The Commissioner Of Income Tax-24 v. M/S.witmans Industries

IN THE HIGH COURT OF JUDICATURE AT BOMBAYO. O. C. J. INCOME TAX APPEAL NO.1066 OF 2009 The Commissioner of Income Tax-24. Vs. ...Appellant. M/s.Witmans Industries. ...Respondent. .... Ms.Suchitra Kamble for the Appellant.None 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 Tribunal was right in allowing the appeal of the assessee and deleting the disallowances u/s.80IB of DEPB sale and Miscellaneous receipts?” The assessee has been served and an affidavit of service has been filed. Despite service, the assessee has not appeared in these proceedings. The question as regards the deletion of the disallowance under Section 80IB in respect of DEPB sale 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). The order of the Tribunal, directing the Assessing Officer to allow the proceeds of DEPB sale as deduction under Section 80IB would accordingly have to be set aside and is set aside. In so far as the question of miscellaneous proceeds is concerned, the Tribunal has not considered the findings of the Assessing Officer to the effect that (i) No details were filed during the course of the proceedings; and (ii) The assessee had failed to show how the income was derived from the industrial undertaking. However, in the interests of justice, we consider it appropriate to remit the proceedings back to the Tribunal for adjudication on the issue of miscellaneous proceeds, after considering the judgment of the Supreme Court in Liberty India (supra) and upon the verification of the facts. In order to facilitate the fresh order on remand, the proceedings which are remitted back to the Tribunal are confined to the admissibility of the deduction under Section 80IB in respect of miscellaneous proceeds. The appeal is accordingly disposed of. There shall be no order as to costs. ( Dr.D.Y.Chandrachud, J.) ( J.P.Devadhar, J.)