- (1.) WHETHER on the facts and in the circumstances of the case, the Hon'ble Tribunal was right in law in sustaining the order of the CIT(A) directing the AO to allow deduction under s. 80 -IB on the amount of duty drawback received by the assessee which cannot be termed as income 'derived from' an industrial undertaking as held by the Hon'ble Supreme Court of India in the case of CIT vs. Sterling Foods (1999) 153 CTR (SC) 439 : (1999) 237 ITR 579 (SC) followed by the Hon'ble Madras High Court in the cases of CIT vs. Jameel Leathers & Uppers (2000) 246 ITR 97 (Mad) and CIT vs. Vishwanathan & Co. (2003) 181 CTR (Mad) 335 : (2003) 261 ITR 737 (Mad) and the Hon'ble Delhi High Court in the case of CIT vs. Ritesh Industries Ltd. (2004) 192 CTR (Del) 81 : (2005) 274 ITR 324 (Del) and also by the Hon'ble Tribunal SMC Bench in the case of Asstt. CIT vs. Liberty India, Panipat, for the asst. yr. 2001 -02 vide order dt. 28th
(2.) IN spite of service, none appears for the assessee.
(3.) WE have heard learned counsel for the Revenue. IT Appeal No. 590 of 2005 [reported at (2007) 207 CTR (P&H) 243 - -Ed.], wherein, the question raised was examined and it was held that the amount of duty drawback received by the assessee could not be treated as income "derived from" an industrial undertaking. Relevant observations in Liberty India's case (supra) are as under : "Sec. 80 -IB(1) is as under : '(1) Where the gross total income of an assessee includes any profits and gains derived from any business referred to in sub -ss. (3) to (11) and (11A) (such business being hereinafter referred to as the eligible business), there shall, in accordance with and subject to the provisions of this section, be allowed, in computing the total income of the assessee, a deduction from such profits and gains of an amount equal to such percentage and for such number of assessment years as specified in this section.' Interpreting the identical language in s. 80HH, the Hon'ble Supreme Court in CIT vs. Sterling Foods (1999) 153 CTR (SC) 439 : (1999) 237 ITR 579 (SC) observed : 'We do not think that the source of the import entitlements can be said to be the industrial undertaking of the assessee. The source of the import entitlements can in the circumstances only be said to be the Export Promotion Scheme of the Central Government whereunder the export entitlements become available. There must be, for the application of the words 'derived from', a direct nexus between the profits and gains and the industrial undertaking. In the instant case, the nexus is not direct but only incidental. The industrial undertaking exports processed sea food. By reason of such export, the export promotion scheme applies. Thereunder, the assessee is entitled to import entitlements, which it can sell. The sale consideration therefrom cannot, in our view, be held to constitute a profit and gain derived from the assessee's industrial undertaking.' .We are of the view that for the reasoning adopted by the Hon'ble Supreme Court, income of the assessee from duty drawback cannot be held to be income "derived from" specified business. Distinction sought to be made by the learned counsel for the assessee in income derived from duty drawback and sale or import entitlement cannot be accepted as relevant distinction, as the core question before the Court was that such income was "derived" from specified business, which reasoning is fully applicable to the present situation. For the above reasons, we are of the view that the matter being covered by the judgment of Hon'ble Supreme Court in Sterling Foods (supra), no substantial question of law arises in the appeal.";