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TMI Blog2018 (5) TMI 1782X X X X Extracts X X X X X X X X Extracts X X X X ..... 0BA was inserted by the Finance Act, 2003 with effect from 1.4.2004 whereas section 80IA was inserted by the Finance Act, 1999 with effect from 1.4.2000. Originally section 80IA was inserted by the Finance Act, 1991 with effect from 1.4.1991. The languages of both the sections are same but the effective dates are different. Therefore, findings of Hon’ble Supreme Court in the case of Liberty India [2009 (8) TMI 63 - SUPREME COURT]squarely are applicable in case of deduction claimed by the assessee under section 10BA and credited duty draw back and DEPB in the Profit & Loss Account, but is not derived income from undertaking. Therefore, we reverse the order of ld. CIT (A) to that extent. Entire sale proceeds not to be treated as profits b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an industrial undertaking a certain percentage deduction be allowed for number of assessment years specified under the law. Whereas in section 80IB deduction is allowed to certain industrial undertaking other than infrastructure development undertaking from the profit and gains derived from any business referred to in sub section (3) to (11), (11A) and 11B) as such business being referred to as the eligible business on certain percentage basis and for such number of assessment years specified under the law. Section 10BA also provides special deduction of such profit of eligible article or things. This section applies to any undertaking which fulfill the following conditions, namely, (a)It manufactures or produces the eligible articles ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the assessee under section 10BA and credited duty draw back and DEPB in the Profit Loss Account, but is not derived income from undertaking. Therefore, we reverse the order of ld. CIT (A) to that extent. 12.1. However, Hon ble Supreme Court in the case of Topman Exports (supra) held that entire sale proceeds not to be treated as profits but only difference between sale value and face value of credit DEPB credit chargeable as income under section 28(iiib) in year in which applied for against exports. Further, profit on transfer of credit chargeable under section 28(iiid) in year in which transferred. The ld AR has also referred the decision of ITAT Jodhpur Bench, Jodhpur in the case of Angira Art Exports and Suraj Exports India an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ucts. DEPB entitlement arises only when the undertaking goes on to export the said product, that is after it manufactures or produces the same. Pithily put, if there is no export, there is no DEPB entitlement, and therefore its relation to manufacture of a product and/or sale within India is not proximate or direct but is one step removed. Also, the object behind DEPB entitlement, as has been held by this Court, is to neutralize the incidence of customs duty payment on the import content of the export product which is provided for by credit to customs duty against the export product. In such a scenario, it cannot be said that such duty exemption scheme is derived from profits and gains made by the industrial undertaking or business itself. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... income from other sources . 29. For the reasons given by us, we are of the view that the Gauhati, Calcutta and Delhi High Courts have correctly construed Sections 80- IB and 80-IC. The Himachal Pradesh High Court, having wrongly interpreted the judgments in Sterling Foods and Liberty India to arrive at the opposite conclusion, is held to be wrongly decided for the reasons given by us hereinabove. 4. The same view was followed by this Court in the case of CIT Jaipur V/s Suresh Kumar Bajoria in D. B. Income Tax Appeal No. 294/2008 decided on 18.05.2017. The said decisions have not been taken into consideration by the authority. 5. Therefore, the matter is remitted back to the AO to decide the same in the light of aforesaid ..... X X X X Extracts X X X X X X X X Extracts X X X X
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