M/s. Micro Inks Limited, Vapi V. The CIT., Valsad

ITA 453/AHD/2006

• Counselvise Citation: [2010] 136 COUNSELVISE.COM (IT) 8793 (ITAT-AHMEDABAD)
• Duration Of Justice: 4 year(s) 27 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 19-03-2010
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: D
• Next Hearing Date: 03-03-2010
• Assessment Year: 2002-2003
• Appeal Filed On: 22-02-2006
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: B S SANDHU
• Assessee Lawyers: M K PATEL
• Keywords: Business income; Depreciation; Rectification of order; Revised return; Set aside
• Section: 143(3); 80HHC; 14A; 115JB; 10B; 263; 63; 10

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD BENCH D BEFORE SHRI BHAVNESH SAINI JUDICIAL MEMBER AND SHRI N.S. SAINI, ACCOUNTANT MEMBER DATE OF HEARING:03/03/2010 DRAFTED ON: 03/03/2010 ITA NO.453/AHD/2006 ASSESSMENT YEAR : 2001-2002 M/S. MICRO INKS LIMITED, BILAKHIA HOUSE, MUKTANAND MARG, CHALA, VAPI, GUJARAT. VS. COMMISSIONER OF INCOME TAX, SURYA PRAKASH CHAMBER, DHARAMPUR, ROAD, VALSAD. PAN/GIR NO. : (APPELLANT) .. (RESPONDENT) APPELLANT BY : SHRI M.K.PATEL A.R. RESPONDENT BY: SHRI B.S.SANDHU CIT O R D E R PER N.S.SAINI , ACCOUNTANT MEMBER :- THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST TH E ORDER OF THE LEARNED COMMISSIONER OF INCOME TAX, VALSAD, DATED 2 2.12.2005. 2. THE GROUNDS OF THE APPEAL READS AS UNDER:- 1. THE ORDER U/S 263 PASSED BY THE LEARNED COMMISSIONER OF INCOME TAX IS CONTRARY TO THE FACTS OF THE CASE AND PREJUDICIAL TO THE ASSESSEE. 2. ON APPRECIATION OF THE FACTS AND IN THE CIRCUM STANCES OF THE CASE THE LEARNED COMMISSIONER OF INCOME TAX HAS ERRED IN ASSUMING JURISDICTION U/S. 263 OF THE ACT AND INVOKING THE POWERS THERE UNDER. 3. ON APPRECIATION OF THE FACTS AND CIRCUMSTANCES OF THE CASE, THE ORDER PASSED BY THE LEARNED COMMISSIONER OF INCOME TAX IS CONTRARY TO LAW AND BASED ON ERRONEOU S UNDERSTANDING OF THE FACTS AND LAW. 4. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE C ASE THE LEARNED COMMISSIONER OF INCOME TAX HAS ERRED IN HOL DING THAT THE ORDER OF THE ASSESSING OFFICER U/S 143(3) DATED 23.03.2005 IS ERRONEOUS WITHOUT ANY COGENT REASONS OR MATERIAL EVIDENCES ON RECORD. 5. ON APPRECIATION OF THE FACTS AND CIRCUMSTANCES OF THE CASE AND INTERPRETATION OF LAW, THE LEARNED COMMISS IONER ITA NO .453 /AHD/2007 - 2 - OF INCOME TAX HAS ERRED IN HOLDING THAT EXCLUSION O F EXCISE DUTY AND SALES TAX FROM TOTAL TURNOVER HAS RESULTED IN EXCESS ALLOWANCE OF CLAIM U/S. 80HHC OF THE INCOME TAX ACT. THE ACTION OF THE LEARNED COMMISSIO NER OF INCOME TAX IS CONTRARY TO THE PROVISIONS OF SECT ION 80HHC ON A PLAIN READING, LITERAL INTERPRETATION OF THE LAW AND VARIOUS DECISIONS OF HONORABLE COURTS AND JURISDICTIONAL TRIBUNAL AND HENCE DESERVES TO BE DE LETED. 6. ON APPRECIATION OF THE FACTS AND CIRCUMSTANCES OF THE CASE AND INTERPRETATION OF LAW, THE LEARNED COMMISS IONER OF INCOME TAX HAS ERRED IN DIRECTING THE LEARNED ASSESSING OFFICER TO COMPLETE THE ASSESSMENT DE-NOV O I.E. AFRESH FOR EXCLUSION OF EXCISE DUTY AND SALES TAX F ROM TOTAL TURNOVER FOR THE PURPOSE OF GRANTING DEDUCTIO N U/S, 80HHC OF THE INCOME TAX ACT. 7. ON APPRECIATION OF THE FACTS AND CIRCUMSTANCES OF THE CASE AND INTERPRETATION OF LAW, THE LEARNED COMMISS IONER OF INCOME TAX HAS ERRED IN HOLDING THAT THE COMPUTA TION OF INCOME BY SETTING OFF LOSS OF HUNDRED PERCENT EX PORT ORIENTED UNIT AGAINST THE NORMAL BUSINESS IS NOT AS PER THE PROVISIONS OF INCOME TAX ACT, 1961. THE ACTION OF THE LEARNED COMMISSIONER OF INCOME TAX IS CONTRARY TO T HE PROVISIONS OF INCOME TAX ACT, LITERAL INTERPRETATIO N OF THE LAW AND VARIOUS DECISIONS OF HONORABLE COURTS AND JURISDICTIONAL TRIBUNAL AND HENCE DESERVES TO BE DE LETED. 