TMI Blog2014 (1) TMI 339X X X X Extracts X X X X X X X X Extracts X X X X ..... . Maratha And Shri N. K. Saini,JJ. For the Petitioner : Shri Suresh Ojha Shri D.S. Bohra For the Respondent : Shri D. C. Sharma, D.R. ORDER Per: Bench. These appeals by the assessees are directed against the order of the Ld. CIT(A)-III, Jaipur as following details:- Appeal No. Order dated Assessment year. I.T.A. No. 964/JP/2011 23/08/2011 2008-09 I.T.A. No. 739/JP/2012 24/07/2012 2009-10 I.T.A. No. 819/JP/2013 17/09/2013 2009-10 2. In all these appeals, common issue is involved, which relates to sustenance of disallowance of deduction claimed u/s 80IB of the I.T. Act, 1961 (hereinafter to be referred as the Act), on account ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2.2. We have heard the rival submissions. We have also perused the sections of the Act referred to and the decisions relied on, by the parties. After considering them in entirety vis-a-vis the facts of this case, we are in agreement with the submissions of the appellant. 2.3 The amended section came into force w.e.f. 01-04-1998. This amendment was brought into by inserting clause (iiid), which reads as under:- Section 28 - The following income shall be chargeable to income tax under the head 'Profit and Gains of Business or Profession:- .............. ............. (iiid) Any profit on the transfer of the Duty Entitlement Pass Book Scheme, being the Duty Remission Scheme under the export and import policy formulated and amended u/ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... able and undisputed fact that Assessing Officer has passed the impugned order based on the verdict given in Liberty India (supra). The perusal of the judgement reveals that their Lordships have not considered the amended provision. As against which is rightly pointed by by the ld. AR, the Hon'ble Rajasthan High Court in the decision of Saraf Seasoning Udhyog (supra) have discussed and relied on even the amended provision. Further it is trite that when any amended provision is not considered or for that matter, any relevant provision of the Act is not considered while giving a judgement, it is treated as in per curium. 2.8 The Hon'ble High Court has taken its view while deciding the case of Chokshi Contracts (P) Ltd. in 251 ITR 587 (Raj.) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 6), 218 ITR 71 (Raj.) was per incuriam and cannot be taken as a binding precedent and does not assist the Revenue in any manner.'' 2.9 Similar view has been taken by the Jodhpur Bench in the case of M/s. Bothra International, Jodhpur in ITA No. 37/JU/2011 - A.Y. (2002-03) dated 21-09-2012. Therefore, the decision of Liberty India will not rule the field after amendment. Moreover, in any other case, the issue becomes a debatable one in the light of the above decision. It is settled position of law that where any issue is debatable, it cannot be corrected u/s 154 of the Act. In this regard, the Hon'ble Apex Court in the case of T.S. Balaram (ITO) vs. Volkart Brothers and others reported in 82 ITR 50(SC) is relevant wherein an action taken b ..... X X X X Extracts X X X X X X X X Extracts X X X X
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