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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 ..... e sake of convenient and proper adjudication, we are deciding these appeals by this common order. 2. The appeals are pertaining to A.Y. 1999-2000, 2003-04 and 2004-05 on identical grounds which read as under:- "1. That on the facts and in the circumstances of the petitioner company's case, the ld. CIT(A) erred in law and on facts in upholding the order of the learned assessing officer ignoring the fact that the specific directions were given by the Hon'ble Tribunal to decide the issue of deduction under section 80HHV vis-à-vis receipts on account of sale of DEPB by following the decision of the Special Bench of the Tribunal in the case of Topman Exports vs ITO (2009) 318 ITR 87 (Mum) which the learned assessee failed to do so. 2. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... order on 16.12.2010 which was upheld by the CIT(A) passing the impugned order dated 9.8.2011 and these appeals were filed on 7.10.2011 and during the pendency of these appeals, the decision by the Hon'ble Supreme Court of India in the case of Topman Exports vs CIT, Mumbai (2012) 205 Taxman 119(SC) was pronounced on 8.2.2012. The relevant operating paras of the judgment of Hon'ble Supreme Court in the case of Topman Exports (supra) are being reproduced hereinbelow:- "11. We may now consider the relevant provisions of Section 28 for determining whether DEPB will fall under clause (iiib) or under clause (iiid) of Section 28. The relevant provisions of Section 28 of the Act are reproduced hereunder: Section 28. Profits and Gains of Business o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... India to an exporter to pay customs duty on its imports and it is receivable once exports are made and an application is made by the exporter for DEPB. We have, therefore, no doubt that DEPB is "cash assistance" receivable by a person against exports under the scheme of the Government of India and falls under clause (iiib) of Section 28 and is chargeable to income tax under the head "Profits and Gains of Business or Profession" even before it is transferred by the assessee. 13. Under clause (iiid) of Section 28, any profit on transfer of DEPB is chargeable to income tax under the head "Profits and Gains of Business or Profession" as an item separate from cash assistance under clause (iiib). The word "profit" means the gross proceeds of a b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the considered opinion that while the face value of the DEPB will fall under clause (iiib) of Section 28 of the Act, the difference between the sale value and the face value of the DEPB will fall under clause (iiid) of Section 28 of the Act and the High Court was not right in taking the view in the impugned judgment 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." 5. The AR has drawn our attention towards above judgement of the Hon'ble Apex Court by submitting that now the position and interpretation of Section 28(iiib) r/w section 28(iiid) of the Act make it clear that the cash assistanc ..... X X X X Extracts X X X X X X X X Extracts X X X X
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