V.m. Salgaocar & Brother Limited(Now Known As V.m. Salgaocar & Brother Pvt. Ltd.) … v. Commissioner Of Income Tax, Panaji

1 Txa8 -11dt26-10-18 Santosh IN THE HIGH COURT OF BOMBAY AT GOA TAX APPEAL NO.8 OF 2011 V.M. Salgaocar & Brother Limited(now known as V.M. Salgaocar & Brother Pvt. Ltd.) ….... Appellant. Versus Commissioner of Income Tax, Panaji. ..…. Respondent. Mr. A. F. Diniz, Advocate for the Appellant. Ms. Amira Abdul Razaq, Standing Counsel for the Respondent. Coram : N.M. Jamdar & Prithviraj K. Chavan, JJ. Date : 26 October 2018. P.C.: This Appeal is filed by the Assessee, challenging theorders passed by the Income Tax Appellant Tribunal, Panaji, dated10 January 2011. It relates to the Assessment Year 2001-2002. 2.This Appeal came to be admitted on the followingsubstantial questions of law : “A. Whether the Appellant is entitled to not claimdepreciation under Section 32 of the Act in arrivingat its business income under Chapter IV-D of theAct for the Assessment Year 2000-01 as permitted bydecision of the Apex Court in Mahendra Mills v. CIT243 ITR 56? 2 Txa8 -11dt26-10-18 B. Whether for the purposes of computing thededuction under Section 80HHC(3)(c)(i) of the Actdepreciation allowable under Section 32 of the Act,which has not been claimed by the Appellant incomputing profits under Chapter IV-D of the Act,ought not to be allowed? C.Whether on the facts and in law, the Tribunalwas right in upholding the action of the AssessingOfficer of deducting 90% of the income from truckhire charges, barge hire charges, ore processingreceipts, transhipper loader charges and machineryhire charges while computing the “profits of thebusiness” in accordance with Clause (baa) of theExplanation below Section 80HHC? D. Whether on the facts and in law, the Tribunal wasright in not following its earlier Order datedFebruary 26, 2010 in the Appellant's own case forthe earlier Assessment Year i.e. 1997-98 where theTribunal had upheld the Appellant's claim that nopart of the income from truck hire charges, bargehire charges, ore processing receipts, transhipperloader charges and machinery hire charges was tobe reduced while computing the profits of thebusiness? E. Whether for the purposes of computing deductionunder Section 80HHC(3)(c)(ii) of the Actdepreciation ought not to be considered as a part ofcost and hence ought not to be reduced from theexport turnover in view of the decision of the ApexCourt in the case of Nectar Beverages P.Ltd. v.DCIT(267 ITR 385)? F. Whether, if depreciation allowable under Section32 of the Act, though not claimed, is to be reduced 3 Txa8 -11dt26-10-18 for the purposes of computing the profits derivedfrom the exports of trading goods under Section80HHC(3)(c)(ii) of the Act, it is the depreciation asrecorded in the Books of Accounts, and not ascomputed under Section 32 of the Act, that is to bereduced from the export turnover? G. Whether the Tribunal was right in law in holdingthat the loss suffered on export of trading goodsought to be reduced from the total profits of thebusiness to arrive at the adjusted profits of thebusiness for the purposes of Section 80HHC(3)(c)(i)of the Act? H. Whether the Tribunal was right in law in taking aview different from the view taken by it in its earlierdecision in the Appellant's own case for the earlieryear under consideration i.e. Assessment Year1997-98 on the presumption that the earlierdecision had not taken into consideration the thenexisting decision of the Apex Court of IPCALaboratories v. DCIT (reported in 266 ITR 521)?” 3.The learned Counsel for the Appellant points out,which is not controverted, that the questions of law at (A) and (B)are covered by the Judgment of this Court dated 27 March 2012passed in the case of Commissioner of Income Tax vs. V.M.Salgaonkar & Brothers Ltd. (the Assessee herein) [1]. He submittedthat the Apex Court in the case of Plastiblends India Ltd. vs. V.M.Salgaonkar & Brothers Ltd. [2] wherein the Appeal in respect of the 1 Tax Appeal No.2/2002 3.The learned Counsel for the Appellant points out,which is not controverted, that the questions of law at (A) and (B)are covered by the Judgment of this Court dated 27 March 2012passed in the case of Commissioner of Income Tax vs. V.M.Salgaonkar & Brothers Ltd. (the Assessee herein) [1]. He submittedthat the Apex Court in the case of Plastiblends India Ltd. vs. V.M.Salgaonkar & Brothers Ltd. [2] wherein the Appeal in respect of the 1 Tax Appeal No.2/2002 2 [2012) 21 taxmann.com 178 (Bom). 4 Txa8 -11dt26-10-18 present Assessee was a part of a group and the Judgment of theHigh Court was upheld. It is further pointed out that the Reviewwas rejected by an order dated 30 January 2018. In view thereof,the questions of law at (A) and (B) stand covered. 4.As regards the questions of law framed at (C), (D), (E)and (F) are concerned, it is pointed out to us that they weresubject-matter of a remand order by the ITAT, and consequent tothe remand, fresh assessment orders were made on 13 December2011 for the very same assessment year i.e. 2001-2002. It is statedthat against the assessment order, the Appellants have filed anappeal before the Commissioner of Appeals which is pending. Inview of this fresh assessment, the learned Counsel points out thatthese questions of law do survive. 5.As regards questions of law at (G) and (H) areconcerned, it is stated that in case of Assessee itself [1], dated 27March 2012, which Judgment has been upheld by the Apex Courtin Civil Appeal No.8794 of 2012. 6.Accordingly, these questions of law are answered ascontended by the Assessee. Nothing has been pointed out by theRevenue to show otherwise. 1[2012] 21 taxmann.com 178 (Bom.) 5 Txa8 -11dt26-10-18 7.In view of this position, this appeal is disposed of in the above terms. Prithviraj K. Chavan, J. N.M. Jamdar, J.