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TMI Blog2009 (6) TMI 124X X X X Extracts X X X X X X X X Extracts X X X X ..... is to be seen. 2. The earlier Special Bench (ITAT "D" Bench) at Chennai in the case of Asst. CIT v. Rogini Garments [2007] 294 ITR (AT) 15 was constituted to consider similar controversy when conflict of views between different benches of Income-tax Appellate Tribunal was found. The Special Bench after hearing both the parties had held that where deduction under section 80HHC as also under section 80-IA are claimed for the assessment years 1999-2000 and 2002-03, then relief allowed under section 80-IA is to be deducted from profits and gains of the assessee's business on which relief under section 80HHC of the Act is to be computed. After the above Special Bench, the hon'ble Madras High Court in the case of SCM Creations v. Asst. CIT [2008] 304 ITR 319 decided the same question and took a view which some benches thought was different from the view taken by the Special Bench in the case of Rogini Garments [2007] 294 ITR (AT) 15. It was thought by these benches that Rogini Garments is no more applicable after the decision of SCM Creations v. Asst. CIT [2008] 304 ITR 319. The referral Bench hearing these appeals noticed that Delhi "F" Bench of the Tribunal, in the case of Sar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... equently, notice under section 148 dated November 19, 2004, was issued. In response thereto, the assessee again filed return showing nil income. The case was taken as scrutiny assessment case. It was found that the assessee in the relevant period had manufactured and exported menthyl acetate, mint terpins, basil oil and its allied products to the foreign buyers and had claimed to be 100 per cent. exporter. It claimed deduction under section 80HHC at 50 per cent. of the gross total income, i.e., at Rs. 35,26,121. The deduction under section 80-IB was claimed at Rs. 13,22,907 being 30 per cent. of total business profit of the undertaking. While computing deduction under section 80HHC the deduction allowed under section 80-IB was not taken into consideration (deducted) in the claim. 5. The Assessing Officer raised a query as to why deduction under section 80HHC be not reduced by the amount of deduction allowed under section 80-IB in the light of the provision of section 80-IA(9) read with section 80-IB(13). The assessee, in response to the above query, and while opposing above action, relied upon the provisions of section 80AB and also on decision of the Income-tax Appellate Tribunal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... did not refer to any specific case law on the issue and has relied on the decision of the Supreme Court in the case of CIT v. Sterling Foods [1999] 237 ITR 579 and Cambay Electric Supply Industrial Co. Ltd. v. CIT [1978] 113 ITR 84. However, these cases were not directly on the issue. On the other hand, the learned Commissioner of Income-tax (Appeals) found that the hon'ble Jaipur Tribunal in the case of Toshica Creation [2005] 96 TTJ 651, the hon'ble Bangalore Bench in the case of Mittal Clothing Company v. Deputy CIT [2005] 4 SOT 626, the hon'ble Delhi Bench, SMC in the case of ITO v. R. V. Diamond Jewellers (P.) Ltd. decided on November 3, 2005, and the Delhi Tribunal in the case of Deputy CIT v. Eltek SGS (P.) Ltd. [2006] 10 SOT 178 had held that the exclusion of deduction under section 80-IB for computing deduction under section 80HHC was not permissible. In the light of the aforesaid decisions of the jurisdictional Tribunal, the Assessing Officer was directed to allow deduction under section 80HHC without reducing or considering deduction allowed under section 80-IB of the Act. 9. The Revenue, being aggrieved, has brought the issue in appeal before the Appellate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... me-tax Appellate Tribunal, Delhi Bench in the case of Deputy CIT v. Eltek SGS (P.) Ltd. [2006] 10 SOT 178. The Bench's attention was also drawn to the decision of the apex court in the case of Britannia Industries Ltd. v. CIT [2005] 278 ITR 546 wherein it has been held that when the language of the statute is clear and unambiguous, the courts are to interpret the same in its literal sense and not to give a meaning which would cause violence to the provisions of the Statute. Reference was also made to the decision of the Bangalore Bench of the Tribunal in the case of Mittal Clothing Company v. Deputy CIT [2005] 4 SOT 626. On the basis of the decision of the apex court in the case of Bajaj Tempo Ltd. v. CIT [1992] 196 ITR 188, it was submitted that a taxing statute granting incentive for promoting growth and development should be liberally construed. Some other decisions of the Benches in which it was held that while computing deduction under section 80HHC, deduction allowed under section 80-IA was not to be deducted, were cited before the Special Bench. The Bench has also noted in detail the submissions of the Revenue opposing arguments advanced on behalf of the assessee and the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ments [2007] 294 ITR (AT) 15 (Chennai) and on further appeal, the hon'ble High Court reversed the view of the Tribunal. Thus, the decision of the Special Bench was taken as superseded and no more valid or applicable. Other circumstances which led to the constitution of the Special Bench have already been noted. 