2014 (1) TMI 339

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....common issue is involved, which relates to sustenance of disallowance of deduction claimed u/s 80IB of the I.T. Act, 1961 (hereinafter to be referred as the Act), on account of DEPB and Duty Draw Back (DDB). 3. During the course of hearing, Ld. Counsel for the assessee at the very outset stated that this issue is covered in favour of the assessees vide order dated 12/10/2012 of the ITAT Jodhpur Bench, Jodhpur in ITA No. 22 & 23/Jodh/2012 for the assessment years 2005-06 and 2006-07 respectively in the case of M/s Sarraf Export, RIICO Industrial Area, Sardarsahar, Churu V/s ITO, Ward-2, Churu. Copy of the said order was furnished. It was further stated that the above said order has been followed in ITA No. 171/Jodh/2011 for the assessment y....

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....id) 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 amended 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 license shall be eligible for deduction u/s 80IB of the Act treating it as profit from industrial undertaking? Held yes, in view of the newly inserted clause (iiid) in Section 28 of the Act w.e.f. 01-04-1998.'' 2.5 Before arriving at the above conclusion, their lordships have carefully considered and referred to the following decisions. CIT vs. Sterling Food....

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.... is treated as in per curium. 2.8 The Hon'ble High Court has taken its view while deciding the case of Chokshi Contracts (P) Ltd. in 251 ITR 587 (Raj.) that in case amended provisions of the Act are not considered the judgement looses the character of a binding nature. The Court has also held as under:- "Coming to the judgement relied on by the ld. counsel for the Revenue in Shree Engineer's case, we are of the opinion that the answer question no. 3 which was referred by the Tribunal has been rendered solely with the Deference to the earlier decision of the Court in 'Vishnu Oil and Dal Mills' case (1996) 218 ITR 71 (Raj.) only without noticing the relevant provisions of Section 80A and 80AB and Section 80B(5) and also Section 80HH(9). It ....

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....he 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 Satyanarayn Laxminarayan Hegde v. Mallikarjun Bhavanappa Tirumale, this court while spelling out the scope of the power of a High Court under Article 226 of the Constitution ruled that an error which has to be established by a long drawn process of reasoning on points where there may conceivably be two opinions cannot be said to be an error apparent on the face of the record. A Decision on a debatable point of law is not a mistake apparent from the record-see Sidhramappa Andannappa Manv....