The Assistant Commissioner Of Income Tax, Circle v. B. Sureshkumar & Co (Rf)....Opponent(S

O/TAXAP/285/2008 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD TAX APPEAL NO. 285 of 2008 FOR APPROVAL AND SIGNATURE: HONOURABLE MR.JUSTICE KS JHAVERI and HONOURABLE MR.JUSTICE K.J.THAKER ================================================================ 1 Whether Reporters of Local Papers may be allowed to see the judgment ?the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ?judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the Constitution of India, 1950 or any order made thereunder ?to the interpretation of the Constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ================================================================ THE ASSISTANT COMMISSIONER OF INCOME TAX, CIRCLE 6....Appellant(s) Versus B. SURESHKUMAR & CO (RF)....Opponent(s) ================================================================ Appearance: MR SUDHIR M MEHTA, ADVOCATE for the Appellant(s) No. 1RULE UNSERVED for the Opponent(s) No. 1 ================================================================ CORAM: HONOURABLE MR.JUSTICE KS JHAVERI and HONOURABLE MR.JUSTICE K.J.THAKER Date : 21/11/2014 ORAL JUDGMENT (PER : HONOURABLE MR.JUSTICE KS JHAVERI) 1.This Tax Appeal u/s.260A of the Income-tax Act, 1961 is filed against the judgment and order dated 29.06.2007 passed by the Income Tax Appellate Tribunal, Ahmedabad Bench in ITA No.524/AHD/2007 whereby, the appeal filed by the assessee was partly allowed. 2.Briefly stated, the facts are that the respondent herein is a registered partnership firm engaged in the business of export of diamonds. The assessee-company filed its return of income on 24.10.2003 for the Assessment Year 2003-04 declaring total income of Rs.50,13,903/-. Assessmentscrutinywasundertakenand thereafter, vide order dated 22.03.2006, the A.O determined the total income of the assessee at Rs.77,89,970/-. 3.Being aggrieved by the order passed by the A.O., appeal was preferred before the CIT(A). By order dated 30.11.2006, the CIT(A) partly allowed the appeal and directed the A.O to consider the value of rejected diamonds for the purpose of deduction u/s.80HHC of the Act by including the same in the export turnover. 4.Against the order of the CIT(A), appeal was preferred before the Appellate Tribunal. By impugned judgment and order dated 29.06.2007, the Appellate Tribunal dismissed the appeal of the Revenue and partly allowed the appeal filed by the assessee. Being aggrieved by the impugned judgment of the Appellant Tribunal, the Revenue has preferred the present appeal. 5.We have heard learned counsel for the Revenue. The appeal was admitted vide order dated 16.07.2008, which reads as under; “Heard Mr.B.B.Naik, learned Standing Counsel appearing for the Revenue. He has submitted that identical issue was involved in Tax Appeal No.759 of 2008 and this Court has admitted the Tax Appeal and similar question was raised. In this view of the matter, the present Tax Appeal is admitted in terms of the following question of law:- “(i) Whether, on the facts and in the circumstances of the case and in law, the Income Tax Appellate Tribunal is right in coming to the conclusion that the sale proceeds of the rejected diamonds is required to be treated as part of export turn over for the purpose of working out deduction available under Section 80HHC of the Income Tax Act ?” Notice be served on the other side. Paper-book be filed within three months from today. To be heard with Tax Appeal Nos.259 and 759 of 2006.” “(i) Whether, on the facts and in the circumstances of the case and in law, the Income Tax Appellate Tribunal is right in coming to the conclusion that the sale proceeds of the rejected diamonds is required to be treated as part of export turn over for the purpose of working out deduction available under Section 80HHC of the Income Tax Act ?” Notice be served on the other side. Paper-book be filed within three months from today. To be heard with Tax Appeal Nos.259 and 759 of 2006.” 6.The issue raised in this appeal is already concluded by a decision of this Court rendered in Tax Appeal No.62/2006 decided on 28.09.2006, which is reproduced hereunder; “Heard learned counsel for the parties. The following questions are proposed for admission in this appeal: O/TAXAP/285/2008 JUDGMENT explanation (baa) to Section 80HHC(4B) would not include receipt on account of exchange rate difference? D. Whetheronthefactsand circumstances of the case, and in law the Appellate Tribunal was justified in holding that the interest received on Fixed Deposits should be netted out of the purposes of computation of deduction u/s.80HHC? E. Whetheronthefactsand circumstances of the case, and in law the Appellate Tribunal was justified in holding that the export of rejected and rough diamonds are eligible for deduction u/s.80HHC of the Act? So far as Questions A, B and C are concerned, similar questions were considered in the case of Commissioner of Income Tax vs. Amba Impex (2006) 282 ITR 144 (Guj) and the matter was sent back to the Tribunal to decide the issue in the light of the decision in Amba Impex (supra). Therefore, we remit the matter back to the Tribunal so far as the issues raised in questions A, B and C are concerned. The Tribunal is directed to decide the issues afresh in light of our decision in Commissioner of Income Tax vs. Amba Impex (2006) 282 ITR 144 (Guj). So far as Question E is concerned, it relates to deduction under Section 80HHC on the rejected rough diamonds, which are exported. When admitted facts are that they are exported, they are eligible for deduction under Section 80HHC, therefore, no case is made out for admission of this appeal in case of Question E also. We, therefore, admit this appeal in terms of question D only, which reads as under: “Whetheronthefactsand circumstances of the case, and in law the Appellate Tribunal was justified in holding that the interest received on Fixed Deposits should be netted out of the purposes of computation of deduction u/s.80HHC?” Issue notice to the other side. Paper Book be filed within three months. List the appeals for final hearing after three months.” 7.Since the issue is already concluded by the judgment rendered in the above decision, we are not assigning elaborate reasons while disposing of this appeal as we concur with the view rendered by the coordinate Bench of this Court in the above-referred decision. Accordingly, the question of law raised in this appeal is answered in favour of the assessee and against the Revenue. The appeal stands disposed of accordingly. (K.S.JHAVERI, J.) (K.J.THAKER, J) Pravin/*