1 itxa3414-10 sas IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION INCOME TAX APPEAL NO.3414 OF 2010 The Commissioner of Income Tax-III, Mumbai ..Appellant. V/s. M/s. Apar Industries Ltd. ..Respondent. Mr. Suresh Kumar h/f. Ms. Padma Divakar 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. Four 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 purpose 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 itxa3414-10 deduction u/s. 80 HHC of the 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 the Special Bench of the Tribunal in the case of M/s. Topman Exports ? 4) Whether on the facts and in the circumstances of the case, the Tribunal in law, was right in holding that credit for brought forward MAT is to be given for computing the interest u/s.234B and 234D of the I.T. Act, 1961 ? 2. As regards the first three questions are concerned, the Tribunal has remanded the matter back to the file of the assessing officer to decide the issue afresh in the light of the Special Bench decision of the Tribunal in the case of M/s. Lalsons Enterprises V/s. DCIT 89 ITD 25 (SB)(Del) as well as the decision 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 those three questions. However, the Special Bench decision in the case of M/s. Lalson Enterprises as well as the decision in the case of Topman Exports have been reversed by this Court in the case of CIT V/s. Asia Star Co. Ltd. reported in [2010] 326 ITR 56 (Bom) and in the case of CIT V/s. Kalpataru Colours and Chemicals reported in 328 ITR 451. In this view of the matter, we direct the assessing officer that while reconsidering the issue afresh to take into consideration the aforesaid judgments of this Court. 3 itxa3414-10 3. As regards the fourth question is concerned, counsel for the parties state that similar question raised by the revenue in the assessee's own case has been decided in favour of the assessee in the case of CIT V/s. Apar Industries Ltd. reported in [2010] 323 ITR 411 (Bom). In this view of the matter, the fourth question raised by the revenue cannot be entertained. 4. The appeal is disposed off accordingly with no order as to costs. (SMT. R.P.SONDURBALDOTA, J.) (J.P. DEVADHAR, J.)