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TMI Blog2016 (2) TMI 1180X X X X Extracts X X X X X X X X Extracts X X X X ..... ) for assessment year 2010–11 by allowing assessee’s claim - Decided in favour of the assessee. X X X X Extracts X X X X X X X X Extracts X X X X ..... hina Shipping Container Lines (Hong Kong) Core Ltd. v/s ADIT, ITA no.8516/Mum./2010, dated 23rd August 2010, wherein it was held that service tax will form part of the gross receipts for computing income under section 44B, decided the issue against the assessee by upholding the assessment order. While the department had challenged the order passed by the first appellate authority in assessee's favour, assessee is challenging the decision against it by the learned CIT(A) on the very same issue. 5. The learned Counsel for the assessee submitted before us, the issue whether service tax should form part of gross receipts having already decided by the Tribunal in assessee's own case for assessment year 2007-08, in assessee's favour, the same is binding as far as present assessee is concerned. Learned counsel, relying upon the decision of the Tribunal, Mumbai Bench, in Marubeni Corporation v/s DCIT, [2014] 44 Taxmann.com 22 (Mum.), submitted when there is an order of the Tribunal deciding the particular issue in assessee's own case for the earlier assessment year, the same will be a binding precedent unless there is change in law or change in facts and circumstance of the case. Further, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cluded in the total turnover for the purpose of computing deduction u/s.80HHC. It was observed by the Hon'ble Court that since no excise duty and sales tax were leviable in respect of exports, therefore, while calculating the deduction u/s.80HHC by the formula - profits of business x Export turnover Total turnover it would not be proper to include the sales tax and excise duty in the total turnover, because there cannot be any element of profit in sales tax and excise duty. In our view, this principle is equally applicable to the service tax also. Again the Hon'ble Uttarakhand High Court in the case of DIT [IT] vs. Schlumberger Asia Services Ltd. [supra], wherein the question was whether the amount of customs duty paid was includible in the total turnover for computing profits u/s.44BB. The Hon'ble High Court has observed at placitum-8 as under: "Having considered the submissions of the learned counsel for the parties, we are of the view that reimbursement towards the customs duty, paid by the assessee, being statutory in nature, cannot form part of amount for the purposes of deemed profits unlike the other amounts received towards reimbursement. Therefore, we do n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... change in law, change in the facts and circumstances of the case; and the same is contrary to the decision rendered by the Jurisdictional High Court or Apex Court. In absence of any of such circumstances, the earlier decision of the Tribunal in assessee's own case has to be applied. Accordingly, we decided the issue raised in the present appeal in favour of the assessee. The relevant observations of the Tribunal from earlier order have already been reproduced in the above appeal of this order.In view of above discussion, Ground No. 1 is allowed." 9. In the present case, the Department has not brought to our notice either any change in law or change in facts and circumstances which was considered by the Tribunal while deciding the issue in assessee's favour in assessment year 2007-08. As per the ratio laid down by the Co-ordinate bench of the Tribunal in Marubeni Corporation (supra), the Tribunal's decision in assessee's own case being a binding precedent has to be followed / applied. Moreover, in case of Mitchell Drilling International Pvt. Ltd. (supra), the Hon'ble Delhi High Court agreeing with the view expressed by Hon'ble Uttarakhand High Court in Schlumberger Asia ..... X X X X Extracts X X X X X X X X Extracts X X X X
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