8. ON APPRECIATION OF THE FACTS AND CIRCUMSTANCES OF THE CASE AND INTERPRETATION OF LAW, THE LEARNED COMMISS IONER OF INCOME TAX HAS ERRED IN DIRECTING THE LEARNED ASSESSING OFFICER TO COMPLETE THE ASSESSMENT DE-NOV O I.E. AFRESH TO COMPUTE THE TOTAL INCOME WITHOUT SETTING OFF LOSS OF EXPORT ORIENTED UNIT AGAINST NORMAL BUSINES S INCOME. 9. ON APPRECIATION OF THE FACTS AND CIRCUMSTANCES OF THE CASE AND INTERPRETATION OF LAW, THE LEARNED COMMISS IONER OF INCOME TAX HAS ERRED IN PRESUMING THAT THE ORDER PASSED BY THE LEARNED ASSESSING OFFICER IS ERRONEOU S AS WELL AS PREJUDICIAL TO THE INTEREST OF REVENUE. 3. THE CIT HAS OBSERVED AS UNDER:- THE ASSESSEE-COMPANY FILED RETURN OF INCOME ON 31.10.2002 DECLARING INCOME OF RS.9,89,31,940/- UND ER NORMAL PROVISIONS AND A BOOK PROFIT OF RS.50,35,37, 462/-. ASSESSMENT ORDER U/S. 143(3) OF I.T.ACT WAS PASSED ON 23.3.2005 DETERMINING TOTAL INCOME OF RS.23,05,18,5 33/-. 2. WHILE COMPLETING THE ASSESSMENT, THE A.O. HAS ALLOWED THE DEDUCTION U/S.80HHC OF THE IT. ACT FOR ITA NO .453 /AHD/2007 - 3 - RS.4,07,81,511/-. THE DEDUCTION WAS WORKED OUT ON T HE BASIS OF TOTAL TURNOVER OF RS.4,54,27,86,148/- . TH E ASSESSEE HAD EXCLUDED THE EXCISE DUTY AND SALES-TAX FROM THE TOTAL TURNOVER AS REFLECTED IN THE FINAL ACCOUN TS. FOR THE YEAR UNDER CONSIDERATION, THE FIGURES FOR SALES-TAX AND EXCISE DUTY ARE AS UNDER:- A) EXCISE DUTY RS. 80,38,84,982/- B) SALES-TAX, RS. 02,02,93,098/- TOTAL. RS. 82.41.78.080/- EXCLUSION OF EXCISE DUTY AND SALES-TAX FROM TOTAL TURNOVER HAS RESULTED IN EXCESS ALLOWANCE OF CLAIM U/S.80HHC OF I.T.ACT. FURTHER, THE LOSS OF RS.5,04,12,831/- FROM THE 100% EXPORT ORIENTED UNIT WAS SET OFF AGAINST THE NORMAL BUSINESS INCOME WHICH HAS RESULTED IN UNDER ASSESSM ENT OF INCOME TO THAT EXTENT. ACCORDINGLY, SHOW-CAUSE NOTI CE U/S.263 OF THE I.T.ACT WAS ISSUED. 3. THE AUTHORISED REPRESENTATIVE ON BEHALF OF THE ASSESSEE SUBMITTED THAT 3.1 THE INTENTION OF THE LEGISLATURE WAS EVIDENT FR OM THE MANNER IN WHICH DEDUCTION WAS TO BE GRANTED UNDER SECTION 80HHC OF I.T.ACT, ON THE BASIS OF PROPORTIONATE TURNOVER. 3.2 EXPORT TURNOVER DID NOT INCLUDE EXCISE DUTY AND SALES TAX AND ACCORDINGLY THE DENOMINATOR IN THE FORMULA MENTIONED IN SECTION 80HHC SHOULD BE COMPARABLE TO AND ALIKE THE NUMERATOR. RELIANCE WAS PLACE ON FOLLOWING DECISIONS:- I. UNITED PHOSPHOROUS LTD - 81ITD 5 59(ITAT AND.) II. EAGLE FLASH IND. - (6 5 TT 422)(PUNE)) III. WOLKEM INDIA LTD. - 113( JP) OF 1996. IV. SUDARSHAN CHEMICALS IND.LTD - 245 ITR 76 9 (BOM.) V. BHARAT EARTH MOVERS LTD - 137 TAXM AN 421(KAI.) VI, WHEELS INDIA LTD. INDIA PISTONS LTD - 275 ITR 0 319 (MAD.) 3.3 THE LAW DECLARED BY THE HIGHEST COURT IN THE ST ATE IS BINDING ON THE AUTHORITIES OR TRIBUNALS UNDER ITS SUPERINTENDENCE AND THEY CANNOT IGNORE IT IN EITHER INITIATING A PROCEEDING OR DECIDING ON THE RIGHTS INVOLVED IN SUCH A PROCEEDING. THE RELIANCE WAS PLACED ON FOLLOWING DECISIONS:- AIR CONDITIONING SPECIALISTS LTD. - 221 ITR 739 (GUJ), BANK OF BARODA - 256 ITR 385(BOM). ITA NO .453 /AHD/2007 - 4 - 3.4 WHERE TWO VIEWS WERE POSSIBLE ON A DEBATABLE PO INT, THE VIEW FAVOURABLE TO THE ASSESSEE SHALL BE ALLOWE D AS HELD BY HONOURABLE SUPREME COURT IN THE CASE OF VEGETABLE PRODUCTS LTD. - 88 ITR 192. 3.5. THE C.I.T WOULD HAVE NO JURISDICTION TO INVOKE PROVISIONS OF SECTION 263 OF. THE I.T. ACT IN THE C ASES WHERE TWO VIEWS WERE POSSIBLE AND A.O. HAD ADOPTED ONE PARTICULAR VIEW OR WHERE THE VIEW ADOPTED BY TH E A.O. IS A POSSIBLE VIEW. THE RELIANCE WAS PLACED ON THE FOLLOWING DECISIONS: - A. ARVIND JEWELLERS - 259 I.T.R. (GUJ.) B. MAX INDIA LTD. - 268 ITR.0128.(PUNJ.) C. MALABAR INDUSTRIAL CO.LTD.- 243 ITK. (SC) 3.6. THE A.O HAD VERIFIED THE AUDITED FINANCIAL ACC OUNTS AND ALL RELEVANT PAPERS, FACTS AND EVIDENCES BEFORE COMPLETION OF THE ASSESSMENT. THERE IS NO RECORD TO SUGGEST THAT THE ITEMS MENTIONED IN THE SHOW CAUSE NOTICE WERE NOT EXAMINED BY THE A.O. BEFORE FRAMING THE ASSESSMENT ORDER. 