M/S Vijay Oil Mills Alwar v. The Commissioner Of Income Tax

HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH ATJAIPUR D.B. Income Tax Application No. 3 / 2003 M/S Vijay Oil Mills Alwar Versus The Commissioner Of Income Tax ----Petitioner ----Respondent _____________________________________________________ For Petitioner(s) : Mr. P.K. Kasliwal and Mr. Anant Kasliwal For Respondent(s) : Ms Parinitoo Jain _____________________________________________________ HON'BLE MR. JUSTICE K.S. JHAVERI HON'BLE MR. JUSTICE VINIT KUMAR MATHURJudgment 17/01/2017 1. In this reference, following question was framed vide orderdated 24.11.2003: “Whether on the facts and circumstances of the case,the Tribunal was right in law in holding that deductionunder Section 80HH and 80I be computed out of theincome and computed under the Income Tax Act i.e.out of the profits and gains after deduction ofdepreciation and investment allowance.” 2.However, in view of the subsequent decision of this Court dated 7.12.2016 in Tax Appeal No. 879/2008 wherein it has beenheld as under: “However, in view of the subsequent decision of thisCourt, dated 24.02.2015 in DB Income Tax AppealNo.125/2004 in case of Vijay Solvex Ltd. Vs.Commissioner of Income Tax, Alwar and DB IncomeTax Appeal No.185/2004 decided on 06.01.2014 incase of Vijay Solvex Ltd. vs. Commissioner ofIncome Tax, Alwar, the issue is required to beanswered in favour of the department and against the assessee. However, Mr. Kasliwal contended that the issue ispending before the Supreme Court in M/s VijayIndustries Vs. Commissioner of Income Tax, CivilAppeal Nos. 1581-1582 of 2005 wherein the matterhas been referred a Larger Bench in view of theobservations made in para 7 & 8:- 7. The finding in paragraph 4 in MotilalPesticides (supra) that the language ofSection 80-HH and Section 80-M is the sameis, with respect, prima facie, incorrect.Conceptually, “any income” and “profits andgains” are different under the Income TaxAct. (See Section 80-M read with Sections80-AA & AB, Section 80-T which speak of“any income” and Section 28 which speaks of“income from profits and gains” showingthereby that conceptually the twoexpressions are understood as distinct inlaw). 8. In paragraph 5 of the judgment in MotilalPesticides (supra), Shri Ramamurthi, learnedsenior counsel appearing for the appellantsubmitted that both Cloth Traders andDistributors (Baroda) were cases whichpertained to Section 80-M only and this Courthad no occasion to consider the application ofSection 80-AB with reference to Section 80-HH of the Act. The Court in repelling thiscontention referred to another decision inH.H. Sir Rama Verma V.CIT (1994) Supra (1)SCC 473, which judgment dealt with the thennewly enacted Section 80-AA and 80-AB.Both these sections again are relatable todeductions made under Section 80-M; andSection 80-T with which that judgment wasconcerned also uses the expression “anyincome” as opposed to “profits and gains”. Itwill be clear, therefore, that prima facieVerma's case again has very little to do withthe concept of “profits and gains” with whichwe are concerned here. For these reasons,the matters be placed before the Hon'bleChief Justice of India to constitute anappropriate Bench to consider thecorrectness of the judgment in MotilalPesticides (supra).” We have heard both the sides. Following the decision of this Court in case of the sameassessee, the issue is answered in favour of thedepartment and against the assessee. It is made clearthat the decision of Supreme Court in Civil AppealNo.1581-1582 of 2005 will be binding on both the parties even for the years under consideration. If thedecision is passed in favour of the assessee, it will beopen for him to produce the same decision before theAssessing Officer and the same benefit will be grantedto the assessee. We have heard both the sides. Following the decision of this Court in case of the sameassessee, the issue is answered in favour of thedepartment and against the assessee. It is made clearthat the decision of Supreme Court in Civil AppealNo.1581-1582 of 2005 will be binding on both the parties even for the years under consideration. If thedecision is passed in favour of the assessee, it will beopen for him to produce the same decision before theAssessing Officer and the same benefit will be grantedto the assessee. In that view of the matter, all issues are answered infavour of the department and against the assessee.” 3.The issue will not survive. The reference is accordingly disposed of. Same benefit will be given to the parties of the present case. (VINIT KUMAR MATHUR)J. (K.S. JHAVERI)J. //Bmg 52