2013 (6) TMI 742

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....in not following decisions of Hon'ble SC in case of M/s Liberty India, reported in 317 ITR 218, M/s Sterling Foods, 237 ITR 579 (SC) and M/s Hindustan Lever Ltd. 239 ITR 297 (SC). 3. The CIT(A) has erred in ignoring the similar expression used in the provisions of section 10BA as used in section 80IA of the I.T. Act. In the section 10BA(1), the expression is as "a deduction of such profits and gains as are derived by an undertaking from export" and in section 80IA(1), includes any profits and gains derived by an undertaking. Hence, the CIT(A) ought to have followed decision of the Hon'ble SC in case of M/s Liberty India. 4. The CIT(A) has erred in giving finding that the provision of section 10BA are similar to the provision o....

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....ived from business. Reliance was placed on the decision of Hon'ble Supreme Court in the case of Liberty India vs CIT, 28 DTR 73. 2.3 Being aggrieved, the assessee carried the matter to the ld. CIT(A) and submitted that as per provision of Section 28 of the Act, the duty draw back and DEPB are part of the business income and as such any income from duty draw back and DEPB was a part of profit of the business of the undertaking as provided under the provision of Section 10BA(4)of the Act and hence the same should be allowed to compute in the income of the undertaking eligible for exemption u/s 10BA of the Act. Reliance was placed on the decision of ITAT Jodhpur bench in the case of M/s Suraj Exports India vs ITO in ITA No.336/Jodhpur//20....

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....ction 10BA and section 80HHC formula is prescribed for the purpose. Therefore, in our considered opinion, sec. 10BA and 80HHC are more nearer to each other, and whatever interpretation of 'derived from' is given in any decision in which section 80HHC is involved, would also mutatis-mutandis to the interpretation of sec. 10BA. The Hon'ble Apex Court in the cases of Topman Exports vs. CIT reported in 67 DTR 185 (S.C.) and ACG Associated Capsules Pvt. Ltd. vs. CIT reported in 67 DTR 205 has recently held that DEPB is chargeable as income and Cl. (iiib) of section 28 in the year in which the assessee applies for DEPB credit against the exports whereas the profit on transfer of DEPB by the assessee is chargeable as income under Cl. (....