3.7. CONSIDERING THE PAST TRACK RECORD OF THE ASSES SEE, BEING A MAJOR CONTRIBUTOR TO THE EXCHEQUER FROM VALSAD CHARGE, THE PROPOSED VARIATIONS IN THE INCOM E U/S.263 OF I.T ACT WERE NOT MERITED. 4. THE CIT HAVE CONSIDERED THE CONTENTIONS OF THE ASSESSEE. THE DEDUCTION U/S.80HHC OF I.T.ACT HAS TO BE ALLOWED ON THE ELIGIBLE PROFITS WHICH -IRE WORKE D OUT IN ACCORDANCE WITH SECTION 80HHC(3) OF I.T ACT SUBJECT TO OTHER SUB- SECTIONS OF SECTION 80HHC OF I.T.ACT. 4.1. THE EXCISE DUTY IS COLLECTED AS PART OF SALES AS AND WHEN THE GOODS ARE SOLD. THE EXCISE DUTY CONSTITUTE S AN INTEGRAL PART OF TURNOVER. THE HONOURABLE SUPREM E COURT IN THE FOLLOWING CASES HAS HELD THAT THE SALE S TAX AND EXCISE DUTY FORMED PART OF TOTAL TURNOVER. CHOURINGHIE SALES BUREAU - 82 FTR 548 SINCLAIR MURRARL CO. PVT. LTD - 97 ITR 515 MCDOWELL & CO. LTD - 154 ITR 148 4.2 IT WOULD BE PERTINENT TO MENTION THAT EXPLANATI ON- (BA) TO SECTION 80HHC OF I.T. ACT PROVIDES THAT:- ITA NO .453 /AHD/2007 - 5 - 'TOTAL TURNOVER SHALL NOT INCLUDE FREIGHT OR INSURA NCE ATTRIBUTABLE TO THE TRANSPORT OF THE GOODS OR MERCHANDISE BEYOND THE CUSTOMS STATION AS DEFINED I N THE CUSTOMS ACT, 1962 (52 OF 1962)' IT IS OBVIOUS THAT THE LEGISLATURE DID NOT INTEND T O EXCLUDE THE EXCISE DUTY AND SALES-TAX FROM THE TOTA L TURNOVER. THIS IS MORE EVIDENT FROM THE FACT THAT T HE EXPORT BENEFITS AVAILABLE U/S.28(IIIA), (IIIB) & (I IIE) OF I.T.ACT HAVE ALSO BEEN EXCLUDED FROM THE TOTAL TURNOVER IN RESPECT OF ASSESSMENT YEAR COMMENCING ON OR AFTER 1.4.1991. IT IS WELL SETTLED THAT THE LEGISLATURE LEGISLATES FOR SPECIFIC PURPOSE AND NO WORDS CAN BE OR SHALL BE IMPORTED IN THE I.T.ACT. 4.3. THE ISSUE REGARDING INCLUSION OF EXCISE DUTY I N THE TOTAL TURNOVER FOR THE PURPOSE OF WORKING OUT ELIGI BLE PROFITS FOR DEDUCTION U/S.80HHC OF I.T. ACT HAS NOT ATTAINED FINALITY AS THE HONOURABLE SUPREME COURT I S YET TO CONSIDER THE MERITS OF THE ISSUE EMANATING F ROM THE DECISIONS OF VARIOUS HIGH COURTS. RESPECTFULLY FOLLOWING THE DECISIONS OF THE HONOURABLE SUPREME COURT REFERRED TO IN PARA 4,1 ABOVE, THE CONTENTION S OF THE ASSESSES THAT EXCISE DUTY AND SALES-TAX SHOULD NO' BE CONSIDERED PART OF THE TOTAL TURNOVER CANNOT BE ACCEPTED. 4.4. AS REGARDS TO THE ARGUMENT THAT SECTION 263 OF THE I.T.ACT. CANNOT BE INVOKED IN THE CASES WHERE TWO VIEWS WERE POSSIBLE IS CONCERNED, IT HAS BEEN CLEAR LY HELD BY THE HON'BLE GUJARAT HIGH COURT IN THE CASE OF CIT VS M.M. KHAMBHATWALA - 198 UR 144, THAT THE CIT CAN EXERCISE THE POWER OF REVISION EVEN IN A CA SE WHERE THE ISSUE IS DEBATABLE REVISIONAL POWER U/S.2 63 OF THE I.T.ACT CANNOT BE COMPARED WITH THE POWER OF RECTIFICATION OF MISTAKE U/S.154 OF THE I.T.ACT. IT HAS BEEN HELD BY THE HON'BLE SUPREME COURT IN THE CASE OF CIT VS SHREE MANJUNATHESWARA PACKING PRODUCTS & CAMPHER WORKS - 231 ITR 53, THAT THE REVISIONAL POWER CONFERRED ON THE COMMISSIONER U/S.263 OF THE I.T.ACT ARE OF WIDE AMPLITUDE, AFTER EXAMINING THE RECORD IF HE CONSIDERS THE ORDER TO BE ERRONEOUS TH EN HE CAN PASS THE ORDER THEREIN AS THE CIRCUMSTANCES OF THE CASE JUSTIFY. 5. THE ASSESSEE HAD REFLECTED TOSS OF RS. 5,50, 70, 2 W - WHICH IS FINALLY WORKED OUT AT RS.5,04,12,831/- FRO M THE 100% EXPORT ORIENTED UNIT. WHILE COMPLETING THE ITA NO .453 /AHD/2007 - 6 - ASSESSMENT THE ASSESSING OFFICER HAD SET OFF THIS L OSS AGAINST THE NORMAL BUSINESS INCOME. THE ASSESSEE CONTENDED THAT THE ACTION OF A.O. WAS JUSTIFIED IN VIEW OF SECTION 10B(6)(II) OF I.T.ACT WHICH PROVIDED AS UND ER;- (II) NO LOSS REFERRED TO IN SUB-SECTION (1) OF SEC TION 72 OF SUB-SECTION (1) OR SUB-SECTION (3) OF SECTION 74, IN SO FAR AS SUCH LOSS RELATED TO THE BUSINESS OF T HE UNDERTAKING, SHALL BE CARRIED FORWARD OR SET OFF WH ERE SUCH LOSS RELATED TO ANY OF THE RELEVANT ASSESSMENT YEARS (ENDING BEFORE THE 1 ST DAY OF APRIL 2001)' 5.1 THE CONTENTIONS OF THE ASSESSEE ARE NOT ACCEPTA BLE IN VIEW OF THE FACT THAT THE PROFITS OF 100% EXPORT