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TMI Blog2014 (2) TMI 797X X X X Extracts X X X X X X X X Extracts X X X X ..... lows :- "(1) Whether on the facts and circumstances of the case the Income Tax Appellate Tribunal was justified in law in holding that Vibro Bed Drier is an item covered Under Appendix-1/H-III/(3)(III) of the Income Tax Rule 1962 and is entitled for 100% depreciation ?" Mr. Bhowmick, learned Advocate appearing for the revenue, drew our attention to the schedule appearing in appendix to the Income Tax Rule 1962 and wanted to impress upon us that Vibro Bed Drier is not an energy saving device as per the aforesaid schedule and therefore 100% depreciation could not have been permitted. Mr. Bagaria, learned Advocate appearing for the assessee, drew our attention to item No.3C of the schedule applicable to 'waste heat recovery equipment'. He su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nergy efficient instrument was considered to fall within the relevant entry of this schedule and therefore 100% depreciation was allowed. The question is a mixed question of fact and law. The department at the appropriate stage did not try to lead any evidence to show that the instrument in question cannot be brought within entry 3B or 3C of the schedule. We are as such unable to find any fault with the views expressed by the Tribunal. Accordingly, the first question is answered in the affirmative and in favour of the assessee. The second question formulated in this case reads as follows :- "(2) Whether on the facts and circumstances of the case the Income Tax Appellate Tribunal was justified in law in holding that valuation of closing st ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bservations were made by them :- "We would like to make it absolutely clear that the removal of the amount in question from the figure of closing stock is not tantamount to a 'tinkering' of the closing stock but allowing to the assessee the effective deduction to which it is entitled under Section 43B. We would also like to emphasise that in the subsequent assessment year, the assessee's opening stock would stand reduced by a corresponding figure since it cannot avail of a 'double deduction'." We have considered the rival submissions advanced by the learned Counsel appearing for the parties. In the case of British Paints India Ltd. relied upon by Mr. Bhowmick what had happened was that the stock in trade was valued at 84.49% representing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is case reads as follows :- "(3) Whether on the facts and circumstances of the case the Income Tax Appellate Tribunal was justified in law in holding that the export turnover should be the total of the amount brought to India and the amount paid as brokerage/commission outside India ignoring the fact that the amount paid as brokerage/commssion was not made by appropriate remittances from India ?" Mr. Bhowmick, learned Advocate appearing for the revenue appellant, drew our attention to explanation (b) to Section 80 HHC which reads as follows :- "(b) "export turnover" means the sale proceeds [received in, or brought into, India] by the assessee in convertible foreign exchange [in accordance with clause (a) of sub-section (2)] of any goods ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mitted to the foreign insurers and thereafter the balance has to be brought inside the country for the purpose of obtaining benefit because that would be an idle formality. This judgement has no manner of application to the facts and circumstances of this case. The other judgement cited by him is in the case of Commissioner of Income Tax -vs- Bannariamman Exports Ltd. In that case, the assessee exported molasses worth Rs.6,14,87,164/- but the foreign buyer paid the amount after deducting the amount of demurrage and dead freight. It was held by the Madras High Court that in the facts of the case it could not be said that the sale consideration was less than Rs.6,14,87,164/- for the purpose of claiming deduction under Section 80 HHC. Mr. Baga ..... X X X X Extracts X X X X X X X X Extracts X X X X
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