Gujarat High Court
A.C.I.T vs Nirma Chemical Works P. ... on 4 September, 2015
Author: M.R. Shah
Bench: M.R. Shah, S.H.Vora
O/TAXAP/427/2000 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
TAX APPEAL NO. 427 of 2000
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE M.R. SHAH
and
HONOURABLE MR.JUSTICE S.H.VORA
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1 Whether Reporters of Local Papers may be
allowed to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair
copy of the judgment ?
4 Whether this case involves a substantial
question of law as to the interpretation of the
Constitution of India or any order made
thereunder ?
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A.C.I.T.....Appellant(s)
Versus
NIRMA CHEMICAL WORKS P. LTD.....Opponent(s)
======================================
Appearance:
MR NITIN K MEHTA, ADVOCATE for the Appellant(s) No. 1
MR SN SOPARKAR, ADVOCATE for the Opponent(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE M.R. SHAH
and
HONOURABLE MR.JUSTICE S.H.VORA
Date : 04/09/2015
ORAL JUDGMENT
(PER : HONOURABLE MR.JUSTICE M.R. SHAH) Page 1 of 4 HC-NIC Page 1 of 4 Created On Wed Sep 09 01:07:43 IST 2015 O/TAXAP/427/2000 JUDGMENT [1.0] Feeling aggrieved and dissatisfied with the impugned judgment and order dated 21/09/1999 passed by the learned Income Tax Appellate Tribunal, Ahmedabad (hereinafter referred to as "the Tribunal") in ITA No.5156/Ahd/1994 for the Assessment Year 1991-92, the appellant herein-revenue has preferred the present Tax Appeal.
[2.0] While admitting the present Tax Appeal on 20/12/2000, this Court had formulated the following substantial question of law;
"Whether, the Appellate Tribunal is right in law and on facts in directing to allow separate relief under Section 80HH and 80I of the Act?"
[3.0] Shri B.S. Soparkar, learned advocate, appearing on behalf of the respondent has invited the attention of the Court to the decision of the Supreme Court in the case of Joint Commissioner of Income Tax Vs. Mandideep Engineering And Packaging. Ind. P. Ltd. reported in (2007) 292 ITR 1 (S.C.), to submit that the controversy involved in the present case stands concluded in favour of the assessee by the said decision. It is pointed out that the Supreme Court in the said decision had taken note of the fact that against the decision of the Madhya Pradesh High Court in the case of J.P. Tobacco Products P. Ltd. Vs. C.I.T. (1998) 229 ITR 123 wherein it had held that both the Sections are independent and, therefore, the deductions could be claimed both under Sections 80HH and 80I on the gross total income, a Page 2 of 4 HC-NIC Page 2 of 4 Created On Wed Sep 09 01:07:43 IST 2015 O/TAXAP/427/2000 JUDGMENT Special Leave Petition had been filed before the Supreme Court, which came to be dismissed on the ground of delay. The Supreme Court further observed that decision of the Madhya Pradesh High Court in the case of J.P. Tobacco Products P. Ltd. Vs. C.I.T. (supra) was followed by the same High Court in the case of CIT v. Alpine Solvex P. Ltd. in I.T.A. No.92 of 1999 decided on May 2, 2000 and that Special Leave Petition against the same was dismissed by the Supreme Court. The Court further observed that the aforesaid view had been followed repeatedly by different High Courts against which no Special Leave Petitions were filed, meaning thereby that the Department had accepted the view taken in the said judgments. One of the judgments referred to was CIT v. Amod Stamping reported in (2005) 274 ITR 176 (Guj). The attention of the Court was also invited to the above referred decision of the Gujarat High Court in the case of CIT Vs. Amod Stamping (supra), to submit that this Court had also decided the controversy in favour of the assessee by holding that while computing the profits for the purpose of availing deduction under Section 80-I of the Act, the profits and gains of the assessee's business are not required to be reduced by the deduction admissible under Section 80HH of the Act.
[4.0] Shri Nitin Mehta, learned Senior Standing Counsel for the appellant, is not able to dispute the aforesaid position of law. In the circumstances, it is not necessary to set out the facts and contentions in detail.
[5.0] The Tribunal in the impugned order has observed that the Assessing Officer has already allowed deduction under Section 80I of the Act and has held that the assessee is also Page 3 of 4 HC-NIC Page 3 of 4 Created On Wed Sep 09 01:07:43 IST 2015 O/TAXAP/427/2000 JUDGMENT entitled to the deduction under Section 80HH of the Act on gross total income without reducing the amount allowed under Section 80I of the Act. The view taken by the Tribunal is in consonance with the above referred decision of the Madhya Pradesh High Court as well as of this Court in the case of CIT Vs. Amod Stamping (supra), the question is therefore, answered in the affirmative, that is, in favour of the assessee and against the revenue. The Appellate Tribunal was right in law and on facts in directing the Assessing Officer to allow relief under Section 80I of the Act without reducing the amount by deducting the relief under section 80HHA of the Act. It is required to be noted that as such the present Tax Appeal was ordered to be heard along with Tax Appeal No.99/1999 in which identical question arose. It is reported that by the order dated 16/06/2011 the Division Bench had dismissed the said Tax Appeal relying upon the decision of this Court in the case of CIT Vs. Amod Stamping (supra).
[6.0] In view of the above and for the reasons stated hereinabove, the present Tax Appeal also deserves to be dismissed and is accordingly dismissed by answering the question in favour of the assessee and against the revenue. However, there shall be no order as to costs.
(M.R. SHAH, J.) (S.H. VORA, J.) Siji Page 4 of 4 HC-NIC Page 4 of 4 Created On Wed Sep 09 01:07:43 IST 2015