ORIENTED UNITS ARE EXEMPT FROM TAXATION U/S.10B(1) OF I.T.ACT. THEREFORE, THE LOSS INCURRED BY SUCH UN ITS ALSO DESERVES TO BE IGNORED AND CANNOT BE SET OFF AGAINST ANY OTHER HEAD OF INCOME. THE PROVISIONS OF SECTION 10B(6)(II) OF I.T. ACT HAVE PARTIALLY BEEN CITED BY THE ASSESSEE. THE SECTION PROVIDES THAT;- 'NOTWITHSTANDING ANYTHING CONTAINED IN ANY OTHER PROVISION OF THE ACT IN COMPUTING THE TOTAL INCOME OF THE ASSESSEE OF THE PREVIOUS YEAR RELEVANT TO THE ASSESSMENT YEAR IMMEDIATELY SUCCEEDING THE LAST O F THE RELEVANT ASSESSMENT YEARS, OR OF ANY PREVIOUS YEAR, RELEVANT TO ANY SUBSEQUENT ASSESSMENT YEAR. NO TOSS REFERRED TO IN SUB-SECTION (1) OF SECTION 7 2 OR SUB-SECTION (1) OR SUB-SECTION (3) OF SECTION 74, I N SO FAR AS SUCH LOSS RELATES TO THE BUSINESS OF THE UNDERTAKING, SHALL BE CARRIED FORWARD OR SET-OFF WH ERE SUCH' LOSS RELATES TO ANY OF THE RELEVANT ASSESSMEN T YEARS (ENDING BEFORE THE 1 ST DAY OF APRIL, 2001)' (EMPHASIS PROVIDED). IT IS OBVIOUS THAT THE CITED SECTION APPLIES TO THE ASSESSMENT YEAR IMMEDIATELY SUCCEEDING THE LAST OF RELEVANT ASSESSMENT YEARS AND NOT TO ANY OF RELEVAN T ASSESSMENT YEARS DURING WHICH THE ASSESSEE IS ENTITLED TO DEDUCTION U/S.10B OF I.T.ACT. 5.2. THE ASSESSEE COMPANY ITSELF HAS FILED 'HE REVI SED RETURN OF INCOME ON 17.12.2002 WELL IN TIME TO WITHDRAW THE SET OFF SAID LOSSES OF RS.5,50,70,214/ - CLAIMED AGAINST THE NORMAL BUSINESS INCOME. THE REVISED RETURN OF INCOME GROSS TOTAL INCOME IS INCREASE BY RS.5,50,70,214/- BEING LOSS FROM EXPORT ORIENTED UNITS. THE A.O. HAS ERRONEOUSLY ALLOWED TH E SET OFF OF RS.5,04,12,831/- FROM THE NORMAL BUSINES S INCOME. WHILE FINALIZING THE ASSESSMENT U/S.143(3) OF ITA NO .453 /AHD/2007 - 7 - THE I.T.ACT. THIS HAS RENDERED THE ORDER OF THE A.O . ERRONEOUS AND PREJUDICIAL TO THE INTEREST OF REVENU E. 6. IN VIEW OF THE ABOVE, THE CONTENTIONS OF THE ASS ESSEE ARE NOT ACCEPTABLE. THE ASSESSMENT ORDER HAS RESULT ED IN EXCESS ALLOWANCE OF DEDUCTION U/S.80HHC OF I.T.ACT AND ERRONEOUS SET OFF OF LOSSES FOR 100% EXPORT ORIENTE D UNIT AGAINST NORMAL BUSINESS INCOME. THIS HAS RENDERED T HE ASSESSMENT ORDER DTD. 23.3.2005 PASSED U/S.143(3) O F THE I.T.ACT ERRONEOUS AS WELL AS PREJUDICIAL TO THE INT EREST OF REVENUE. THEREFORE, THE ASSESSMENT IS SET-ASIDE U/S . 263 OF I.T.ACT WITH A DIRECTION TO A.O. IN COMPLETE THE AS SESSMENTS DE-NOVO I.E. AFRESH, AFTER ALLOWING OPPORTUNITY TO THE ASSESSEE. 3. THE LEARNED AUTHORISED REPRESENTATIVE OF THE ASS ESSEE CHALLENGING THE ORDER PASSED BY THE CIT UNDER SECTI ON 263 OF THE ACT SUBMITTING THAT ORDER CAN BE PASSED BY THE CIT UNDER SECTION 263 OF THE ACT WHERE THE ORDER PASSED BY THE LEARNE D ASSESSING OFFICER WAS ERRONEOUS AND PREJUDICIAL TO THE INTERE ST OF THE REVENUE. BY REFERRING TO THE ORIGINAL ASSESSMENT ORDER PASSE D UNDER SECTION 143(3) ON 23.03.2005, COPY OF WHICH IS PLACED AT PA GE 8 TO 38 OF THE PAPER-BOOK, THE LEARNED AUTHORISED REPRESENTATI VE OF THE ASSESSEE POINTED OUT THAT THE ASSESSMENT HAS BEEN F RAMED BY THE LEARNED ASSESSING OFFICER UNDER SECTION 115JB AT BO OK PROFIT OF RS.58,37,96,562/- AS THE NORMAL INCOME COMPUTED WAS RS.23,05,18,533/- WHICH WAS LOWER THAT THE BOOK PRO FIT. HE SUBMITTED THAT THE ASSESSMENT FRAMED UNDER SECTION 143(3) READ WITH SECTION 263 OF THE ACT ON 24.02.2006 WAS ALSO AT RS.22,32,14,426/- WHICH WAS LOWER THAN THE ASSESSE D BOOK PROFIT OF RS.58,37,96,562/-. THUS, THERE BEING NO UNDER AS SESSMENT OF TAX BY THE LEARNED ASSESSING OFFICER WHILE FRAMING THE ASSESSMENT UNDER SECTION 143(3), IT CANNOT BE HELD THAT THE OR DER PASSED BY THE LEARNED ASSESSING OFFICER WAS ERRONEOUS AND PREJUDI CIAL TO THE INTEREST OF THE REVENUE. SINCE, BOTH THE CONDITIONS SUCH AS ORDER BEING ERRONEOUS AND ALSO PREJUDICIAL TO THE INTERES T OF THE REVENUE NOT BEING SATISFIED THE ORDER PASSED UNDER SECTION 263, WAS BAD IN LAW AND REQUIRES TO BE CANCELLED. ITA