IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. I.T.A. No.269 of 2010 Date of decision: 4.10.2010 The Commissioner of Income Tax. -----Appellant. Vs. M/s Mittal Overseas. -----Respondent CORAM:- HON'BLE MR. JUSTICE ADARSH KUMAR GOEL HON'BLE MR. JUSTICE AJAY KUMAR MITTAL Present:- Mr. Yogesh Putney, Sr. Standing Counsel for the appellant. Mr. Pankaj Jain, Advocate for the respondent. --- ADARSH KUMAR GOEL, J. This appeal has been preferred by the revenue under Section 260-A of the Income Tax Act, 1961 (for short, “the Act”) against the order dated 26.5.2009 of the Income Tax Appellate Tribunal, New Delhi in I.T.A. No.3087/Del)/2008 for the assessment year 2005-06 proposing to raise following substantial questions of law:- “i) Whether on the facts and in the circumstances of the case, the Hon’ble ITAT was right in law in restoring the matter to the file of the AO on the issue of allowing deduction u/s 80IB of the Income Tax Act, 1961 on export incentives? I.T.A. No.269 of 2010 ii) Whether on the facts and in the circumstances of the case, the Hon’ble ITAT was justified in applying the ratio of the judgment of the apex Court in the case of CIT Vs. Baby Marine Exports, 290 ITR 323 (SC), which is given in a very different context i.e. eligibility of section 80IB on premium on sale of goods earned by a supporting manufactures from the main exports to the case of the assessee, i.e. eligibility of 80IB on export incentives derived form Export Promotion Schemes of the Government? iii) Whether on the facts and in the circumstances of the case, the Hon’ble ITAT was justified in allowing section 80IB deduction to the assessee by applying the ratio of the apex Court’s decision in a case which is totally different on facts from the case of the assessee? iv) Whether on the facts and in the circumstances of the case, the Hon’ble ITAT was justified in drawing an artificial distinction between the case of an exporter and a supporting manufacturer for allowing claim of deduction u/s 80IB on Duty Drawback and DEPB when, given the inappropriateness of the analogy of the Baby Marine Exports case, there is no such distinction and when, at the level of the Supreme Court, it has been held in the case of Liberty India Vs. CIT (Karnal) (2009) 317 ITR 218 that “Duty Drawback receipts/DEPB benefits do not form part of the net profits of eligible industrial undertaking for purposes of Sections 80-I/80-IA/80-IB of the 1961 Act?” Learned counsel for the assessee fairly states that the matter is covered against the assessee by earlier order of this 2 I.T.A. No.269 of 2010 Court dated 29.9.2010 in I.T.A. No.91 of 2010 CIT v. M/s Jawand Sons Udhay Complex Ldh. In view of above, the appeal is disposed of in same terms. (ADARSH KUMAR GOEL) JUDGE October 4, 2010 ( AJAY KUMAR MITTAL ) ashwani JUDGE 3