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TMI Blog2017 (7) TMI 1249X X X X Extracts X X X X X X X X Extracts X X X X ..... e interest is not statutory liability. In that view of the matter, the contention of Mr. Ranka is required to be rejected. - Decided in favour of the department - D.B. Income Tax Appeal No. 10/2008 - - - Dated:- 5-7-2017 - MR. JUSTICE K.S. JHAVERI AND MR. JUSTICE INDERJEET SINGH For the Appellant : Mr. Siddarth Ranka For the Respondent : Mr. Anuroop Singhi Judgment 1. By way of this appeal, the appellant has assailed the judgment and order of the Tribunal whereby the Tribunal has partly allowed the appeal of the assessee. 2. This Court while admitting the matter vide order dated 20th August, 2008, framed the following questions of law:- 1. Whether on the facts and in the circumstances of the case the learned T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ited by a Chartered Accountant. The audit report u/s 44 AB and u/s 80 HHC of the I.T. Act was also obtained and such reports were furnished on the assessment record, as in the past years. The appellantassessee is being assessed to income tax for the last several years. The appellant-assessee furnished return of income declaring an income of ₹ 10,67,450/- on 27.10.1997. the profit as per Profit and Loss Account was shown at ₹ 40,75,275/-. The Chartered Accountant computed deduction under Section 80 HHC of the I.T. Act at ₹ 33,78,871/- vide report of 4.10.1997. 5. Counsel for the respondent has relied upon the decision of this Court in Tax Appeal No. 329/2005 in case of M/s Chordia Trading Corporation vs. Income Tax Offic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... HHC for determining profits of business- Held, yes [In favour of assessee] 2. Section 80HHC, read with sections 28(iiid), of the Income Tax Act,1961- Deductions -Exporters- Assessment year 2003-04- Whether not entire amount received by assessee on sale of DEPB by assessee under section 28(iiid) for purpose of Explanation (baa) to section 80HHC- held, yes [In favour of assessee]. 6. Counsel for the department has relied on decision of this Court in case of Kushal Kishore Agarwal vs. The Income Tax Officer Ors. in DB Income Tax Appeal No.124/20026, decided on 09.11.2016 and in case of Dhadda Exports vs. I.T.O. Jaipur in DB Income Tax Appeal No.62/2003, decided on 08.09.2016. 9. Taking into consideration the contention which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... income. 10. Counsel for the appellant has taken us through the finding recorded by AO and CIT (A) as well as oral and documentary evidence on record on the point of interest and business income. The income involved is not a business income, therefore, naturally they will not be entitled to benefit under Section 80HHC and view taken by the Tribunal is required to be upheld and for the same, the issue is answered in favour of Department and against the assessee. 8. He has also relied upon in another decision of this Court in case of CIT Jaipur vs. M/s R.A. Buildcon (P) Ltd. (DBITA No.74/2004) passed on 17th January, 2017 wherein in para 9 10 it has been observed as under:- 9.Taking into consideration the observations made b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion of Gujarat High Court in case of Asstt. CIT vs. Norma Detergent Pvt. Ltd. decided on 16th February, 2016 wherein it has been held as under:- Considering the totality of the facts and on conjoint reading of the aforesaid provisions of sections 143, 234B and 156 of the Income Tax Act and when levy of interest under section 234B of the Act is held to be mandatory and automatic, and the same is on the difference between the advance tax paid and assessed tax and as observed hereinabove, A.O. has no discretion to levy any other interest other than provided under section 234B of the Act. Thereafter, levy of interest under section 234 of the Act would be consequential only and only arithmetically amount of interest is required to be calcul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (supra) and in the case of Karanvir Singh Gossal (supra), question of law posed for consideration of this Court is to be answered in favour of the revenue and against the assessee. 7.15. Now, so far as the decisions of the other High Courts, relied upon the learned counsel appearing on behalf of the assessee, which are referred to hereinabove, are concerned, it is required to be noted that in all such cases, concerned High Courts have relied upon the decision in the case of Rachi Club Ltd. (supra). However, in view of the aforesaid two subsequent decisions of the Hon ble Supreme Court and for the reasons stated hereinabove, in respectful submission we are not in agreement with the contrary view taken than what we are taking in the pr ..... X X X X Extracts X X X X X X X X Extracts X X X X
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