1 itxa3567-10 sas IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION INCOME TAX APPEAL NO.3567 OF 2010 The Commissioner of Income Tax-24, Mumbai ..Appellant. V/s. M/s. Nova Impex ..Respondent. Mr. Suresh Kumar for the appellant. None for the respondent. CORAM : J.P. DEVADHAR AND K.K. TATED, JJ. DATED : 16TH AUGUST, 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 circumstance of the case and in law, the Tribunal was right in restoring the issue of export incentives to the file of the assessing officer for fresh adjudication in the light of the decision of the Special Bench of the Tribunal in the case of M/s. Topman Exports ? (2) Whether on the facts and in the circumstance of the case and in law, the Tribunal was justified in holding that the refund of excise duty is similar to refund of customs duty for the purpose of calculation of deduction u/s.80HHC of the Income Tax Act, 1961 ? 2 itxa3567-10 (3) Whether on the facts and in the circumstance of the case and in law, the Tribunal was correct in holding that the method of accounting of the purchases by reducing the consideration received on sale of DEPB followed by the assessee is the correct method of accounting ? 2. As regards question Nos.1 & 2 are concerned, the Tribunal has restored the matter back to the file of the assessing officer for reconsideration of the issue in the light of the Special Bench decision of the ITAT in the case of M/s. Topman Exports V/s. ITO reported in 318 ITR 87 (Mum). Since the ITAT has restored back the matter to the file of the assessing officer, we are not inclined to entertain these questions. However, the Special Bench decision in the case of M/s. Topman Exports (supra) has been reversed by this Court in the case of CIT V/s. Kalpataru Colours and Chemicals reported in 328 ITR 451. The assessing officer while giving effect to the order of the ITAT shall take into consideration the judgment of this Court in the case of Kalpataru Colours and Chemicals (supra). 3. As regards question No.3 is concerned, the ITAT has directed the assessing officer to recompute the deduction under Section 80HHC by considering the amount as falling under Section 28(iv) under the amended provision of Section 80HHC in the light of the judgment of this Court in the case of Metal Rolling Works Pvt. Ltd. V/s. CIT reported in [1983] 142 ITR 170 (Bom). Since the ITAT has directed the 3 itxa3567-10 assessing officer to allow the deduction in the light of the judgment of this Court in Metal Rolling Works Pvt. Ltd. (supra), we see no reason to entertain this appeal on question No.3. Accordingly, the appeal is disposed off with no order as to costs. (K.K. TATED, J.) (J.P. DEVADHAR, J.)