The Commissioner Of Income Tax-5 v. The Great Eastern Shipping Co. Ltd

bsb IN THE HIGH COURT OF JUDICATURE AT BOMBAYORDINARY ORIGINAL CIVIL JURISDICTION INCOME TAX APPEAL NO. 831 OF 2010 The Commissioner of Income Tax-5 … Appellant v/s The Great Eastern Shipping Co. Ltd. … Respondent Mr.Suresh Kumar for the appellant.Mr.A.K. Jasani for the respondent. CORAM: S.C. DHARMADHIKARI & G.S. KULKARNI, JJ. DATED : 15TH APRIL, 2014 P. C. : 1Having heard Mr.Suresh Kumar, appearing on behalf of the revenue and Mr.Jasani, appearing on behalf of the assessee, we are of the opinion that so far as the question of law framed at page 5 in relation to deduction under Section 80-IB is concerned, the Tribunal has, in the impugned order, followed the order delivered in relation to earlier assessment years pertaining to the same assessee. Ground No.4 in para 16, running page 48, pertains to the said question. The Assessing Officer had reduced profit of each eligible ship by 50% on the ground that claim of deduction under Section 80-I/80-IA can be allowed only after the claim of deduction under Section 33-AC is considered. The Assessing Officer relied on Section 80-AB for this conclusion. The Commissioner of Income Tax (Appeals) dismissed the assessee's appeal against such finding. However, the Tribunal held that in the case of very assessee in Income Tax Appeal No.3093/Mum/2003, for assessment years 1996-1997 and 1997-1998, it held that this approach of the department cannot be upheld. The finding of fact at paragraph 19 of the impugned order is that the Assessing Officer as also the Commissioner of Income Tax (Appeals) have not taken into consideration whether any losses were incurred from non-eligible ships. Therefore, applying its own orders in relation to the same assessee for the prior assessment years, the Tribunal upheld the claim of the assessee. It held that, in case there are claims under Section 33-AC, Section 80-I and 80-IA from the same ship, the demand under Section 33-AC should be allowed first and the net profit only, which is included in the last total income eligibility of Section 88-I and 88-IA has to be considered. If there are losses from other ships on which 33-AC deduction was not claimed, then, the findings given in the assessment year 1996-97 will continue to apply. The Assessing Officer was, therefore, directed to work out the deduction after examining the facts in the relevant assessment year. We are informed that the Assessing Officer has already carried out its exercise. In such circumstances and when the Tribunal's orders on facts for earlier assessment years have been consistently followed, then, the question raised before us cannot be termed as a substantial question of law. 2Insofar as the question of law at No.(ii) at page 5 is concerned, it is fairly stated that in the case of Commissioner of Income Tax v/s Indian Oil Corporation Ltd. in Income tax Appeal no.2012 of 2011 decided on 12[th] September, 2012 reported in (2012) 254 CTR (Bom.) 113, this Court has answered the question in favour of the revenue and against the assessee. However, in view of the finding rendered by us that the substantive question of law framed at No.(i) is not a substantial question of law and appeal cannot be entertained, then, the question framed at No.(ii) is purely academic. We, therefore, feel that the appeal need not be entertained as it does not raise any substantial question of law. It is accordingly dismissed.No costs. (G.S. KULKARNI, J.) (S.C.DHARMADHIKARI, J.)