Gujarat High Court
Commissioner Of Income Tax-I vs Cadila Health Care ... on 27 February, 2017
Author: M.R. Shah
Bench: M.R. Shah, B.N. Karia
O/TAXAP/890/2009 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
TAX APPEAL NO. 890 of 2009
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE M.R. SHAH Sd/-
and
HONOURABLE MR.JUSTICE B.N. KARIA Sd/-
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1 Whether Reporters of Local Papers may be allowed NO
to see the judgment ?
2 To be referred to the Reporter or not ? NO
3 Whether their Lordships wish to see the fair copy of NO
the judgment ?
4 Whether this case involves a substantial question of NO
law as to the interpretation of the Constitution of
India or any order made thereunder ?
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COMMISSIONER OF INCOME TAX-I....Appellant(s)
Versus
CADILA HEALTH CARE LIMITED....Opponent(s)
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Appearance:
MRS MAUNA M BHATT, ADVOCATE for the Appellant(s) No. 1
MR RK PATEL, ADVOCATE with
MR DARSHAN R PATEL, ADVOCATE for the Opponent(s) No. 1
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CORAM:HONOURABLE MR.JUSTICE M.R. SHAH
and
HONOURABLE MR.JUSTICE B.N. KARIA
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Date : 27/02/2017
ORAL JUDGMENT
(PER : HONOURABLE MR.JUSTICE M.R. SHAH) 1.00. Feeling aggrieved and dissatisfied with the impugned judgement and order passed by the learned Income Tax Appellate Tribunal dated 12/9/2008 passed in ITA No.3054/Ahd/2004 for A.Y. 1999-2000 by which the learned tribunal has dismissed the said appeal preferred by the revenue, the revenue has preferred the present Tax Appeal to consider the following question of law :-
"Whether the Appellate Tribunal is right in law and on facts in holding that the income arising from the sale of DEPB licence is to be included for the purpose of calculation of deduction u/s 80HHC of the Act?"
2.00. That the assessee filed return of income for the A.Y. 1999-2000 declaring total income at Rs.10,84,91,790/-. The assessee claimed deduction under section 80HHC of the Income Tax Act, 1961 (hereinafter referred to as "the Act" for short) with respect to export incentive of Rs.3,03,86,118/- in the form of DEPB Licenses. Initially the same was granted however, subsequently in the reassessment proceedings the A.O. restricted deduction under section 80HHC earlier allowed to the assessee on the ground that the export insensitive of Rs.3,03,86,118/- in the form of DEPB Licenses were not eligible to be considered for the purpose of granting benefits under section 80HHC, on the ground that the same were not covered under section 28(iiia) to 28(iiic) of the Act.
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2.01. Feeling aggrieved and dissatisfied with the
impugned reassessment order and more particularly order passed by the A.O. that the assessee is not entitled to deduction under section 80HHC with respect to export incentive of Rs.3,03,86,118/- in the form of DEPB Licenses, the assessee preferred appeal before the learned CIT(A). The learned CIT(A) partly allowed the said appeal and held that there was no justification on the part of the A.O. in not allowing the deduction under section 80HHC as claimed by the assessee. The learned CIT(A) directed the A.O. to allow assessee's claim for deduction under section 80HHC as per its return of income filed under section 148.
2.02. The matter was carried before the learned ITAT by the revenue. Before the learned tribunal it was contended by the assessee that as it has not transferred the benefits of DEPB Licenses to any party, rather it has used the same for house consumption and therefore, there was no question of disturbing the order of CIT(A). Considering the facts and circumstances of the case, more particularly considering the case on behalf of the assessee that it has not transferred benefits of DEPB Licenses to any party, by the impugned judgement and order the learned tribunal has confirmed the order passed by the learned CIT(A) remanding the matter to the A.O. and consequently dismissed the appeal preferred by the revenue. The impugned judgement and order passed by the learned tribunal is the subject matter of the present appeal.
3.00. We have heard Ms. Bhatt, learned advocate appearing on behalf of the revenue and Mr.R.K. Patel learned Page 3 of 5 HC-NIC Page 3 of 5 Created On Sun Aug 13 23:54:01 IST 2017 O/TAXAP/890/2009 JUDGMENT advocate appearing on behalf of the assessee.
3.01. At the outset, it is required to be noted that the order of remand passed by the learned CIT(A) has been confirmed by the learned tribunal with respect to deduction claimed by the assessee under section 80HHC of the Act more particularly with respect to the DEPB Licenses.
3.02 At this stage, decision of the Hon'ble Supreme Court in the case of Topman Exports Versus Commissioner of Income Tax, Mumbai, reported in 342 ITR 49 is required to be referred to and considered. In the said decision it is observed and held by the Hon'ble Supreme Court that if the assessee has not transferred and/or sold the DEPB Licenses, in that case, the assessee is entitled to deduction under section 80HHC. It is further observed and held by the Hon'ble Supreme Court that in case the assessee has transferred / sold DEPB Licenses, the profit earned by selling the DEPB Licenses only is required to be considered and to that extent deduction can be denied under section 80HHC.
3.03. In the present case, it is the case on behalf of the assessee that the assessee never transferred / sold DEPB Licenses, for which deduction under section 80HHC was claimed and in fact the same were used for house consumption. Therefore, when the issue has been remanded to the A.O., the A.O. is required to consider whether, in fact, DEPB Licenses, for which deduction claimed under section 80HHC, has been transferred by the assessee or not and appropriate decision is required to be taken by the A.O. considering the decision of the Hon'ble Supreme Court in the Page 4 of 5 HC-NIC Page 4 of 5 Created On Sun Aug 13 23:54:01 IST 2017 O/TAXAP/890/2009 JUDGMENT case of Topman Exports (supra). Under the circumstances it cannot be said that the learned tribunal has committed any error in confirming the order passed by the learned CIT(A) remanding the matter to the A.O. However, it is observed that on remand the A.O. is required to consider the case on behalf of the assessee whether DEPB Licenses for which deduction under section 80HHC has been claimed, were, in fact, transferred / sold by the assessee or not and the A.O. is required to consider the said issue in light of the decision of the Hon'ble Supreme Court in the case of Topman Exports (supra).
With this present appeal stands disposed of.
Sd/-
(M.R. SHAH, J.) Sd/-
(B.N. KARIA, J.) Rafik..
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