COMMISSIONER OF INCOME TAX-II vs RAMESHCHANDRA S PATEL

[1.0] Feeling aggrieved and dissatisfied with the impugned judgment and order dated 06.02.2009 passed by the learned Income Tax Appellate Tribunal, Ahmedabad Bench ''A'' (hereinafter referred to as "ITAT") in ITA No.3548/Ahd/2004 for AY 2001-02, by which the learned ITAT has partly allowed the said appeal preferred by the assessee and as such has

remanded the matter back to the Assessing Officer for de novo adjudication of the issue i.e. with respect to the deduction claimed under Section 80IA of the Income Tax Act, 1961 (hereinafter referred to as "IT Act"), the Revenue has preferred the present Tax Appeal to consider the following questions of law.

"[A] Whether the Appellate Tribunal is right in law and on facts in holding that duty drawback is ''derived'' from ''Industrial Undertaking'' and therefore eligible for computing deduction u/s.80IA of the Act?

[B] Whether the Appellate Tribunal is right in law and on facts in holding that income from DFPB licence is ''derived'' from ''Industrial Undertaking'' and thereafter restoring the issue to the Assessing Officer ascertaining the factual aspect for allowing deduction u/s.80IA of the Act?"

[2.0] Mrs. Bhatt, learned Advocate appearing on behalf of the Revenue has heavily relied upon the decision of this Court in the case of very assessee but with respect to AY 1999-2000 passed in Tax Appeal No.493/2007 by which relying upon the decision of the Hon''ble Supreme Court in the case of Liberty India vs. Commissioner of Income -Tax reported in (2009) 317 ITR 218 (SC), the Division Bench has allowed the said appeal and has quashed and set aside the similar order passed by the learned ITAT, it is requested to allow the present Tax Appeal also.

[3.0] Shri Soparkar, learned Advocate appearing on behalf of the assessee has submitted that as such in the present case the learned ITAT has held the issue in favour of the Revenue but has remanded the matter to the Assessing Officer for de novo adjudication and therefore, the impugned order is not required to be interfered with.

[4.0] In the alternative, Mrs. Bhatt, learned Advocate appearing on behalf of the Revenue has submitted that in that case it may be clarified that the Assessing Officer on remand to consider the decision of the Division Bench of this Court in Tax Appeal No.493/2007 which is in the case of the very assessee but for AY 1999-2000 and also the decision of the Hon''ble Supreme Court in the case of Liberty India (Supra).

[5.0] Having heard learned Advocates appearing for respective parties and considering the impugned order passed by the learned ITAT, we are of the opinion that as the learned ITAT has remanded the matter to the Assessing Officer for de novo adjudication with observations which as such can be said to be in favour of the Revenue, we see no reason to interfere with the impugned judgment and order. However, it is observed and clarified that the Assessing Officer on remand shall take into consideration and pass appropriate order considering the decision of the Division Bench of this Court in the case of the very assessee for AY 1999-2000 in Tax Appeal No.493/2007 as well as the decision of the Hon''ble Supreme Court in the case of Liberty India (Supra).

[6.0] With this, present Tax Appeal stands disposed of.