NO .453 /AHD/2007 - 8 - 4. THE LEARNED DEPARTMENTAL REPRESENTATIVE ON THE O THER HAND ARGUED THAT IT HAS TO BE SEEN BY THE CIT WHETHER TH E ORDER FRAMED BY THE LEARNED ASSESSING OFFICER WAS WITH PROPER AP PLICATION OF MIND OR NOT. HE SUBMITTED THAT INCLUSION OF EXCISE DUTY AND SALES TAX IN THE TOTAL TURNOVER FOR THE PURPOSES OF ALLOW ING DEDUCTION UNDER SECTION 80HHC WAS A HIGHLY DEBATABLE ISSUE AN D THOUGH THE SAME WAS NOT SETTLED BY THE HON'BLE SUPREME COURT I N FAVOUR OF THE ASSESSEE BY THE DECISIONS RENDERED IN THE CASE OF L AXMI MACHINE WORKS 290 ITR 667, IT WILL BE SEEN THAT THERE IS NO DISCUSSION IN THE ASSESSMENT ORDER ABOUT THE SAME. FURTHER, HE ALSO A RGUED THAT IT WILL BE SEEN THAT IN THE CASE OF ONE OF ITS UNIT, THE ASSESSEE HAS CLAIMED THE PROFIT OF THE SAME AS EXEMPT UNDER SECT ION 10B. BUT THE LOSS SUFFERED FROM SUCH UNIT WAS CLAIMED AS DEDUCTI ON AGAINST THE NORMAL PROFIT COMPUTED UNDER THE ACT WHICH WAS NOT ALLOWABLE AS WHEN THE PROFIT ITSELF WAS EXEMPT AND DID NOT FORM PART OF GROSS TOTAL INCOME AS A COROLLARY TO THAT THE LOSS ALSO W OULD NOT FORM A PART OF THE GROSS TOTAL INCOME AND HENCE NOT ALLOWA BLE DEDUCTION TO THE ASSESSEE. THUS, THE LEARNED COMMISSIONER OF INC OME TAX OBSERVING SUCH MISTAKE IN THE ORDER HAS RIGHTLY PAS SED ORDER UNDER SECTION 263 OF THE ACT, DIRECTING THE LEARNED ASSES SING OFFICER TO MAKE NECESSARY CORRECTIONS IN THE ORDER AFTER ALLOW ING OPPORTUNITY OF HEARING TO THE ASSESSEE. THEREFORE, THE ORDER PA SSED UNDER SECTION 263 OF THE ACT WAS A VALID ORDER AND SHOULD BE UPHELD. 5. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE ORDERS OF THE LOWER AUTHORITIES AND THE MATERIALS AVAILABL E ON RECORD. IN THE INSTANT CASE, THE CIT(A) REVERSED THE ORDER PASSED UNDER SECTION 143(3) DATED 23.3.2005 BY THE AO ON FOLLOWING TWO G ROUNDS:- 1. EXCESS ALLOWANCE OF DEDUCTION UNDER SECTION 80HH C ON ACCOUNT OF NON INCLUSION OF EXCISE DUTY AND SALE TA X IN TOTAL TURNOVER THE ASSESSEE. ITA NO .453 /AHD/2007 - 9 - 2. ALLOWANCE OF SET OFF WITH THE OTHER INCOME OF TH E ASSESSEE OF LOSS OF RS.5,04,12,831/- ARISING FROM 100% EOU UNIT WHICH INCOME WAS OTHERWISE EXEMPT UNDER SECTION 10B OF TH E ACT. 6. IN RESPECT OF THE FIRST ISSUE, WE FIND THAT THE ISSUE STANDS COVERED BY THE DECISION OF THE SUPREME COURT IN THE CASE OF CIT VS. LAXMI MACHINE WORKS (2007) 290 ITR 667(SC), IN FAVO UR OF THE ASSESSEE. THE SUPREME COURT HELD THAT FOR THE PURPO SES OF CALCULATING DEDUCTION ALLOWABLE UNDER SECTION 80HHC , EXCISE DUTY AND SALES-TAX ARE NOT INCLUDIBLE IN TOTAL TURNOVER IN THE FORMULA CONTAINED UNDER SECTION 80HHC(3). IN VIEW OF THE AB OVE, WE FIND THAT ORDER OF THE CIT, ON THIS ISSUE IS NOT SUSTAIN ABLE. WE THEREFORE, CANCEL THE ORDER OF THE LD. CIT IN RESPECT OF THE A BOVE ISSUE. 7. REGARDING SET OFF OF LOSS ARISING FROM A UNIT EL IGIBLE UNDER SECTION 10B FROM THE OTHER INCOME, WE FIND THAT THE ASSESSEE CITED A NUMBER OF DECISIONS, WHICH ARE IN FAVOUR OF THE ASS ESSEE. IN THE CASE OF MINDTREE CONSULTING (P) LTD. VS. ACIT (2006 ) 102 TTJ (BANG) 691, WHEREIN IT WAS HELD AS UNDER:- SEC. 10B(1) PROVIDES THAT SUBJECT TO THE PROVISION OF THIS SECTION, A DEDUCTION OF SUCH PROFITS AND GAINS AS A RE DERIVED BY 100 PER CENT EXPORT ORIENTED UNDERTAKING FROM TH E EXPORT OF ARTICLES OR THINGS OR COMPUTER SOFTWARE, SHALL B E ALLOWED FROM THE TOTAL INCOME OF THE ASSESSEE. THUS, THOUGH S. 10B FALLS IN CHAPTER III, WHICH IS TITLED AS 'INCOME WH ICH DO NOT FORM PART OF TOTAL INCOME' YET WHAT IS GRANTED TO T HE ASSESSEE IS DEDUCTION AS PER THE AMENDED PROVISIONS OF S. 10 B W.E.F. 1ST APRIL, 2000. SEC. 10B(6)(II) RESTRICTS CARRY FO RWARD AND SET OFF OF LOSS UNDER SS. 72 AND 74 BUT DOES NOT PROVID E ANYTHING REGARDING INTRA-HEAD SET OFF UNDER S. 70 AND INTER- HEAD SET OFF UNDER S. 71. ADMITTEDLY, IN THIS CASE, THERE WAS LO SS IN THE UNIT ELIGIBLE FOR DEDUCTION UNDER S. 