The Commissioner of Income Tax vs J.M. Joshi

By this Notice of Motion, the Applicant seeks re-call of the order dated 7th October, 2008. By the above order, the Applicant''s Appeal was dismissed for default.

For the reasons stated in the affidavit in support, the Notice of Motion is allowed in terms of prayer clauses (a) and (b).

At the request of the Counsel, the Appeal itself is taken up for hearing.

This Appeal under Section 260-A of the Income Tax Act, 1961 (the Act), challenges the order dated 28th October, 2005 passed by the Income Tax Appellate Tribunal (the Tribunal) for the Assessment Year 1999-2000.

The Revenue has formulated the following questions of law for our consideration:-

" Whether on the facts and in the circumstances of the case and in law, the Tribunal was right in allowing the appeal of the assessee holding that the interest income earned by the assessee on fixed deposits with the bank and other interest income are eligible for deduction u/s. 80IA of the Act?"

By the impugned order, the tribunal followed its own order in the case of Respondent-Assessee for the Assessment Years 1997-98 and 1998-99.

The Revenue being aggrieved by the impugned order of the Tribunal for the Assessment Years 1997-98 and 1998-99, had preferred an Appeal to this Court on an identical question of law being Income Tax Appeal Nos. 46 of 2006 and 67 of 2006. This Court by an order dated 28th November, 2008, dismissed the Revenue''s appeal for the Assessment Years 1997-98 and 1998-99, on the ground that, no substantial question of law involved since reported in Commissioner of Income Tax Vs. Jagdishprasad M. Joshi, (2009) 318 ITR 420 . The Revenue has preferred a Special Leave Petition (SLP) from the order of this Court dated 25th November, 2008, dismissing Revenue''s Appeal for the Assessment Years 1997-98 and 1998-99 to the Hon''ble Apex Court. The SLP has been admitted on 7th March, 2011.

In view of the fact that the question raised by the Revenue stands concluded by an order of this Court in the Revenue''s own case for the Assessment Years 1997-98 and 1998-99 in CIT v/s. Jagdishprasad M. Joshi (supra), we do not see any reason to entertain the proposed question of law.

It may be pointed out that Mr. Suresh Kumar, learned Counsel appearing for the Revenue brings to our notice the decisions of this Court in The Commissioner of Income Tax Vs. Dresser Rand India Pvt. Ltd., (2010) 112 BOMLR 2088 : (2010) 232 CTR 52 : (2010) 323 ITR 429 : (2010) 191 TAXMAN 339 and CIT v/s. Vidyut Corporation 324 ITR 221 -wherein this Court has held that interest on deposits etc. would not be allowable deduction under Section 80IB of the Act. However, both these decisions were rendered without taking into consideration the decision in Respondent-Assessee''s own case in CIT v./s. Jagdishprasad M. Joshi (supra).

As question raised by the Revenue stands concluded in the Respondent-Assessee''s own case for the earlier Assessment Years, we deem it appropriate to follow the same and dismiss the Revenue''s appeal as not giving rise to any substantial question of law.

Accordingly, appeal dismissed. No order as to costs.