The Income tax Officer,Ward-4(3), Baroda V. M/s. Sameer E-Clipse (Products) Pvt.Ltd., Baroda

MA 159/AHD/2018

• Counselvise Citation: [2019] 115 COUNSELVISE.COM (IT) 4684 (ITAT-AHMEDABAD)
• Duration Of Justice: 9 month(s) 17 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 15-03-2019
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Assessment Year: 2009-2010
• Appeal Filed On: 29-05-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ALBINUS TIRKEY
• Keywords: Depreciation
• Section: 10B; 6

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD B BENCH BEFORE: SHRI RAJPAL YADAV, JUDICIAL MEMBER AND SHRI AMARJIT SINGH, ACCO UNTANT MEMBER ITO, WARD-4(3), VADODARA (NOW) ACIT CIRCLE-1(1)(2), ROOM NO. 103, FIRST FLOOR, AAYAKAR BHAWAN BARODA (APPELLANT) VS. SAMEER E-CLIPSE (PRODUCTS PVT.LTD.) 903/10, GIDC INDUSTRIAL ESTATE, MAKARPURA, VADODARA- 3900010 PAN: AAG CS7 973 R (RESPONDENT) REVENUE BY: SHRI ALBINUS TIRKEY, SR. DR ASSESSEE BY: SHRI BHAVIN MARFATIA, CA DATE OF HEARING : 18-01-2019 DATE OF PRONOUNCEMENT : 15-03-2019 /ORDER PER : AMARJIT SINGH, ACCOUNTANT MEMBER:- THE REVENUE HAS FILED THIS MISCELLANEOUS PETITION 1 59/AHD/2018 ON 21.08.2018 AGAINST THE DECISION OF ITAT VIDE ITA NO . 2338/AHD/2013 DATED 23.11.2017 VIDE THE AFORESAID MISCELLANEOUS PETITIO N THE REVENUE HAS STATED THAT THE ITAT ERROR IN DIRECTING TO ALLOW DEDUCTION U/S. 10B OF THE ACT BEFORE ALLOWING ADJUSTMENT ON ACCOUNT OF BROUGHT FORWARD D EPRECIATION LOSSES AS PER RELIANCE PLACED ON HONBLE SUPREME COURT DECISION I N THE CASE OF YOKOGAWA M.A. NO. 159/AHD/2018 (IN ITA NO. 2338 /AHD/2013) ASSESSMENT YEAR 2009-10 M.A. NO.159 /AHD/2018 A.Y. 2009-10 PAGE NO ACIT VS. SAMEER CIRCLE PRODUCTS (P) LTD. 2 INDIA LTD. DATED 16.12.2016 IGNORING THE VERY BASIS OF THE AFORESAID JUDGMENT WHICH DEAL WITH BROUGHT FORWARD BUSINESS LOSS AND N OT BROUGHT FORWARD DEPRECIATION LOSS. 2. WE HAVE HEARD THE RIVAL CONTENTION AND PERUSED T HE MATERIAL ON RECORD CAREFULLY. WITH THE ASSISTANCE OF LD. REPRESENTATI VES WE HAVE GONE THROUGH THE DECISION OF HONBLE SUPREME COURT CIT VS. YOKOG AWA INDIA LTD. [2017] 77 TAXMANN.COM 41 (SC) AFTER PERUSAL OF THE ABOVE DECI SION OF THE HONBLE SUPREME COURT IT IS NOTICED THAT THE FOLLOWING SPEC IFIC QUESTION WAS CONSIDERED BY THE HONBLE SUPREME COURT IN THE ABOVE CITED CAS E: (I) WHETHER SEC. 10A WAS BEYOND THE PURVIEW OF THE COMPUTATION MECHANISM OF TOTAL INCOME AS DEFINED UNDER THE ACT. CONSEQUENTLY, WAS THE INCOME OF A SEC. 10A UNIT REQUIRED TO BE EXCLUDED BEFORE ARRIVING AT THE GROS S TOTAL INCOME OF THE ASSESSEE? (II) WHETHER THE PHRASE TOTAL INCOME IN SEC. 10A WAS AKIN AND PARI MATERIA WITH THE SAID EXPRESSION AS APPEARING IN SE. 2(45)? (III) WHETHER EVEN AFTER THE AMENDMENT MADE WITH EF FECT FROM 01.04.2001, SEC. 10A CONTINUED TO REMAIN AN EXEMPTION SECTION AND NOT A DEDUCTION SECTION? (IV) WHETHER LOSSES OF OTHER SEC. 10A UNITS OR NON- SECTION 10A UNITS COULD BE SET OFF AGAINST THE PROFITS OF SEC. 10A UNITS BEFORE DEDUCT IONS U/S. 10A COULD BE EFFECTED? (V) WHETHER BROUGHT FORWARD BUSINESS LOSSES AND UNA BSORBED DEPRECIATION OF SEC. 10A UNITS OR NON-SECTION 10A UNITS COULD BE SET OFF AGA INST THE PROFITS OF ANOTHER SEC. 10A UNITS OF THE ASSESSEE. 3. HOWEVER, IT IS PERTINENT TO MENTION HERE THAT I N PARA 15 OF THE AFORESAID JUDGMENT THE HONBLE SUPREME COURT HAS HELD THAT TH E PROVISIONS OF SUB- SECTION 6 OF SEC. 10A, AS AMENDED BY THE FINANCE AC T, 2003, GRANTING THE BENEFIT OF ADJUSTMENT OF LOSSES AND UNABSORBED DEPR ECIATION ETC. COMMENCING FROM THE YEAR 2001-02 ON COMPLETION OF THE PERIOD O F TAX HOLIDAY ALSO VIRTUALLY WORKS AS A DEDUCTION WHICH HAS TO BE WORKED OUT AT A FUTURE POINT OF TIME, NAMELY, AFTER THE EXPIRY OF PERIOD OF TAX HOLIDAY. 4. IN THE LIGHT OF THE ABOVE WE DO NOT FIND ANY MER IT IN THE MISCELLANEOUS APPLICATION FILED BY THE REVENUE. THEREFORE, THE S AME STAND DISMISSED. M.A. NO.159 /AHD/2018 A.Y. 2009-10 PAGE NO ACIT VS. SAMEER CIRCLE PRODUCTS (P) LTD. 3 5. IN THE RESULT, MISCELLANEOUS APPLICATION FILED B Y THE REVENUE IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 15-03-201 9 SD/- SD/- (RAJPAL YADAV) (AMARJIT SINGH) JUDICIAL MEMBER A CCOUNTANT MEMBER AHMEDABAD : DATED 15/03/2019 TANMAY TRUE COPY / COPY OF ORDER FORWARDED TO:- 1. ASSESSEE 2. REVENUE 3. CONCERNED CIT 4. CIT (A) 5. DR, ITAT, AHMEDABAD 6. GUARD FILE. BY ORDER/ , / !' , #$