The Commissioner Of Income Tax v. M/S Mittal Overseas

IN THE HIGH COURT OF PUNJAB AND HARYANA ATCHANDIGARH. I.T.A. No.269 of 2010 Date of decision: 4.10.2010 The Commissioner of Income Tax. Vs. M/s Mittal Overseas. -----Appellant. -----Respondent CORAM:- HON'BLE MR. JUSTICE ADARSH KUMAR GOELHON'BLE MR. JUSTICE AJAY KUMAR MITTAL Present:-Mr. Yogesh Putney, Sr. Standing Counselfor the appellant. for the appellant. Mr. Pankaj Jain, Advocatefor the respondent. --- ADARSH KUMAR GOEL, J. This appeal has been preferred by the revenue underSection 260-A of the Income Tax Act, 1961 (for short, “the Act”)against the order dated 26.5.2009 of the Income Tax AppellateTribunal, New Delhi in I.T.A. No.3087/Del)/2008 for theassessment year 2005-06 proposing to raise following substantial questions of law:- “i)Whether on the facts and in the circumstances of thecase, the Hon’ble ITAT was right in law in restoringthe matter to the file of the AO on the issue of allowingdeduction u/s 80IB of the Income Tax Act, 1961 onexport incentives?case, the Hon’ble ITAT was right in law in restoringthe matter to the file of the AO on the issue of allowingdeduction u/s 80IB of the Income Tax Act, 1961 onexport incentives? ii)Whether on the facts and in the circumstances of thecase, the Hon’ble ITAT was justified in applying theratio of the judgment of the apex Court in the case ofCIT Vs. Baby Marine Exports, 290 ITR 323 (SC),which is given in a very different context i.e. eligibilityof section 80IB on premium on sale of goods earnedby a supporting manufactures from the main exportsto the case of the assessee, i.e. eligibility of 80IB onexport incentives derived form Export PromotionSchemes of the Government?case, the Hon’ble ITAT was justified in applying theratio of the judgment of the apex Court in the case ofCIT Vs. Baby Marine Exports, 290 ITR 323 (SC),which is given in a very different context i.e. eligibilityof section 80IB on premium on sale of goods earnedby a supporting manufactures from the main exportsto the case of the assessee, i.e. eligibility of 80IB onexport incentives derived form Export PromotionSchemes of the Government? iii)Whether on the facts and in the circumstances of thecase, the Hon’ble ITAT was justified in allowingsection 80IB deduction to the assessee by applyingthe ratio of the apex Court’s decision in a case whichis totally different on facts from the case of theassessee?case, the Hon’ble ITAT was justified in allowingsection 80IB deduction to the assessee by applyingthe ratio of the apex Court’s decision in a case whichis totally different on facts from the case of theassessee? iv)Whether on the facts and in the circumstances of thecase, the Hon’ble ITAT was justified in drawing anartificial distinction between the case of an exporterand a supporting manufacturer for allowing claim ofdeduction u/s 80IB on Duty Drawback and DEPBwhen, given the inappropriateness of the analogy ofthe Baby Marine Exports case, there is no suchdistinction and when, at the level of the SupremeCourt, it has been held in the case of Liberty India Vs.CIT (Karnal) (2009) 317 ITR 218 that “Duty Drawbackreceipts/DEPB benefits do not form part of the netprofits of eligible industrial undertaking for purposes ofSections 80-I/80-IA/80-IB of the 1961 Act?”case, the Hon’ble ITAT was justified in drawing anartificial distinction between the case of an exporterand a supporting manufacturer for allowing claim ofdeduction u/s 80IB on Duty Drawback and DEPBwhen, given the inappropriateness of the analogy ofthe Baby Marine Exports case, there is no suchdistinction and when, at the level of the SupremeCourt, it has been held in the case of Liberty India Vs.CIT (Karnal) (2009) 317 ITR 218 that “Duty Drawbackreceipts/DEPB benefits do not form part of the netprofits of eligible industrial undertaking for purposes ofSections 80-I/80-IA/80-IB of the 1961 Act?” Learned counsel for the assessee fairly states that thematter is covered against the assessee by earlier order of this Learned counsel for the assessee fairly states that thematter is covered against the assessee by earlier order of this Court dated 29.9.2010 in I.T.A. No.91 of 2010 CITv. M/sJawand Sons Udhay Complex Ldh. In view of above, the appeal is disposed of in sameterms. (ADARSH KUMAR GOEL) JUDGE October 4, 2010ashwani ( AJAY KUMAR MITTAL ) JUDGE