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TMI Blog2014 (8) TMI 5X X X X Extracts X X X X X X X X Extracts X X X X ..... claiming deduction u/s 80HHC of the Act - for claiming deduction u/s 80HHC, the assessee itself claimed that Central Excise Duty set off is export incentive by way of duty drawback, the assessee cannot take different stand while claiming deduction u/s 80IA - the stand taken by the assessee while claiming deduction u/s 80HHC under the Act, the Tribunal has rightly held that the assessee shall not be entitled to deduction u/s 80IA of the Act on the Central Excise Duty set off as well as Sales Tax set off – Decided against Assessee. - Tax Appeal No.1346 of 2005, Tax Appeal No.1347 of 2005, Tax Appeal No.1348 of 2005 - - - Dated:- 18-7-2014 - M. R. Shah And R. P. Dholaria,JJ. For the Petitioner : Mr. Sn Divatia For the Respondent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... circumstances of the case, Income Tax Appellate Tribunal, was right in law in confirming that the appellant was not entitled to the deduction under Section 80IA of the Income Tax Act, 1961 in respect of Central Excise Duty set off of ₹ 62,29,316/-? 3.0. For the sake of convenience, we will take the facts of Tax Appeal No.1346 of 2005 arising out of the judgment and order passed by the learned Tribunal passed in ITA No.806/AHD/1999 for the AY 1994-95. 3.1. That the assessee is a closely held company engaged in the business of mfg of dyes and chemicals filed its return of income for AY 1994-95 on 28.11.1994 declaring total income at Rs. NIL after claiming inter alia the deduction of ₹ 5,52,485/- under Section 80IA. That the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he said appeal and directed to exclude the central excise and sale tax from total turnover for the purpose of computing deduction under Section 80HHC of the Act as well as to include interest income, export incentive, central excise set off and sales tax set off for computing deduction under Section 80IA of the Act. 3.4. Feeling aggrieved and dissatisfied with the order passed by the learned CIT(A), the revenue preferred appeal before the learned ITAT and considering the decision of the Hon'ble Supreme Court in the case of CIT vs. Sterling Foods reported in 237 ITR 579, the learned Tribunal has partly allowed the said appeal and has quashed and set aside the order passed by the learned CIT(A) directing to include the central excise s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f has claimed the central excise set off to be in the nature of duty draw back linked with export profit. The assessee cannot take different stand while claiming deduction u/s 80IA and 80HHC. We find that before the CIT(A) the assessee claimed that the sales tax set off is also in the nature of the export incentive .... since the assessee itself has claimed the sales tax set off to be export incentive, the decision of the Hon'ble Apex Court in the case of Sterling Foods (Supra) would be squarely applicable in this regard also. 5.2. It is submitted by Shri Divatia, learned advocate for the assessee that above said observations and conclusion reached by the Tribunal are based solely on ground that before the CIT(A) the assessee has cl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aforesaid ground and as held against the assessee without considering the fully and properly the material available on record. It is submitted that it has also failed in passing reasoned and speaking order so as to reverse the finding and conclusion of the CIT(A). 5.4. Making above submissions and relying upon decision of the Income Tax Appellate Tribunal, Lucknow Bench, Lucknow passed in the case of Arvind Footwear Pvt Ltd vs. Deputy Commissioner of Income Tax Range 6, Kanpur rendered in ITA No.363/Luck/2010 and other allied appeals, it is requested to quash and set aside the impugned order passed by the learned Tribunal and restored the matter back to the file of the Tribunal so as to decide the appeal on its merits in accordance with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under Section 80IA of the Income Tax Act, 1961 in respect of Central Excise Duty set off and sales tax set off. At the outset, it is required to be noted that the aforesaid issue is squarely covered against the assessee in view of the decision of the Hon ble Supreme Court in the case of Liberty India vs. CIT reported in 317 IT 218 (SC) as well as in the case of Sterling Foods (supra). It is required to be noted that with respect to export incentive under the scheme of DEPB, it is held by the Hon ble Supreme Court in the case of Liberty India (supra) that in respect of DEPB and duty drawback the assessee is not entitled to deduction under Section 80IB of the Act. In the facts and circumstances of the case and so observed by the learned Trib ..... X X X X Extracts X X X X X X X X Extracts X X X X
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