TMI Blog2013 (12) TMI 541X X X X Extracts X X X X X X X X Extracts X X X X ..... Explanation (baa) under Section 80HHC of the Act giving the formula for working out the deduction - "profits of the business" means the profits of the business as computed under the head "Profits and gains of business or profession" as reduced by ninety per cent., of any sum referred to in clause (iiia), (iiib), (iiic), (iiid) and (iiie) of Section 28 - 90% of the DEPB which is "cash assistance" against exports and is covered under clause (iiib) of Section 28 will get excluded from the "profits of the business" of the assessee, if such DEPB has accrued to the assessee during the previous year - Decided against Revenue. - Tax Case (Appeal) Nos.1013, 401, 1106 and 567 of 2009 - - - Dated:- 23-9-2013 - Chitra Venkataraman And T. S. Sivagnan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vour should be regarded as part of sale consideration when such benefits could not be treated as export benefits under Section 28(iiia) etc? 4. Whether on the facts and in the circumstances of the case, the Appellate Tribunal was right in holding that the decision of the Supreme Court in the case of Commissioner of Income Tax Vs. Baby Marine Exports (290 ITR 323) was applicable to the assessee's case without noticing that the said case related to export premium whereas in the assessee's case the issue related to DEPB and Duty Draw Bank disclaimed in its favour by the exporter ? Tax Case (Appeal).No.1106 of 2009:- " Whether in the facts and circumstances of the case, the Tribunal was right in holding that deduction under Section 80 HHC ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce received from the export house on the basis of the disclaimer certificate issued by the export house. Consequently, based on the decision of the Kerala High Court reported in (2003) 262 ITR 88 in the case of Baby Marine (Eastern) Exports Vs. ACIT, the assessee sought for inclusion of the said amount. 6. This was however rejected by the Assessing Officer holding that the export incentive was not part of the sale consideration. The Assessing Officer rejected the claim of the assessee holding that the reliance placed on the decision reported in (2003) 262 ITR 88 (Baby Marine (Eastern) Exports Vs. ACIT) was misplaced; only the export house alone got the incentives, hence the issue of disclaimer certificate by the export house did not arise ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he relief as such did not arise. 10. As far as the issue as to whether the Duty Entitlement Passbook Scheme (DEPB) incentives received by the assessee is part of the sale consideration or not, we find from the order of the Income Tax Appellate Tribunal that the claim of the assessee that it is part of the sale consideration was rejected in the background of Rule 18BBA(2) of Duty Drawback Rules. 11. As far as Commissioner of Income Tax (Appeals) is concerned, he had specifically pointed out that the rate of duty drawback given to the assessee was less than the credit available under the scheme. Before the Income Tax Appellate Tribunal, the Revenue did not raise this issue except the issue taken by the assessee as to the allowability of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e head "Profits and gains of business or profession" as reduced by ninety per cent., of any sum referred to in clause (iiia), (iiib), (iiic), (iiid) and (iiie) of Section 28 or any receipts by way of brokerage, commission, interest, rent, charges or any other receipt of similar nature including any such receipts and (2) the profits of any branch, office, warehouse or any other establishment of the assessee situated outside India. Thus, ninety per cent., of the DEPB which is "cash assistance" against exports and is covered under clause (iiib) of Section 28 will get excluded from the "profits of the business" of the assessee, if such DEPB has accrued to the assessee during the previous year. 13. Considering the pronouncement of the Apex Cou ..... X X X X Extracts X X X X X X X X Extracts X X X X
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