TMI Blog2014 (6) TMI 981X X X X Extracts X X X X X X X X Extracts X X X X ..... nd circumstances of the present case. The Tribunal did not commit any error in holding that if the claim was of Daman Unit of the Assessee, then the matter was squarely covered against the Assessee and in favour of the Revenue by Liberty India' judgment. From the copy of the order passed by the Delhi High Court in the case of Dharampal Premchand Ltd., [2010 (9) TMI 155 - DELHI HIGH COURT] it is apparent that Assessee filed return declaring certain income which included amount refunded as excise duty. The Assessing Officer held that the refund of excise duty was not income derived and therefore, the Assessee was not entitled to include the same in its income. It is in that event the Assessing Officer held that the deduction under section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ention is invited by the Assessee's counsel to page 93 of the paper-book to submit that in the Assessment Year, the Assessing Officer referred to duty drawback claim in the sum of ₹ 1,34,09,406/and DEPB in the sum of ₹ 89,232/. The Tribunal while passing the impugned order has brushed aside the claim in relation to the duty drawback. Therefore, the Tribunal's order is vitiated by an error of law apparent on the face of the record and perversity. Consequently, this Appeal raises a substantial question of law. 5. Alternatively, it is submitted that the Tribunal applied the judgment in the case of Liberty India vs. CIT, reported in (2009) 317 ITR 218 without ascertaining as to whether the facts emerging from the record o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he judgment in Liberty India (supra). For all these reasons, it is submitted that the present Appeal should also be entertained and for an additional ground which has been mentioned in the memo of present Appeal. 8. We have perused with the assistance of the learned counsel appearing on behalf of the Assessee in support of this Appeal the memo of Appeal and Annexures thereto including the order of the the Tribunal. The Assessee's case and as noted by the authorities was that the deduction has not been allowed though legitimately falling under section 80-IB of the Income Tax Act 1961. It is submitted by the Assessee itself before the authorities that duty drawback is an integral part of the pricing of the goods and therefore, part of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty drawback are incentives which flow from the Schemes framed by Central Government or from s. 75 of the Customs Act 1962, hence, incentives profits are not profits derived from the eligible business under s.80-IB. They belong to the category of ancillary profits of such undertakings. ............... 24. In the circumstances, we hold that duty drawback receipt / DEPB benefits do not form part of the net profits of eligible industrial undertaking for the purposes of ss.80I/80IA/80IB of the 1961 Act. Respectfully following the decision of the Hon'ble Supreme Court, we set aside the order of the CIT (Appeals) and restore that of the AO. 11. The Assessee's own case was that this arrangement was in other than infrastr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e, then the matter was squarely covered against the Assessee and in favour of the Revenue by Liberty India' judgment. From the copy of the order passed by the Delhi High Court in the case of Dharampal Premchand Ltd., it is apparent that the Assessee Dharampal Premchand Ltd. Was engaged in manufacturing flavoured chewing tobacco and kiwam in its two units. It was entitled to exemption from excise duty in respect of one of its units by virtue of three Notifications issued by the Finance Ministry of Union of India. The procedure prescribed was that the excise duty will be paid by the Assessee while clearing goods from the bonded warehouse and same will be refunded to it in the succeeding month. The Assessee filed return declaring certain i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Commissioner of Income Tax v/s Meghalaya Steels Ltd., there was a return of income filed and in relation to three items which were clearly held to be profits and gains derived from the business. That is how the judgment in Liberty India v/s CIT was distinguished by the Gauhati High Court. That was a transport subsidy, power subsidy and interest subsidy on actual price and refund. All this therefore constitute the profits and gain derived from the business. They were therefore clearly deductible within section 80-IB. The judgment of the Liberty India was with respect rightly distinguished by the Gauhati High Court. 16. Such is not the case before us and therefore this Judgment is clearly inapplicable. Equally, the claim for the subsequent ..... X X X X Extracts X X X X X X X X Extracts X X X X
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