TMI Blog2021 (6) TMI 111X X X X Extracts X X X X X X X X Extracts X X X X ..... e submission of the Respondent that this was not the first time the petitioner had claimed deduction under Section 10B of the IT Act, 1961. It appears that for the aforesaid year, CIT(Appeals)-IV vide order dated 21.09.2010, had observed that, Since transfer cost of materials between the EOU and all EOU units has been wrongly recorded the deduction u/s 10B should be restricted to the profits of the EOU units after recording the transfer of the material at the correct cost. . The issue on merits is apparently covered in favour of the petitioner in the case of Scientific Atlanta India Technology Private Ltd [ 2010 (2) TMI 658 - ITAT, CHENNAI ] and similar views in Changpond Technologies (P) Ltd vs ACIT [ 2008 (2) TMI 486 - ITAT MADRAS-A ] and Enercon Wind Farm (Krishna) Ltd. [ 2007 (12) TMI 306 - ITAT MUMBAI ] It is therefore for the petitioner to substantiate its case before the respondent by citing the above decisions and get the issue decided on merits in its favour. Writ petition is dismissed. The Respondent is therefore directed to pass appropriate orders in accordance with law on merits. - W.P. No. 28052 of 2010 And M.P. No. 1 of 2010 - - - Dated:- 27-5-2021 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... late Tribunal in I.T.A.Nos.780, 781 1786/MDS/07 dated 28.03.2008 for the Assessment year 2001-2002, 2004-2005 and 2002-2003, the Tribunal disposed the petitioner's appeal in I.T.A.No.780/MDS/07 for the Assessment Year 2004-2005 was disposed by observing that the petitioner has filed an appeal before the Commissioner of Income Tax (Appeals) and that the issue dealt with by the Assessing Officer was debatable and cannot be done under the guise of rectification under Section 154 of the IT Act. The Tribunal accepted the case of the petitioner by holding that the issue dealt by the Assessing Officer in the proceedings under Section 154 of the IT Act was debatable and in its opinion deduction under Section 80 HHC and 10B cannot be dealt with the proceedings under Section 154 of the IT Act for determining the book-profit under Section 115 J of the IT Act. While holding so, the appeal filed by the petitioner came to be allowed. 5. During the pendency of the said appeal before the Income Tax Tribunal, a Scrutiny Assessment Order dated 22.12.2006 came to be passed by the Deputy Commissioner of Income Tax under Section 143(3) of the Income Tax Act, 1961, wherein, while computing th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 7. It is in the background of the above, the impugned communication dated 01.12.2010, bearing Ref.No.AAACO 0402B/2010-11/82 has been issued by the respondent/Deputy Commissioner of Income Tax, which is sought to be assailed in this writ petition. 8. The learned counsel for the petitioner submits that as far as the issue relating to deduction under Section 80HHC of the IT Act is concerned, the issue was dealt by the Assessing Officer originally while passing an assessment order dated 27.06.2005, under Section 141(1) of the IT Act, which was sought to be rectified by an order dated 19.12.2005 which culminated in the order of the Tribunal in ITA.No.781/MDS/07 dated 28.03.2008. 9. It is submitted that during the interregnum, the assessment order passed under Section 143(3) of the IT Act has also disallowed the deduction under Section 80HHC of the IT Act. Therefore, the purported reasons for reopening of the assessment cannot be countenanced. As far as the proposal to deny exemption under Section 10B of the IT Act on the ground that the petitioner was in the habit of claim deduction under Section 10B of the IT Act by reporting higher profit in EOU unit by way of expenditure ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oner of Income-tax, Vs Appollo Hospitals Enterprises Ltd., [2008] 171 Taxman 397 (Madras) (v) Jayaram Paper Mills Ltd., Vs Commissioner of Incometax , [2019] 191 Taxman 38 (Madras) 13. Defending the impugned order, the learned counsel for the respondent submits that as far as the issue relating to deduction under Section 88HC is decided, the impugned order itself has stated that the issue will be decided in the light of the Hon'ble Apex Court in Ajanta Pharma Ltd., Vs Commissioner of Income-tax, [2010] 194 Taxman 358 (SC), 327 ITR 305 (SC) rendered on 09.09.2010 and in the case of Ipca Laboratary Ltd., Vs Deputy Commissioner of Income Tax , 266 ITR 521. 14. It is therefore submitted that the reopening of the assessment qua proposed denial of deduction/exemption under Section 10B alone survives even if the submission of the petitioner is to be accepted. She submits that speaking order passed by the respondents is well considered and all the defences that are available to the petitioner should be raised and therefore that the petitioner should participate in the said proceedings and therefore prays for dismissal of the writ petition. 15. By way of Rej ..... X X X X Extracts X X X X X X X X Extracts X X X X
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