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2011 (2) TMI 953 - HC - Income TaxDEPB scheme - whether a Business income? - Held that - The matter is covered in favour of the revenue by orders of this Court CIT v. M/s Victor Forgings 2010 (8) TMI 793 - PUNJAB & HARYANA HIGH COURT and CIT v. F.C. Sondhi 2010 (8) TMI 420 - PUNJAB AND HARYANA HIGH COURT wherein after noticing the judgment of the Bombay High Court in CIT v. Kalpataru Colours & Chemicals 2010 (6) TMI 63 - BOMBAY HIGH COURT the matter was remanded to the Tribunal for fresh decision in accordance with law - Decided against the assessee
Issues:
1. Interpretation of Sections 28(iiid) and 28(iiie) of the Income Tax Act, 1961 regarding the treatment of total sale consideration inclusive of face value of DEPB and premium amount. 2. Determination of profit on the transfer of DEPB entitlement and whether it includes the entire amount inclusive of premium. 3. Understanding the meaning of "profit" in Sections 28(iiid) and 28(iiie) in relation to the difference between the sale price of DEPB and the face value of DEPB. 4. Deduction of the face value of DEPB from the sale price for calculating profit under Sections 28(iiid) and 28(iiie). 5. Requirement of any artificial cost interpolation for the determination of deduction under Section 80HHC of the Income Tax Act, 1961. 6. Computation of deduction under Section 80HHC in accordance with the amendment made by the Taxation Laws (Amendment) Act, 2005 with retrospective effect from 01.04.1998. Analysis: 1. The appeal raised substantial questions of law regarding the interpretation of Sections 28(iiid) and 28(iiie) of the Income Tax Act, 1961. The issue revolved around whether the total sale consideration, including the face value of Duty Entitlement Pass Book (DEPB) and premium amount, represents profit chargeable under the mentioned sections. The Tribunal's decision was challenged by the revenue, questioning the correctness of not considering the entire amount inclusive of premium as profit. 2. Another issue in the appeal was the determination of profit on the transfer of DEPB entitlement. The question arose whether the profit includes the entire amount, incorporating the premium received from the sale of DEPB. The Tribunal's decision was under scrutiny for not holding the entire amount as profit on the transfer. 3. The interpretation of the term "profit" in Sections 28(iiid) and 28(iiie) was a crucial aspect of the case. The debate centered on whether the profit should be calculated as the difference between the sale price of DEPB and the face value of DEPB. The Tribunal's approach of ignoring the fact that the entire amount could represent profit was challenged in this context. 4. The matter also involved the deduction of the face value of DEPB from the sale price for the computation of profit under Sections 28(iiid) and 28(iiie). The Tribunal's method of treating the face value as the cost incurred by the assessee for acquiring DEPB was in question. 5. Furthermore, the issue of whether any artificial cost interpolation is required for determining the deduction under Section 80HHC of the Income Tax Act, 1961 was raised. The Tribunal's decision on the necessity of deducting the face value of DEPB/DFRC from the sale proceeds for the purpose of deduction under Section 80HHC was a point of contention. 6. Lastly, the computation of deduction under Section 80HHC in accordance with the amendment made by the Taxation Laws (Amendment) Act, 2005 with retrospective effect from 01.04.1998 was discussed. The Tribunal's failure to appreciate the correct computation of deduction under this section was highlighted in the appeal. Ultimately, the High Court disposed of the appeal in favor of the revenue based on earlier orders, providing the respondent with the liberty to challenge the decision if aggrieved.
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