TMI Blog2016 (7) TMI 1239X X X X Extracts X X X X X X X X Extracts X X X X ..... - Held that:- Tribunal has rightly allowed the claim of the assessee.even in respect of electricity generation plant established by the assessee and the income derived from such enterprise of the assessee, it would have to be held that the assessee fully complied with the requirements prescribed under section 80-IA in order to avail the benefits provided therein. Therefore, the contention based on the interpretation of the expression `derived from’ could have no application to the case where the provisions of section 80-IA got attracted. MAT computation - Held that:- Provision for gratuity liability made on basis of actuarial valuation cannot be stated to be an uncertained liability so as to add it back in terms of clause (c) to Explanation (1) to section 115JB.” See Deputy Commissioner of Income-tax, Circle 1(2), Baroda vs. Inox Leisure Ltd., reported in [2013 (2) TMI 353 - GUJARAT HIGH COURT ]. As regards provision for diminution in value of investments under section 115JB is concerned, relying on the decision of the Apex Court in the case of Commissioner of Income-tax, Delhi v. HCL Comnet Systems & Services Ltd., [2008 (9) TMI 18 - SUPREME COURT] the claim is allowable. - TA ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he facts and in the circumstances of the case, the Appellate Tribunal was right in law in holding that the amount set aside by the assessee to provide for meeting liabilities other than ascertained liabilities was deductible, while computing the book profit under section 115JB of the Act? Tax Appeal No. 473 of 2009: (A) Whether, on the facts and in the circumstances of the case, the Appellate Tribunal was right in law in directing to reduce the deduction u/s. 80-HHC was to be computed based on book profit for the purpose of section 115JB? (B) Whether, on the facts and in the circumstances of the case, the Appellate Tribunal was right in law and on facts in not considering the decision of the Appellate Tribunal, Chennai rendered in the case of Chettinad Cement Corporation Ltd., in ITA No. 1026 (MDS)/2005 for A.Y. 2001-02, brought to its notice vide the additional ground raised by the Department, according to which the deduction u/s. 80-IA(4) is not allowable to the assessee for generating power for captive consumption? (C) Whether the Appellate Tribunal was right in law and on facts in not appreciating that deduction u/s. 80IA(4) is not allowable to the assessee for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r carefully considering the material evidence on record, rightly allowed the claim of the assessee. The learned counsel for the assessee has relied on the decision of the Apex Court in the case of Ajanta Pharma Ltd. v. Commissioner of Income-tax, Mumbai reported in (2010) 327 ITR 305 (SC) where the Apex Court has held as under: Sections 80-HHC and 115JB operate in different spheres. Two essential conditions for invoking section 80-HHC (1) are that the assessee must be in the business of export; and secondly, the sale proceeds of such exports should be receivable in India in convertible foreign exchange. Section 80- HHC(1) refers to `eligibility whereas section 80- HHC(3) refers to computation of tax incentive. Coming to section 80-HHC(1B), it is clear that after the Finance Act, 2000, with effect from the assessment year 2001-02, exporters would not get 100 per cent deduction in respect of profits derived from exports but they would get deduction at 80 per cent in the assessment year 2001-02; at 70 per cent in the assessment year 2002-03 and so on. Thus, section 80-HHC(1B) deals not with `eligibility but with the `extent of deduction . Section 115JB is a self-contained Code. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of profit and `deductibility of profit is not kept in mind, then section 115JB will cease to be a self-contained code. In section 115JB, as in section 115JA, it has been clearly stated that the relief will be computed under section 80-HHC(3)/(3A), subject to the conditions under sub-sections (4) and (4A) of that section. The conditions are only that the relief should be certified by the chartered accountant. Such condition is not a qualifying condition but it is a condition of compliance. Therefore, one cannot rely upon the last sentence in clause (iv) of the Explanation to section 115JB (Subject to the conditions specified in sub-sections (4) and (4A) of that section) to obliterate the difference between `eligibility and `deductibility of profits as was contended on behalf of the department. For the aforesaid reasons, the impugned judgement of the High Court was to be set aside and the judgement of the Tribunal was to be restored. 7.1 He has further relied on the decision of this court in the case of Commissioner of Income-tax v. Aarvee Denims Exports Ltd., reported in (2013) 40 taxmann.com 85 where this court has held as follows: For computing deduction under claus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itesh Impex reported in 270 CTR 66 and New India Industries Ltd. v. Commissioner of Income-tax reported in (1994) 207 ITR 1010 where this court has held in favour of the assessee that additional ground can be raised in appeal before the Commissioner (Appeal) and the appellate authority has power to admit the appeal. 10.1 Regarding eligibility and rate for the purpose of granting benefit, learned counsel for the assessee has contended that the assessee is entitled to claim market value of the eligible unit. In support of this contention, he has relied on the decisions of this court in Tax Appeal No. 1646 of 2010 - A.C.I.T., Bharuch Circle, Bharuch, through Commissioner v. Pragati Glass Works Pvt. Ltd. decided on 30.1.2012; Tax Appeal No. 1493 of 2011 -Commissioner of Income-tax -IV v. Shah Alloys Ltd., decided on 25.9.2012 and Tax Appeal No. 2092 of 2010 Commissioner of Income-tax-IV v. Shah Alloys Ltd., decided on 22.11.2011. He has further relied on the decision of Calcutta High Court in the case of Commissioner of Income-tax, Kolkata-IV, Kolkata v. Kanoria Chemicals Industries Ltd., reported in (2013) 35 taxmann.com 566 (Calcutta) where the court has held as under: It ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ise of the assessee, it would have to be held that the assessee fully complied with the requirements prescribed under section 80-IA in order to avail the benefits provided therein. Therefore, the contention based on the interpretation of the expression `derived from could have no application to the case where the provisions of section 80-IA got attracted. 11. We have considered the submissions made by the learned counsel for the parties. We have also considered the case laws cited by the learned counsel for the assessee. Taking into consideration the judements of this court and other High Courts, cited above, we are of the opinion that the Tribunal has rightly allowed the claim of the assessee. In that view of the matter, we do not find any infirmity in the order of the Tribunal. Therefore, we answer question (C) and (D) in favour of the assessee and against the revenue. Tax Appeal No. 472 of 2009 12. The learned counsel for the revenue has contended that the assessee had not added the following provisions while computing book profit under section 115JB of the Act. No. Particulars Amount 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ying on the decision of the Apex Court in the case of Commissioner of Income-tax, Delhi v. HCL Comnet Systems Services Ltd., reported in 305 ITR 409 and the decision of Karnataka High Court in the case of Commissioner of Income-tax v. Yokogawa India Ltd., reported in 204 Taxman 305, it is submitted that the claim is allowable. Further relying on the decision of this court in Tax Appeal No. 1775 of 2008, the learned counsel for the assessee has contended that the issue may be decided in favour of the assessee. 14. We have considered the submissions and the case laws cited by the learned counsel for the assessee. In view of the fact that the issue is squarely covered by the decision of the Deputy Commissioner of Income-tax, Circle 1(2), Baroda vs. Inox Leisure Ltd., (supra) and other decisions, we answer the issue in favour of the assessee and against the revenue. Tax Appeal No. 473 of 2009: So far as question (A) is concerned, this is identical to the question (B) of Tax Appeal No. 471 of 2009 where we have decided the question in favour of the assessee and against the revenue. In that view of the matter, we answer the question in favour of the assessee and against the ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