10B. THE BUSINESS I NCOME OF SUCH UNIT IS COMPUTED AT RS. 13,40,575 WHEREAS THE LOSS ITSELF IS RS. 4,26,73,854. THUS, THE BUSINESS INCOME CAN B E COMPUTED ONLY AFTER SET OFF OF BUSINESS LOSS AGAINS T THE BUSINESS INCOME IN THE SAME YEAR AS PER PROVISIONS OF S. 70. SIMILARLY, AFTER SETTING OFF OF THE BUSINESS LOSS A GAINST THE BUSINESS INCOME, THERE IS STILL A LOSS AND SUCH LOS S HAS TO BE ITA NO .453 /AHD/2007 - 10 - SET OFF AGAINST INCOME FROM OTHER SOURCES IN THE SA ME YEAR AS PER THE PROVISIONS OF S. 71. INCOME OF UNIT ELIGIBL E FOR DEDUCTION UNDER S. 10B IS MERELY A DEDUCTION FROM I NCOME AND NOT EXEMPTION. ACCORDINGLY, THE ASSESSEE IS ELIGIBL E TO SET OFF THE LOSS OF SUCH UNIT UNDER SS. 70 AND 71.NAVIN BH ARAT INDUSTRIES LTD. VS. DY. CIT (2005) 92 TTJ (MUMBAI)( TM) 166 : (2004) 90 ITD 1 (MUMBAI)(TM) RELIED ON. 8. TO THE SAME EFFECT IS THE DECISION IN THE CASE O F NAVIN BHARAT INDUSTRIES LTD. VS. DCIT (2004) 90 ITD 1(MUM)(TM), WHEREIN IT WAS HELD AS UNDER:- SEC. 10A IS A CODE BY ITSELF. IT CONTAINS THE SCHE ME OF TAXATION FORMULATED BY THE GOVERNMENT FOR TAXABILIT Y OF UNITS SET UP IN THE EXPORT PROCESSING ZONE. AS SUCH, IT C ANNOT BE COMPARED WITH S. 10. COMING TO THE APPLICABILITY OF S. 10A(4)(II), IT PUTS INTERDICT QUA SS. 72 AND 74. IT DOES NOT PRECLUDE THE OPERATION OF SS. 70 AND 71. SEC. 14A I S APPLICABLE IN RESPECT OF EXPENDITURE . LOSS IS DIFFERENT F ROM EXPENDITURE. AS SUCH, THE ASSESSEE IS ENTITLED TO S ETTING OFF THE LOSS INCURRED BY THE SEEPZ UNIT. IN VIEW OF THIS FI NDING, THE QUESTION WHETHER S. 14A IS PROSPECTIVE OR RETROSPEC TIVE IN OPERATION HAS BECOME ACADEMIC.CIT VS. HARPRASAD & CO. (P) LTD. 1975 CTR (SC) 65 : (1975) 99 ITR 118 (SC) AND CIT VS. S.S. THIAGARAJAN (1981) 129 ITR 115 (MAD) DISTINGUI SHED. 9. TO THE SAME EFFECT, IS THE DECISION IN THE CASE OF SOVIKA INFOMTEK LTD. VS. ITO (2008) 23 SOT 271(MUMBAI), WH EREIN IT WAS HELD AS UNDER:- NOW THE QUESTION ARISES THAT WHETHER THE LOSS INCU RRED IN THE BUSINESS ELIGIBLE UNDER S. 10B CAN BE SET OFF AGAIN ST THE OTHER INCOMES OF THE ASSESSEE UNDER S. 70 OR 71. AS THE I NCOME FROM THE ELIGIBLE BUSINESS UNDER S. 10B IS TO BE TA KEN INTO CONSIDERATION IN COMPUTING THE TOTAL INCOME OF THE ASSESSEE, ALL THE PROVISIONS OF THE ACT WOULD BE APPLICABLE F OR THE PURPOSE OF COMPUTING THE TOTAL INCOME OF THE ASSE SSEE UNLESS EXPRESSLY EXCLUDED BY THE LEGISLATURE. THE PERUSAL OF S. 10B REVEALS THAT SUB-S. (6) IS THE NON OBSTANTE CLAUSE WHICH PROVIDES THAT THE LOSS REFERRED TO IN SUB-S. (1) OF S. 72 OR SUB- S. (1) OR SUB-S. (3) OF S. 74, INSOFAR AS SUCH LOSS RELATES TO BUSINESS OF UNDERTAKING UNDER S. 10B SHALL NOT BE C ARRIED FORWARD OR SET OFF WHERE SUCH LOSS RELATES TO ANY O F THE RELEVANT ASSESSMENT YEARS ENDING BEFORE 1ST APRIL, 2001. SIMILARLY, IT ALSO EXCLUDES THE APPLICATION OF CERT AIN OTHER SECTIONS PARTIALLY OR TOTALLY IN COMPUTING THE INCO ME OF SUCH ITA NO .453 /AHD/2007 - 11 - BUSINESS. HOWEVER, IT IS PERTINENT TO NOTE THAT PRO VISIONS OF S. 70 OR 71 HAVE NOT BEEN INCLUDED IN THE NON OBSTANTE PROVISIONS AND, THEREFORE, IT CANNOT BE SAID THAT P ROVISIONS OF S. 70 OR 71 CANNOT BE APPLIED IN COMPUTING THE INCO ME OF THE ASSESSEE. HAD THE LEGISLATURE INTENDED THAT THE PRO VISIONS OF SS. 70 AND 71 SHOULD NOT BE APPLIED IN RESPECT OF L OSS INCURRED IN BUSINESS ELIGIBLE UNDER S. 10B, IT COULD HAVE SP ECIFICALLY PROVIDED SO AS PROVIDED IN RESPECT OF S. 72 OR S. 7 4. THE ASSESSEE IS ENTITLED TO SET OFF THE LOSS INCURRED I N THE INDUSTRIAL UNIT WHICH IS ELIGIBLE UNDER S. 10B AGAINST THE OTH ER INCOMES EARNED BY HIM. THE ORDER OF THE CIT(A) IS, THEREFOR E, SET ASIDE ON THIS ISSUE AND CONSEQUENTLY, THE AO IS DIRECTED TO ALLOW THE SET OFF OF THE BUSINESS LOSS INCURRED BY THE ASSESS EE IN THE AFORESAID UNIT AGAINST THE OTHER INCOMES.NAVIN BHA RAT INDUSTRIES LTD. VS. DY. CIT (2005) 92 TTJ (MUMBAI)( TM) 1166 : (2004) 90 ITD 