V.m. Salgaocar & Brother Limited(Now Known As V.m. Salgaocar & Brother Pvt. Ltd. … v. Prithviraj K. Chavan, Jj

1 txa 7-11 dt. 26-10-18 Santosh IN THE HIGH COURT OF BOMBAY AT GOA TAX APPEAL NO.7 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 was taken up for admission along with Tax Appeals No.6, 8 and 9 of 2011, which Appeals we have disposed oftoday. At the time of Admission, the following questions of law wereframed in all the Appeals : “A. Whether the Appellant is entitled to not claimdepreciation under Section 32 of the Act in arriving atits business income under Chapter IV-D of the Act forthe Assessment Year 2000-01 as permitted by decisionof the Apex Court in Mahendra Mills v. CIT 243 ITR56? B. Whether for the purposes of computing the deduction under Section 80HHC(3)(c)(i) of the Actdepreciation allowable under Section 32 of the Act,which has not been claimed by the Appellant in 2 txa 7-11 dt. 26-10-18 computing 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 for theearlier Assessment Year i.e. 1997-98 where theTribunal had upheld the Appellant's claim that no partof the income from truck hire charges, barge hirecharges, ore processing receipts, transhipper loadercharges and machinery hire charges was to bereduced while computing the profits of the business? 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 Section 32of the Act, though not claimed, is to be reduced for thepurposes of computing the profits derived from theexports of trading goods under Section 80HHC(3)(c)(ii) of the Act, it is the depreciation as recorded in theBooks of Accounts, and not as computed under Section32 of the Act, that is to be reduced from the exportturnover? 3 txa 7-11 dt. 26-10-18 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 Year 1997-98 on the presumption that the earlier decision hadnot taken into consideration the then existing decisionof the Apex Court of IPCA Laboratories v. DCIT(reported in 266 ITR 521)?” 2.The learned Counsel for the Appellant points out to usthat as far as questions of law at (E) and (F) they do not arise in thisappeal, but arise in Tax Appeals No.6, 8 and 9 of 2011 and since thisis a common order, the questions of law get incorporated in thepresent Appeal as well. In view of this submission, which has notbeen controverted, the questions at (E) and (F) do not arise in thisAppeal and they stand deleted. 2.The learned Counsel for the Appellant points out to usthat as far as questions of law at (E) and (F) they do not arise in thisappeal, but arise in Tax Appeals No.6, 8 and 9 of 2011 and since thisis a common order, the questions of law get incorporated in thepresent Appeal as well. In view of this submission, which has notbeen controverted, the questions at (E) and (F) do not arise in thisAppeal and they stand deleted. 3.The learned Counsel for the Appellant points out, whichis not controverted, that the questions of law at (A) and (B) arecovered by the Judgment of this Court dated 27 March 2012 passedin the case of Commissioner of Income Tax vs. V.M. Salgaonkar &Brothers Ltd. (the Assessee herein) [1]. He submitted that the Apex 1 Tax Appeal No.2/2002 4 txa 7-11 dt. 26-10-18 Court in the case of Plastiblends India Ltd. vs. V.M. Salgaonkar &Brothers Ltd. [2] wherein the Appeal in respect of the present Assesseewas a part of a group and the said Judgment was upheld. It is furtherpointed out that the Review was rejected by an order dated 30January 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 were subject-matter of a remand order by the ITAT, and consequent to theremand, fresh assessment orders were made on 13 December 2011 forthe very same assessment years i.e. 1999-2000, 2000-2001 and 2001to 2002. It is stated that against the assessment orders, the Appellantshave filed appeal before the Commissioner of Appeals which arepending. In view of this fresh assessment, the learned Counselpoints out that these questions of law do survive. 5.As regards questions of law at (G) and (H) are concerned,it is stated that in case of Assessee itself [3], dated 27 March 2012,which Judgment has been upheld by the Apex Court in Civil AppealNo.8794 of 2012. 6.The questions of law are answered as contended by the2 [2012) 21 taxmann.com 178 (Bom). 3 [2012] 21 taxmann.com 178 (Bom.) 5 txa 7-11 dt. 26-10-18 Assessee. Nothing has been pointed out by the Revenue to showotherwise. 7.In view of this position, this appeal will have to bedisposed of in the above terms. Accordingly, the Appeal standsdisposed of. Prithviraj K. Chavan, J. N.M. Jamdar, J.