TMI Blog2008 (8) TMI 340X X X X Extracts X X X X X X X X Extracts X X X X ..... 1, otherwise - is held entitled to deduction under section 80-IB, for both the years - 76 and 77 of 2006 - - - Dated:- 21-8-2008 - N. P. GUPTA and KISHAN SWAROOP CHAUDHARI JJ. Suresh Ojha for the appellant. K. K. Bissa for the respondent. JUDGMENT The judgment of the court was delivered by N. P. GUPTA J. - These two appeals have been filed by the assessee seeking to challenge the judgment of the Tribunal dated February 10, 2006, deciding two appeals, relating to the assessment years 2003-04 and 04-05. 2. The appeals were admitted on September 11, 2006, by framing the following substantial question of law: "Whether, in the facts and circumstances of the case and considering the fact that clause (iiid) was inserted ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rom other sources. It was also contended that since 100 per cent, deduction is admissible under section 80-IB, the assessee is entitled to the same deduction on the income earned from sale of DEPB licences. The Assessing Officer, vide order dated March 30, 2005, disallowed the deduction. 5. This was challenged in appeal, and the learned Commissioner (Appeals) upheld the disallowance, again relying on the judgment in Sterling Foods' case [1999] 237 ITR 579. The learned Tribunal also in turn dismissed the appeal, relying upon the same judgment in Sterling Foods' case [1999] 237 ITR 579, and in addition, also held that in view of the judgment of the hon'ble Supreme Court, in Pandian Chemicals Ltd. v. CIT reported in [2003] ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under section 5 of the Foreign Trade Act, became chargeable to tax, under the head "Profits and gains of business or profession". Obviously, it is to be chargeable as profits and gains of the business, or profession of the assessee. 10. Section 80-IB, which provides for exemption, also reads as under: "80-IB. Deduction in respect of profits and gains from certain industrial undertakings other than infrastructure development undertakings.— (1) Where the gross total income of an assessee includes any profits and gains derived from any business referred to in sub-sections (3) to (11), (11A) and (11B) (such business being hereinafter referred to as the eligible business), there shall, in accordance with and subject to the provisions of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... [1999] 237 ITR 579 is concerned, that judgment reported in 237 ITR 579 is of the year 1999, at which time, the newly added provision of clause (iiid) did not exist, which has been inserted, as noticed above, in the year 2005, with retrospective effect from April 1, 1998. Likewise, the judgment in Pandian Chemicals Ltd.'s case [2003] 262 ITR 278 is also of the year 2003. Thus, the introduction of clause (iiid) of the amendment in 2005, with retrospective effect from April 1, 1998, has changed the whole scenario, as considered by the hon'ble Supreme Court, in the above two judgments. 14. Learned counsel for the appellant, relied upon a recent judgment of the hon'ble Supreme Court in B. Desraj v. CIT [2008] 301 ITR 439. This is a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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