TAXAP/1398/2005 1/3 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD TAX APPEAL No. 1398 of 2005 For Approval and Signature: HONOURABLE MR.JUSTICE K.A.PUJ HONOURABLE MR.JUSTICE R.H.SHUKLA ====================================== 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ====================================== COMMISSIONER OF INCOME TAX - Appellant(s) Versus AJANTA ELECTRONICS PVT. LTD. - Opponent(s) ====================================== =================== Appearance : MR MANISH R BHATT for Appellant(s) : 1, MR RK PATEL with MR BD KARIA for Opponent(s) : 1, ====================================== CORAM : HONOURABLE MR.JUSTICE K.A.PUJ and HONOURABLE MR.JUSTICE R.H.SHUKLA Date : 11/07/2008 TAXAP/1398/2005 2/3 JUDGMENT ORAL JUDGMENT (Per : HONOURABLE MR.JUSTICE R.H.SHUKLA) The Revenue has filed this appeal under sec. 260A of the Income- tax Act, 1961 for the Assessment Year 1998-99 formulating the following two questions of law for determination of this court arising from the order passed by the Income Tax Appellate Tribunal, Rajkot Bench in ITA No. 598/Rjt/2003 dated 13.6.2005: “A. Whether the Appellate Tribunal is right in law and on facts in holding that sales tax and excise duty cannot be included in working out total turnover for the purpose of Sec. 80HHC? B. Whether the Appellate Tribunal is right in law and on facts in remanding the issue relating to computation of deduction u/s 80HHC of the Act with reference to interest income, particularly when the provisions of the said section are clear and unambiguous?” 2. Question No. A proposed by the Revenue is squarely covered in light of the decision of the Hon'ble Apex Court in the case of CIT v. Lakshmi Machine Works reported in 290 ITR 667. The issue has been decided holding that the sales tax and excise duty cannot form part of the total turnover under sec. 80HHC(3). 3. So far as Question No. B is concerned, Learned Sr. Standing Counsel Mr. M.R. Bhatt for the Revenue, referring to the judgment in the case of Pandian Chemicals Ltd. v. CIT, reported in 262 ITR 278 and in the case of CIT v. Sterling Foods, reported in 237 ITR 579, submitted that since the issue has been decided and settled by the pronouncement TAXAP/1398/2005 3/3 JUDGMENT of Hon'ble Apex Court, it should not have been remanded to the Assessing Officer for fresh decision by the Tribunal. 4. Learned advocate Mr. B.D. Karia for the respondent-assessee has submitted that the appeal should not be admitted as the Question A is concluded by the decision of the Hon'ble Apex Court and the Question B is framed only against remand order. 5. As the Tribunal has only remanded the matter back for consideration of the issue afresh in light of the pronouncement of the Hon'ble Apex Court, we do not deem it expedient to interfere and, therefore, we are not formulating the Question No. B. We are sure that the Assessing Officer shall decide the issue afresh in light of the decision of the Hon'ble Supreme Court in the cases of Pandian Chemicals Ltd. (supra) and Sterling Foods (supra). 6. We, accordingly, decline to formulate Question No. A as it is already concluded by the decision of the Apex Court and decline to formulate Question No. B as the issue is remanded back to the Assessing Officer for fresh consideration in light of the decision of the Hon'ble Supreme Court in the cases of Pandian Chemicals (supra) and Sterling Foods (supra). The appeal stands dismissed accordingly with no order as to costs. (K.A. Puj, J.) (R.H. Shukla, J.) (hn)