1 itxa2189-10 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION INCOME TAX APPEAL NO.2189 OF 2010 The Commissioner of Income Tax-7 ..Appellant. V/s. M/s. Sadhana Nitrochem Ltd. ..Respondent. Mrs. Padma Divakar for appellant. Mr. Sanjiv M. Shah for respondent. CORAM : J.P. DEVADHAR AND MRS. MRIDULA BHATKAR, JJ. DATED : 11TH JANUARY, 2011 P.C. :- 1. Three questions sought to be raised by the revenue in this appeal read as follows:- (1) Whether on the facts and in the circumstances of the case, the Tribunal, in law, was justified in not giving a conclusive finding that deduction u/s.80IB is not allowable in respect of DEPB / Duty Drawback incentives when the Supreme Court has given a final finding in the case of M/s. Liberty India that such incentives are not entitled for deduction u/s.80IB of the Act ? (2) Whether on the facts and in the circumstances of the case, the Tribunal, in law, was justified in not giving final finding that 80HHC on DEPB is not allowable, the export turnover being more than 10 crores and the conditions laid down in third proviso to section 80HHC (3) were not satisfied ? 2 itxa2189-10 (3) Whether on the facts and in the circumstances of the case, the Tribunal, in law, was justified in restoring back the issue to A.O. to calculate the deduction u/s. 80HHC after applying the decision of M/s. Topman Exports of Tribunal, Special Bench when this decision has not been accepted by the Department ? 2. The first question raised by the Revenue cannot be entertained because, the Tribunal has in fact followed the judgment of the Apex Court in the case of M/s. Liberty India V/s. CIT reported in (2009) 317 ITR 218(SC) and directed compliance accordingly. 3. As regards question Nos.2 & 3 are concerned, we do not consider it necessary to entertain the appeal as the Tribunal has remanded the matter back to the file of assessing officer for passing fresh order in the light of the Special bench decision of the ITAT, Mumbai in the case of M/s. Topman Exports. This Court in the case of CIT V/s. Kalpataru Colours and Chemicals reported in 328 ITR 451 has reversed the finding of the Tribunal in the case of Topman Exports. Therefore, the assessing officer while giving effect to the judgment of the Tribunal shall take into consideration the decision of this Court in the case of Kalpataru Colours & Chemicals (supra). The appeal is disposed off accordingly with no order as to costs. (MRS. MRIDULA BHATKAR, J.) (J.P. DEVADHAR, J.)