2014 (1) TMI 319

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....unt of Rs. 1,24,312/- as Duty Entitlement Pass Book (DEPB in short) in its Profit & Loss Account (P&L A/c) and had also claimed deduction u/s 80IB on this amount. Initially, the Assessing Officer allowed this claim u/s 80IB qua DEPB amount while completing assessment u/s 143 (3) of the Act. Subsequently, he noticed that such claim is not allowable as per the verdict of Hon'ble Apex Court rendered in the case of Liberty India vs CIT reported in 317 ITR 218 (SC). Therefore, he has treated this action as s a mistake rectifiable u/s 154 of the Act. Therefore, he has initiated proceedings u/s 154 of the Act by issuing notice proposing withdrawal of deduction on 30-09-2009. The assessee-firm vide reply dated 10-11-2009 objected to this action of ....

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.... the appellant. 2.3 The amended section came into force w.e.f. 01-4-1998. This amendment was brought into by inserting clause (iiid), which reads as under:- Section 28 - The following income shall be chargeable to income tax under the head 'Profit and Gains of Business or Profession:- ............ ........... (iiid) Any profit on the transfer of the Duty Entitlement Pass Book Scheme, being the Duty Remission Scheme under the export and import policy formulated and announced u/s 5 of the Foreign Trade (Development and Regulation Act, 1992) (22 of 1992)'' 2.4 The Hon'ble Rajasthan High Court after considering the amended Section has given the following verdict ''Whether profit upon sale of DEPB lincense shall be eligible ....

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.... against which as rightly pointed by the ld. AR, the Hon'ble Rajasthan High Court in the decision of Saraf Seasoning Udhyog (supra) have discussed and relied on even the amended provision. Further, it is trite that when any amended provision is not considered or for that matter, any relevant provision of the Act is not considered while giving a judgement, it is treated as in per curium 2.8 The Hon'ble High Court has taken its view while deciding the case of Chokshi Contacts (P) Ltd. reported in 251 ITR 587 (Raj.) that in case amended provisions of an Act are not considered the judgement looses the character of a binding nature. The court has held as under:- ''Coming to the judgement relied on by ld. counsel for the Revenue in Shree En....

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.... No. 37/JU/2011 - A.Y. (2002-03) dated 21-09-2012. Therefore, the decision of Liberty India will not rule the field after amendment. Moreover, in any other case, the issue becomes a debatable one in the light of the above decision. It is settled position of law that where any issue is debatable, it cannot be corrected u/s 154 of the Act. In this regard, the Hon'ble Apex Court in the case of T.S. Balaram (ITO) vs Volkart Brothers and Others reported in 82 ITR 50(SC) is relevant wherein an action taken by Assessing Officer u/s 154 of the Act was found to be illegal. The Hon'ble Apex Court has held thus :- ''In Satyanarayan Laxminarayan Hegde v. Mallikarjun Bhavanappa Tirumale , this court while spelling out the scope of the power of a High....