M/S Saboo Cement v. The Deputy Commissioner Of

IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION ORDINARY ORIGINAL CIVIL JURISDICTION ORDINARY ORIGINAL CIVIL JURISDICTION INCOME TAX APPEAL No. 177 OF 2005. INCOME TAX APPEAL No. 177 OF 2005. M/s Saboo Cement ..Appellant. Vs The Deputy Commissioner of Income-tax, Special Range-40, Mumbai & Others. ..Respondents. Mr A. S. Khandeparkar i/b Akshar Laws, Advocate for the Appellant. Mr Bhatnagar with Mr N.R. Prajapati, Advocate for the Respondents. CORAM: Dr.S. RADHAKRISHNAN CORAM: Dr.S. RADHAKRISHNAN AND V.C.DAGA, JJ. AND V.C.DAGA, JJ. DATED: 1st DECEMBER, 2008. DATED: 1st DECEMBER, 2008. P.C.: P.C.:---- ---- 1. Heard the learned counsel for the Appellant. None appears for the Respondent. 2. In the above appeal, the Appellant is seeking to raise the following questions of law: 1. Whether on the facts and in the circumstances of the case and in law the Tribunal was justified in excluding the sum of Rs. 24,85,302/-, being the interest on short term deposit, as a profit attributable to the industrial undertaking (established in the backward area/priority industry) for the purpose of deduction under Section 80 HH and 80 I of the Income-tax Act, 1961 for the Assessment year 1993-94? 2. Whether on the facts and in the circumstances of the case and in law the Tribunal was justified in excluding the amount of Rs. 86,83,574/- earned by the Appellant as erection, commissioning and civil designing charges, as profit backward area/priority industry) for the purpose of deduction under Section 80 HH and 80 I of the Income-tax Act, 1961 for the assessment year 1993-94? 3. Whether on the facts and in the circumstances of the case, the Tribunal was justified in excluding the amount of Rs. 1,04,307/-, being the amount of Excise Duty refund as part of the profit attributable to the industrial undertaking (established in the backward area/priority industry) for the purpose of deduction under Section 80 HH and 80 1 of the Income-tax Act, 1961 for the assessment year 1993-94? 3. We have perused the Tribunal’s order dated 9th December, 2003. The Tribunal has recorded the reasons in paragraph 7. The Tribunal has observed that the interest income earned is not derived from industrial undertaking inasmuch as the source of receipt was F.D. in the bank and it had no direct immediate nexus with the industrial undertaking. The Tribunal has also observed that there has to be a live link between the industrial undertaking and the income earned and there is no such thing in the case of the appellant. Similarly, in second question of law, the Central Excise Refund also the Tribunal found that the immediate source of the refund amount was not the industrial undertaking. Over and above, it appears that the appellant had already passed on the incidence of Central Excise to the Customer. In view of the aforesaid findings, there is no substantial question of law involved in the appeal. 4. So far as the third question is concerned, in paragraph 11, the Tribunal has clearly observed that the Appellant had already credited the erection commissioning and designing amount of Rs.86,83,574/- and while selling the entire erected structure to its customer, the total amount collected was Rs. 4,75,32,611/- which includes the aforesaid sum of Rs. 86,83,574/-. 5. We agree with the view taken by the Tribunal in favour of the Revenue and against the Assessee. In view of the aforesaid categorical findings of fact, there is absolutely no merit in the appeal. No substantial question of law is involved. of Central Excise to the Customer. In view of the aforesaid findings, there is no substantial question of law involved in the appeal. 4. So far as the third question is concerned, in paragraph 11, the Tribunal has clearly observed that the Appellant had already credited the erection commissioning and designing amount of Rs.86,83,574/- and while selling the entire erected structure to its customer, the total amount collected was Rs. 4,75,32,611/- which includes the aforesaid sum of Rs. 86,83,574/-. 5. We agree with the view taken by the Tribunal in favour of the Revenue and against the Assessee. In view of the aforesaid categorical findings of fact, there is absolutely no merit in the appeal. No substantial question of law is involved. 6. In the result, the appeal is dismissed. (V.C. DAGA,J)(DR S. RADHAKRISHNAN,J) (V.C. DAGA,J)