1 itxa3431-10 sas IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION INCOME TAX APPEAL NO.3431 OF 2010 The Commissioner of Income Tax-III ..Appellant. V/s. M/s. Apar Industries Ltd. ..Respondent. Mr. Suresh Kumar for the appellant. Mr. S.P. Mehta for the respondent. CORAM : J.P. DEVADHAR AND SMT. R.P.SONDURBALDOTA JJ. DATED : 29TH JUNE, 2011 P.C. :- 1. Three questions of law are raised by the revenue in this appeal, which read thus :- (1) Whether on the facts and in the circumstances of the case, the Tribunal, in law, was right in restoring and directing the assessing officer to allow netting of interest after examining the nexus between the earning and expenditure of interest, for the purposes of computation of allowable deduction u/s. 80IB of the I.T. Act ? (2) Whether on the facts and in the circumstances of the case, the Tribunal, in law, was right in restoring and directing the assessing officer to allow netting of interest after examining the nexus between the earning and expenditure of interest, while computing 2 itxa3431-10 deduction u/s.80HHC of I.T. Act ? (3) Whether the Tribunal, in law, was right in restoring and directing the assessing officer to allow the relief arising on export incentives of DEPB and duty draw back on the basis of ratio of decisions of Special Bench of the Tribunal in the case of M/s. Topman Exports ? 2. As regards the first two questions are concerned, the Tribunal has remanded both the questions back to the file of the assessing officer for fresh decision in accordance with the the Special Bench decision of the Tribunal in the case of M/s. Lalsons Enterprises V/s. DCIT 89 ITD 25 (SB)(Del). Since the Tribunal has restored the matter to the file of the assessing officer, we are not inclined to entertain the appeal on the first two questions. 3. Similarly, as regards the third question is concerned, the Tribunal has remanded the question back to the file of the assessing officer for fresh decision in accordance with the Special Bench of the Tribunal in the case of M/s.Topman Exports V/s. ITO I.T.A. No.5769/ Mum/2006. Since the ITAT has restored the matter to the file of the assessing officer, we are not inclined to entertain the appeal on the third question. However, as the Special Bench decisions in the case of M/s. Lalson Enterprises and Topman Exports have been reversed by this Court in the case of CIT V/s. Asian Star Co. Ltd. reported in [2010] 326 ITR 56 (Bom) and in the case of CIT V/s. Kalpataru Colours and 3 itxa3431-10 Chemicals reported in 328 ITR 451, we direct the assessing officer to take into consideration the aforesaid judgments of this Court while passing the fresh order as per the directions of the ITAT. The appeal is disposed off accordingly with no order as to costs. (SMT. R.P.SONDURBALDOTA, J.) (J.P. DEVADHAR, J.)