The Commissioner Of Income-Tax - Mumbai v. Garware Wall Ropes Ltd Mumbai

IN THE HIGH COURT OF JUDICATURE AT BOMBAYORDINARY ORIGINAL CIVIL JURISDICTION INCOME TAX APPEAL No. 5555 of 2010. The Commissioner of Income-tax - Mumbai ... Appellant. Versus Garware Wall Ropes Ltd Mumbai ... Respondent. Mr Suresh Kumar for the appellant. Dr K. Shivram with Paras Savla with Ajay Singh for the respondent. CORAM : J.P. Devadhar & A.R. Joshi, JJ. DATE : 2 December, 2011. P.C. :- 1.Three questions of law are raised by the revenue in this appeal which read thus :- (a) Whether, on the facts and in the circumstances of the case and in law, the ITAT is right in not allowing the depreciation to be allowed in computing the gross total income before allowing the deduction under Chapter VIA, following the recent judgment of this Court in the case of Scoop Industries Pvt Ltd and others v. TIO and ors 289 ITR 195 (Bom) 2007 wherein it was held that if the assessee claimed any deduction under Chapter VIA as a newly established undertaking, it will have to claim depreciation first and thereafter only the total income is to be computed to enable it to claim the benefit of deduction? (b) Whether, on the facts and in the circumstances of the case and in law, the ITAT is right in allowing that the exclusion of turnover of 100% EOU at Pune and Wai division for computing deduction under Section 80HHC? (c) Whether on the facts and in the circumstances of the case and in law the ITAT is correct in law in remanding the case back to the Assessing Officer with regard to the interest income following the judgment of Special Bench in the case of Lalson Enterprises 89 ITD 25? 2.As regards the question No. (a) is concerned, the Counsel for the parties state that the similar question raised by the Revenue in the assessee’s own case being Income tax Appeal No. 5556 of 2010 has been rejected by this Court today i.e. on 2[nd] December, 2011. Hence, the first question cannot be entertained. As regards the second question is concerned, the Counsel for the parties state that the similar decision rendered by the ITAT in the assessee’s own case for the earlier years have been accepted by the Revenue and accordingly appeals under Section 260A of the Act have not been preferred by the Revenue. No case is made out to establish that the earlier decisions of the ITAT were erroneous or contrary to law. Hence, the second question cannot be entertained. 3.As regards the third question is concerned, the ITAT has remanded the case back to the file of the Assessing Officer with instructions to follow the judgment of the Special Bench in the case of Lalson Enterpses (89 ITD 25). Since the ITAT has restored the issue to the file of the Assessing Officer, we are not inclined to entertain the third question. However, the Assessing Officer while giving the effect to the order of the ITAT and passing the fresh order shall Ladda take into consideration the judgment of this Court in the case of CIT vs. Asian Star Ltd (326 ITR 56) wherein the Special Bench decision in the case of Lalson Enterprises reported in 89 ITD 25 has been considered. Accordingly, the appeal is disposed of in the above terms. No order as to costs. (A.R.Joshi,J) (J.P.Devadhar,J.)