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TMI Blog2012 (7) TMI 459X X X X Extracts X X X X X X X X Extracts X X X X ..... the head “Profits and Gains of Business or Profession” even before it is transferred by the assessee - while the face value of the DEPB will fall under clause (iiib) of Section 28 the difference between the sale value and the face value of the DEPB will fall under clause (iiid) of Section 28 and it was not right in taking the view that the entire sale proceeds of the DEPB realized on transfer of the DEPB and not just the difference between the sale value and the face value of the DEPB represent profit on transfer of the DEPB - in favour of assessee. - ITA 4493, 4494 & 4495/D/2011 - - - Dated:- 8-6-2012 - SHRI A.N. PAHUJA, AND SHRI CHANDRA MOHAN GARG, JJ. Appellant by: Shri R.K. Mehra Respondent by : Dr. B.R.R.Kumar, Sr. DR ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on the facts and in the circumstances of the petitioner company s case, the ld. CIT(A) erred in law in upholding the charging of the interest under section 234B of the Act, by completely ignoring the beneficial circular no. 2/2006 dated 17.01.2006 issued by the Central Board of Direct Taxes. 4. That the order made is bad in law. 3. Briefly stated, the facts of the case are that the fact that there were specific directions by the ITAT to decide the issue of deduction u/s 80HHC of the Act vis- -vis receipts on account of sale of DEPB but the AO disallowed the same with a finding that profit earned from the sale of DEPB benefits are also to be included in the income of the assessee besides its face value. The above assessment order was uph ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tever name called) received or receivable by any person against exports under any scheme of the Government of India;] (iiic) (iiid) any profit on the transfer of the Duty Entitlement Pass Book Scheme, being the Duty Remission Scheme under the export and import policy formulated and announced under section 5 of the Foreign Trade (Development and Regulation) Act, 1992 (22 of 1992) (iiie) any profit on the transfer of the Duty Free Replenishment Certificate, being the Duty Remission Scheme under the export and import policy formulated and announced under section 5 of the Foreign Trade (Development and Regulation) Act, 1992 (22 of 1992). 12. It will be clear from the aforesaid provisions of Section 28 that under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... E.D. Sassoon Company Ltd. and Others v. Commissioner of Income-Tax, Bombay City (1954) 26 ITR 27 (SC) has quoted the following observations of Lord Justice Fletcher Moulton in The Spanish Prospecting Company Limited [(1911) I Ch. 92] on the meaning of the word profits : . Profits implies a comparison between the state of a business at two specific dates usually separated by an interval of a year. The fundamental meaning is the amount of gain made by the business during the year. This can only be ascertained by a comparison of the assets of the business at the two dates. Profits , therefore, imply a comparison of the value of an asset when theasset is acquired with the value of the asset when the asset is transferredand the diff ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... just and proper that the AO may be allowed to decide the matter afresh in accordance with the directions given by Hon ble Supreme Court in this regard. 6. We have considered the rival arguments of both the parties in the facts and circumstances of the present case and carefully perused the entire record before us. We observe that the action of the AO upheld by the ld. CIT(A) is not in accordance with the proper interpretation of provisions in the judgment of Hon ble Supreme Court in the case of Topman Exports (supra). In the light of above judgement of Hon ble Supreme Court, we set aside the impugned orders and restore all these issues to the file of the AO with the direction that he will decide the matter afresh de novo in accordance wit ..... X X X X Extracts X X X X X X X X Extracts X X X X
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