1 (MUMBAI)(TM) RELIED ON. 10. TO THE SAME EFFECT IS THE DECISION IN THE CASE OF ENERCON WIND FARMS (KRISHNA) LTD. VS. ACIT (2008) 21 SOT 29 (MUM BAI), WHEREIN IT WAS HELD THAT :- A CLOSE READING OF S. 10B(1) MAKES IT CLEAR THAT T HIS SECTION PROVIDES FOR DEDUCTION OF SUCH PROFITS AND GAINS AS ARE DERIVED BY A 100 PER CENT EXPORT-ORIENTED UNDERTAKING FROM THE TOTAL INCOME OF THE ASSESSEE FOR A PERIOD OF TEN CONSECUT IVE ASSESSMENT YEARS, STARTING FROM THE PREVIOUS YEAR I N WHICH SUCH UNDERTAKING BEGINS MANUFACTURE OF PRODUCTION F OR EXPORT OF ARTICLES OR THINGS OR A COMPUTER SOFTWARE. THOUG H THIS SECTION FALLS IN CHAPTER III, WHICH CONSISTS OF INC OMES WHICH DO NOT FORM PART OF TOTAL INCOME, IN ITS WISDOM, THE L EGISLATURE PROVIDED THAT AS FAR AS S. 10B IS CONCERNED, THE AS SESSEE SHALL GET ONLY A DEDUCTION FROM THE TOTAL INCOME. A PERUS AL OF THE DEFINITION OF TOTAL INCOME GIVEN IN S. 2(45) MA KES IT CLEAR THAT IT MEANS INCOME REFERRED TO IN SECTION 5 AND C OMPUTED IN THE MANNER LAID DOWN IN THIS ACT. A PERUSAL OF S. 5 GIVES THE SCOPE OF TOTAL INCOME AND IT INCLUDES ALL INCOMES F ROM WHATEVER SOURCE DERIVED, WHICH IS RECEIVED OR DEEME D TO BE RECEIVED, ACCRUES OR ARISES OR DEEMED TO ACCRUE OR ARISE TO, A PERSON BOTH INSIDE INDIA AND OUTSIDE INDIA. FROM TH E ABOVE IT IS CLEAR THAT THE FINDINGS OF THE FIRST APPELLATE A UTHORITY THAT THE TERM TOTAL INCOME APPEARING IN S. 10B(1) CA NNOT BE SAID TO BE PROFITS AND GAINS OF BUSINESS OR PROFESSION C OMPUTED IN TERMS OF S. 28, IS AN ERROR. THE TERM TOTAL INCOM E APPEARING IN S. 10B(1), IS TOTAL INCOME AS COMPUTED UNDER THE ACT. NOW TO S. 10B(6)(II) INVOKED BY THE AO FOR THE PURPOSE OF DENYING CARRY FORWARD LOSSES TO THE ASSESSEE. THE FIRST APP ELLATE AUTHORITY NEGATIVED THIS FINDING OF THE AO. THE REV ENUE HAS ITA NO .453 /AHD/2007 - 12 - NOT FILED A CROSS-OBJECTION NOR A CROSS APPEAL AND THUS ACCEPTED THIS FINDING OF THE CIT(A) THAT THE AO WRO NGLY INVOKED PROVISIONS OF S. 10B(6)(II). THE STARTING W ORDS OF S. 10B(6) REFERS TO TERM RELEVANT ASSESSMENT YEARS . THIS TERM IS DEFINED IN SUB-CL. (V) OF EXPLN. 2 TO MEAN ANY ASSESSMENT YEARS FALLING WITHIN THE PERIOD OF 10 CONSECUTIVE A SSESSMENT YEARS REFERRED TO IN S. 10B . SEC. 10B(6) REFERS TO COMPUTATION OF TOTAL INCOME OF THE ASSESSEE FOR THE PREVIOUS YEARS AND ASSESSMENT YEARS WHICH IMMEDIATELY SUCCEE D THE RELEVANT ASSESSMENT YEARS AS ALSO THE SUBSEQUENT PR EVIOUS YEARS AND ASSESSMENT YEARS. A PLAIN READING OF SUB- CL. (V) OF EXPLN. 2 WITH S. 10B(6) CLEARLY SHOWS THAT THIS SEC TION IS NOT RELEVANT WHILE COMPUTING DEDUCTION UNDER S. 10B. TH E ENTIRE S. 10B(6) REFERS TO COMPUTATION OF TOTAL INCOME AFT ER THE TAX HOLIDAY PERIOD OF 10 YEARS. THE LEGISLATURE IN S. 1 0B(6)(I) PROVIDED THAT DEDUCTIONS OF DEPRECIATION UNDER S. 3 2, INVESTMENT ALLOWANCE UNDER S. 32A, DEVELOPMENT REBA TE UNDER S. 33, EXPENDITURE ON SCIENTIFIC RESEARCH UNDER S. 35, BONA FIDE EXPENDITURE INCURRED FOR THE PURPOSE OF FAMILY PLAN NING AMONGST HIS EMPLOYEES UNDER S. 36(1)(IX), SHALL NOT BE CLAIMED AFTER THE EXPIRY OF THE TAX HOLIDAY PERIOD, WHEN THEY PERTAINED TO THE ASSESSMENT YEARS AND PREVIOUS YEAR S WITHIN THE TAX HOLIDAY PERIOD. THUS, THIS SUB-S. (1) PROVI DES THAT THESE DEDUCTIONS SHOULD BE TAKEN AS GIVEN FULL EFFE CT TO. SIMILARLY, SUB-S. (III) OF S. 10B(6) PROVIDES THAT THE ASSESSEE SHALL NOT CLAIM ONCE AGAIN DEDUCTION FOR THE SAME P ROFITS OF THE TAX HOLIDAY PERIOD EITHER UNDER S. 80HH OR UNDE R S. 80HHA OR UNDER S. 80-I, ETC. IN SUB-S. (IV) OF S. 10B(6) IT IS CLEARLY PROVIDED THAT THE ASSESSEE HAS NO OPTION BUT TO CLA IM DEPRECIATION EVEN DURING THE TAX HOLIDAY PERIOD, SO THAT AFTER THE RELEVANT ASSESSMENT YEARS, THE ASSESSEE S WRI TTEN DOWN VALUE FOR ASSETS WOULD BE TAKEN AS IF DEPRECIATION HAS ACTUALLY BEEN ALLOWED AS A DEDUCTION IN EACH OF THE RELEVANT ASSESSMENT YEARS DURING THE TAX HOLIDAY PERIOD