AGK 1 itxa3499-09 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION INCOME TAX APPEAL NO.3499 OF 2009 The Commissioner of Income Tax – 6, Mumbai ..Appellant. Versus M/s.Esjay International P Limited ..Respondent. Mr.Suresh Kumar for the appellant. Mr.Atul K. Jasani for the respondent. CORAM : Dr.D.Y. Chandrachud & J.P. Devadhar, JJ. DATE : 6 August 2010. P.C. : 1. The appeal by the Revenue under Section 260A of the Income Tax Act, 1961 arises out of the decision of the Income Tax Appellate Tribunal dated 3 April 2009 in relation to assessment year 2004-2005. The appeal gives rise to the following substantial question of law : Whether on the facts and circumstances of the case and in law, the ITAT was correct in holding that receipts of duty drawback and DEPB is profit or gain derived from an industrial undertaking under Section 80IB, despite the proximate source of the receipts being export import policy of Government of India and not the business of the undertaking ? AGK 2 itxa3499-09 2. The appeal is admitted. With the consent of the learned Counsel appearing on behalf of the appellant and the Counsel on behalf of the respondent, the appeal is taken up for hearing and final disposal. 3. The learned Counsel appearing on behalf of the Revenue and the assessee are agreed in stating before the Court that the question of law is covered in favour of the Revenue and against the assessee, by the judgment of the Supreme Court in Liberty India V/s. Commissioner of Income Tax1. 4. In view of the statement made, the question of law is answered in the negative in favour of the Revenue and against the assessee. The appeal is accordingly disposed of. There shall be no order as to costs. (J.P. Devadhar, J.) (Dr.D.Y. Chandrachud, J.) 1 (2009) 319 ITR 218 (S.C.)