A. Tosh & Sons (India) Ltd. v. The Commissioner of Income-tax, Kolkata-II
[Citation -2015-LL-0205-24]

Citation 2015-LL-0205-24
Appellant Name A. Tosh & Sons (India) Ltd.
Respondent Name The Commissioner of Income-tax, Kolkata-II
Court HIGH COURT OF CALCUTTA
Relevant Act Income-tax
Date of Order 05/02/2015
Judgment View Judgment
Keyword Tags deemed income • customs duty • non-resident • cost price
Bot Summary: For Respondent/revenue : Mr.R.K.Chowdhury,Advocate The Court : The subject matter of challenge in this appeal is a judgement and order dated 30th April, 2003 passed by the learned Income Tax Appellate Tribunal. Three questions, it appears, were framed but the real question which arose for consideration is question no. II which reads as follows : II. Whether on the facts and circumstances of the case, the learned Tribunal misdirected itself in law and it adopted a wholly erroneous approach in reversing the appellate order dated 4.12.1996 passed by the learned CIT(Appeals)-XII, Calcutta in this case for the assessment year 1988-89, in so far as it held that the refunded Excise Rebate and Customs Duty Drawback was in the nature of business income and chargeable to tax in the hands of the non-resident overseas buyers 2 under section 5(2)(a) read with section 28(iiic) and section 2(24)(vc) of the Income Tax Act, 1961. We have heard Mr.Khaitan, learned Senior Advocate appearing for the appellant/assessee. He contended that the amount of draw back received really went to reduce the cost price of the goods purchased in India and therefore, the same could not have been taxed whereas the learned Tribunal proceeded on the basis that the section 9 of the Income Tax Act relied upon by the assessee has no manner of application because the aforesaid section is concerned with a deemed income whereas section 5 of the Income Tax Act is concerned with actual income. The amount was received by the assessee because the exports were made. We are, as such, in agreement with the views expressed by the learned Tribunal and the question indicated above is answered in the negative and in favour of the revenue.


ORDER SHEET ITA 215 of 2003 IN HIGH COURT AT CALCUTTA Special Jurisdiction (Income Tax) ORIGINAL SIDE A.TOSH & SONS (INDIA) LTD. Versus COMMISSIONER OF INCOME TAX, KOLKATA-II BEFORE: Hon'ble JUSTICE GIRISH CHANDRA GUPTA Hon'ble JUSTICE ARINDAM SINHA Date : 5th February, 2015. For Appellant/assessee : Mr.J.P.Khaitan,Sr.Advocate. For Respondent/revenue : Mr.R.K.Chowdhury,Advocate Court : subject matter of challenge in this appeal is judgement and order dated 30th April, 2003 passed by learned Income Tax Appellate Tribunal. appeal was admitted on 25th November, 2003. Three questions, it appears, were framed but real question which arose for consideration is question no.II which reads as follows : II. Whether on facts and circumstances of case, learned Tribunal misdirected itself in law and it adopted wholly erroneous approach in reversing appellate order dated 4.12.1996 passed by learned CIT(Appeals)-XII, Calcutta in this case for assessment year 1988-89, in so far as it held that refunded Excise Rebate and Customs Duty Drawback was in nature of business income and chargeable to tax in hands of non-resident overseas buyers 2 under section 5(2)(a) read with section 28(iiic) and section 2(24)(vc) of Income Tax Act, 1961. We have heard Mr.Khaitan, learned Senior Advocate appearing for appellant/assessee. He contended that amount of draw back received really went to reduce cost price of goods purchased in India and therefore, same could not have been taxed whereas learned Tribunal proceeded on basis that section 9 of Income Tax Act relied upon by assessee has no manner of application because aforesaid section is concerned with deemed income whereas section 5 of Income Tax Act is concerned with actual income. It is not in doubt that amount of duty drawback was sum actually received by assessee and such receipt was also of revenue nature. amount was received by assessee because exports were made. Therefore, amount was clearly taxable. We are, as such, in agreement with views expressed by learned Tribunal and question indicated above is answered in negative and in favour of revenue. appeal, thus, is disposed of. (GIRISH CHANDRA GUPTA, J.) (ARINDAM SINHA, J.) ssaha AR(CR) A. Tosh & Sons (India) Ltd. v. Commissioner of Income-tax, Kolkata-II
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