OF 1 0 YEARS. THUS, THE ENTIRE SCHEME OF THE SECTION PROVIDES FOR A SITUATION WHERE THE ASSESSEE IS NOT ALLOWED TO POSTPONE SOME OF HIS CLAIMS OF DEDUCTION UNDER VARIOUS SECTIONS DURING T HE TAX HOLIDAY PERIOD, SO THAT THE PROFITS IN THE TAX HOLI DAY PERIOD ARE INFLATED AND THE PROFITS OF BUSINESS AFTER THE TAX HOLIDAY PERIOD ARE REDUCED BY CLAIMING THESE DEDUCTIONS AT THAT PA RTICULAR POINT OF TIME. THUS, THE AO WAS WRONG IN INVOKING T HE PROVISIONS OF S. 10B(6) DURING THE CURRENT ASSESSME NT YEAR. BE IT AS IT MAY, THE FIRST APPELLATE AUTHORITY WAS WRO NG IN HIS CONCLUSIONS THAT TOTAL INCOME DOES NOT REFER TO INC OME COMPUTED UNDER SS. 28 TO 44DB BUT HAS TO BE SEPARAT ELY COMPUTED UNDER S. 10B (1). THERE IS NO SUCH SCHEME ENVISAGED IN THE ACT. PROFITS AND GAINS FROM BUSINE SS HAS TO BE NECESSARILY COMPUTED BY APPLYING SS. 28 TO 44DB AS WELL AS ITA NO .453 /AHD/2007 - 13 - OTHER RELEVANT SECTIONS OF THE ACT. IN ANY EVENT, T HE TERM TOTAL INCOME IS USED IN S. 10B(1). A CONJOINED RE ADING OF S. 2(45) AND S. 5 BRINGS ONE TO A CONCLUSION THAT THE TOTAL INCOME OF ANY PREVIOUS YEAR SHALL BE COMPUTED AS PER THE P ROVISIONS OF THIS ACT. TOTAL INCOME HAS TO BE COMPUTED UNDER THE PROVISIONS OF THE ACT AND THEREAFTER A DEDUCTION HA S TO BE QUANTIFIED UNDER S. 10B AS PROVIDED IN S. 10B(4). T HIS FIGURE SHOULD BE DEDUCTED FROM THE TOTAL INCOME AS COMPUTE D UNDER THE REST OF THE PROVISIONS OF THE ACT. THIS IS EXAC TLY WHAT THE ASSESSEE HAS DONE. IF THERE IS CERTAIN INCOME STILL LEFT WITH THE ASSESSEE, AFTER GRANTING DEDUCTION, THEN THE SAME S HALL BE TOTAL INCOME OF THE ASSESSEE AND ALL OTHER PROVISIO NS OF THE ACT WILL APPLY. UNDER THIS SCENARIO, S. 72 COMES INTO P LAY AND THE CARRY FORWARD LOSSES CAN DEFINITELY BE SET OFF AGAI NST THE TOTAL INCOME COMPUTED AFTER PROVIDING FOR DEDUCTION UNDER S. 10B. IT IS VERY IMPORTANT TO NOTE THAT THE DEDUCTION UND ER S. 10B IS NOT CONTROLLED BY S. 80AB AS DEDUCTION UNDER S. 10B IS NOT A DEDUCTION UNDER CHAPTER VI-A. WHEN THE EXPORT TURNO VER AND TOTAL TURNOVER PERTAINED TO A PARTICULAR YEAR, THE PROFITS AND GAINS FROM THE BUSINESS OF AN UNDERTAKING SHOULD OB VIOUSLY BE FOR THAT PARTICULAR YEAR AND WHICH ARE NOT ADJUSTED AGAINST THE PREVIOUS LOSSES OR ALLOWANCES. ANY OTHER INTERPRETA TION WOULD NOT YIELD LOGICAL CONCLUSIONS WHILE APPLYING THE FO RMULA. THE AMOUNT OF DEDUCTION UNDER S. 10B ARRIVED IN THIS PA RTICULAR MANNER WOULD BECOME AN INCOME WHICH WOULD FORM PART OF THE TOTAL INCOME OF THE ASSESSEE, UNDER THE ACT. 11. IN VIEW OF THE ABOVE DECISIONS, IT CANNOT BE HE LD THAT THE VIEW TAKEN BY AO IN THE ORDER OF ASSESSMENT OF ALLOWING SET OFF OF LOSS OF UNIT ELIGIBLE UNDER SECTION 10B FROM THE OTHER INCO ME OF THE ASSESSEE WAS NOT A POSSIBLE VIEW. 12. THE HON'BLE SUPREME COURT IN THE CASE OF MALABA R INDUSTRIAL CO. LTD. VS. CIT (2008) 243 ITR 83 (SC), HAS HELD THAT PROVISIONS OF SECTION 263 CANNOT BE INVOKED TO TAKE A DIFFERENT V IEW WHEN THE VIEW TAKEN BY THE AO IN THE ORDER OF ASSESSMENT WAS A POSSIBLE VIEW. TO THE SAME EFFECT IS ALSO THE DECISION OF TH E HON'BLE SUPREME COURT IN THE CASE OF CIT VS. MAX INDIA LTD. (2007) 295 ITR 282 (SC). THUS, IN OUR CONSIDERED VIEW THE ACTION OF TH E CIT UNDER SECTION 263 OF THE ACT, IN RESPECT OF THE ABOVE ISS UE IS ALSO ITA NO .453 /AHD/2007 - 14 - UNSUSTAINABLE. WE THEREFORE, SET ASIDE THE ORDER OF THE CIT ON THIS ISSUE ALSO. 13. THEREFORE, THE ORDER OF THE CIT PASSED UNDER SE CTION 263 IS SET ASIDE AND THE APPEAL OF THE ASSESSEE IS ALLOWED . ORDER, SIGNED DATED AND PRONOUNCED IN THE COURT ON 19/03/2010. SD/- SD/- (BHAVNESH SAINI) ( N.S. SAINI ) JUDICIAL MEMBER ACCOUNTANT MEMBER AHMEDABAD; DATED 19/03/2010 PARAS COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT CONCERNED 4. THE LD. CIT(APPEALS). 5. THE DR, AHMEDABAD BENCH 6. THE GUARD FILE. BY ORDER, //TRUE COPY// (DY./ASSTT.REGISTRAR), ITAT, AHMEDABAD