M/S SARAF EXPORT vs. I.T.O.WARD-2,CHURU

1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR.

JUDGMENT. D. B. INCOME TAX APPEAL NO.228/2011 M/s. Saraf Export, RIICO Industrial Area, Sardarshahar v. Income Tax Officer, Ward-2, Churu. DATE OF JUDGMENT ::: 27.02.2012 HON'BLE MR. JUSTICE A. M. SAPRE

HON'BLE MR. JUSTICE C. M. TOTLA Mr.Shree Kant Verma, for Appellant (s). BY THE COURT: We find that this appeal is barred of limitation by eleven days. We have perused the record with a view to find out whether appeal involved any substantial question of law within the meaning of Section 260A of the Income Tax Act, 1961 (for brevity, 'the Act of 1961'). This is appeal appeal filed by the assessee under Section 260A of the Income Tax Act against an order dated 28.07.2011 passed by the Income Tax Appellate Tribunal, Jodhpur Bench, Jodhpur in ITA No.171/Jod/2011. Having perused the record of the case, we are of the considered opinion that appeal does not involve any 2 substantial question of law within the meaning of Section 260A of the Income Tax Act and, therefore, we are not inclined to admit this appeal. The question arises out of assessment year, 2007-08. The question was whether amount received from the scheme known as DPEB and duty draw back receipts by the assessee would qualify for claiming deduction under Section 80IB of the Income Tax Act or in other words, whether it can be said to be an income derived from an industrial undertaking and can be thus construed as income derived from the business carried on in such industrial undertaking for the purpose of claiming deduction under Section 80IB of the Act. The taxing authorities, i.e. A.O., C.I.T. (Appeals) and lastly, Tribunal, very rightly came to a conclusion that the issue involved in the case in hand no longer remains res integra and decided by the authoritative decision of the Supreme Court rendered in the case of Liberty India v. C.I.T., 317 I.T.R.218. It is in this case, the Supreme Court, while interpreting this very provision, held that an income derived from such schemes under the Excise Act cannot be said to be an income derived from the business carried on in such undertaking for the purpose of claiming deduction under Section 80IB of the Act. The issue was accordingly answered against the assessee and in favour of Revenue.

3 In our opinion, therefore, when the issue is already decided by the Supreme Court, then, the authorities concerned had to place and rightly placed reliance upon the said decision thereby declined to grant any relief to the appellant (assessee) while calculating the deduction available with Section 80 IB. The decision relied upon by the assessee reported in 251 I.T.R.587, M/s. Saraf Seasoning Udyog v. C.I.T., in our opinion, was a decision rendered prior to the decision of Supreme Court in Liberty India and, hence was of no use and rightly not relied upon for the purpose of granting any benefit to the assessee in the facts of this case.

Accordingly and in the light of the foregoing discussion, we are of the considered view that this appeal does not involve any substantial question of law and hence it is dismissed in limine. (C. M. TOTLA), J. (A.M.SAPRE), J. scd