TMI Blog2013 (4) TMI 637X X X X Extracts X X X X X X X X Extracts X X X X ..... 28(iiib) which will be covered by the first proviso to section 80HHC(3) and excess of sale proceeds over the sales value has to be considered as business profit u/s.28(iiid) to which only third proviso to section 80HHC(3) can be applied. Said decision of the Special Bench has been upheld by the Hon'ble Supreme Court. We, therefore, modify the order passed by the CIT(A) in relation to deduction ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... levant year, had claimed the deduction u/s.80HHC in respect of sale proceeds of DEPB licence amounting to Rs.1,28,59,471/- which has been disallowed by the AO. In appeal, CIT(A) in the appellate order dated 06.02.2006 had allowed the claim of the assessee. However, subsequently, CIT(A) initiated proceedings u/s.154 of the Act on the ground that there was apparent mistake in the appellate order in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... attributable to the custom duty is higher than the credit allowable under the DEPB scheme; and iii) the assessee produces necessary and sufficient evidence to prove that he has satisfied the two conditions cumulatively. 2.1 The CIT(A) further noted that, in the present case, there was no option available to the assessee to choose between the two and the Duty Draw Back was not more than the DEP ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ire DEPB income cannot be considered as business profit u/s. 28(iiid) in view of the decision of Special Bench of the Tribunal in the case of Topman Exports vs. CIT (318 ITR (AT) 47) which have now been uphold by the Hon'ble Supreme Court (342 ITR 49). Ld. DR fairly conceded that the order of the CIT(A) require modification in view of the judgment of Hon'ble Supreme Court in the case of Topman Exp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 80HHC(3) can be applied. Said decision of the Special Bench has been upheld by the Hon'ble Supreme Court. We, therefore, modify the order passed by the CIT(A) in relation to deduction u/s.80HHC in respect of DEPB income and direct the AO to recompute the deduction in the light of judgment of Hon'ble Supreme Court in the case of Topman Exports (supra). 6. In the result, appeal of the assessee is ..... X X X X Extracts X X X X X X X X Extracts X X X X
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