The Commissioner Of Income Tax-20 v. Mrs.anita Desai

IN THE HIGH COURT OF JUDICATURE AT BOMBAYO. O. C. J. INCOME TAX APPEAL NO.882 OF 2009 The Commissioner of Income Tax-20. Vs. ...Appellant. Mrs.Anita Desai....Respondent. .... Mr. Suresh Kumar with Ms.Suchitra Kamble for the Appellant.Mr. Prakash Shah with Mr.J.Sanghavi i/b. PDS Legal for the Respondent. ..... CORAM : DR.D.Y.CHANDRACHUD AND J.P.DEVADHAR, JJ. January 18, 2010. P.C. : The appeal was admitted on the following substantial question of law: “ Whether, on the facts and circumstances of the case and in law, the ITAT was justified in holding that the assessee is entitled for deduction u/s.80IB of the Income Tax Act, 1961 without appreciating the true nature of DEPB and Duty Draw Back incentives provided by the Government for exports?” The aforesaid question of law is covered, in favour of the Revenue and against the assessee, by the judgment of the Supreme Court in Liberty India vs. CIT, (2009) 317 ITR 218 (SC) and is answered accordingly. In paragraph 13 of the judgment, the Tribunal noted that the assessee has made a claim under Section 80IB, which was denied and hence, the assessee had made an alternate claim under Section 80HHC of the Act, which is rejected for the reason that a revised return was not filed. Following the judgment of the Supreme Court, in the case of Goetze (India) Ltd. vs. CIT, 284 ITR 323, the Tribunal held that the claim of the assessee under Section 80-HHC should have been accepted. However, since the Tribunal has accepted the claim of the assessee under Section 80IB, the issue was restored to the file of the Assessing Officer to work out the quantum of deduction under Section 80HHC on the balance profits and subject to satisfaction of other conditions laid down in the provision. In view of the judgment of the Supreme Court in Liberty India (supra), we have come to the conclusion that the assessee would not be entitled to a deduction under Section 80IB on DEPB/Duty Draw Back Incentives. In view of the aforesaid finding, the Assessing Officer is directed to re-examine the alternate claim under Section 80HHC in the light of the aforesaid observations. The appeal shall stand disposed of with the aforesaid observations. There shall be no order as to costs. ( Dr.D.Y.Chandrachud, J.) ( J.P.Devadhar, J.)