIS & K.L. WADANE, JJ.Dated : 07[th] JULY, 2015. ORAL JUDGMENT(Per F.M. Reis, J): 1]Heard Mr. Nitin Sardessai, learned Senior Counsel with Mr. V. Amonkar, learned Counsel for the appellant and Ms. Asha Desai, learned Advocate for the respondent. 2]Admit, on the following substantial questions of law:- (i)Whether the non-consideration of the provisions of Section 145A of the Income Tax Act vitiates the findingSection 145A of the Income Tax Act vitiates the finding of the Income Tax Appellate Tribunal? (ii)Is the benefits under Section 80IB of the Income Tax Act, 1961 erroneously rejected by the learned Tribunal.Act, 1961 erroneously rejected by the learned Tribunal. 3]The appeal is heard forthwith by consent of thelearned counsel appearing for the parties. Ms. Asha Desai,learned counsel waives notice on behalf of the respondent. 4]Mr. Sardessai, the learned Senior Counselappearing for the appellant has pointed out that theappellant is entitled for the benefits of Section 80IB of theIncome Tax Act, which have been rejected by the authoritiesbelow without examining the effect of the provisions ofSection 145A of the said Act. The learned Senior Counselhas taken us through the order passed by the Income TaxAppellate Tribunal at paragraph no.4 wherein though there isa reference to the said provision the effect of the saidprovision has not been examined whilst deciding thecontention by the learned Tribunal. The learned SeniorCounsel further points out that the Tribunal has relied uponthe judgment of the Apex Court in the case of Liberty India Vs. CIT reported in 317 ITR 218 (SC)referred to atparagraph no.3.3.2 and disallowed the benefits to theappellant without realising that the said judgment was notapplicable to the facts of the present case. The learnedSenior Counsel further submits that the appellant is entitledto the benefits after including the amounts deducting 75% ofVAT recovered to be included in the computation of profitsand, as such, the Tribunal was not justified to refuse suchbenefits. 5]On the other hand, Ms. Desai, the learned counselappearing for the respondent has disputed the contentionsof Mr. Sardessai, the learned Senior Counsel for theappellant, as according to her, the learned Tribunal hasrightly refused the benefits to the appellant. The learnedcounsel for the appellant, however, does not dispute the factthat there are no reasons in arriving at the decision as towhy the provisions of Section 145A of the Income Tax Actwould not be applicable to the facts of the present case. Thelearned counsel, as such, points out that the Tribunal canexamine the matter on that count afresh. 6]Upon hearing the learned counsel appearing forthe parties and on perusal of the records, we find that, infact, though there is a reference to the provisions of Section145-A of the Income Tax Act relied upon by the appellant,nevertheless there are no reasons in the impugned order ofthe learned Tribunal as to why the said provisions were notapplicable to the facts of the present case. 6]Upon hearing the learned counsel appearing forthe parties and on perusal of the records, we find that, infact, though there is a reference to the provisions of Section145-A of the Income Tax Act relied upon by the appellant,nevertheless there are no reasons in the impugned order ofthe learned Tribunal as to why the said provisions were notapplicable to the facts of the present case. 7]In such circumstances, without going into themerits of the rival contentions and the submissions of thelearned counsel appearing for the parties, we find that theorder passed by the Income Tax Appellate Tribunal deservesto be partly quashed and set aside and to remand thematter to the learned Tribunal to decide the appeal preferredby the appellant on ground no.2 afresh, in accordance withlaw. Both the substantial questions of law are answeredaccordingly. In such circumstances, without going into the 8]In view of the above, we pass the followingorder:-order:- Order (i)The impugned order dated 14[th] August, 2014 passed by the Income Tax Appellate Tribunal in ITANo.179/PNJ/2014 to the extent it decides ground no.2 therein is quashed and set aside. (ii)The ITA No.179/PNJ/2014 is restored to file of the learned Income Tax Appellate Tribunal. (iii)The learned Tribunal is directed to decide ground no.2afresh after hearing both the parties in accordancewith law. afresh after hearing both the parties in accordancewith law. (iv)All the contentions of the parties on merits in thatregard are left open. regard are left open. (v)The above appeal stands disposed of accordingly. K.L.WADANE, J F.M. REIS, J mukund