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2006 (11) TMI 92 - AT - Income TaxDeduction - AO contended that the profit from DEPB Scheme not be said to be derived from the industrial undertaking and accordingly not entitle for the benefit u/s 80-IB - Held that AO contention was correct and allowed
Issues Involved:
1. Deduction under section 80HHC on DEPB income. 2. Exclusion of DEPB receipts from business income for deduction under section 80-IB. Issue-wise Detailed Analysis: 1. Deduction under section 80HHC on DEPB income: The Revenue's appeal contended that the Commissioner of Income-tax (Appeals) erred in ordering that the DEPB income is covered under section 28 of the Income-tax Act and that deduction under section 80HHC is available on such income. The Tribunal noted the retrospective amendment made by the Taxation Laws (Amendment) Act, 2005, effective from April 1, 1998, which inserted clause (iiid) in section 28. This amendment deemed any profit on the transfer of DEPB as profits and gains of business. Consequently, section 80HHC was also modified to include clause (iiid) in the explanation below sub-section (4C). These amendments were made after the Assessing Officer and Commissioner of Income-tax (Appeals) had passed their orders. Thus, the Tribunal concluded that the assessee was entitled to deduction on the DEPB profits for the assessment year 2001-02. Both the Departmental Representative and the assessee's counsel agreed to restore the matter to the Assessing Officer for computation of the deduction as per the amended provisions. The Tribunal restored the matter to the Assessing Officer with a direction to grant further deduction under section 80HHC on the DEPB profits in accordance with the law, thereby treating the Revenue's appeal as dismissed. 2. Exclusion of DEPB receipts from business income for deduction under section 80-IB: The assessee's cross-objection challenged the Commissioner of Income-tax (Appeals) upholding the Assessing Officer's decision to exclude DEPB receipts from business income, thus denying deduction under section 80-IB. The Assessing Officer had attributed 50% of the profits to manufacturing activity and denied deduction under section 80-IB on DEPB profits, stating there was no direct nexus between the profit and the industrial undertaking. The Commissioner of Income-tax (Appeals) agreed with this view but made some adjustments, granting further relief to the assessee. Before the Tribunal, the assessee's counsel relied on decisions from the Income-tax Appellate Tribunal, which distinguished the wording in section 80-IB ("profits and gains derived from any business") from sections 80HH and 80-I ("profits and gains derived from an industrial undertaking"), arguing that the scope of section 80-IB is broader. The counsel also argued that DEPB profits should be considered similar to duty drawback, which had been ruled eligible for deduction under section 80-IB in other cases. The Departmental Representative countered that DEPB profits, arising from selling entitlements in the market, do not have a direct nexus with the industrial undertaking's business. They cited various High Court and Supreme Court decisions, including CIT v. Jameel Leathers and Uppers and CIT v. Sterling Foods, which held that such profits are not derived from the business of the industrial undertaking. The Tribunal noted the conflicting views in different High Court decisions regarding duty drawback but emphasized that DEPB profits are distinct as they arise from an independent transaction of selling entitlements. The Tribunal concluded that DEPB profits do not have a direct nexus with the business of the industrial undertaking and are one step removed from it. Therefore, the assessee was not entitled to deduction under section 80-IB on DEPB profits. The cross-objection was dismissed. Conclusion: The appeal of the Revenue was treated as dismissed, and the cross-objection of the assessee was also dismissed.
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