Of Chouringhee Sales Beaurea Pvt. Ltd v. Cit (87 Itr 545 (Sc)) Which Directly

1 AGK IN THE HIGH COURT OF JUDICATURE AT BOMBAY AGK ORDINARY ORIGINAL CIVIL JURISDICTION INCOME TAX APPEAL NO.245 OF 2007 The Commissioner of Income-tax-9 ..Appellant. V/s. M/s.B.D.H. Industries Ltd. ..Respondent. Mr.Suresh Kumar i/by Suraj M. Shah for the appellant. Ms.Asifa Khan for the respondent. CORAM : SMT.RANJANA DESAI & J.P. DEVADHAR, JJ. DATED : 28TH JANUARY, 2009 P.C. : 1. Heard learned counsel for both the sides. The revenue has raised following substantial questions of law : a) Whether on the facts and in the circumstances of the case and in law, the Hon’ble Tribunal is right in holding that the job work receipts are miscellaneous receipts and thereby not entitled to reduce from the profits while computing the deductions under Section 80HHC ? b) Whether on the facts and in the circumstances of the case in law, the ITAT rightly rejected the Appeal of the Appellant on the basis in the case of CIT V/s.Sudershan Chemicals Industries Ltd., 2 (245 ITR 769) without considering the case of Chouringhee Sales Beaurea Pvt. Ltd. Vs. CIT (87 ITR 545 (SC)) which directly applied to the facts of the case ? c) Whether on the facts and in the circumstances of the case of law, the ITAT is right in law from the plain meaning of Clause (a) of the explanation below sub-section (4B) of Section 80 HHC as to be excluded in arriving at ‘total turnover’ of the business will be freight and insurance attributable to the transport of the goods or merchandise beyond the Custom station. d) Whether on the facts and in the circumstances of the case and in law, the Hon’ble Tribunal is correct when it hold the amendment of Section 43B of the Income Tax Act operates retrospectively in view of the decision in the case of M/s.Vestar RRB India Limited. 2. So far as question (a) is concerned, learned counsel are agreed that in an appeal filed by the revenue in assessee’s case similar question has been remanded to the assessing officer for denovo consideration. In view of this, question of law (a) is remanded to the assessing officer for denovo consideration. 3. In so far as question of law (b) is concerned, learned counsel for the appellant fairly states that the same is covered against the revenue as per the judgment of the Supreme Court in 290 ITR 667 and hence he does not press the same. 4. Learned counsel for the appellant further 3 fairly states that question of law (c) does not arise out of the order of the tribunal. Hence, it is not pressed in this appeal. 5. The appeal is admitted on the question of law (d) quoted above. (Judge) (Judge)