16. Shri R. S. Meena, the learned Commissioner of Income-tax (Departmental representative) has contended that the language employed in section 80-IA(9) and section 80-IB(13) of the Income-tax Act, 1961 ("the Act") is plain, simple, clear and unambiguous, and in order to determine the true and correct meaning of the provisions contained in sections 80-IA(9) and 80-IB(13), no words or meaning should be added thereto, and only the language used therein ought to be considered to ascertain the proper meaning and intent of the Legislature. The learned Departmental representative pleaded that plain reading of sections 80-IA(9) and 80-IB(13) suggests that where any amount of profits and gains is claimed and allowed as deduction under section 80-IA/80-IB for any assessment year, deduction to the extent of such profits and gains shall not be allowed under any other provision of C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... remainder only. 18. In support of the contention that a fiscal statute shall have to be interpreted on the basis of the language used therein and not de hors the same; and no words ought to be added and only the language used therein ought to be considered so as to ascertain the proper meaning and intent of the legislation, the learned Departmental representative has relied upon the following decisions : (i) Orissa State Warehousing Corporation v. CIT [1999] 237 ITR 589 (SC) ; (ii) Patil Vijaykumar v. Union of India [1985] 151 ITR 48 (Karn) ; (iii) IPCA Laboratory Ltd. v. Deputy CIT [2004] 266 ITR 521 (SC) ; (iv) Indian-Rayon Corporation Ltd. v. CIT [1998] 231 ITR 27 (Mumbai) ; (v) Smt. Tarulata Shyam v. CIT [1977] 108 ITR 345 (SC) ; (vi) Kota Co-operative Marketing Society Ltd. v. CIT [1994] 207 ITR 608 (Raj) ; (vii) M. P. Poddar (HUF) v. Appropriate Authority [1999] 240 ITR 372 (Delhi) ; (viii) Keshavji Ravji and Co. v. CIT [1990] 183 ITR 1 (SC) ; and (ix) Federation of Andhra Pradesh Chambers of Commerce and Indus try v. State of Andhra Pradesh [2001] 247 ITR 36 (SC). 19. The learned Departmental representative further submitted that it would be wrong to say ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1544 and 1545/Del/2007 (assessment years 2003-04 and 2004-05). 21. At this stage, the learned Departmental representative pointed out that an impression has been sought to be created that the issue that falls for consideration by this Special Bench is covered by the decision of the hon'ble Madras High Court in the case of SCM Creations v. Asst. CIT [2008] 304 ITR 319 but this is factually incorrect. He submitted that the decision of the hon'ble Madras High Court in the case of SCM Creations [2008] 304 ITR 319 have not taken cognizance of the material changes brought about by the inserting sub-section (9) in section 80-IA of the Act with effect from April 1, 1999. He further submitted that learned counsel appearing before the hon'ble Madras High Court did not refer to the provisions of section 80-IA(9) and, hence, their lordships had no occasion to look into or examine the change made with effect from April 1, 1999. However, it was emphasized that there has been a sea change in the circumstances with regard to the allowability of claim under section 80-IA/80-IB vis-a-vis section 80HHC of the Act. He then submitted that this aspect of the matter about the change in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... proposition that no double deduction on the same amount could have been intended by the Legislature should be applied in the present case, and, consequently, the issue raised before the Special Bench be decided in favour of the Revenue and against the assessee. Submission for the assessee 23. Learned counsel for the assessee, Shri Piyush Kaushik, advocate has submitted that section 80-IA/80-IB and section 80HHC operate in fields to serve different objectives. The objective behind section 80-IA/80-IB being to provide stimulus to undertakings engaged in the business of infrastructure development etc. whereas the objective behind section 80HHC is to provide stimulus in export business. He further submitted that section 80-IA/80-IB are undertaking based sections, wherein it is necessary to have an undertaking engaged in the specified activities in order to avail deduction under these sections. Whereas section 80HHC is an activity based section focusing on profits derived from export business. Section 80HHC is a special provision providing for an independent methodology for computing eligible profits of the business for computing deduction available under section 80HHC of the Act. He ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Act. In this context, he then submitted that the provision of section 80-IA(9) does not contain a non-obstante clause so as to supersede the specific provision of section 80HHC or for that matter any other section under the heading "C" of Chapter VI-A. Learned counsel for the assessee then submitted that if the provision of section 80-IA(9) are to be read as reducing from the profits eligible for deduction under section 80HHC the deduction allowed under section 80-IA or 80-IB, then such interpretation would be in manifest contradiction to the provisions of section 80AB which override all the provisions of Chapter VI-A and which specifically provide by way of non-obstante clause that in computing deduction under any section under the heading "C" of Chapter VI-A, the income on which such deduction shall be entitled shall be the income computed under the provisions of this Act before making any deduction under Chapter VI-A. Learned counsel for the assessee further submitted that there is an apparent conflict between two independent provisions of the Act, i.e., between section 80-IA/80-IB on the one hand, and section 80HHC, on the other hand, and the provisions of section 80-IA(9) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... econcile the relevant provisions as to advance the remedy intended by the statute." (iv) D. Sanjeevayya v. Election Tribunal, AIR 1967 SC 1211. "It was held in this case that provisions of one section cannot be used to defeat those of another unless reconciliation is impossible. It was held that provisions of statute should be read so as to harmonize with one another." 27. Learned counsel for the assessee then submitted that in order to harmonize the interpretation of provision of section 80-IA(9), section 80HHC and section 80AB, it would be useful to look into the legislative intent and purpose of introducing section 80-IA(9) of the Act, which was inserted by the Finance (No. 2) Act 1998, with effect from April 1, 1999. (it was originally sub-section of the (9A) old section 80-IA). He then made a reference to the Circular No. 772 dated December 23, 1998, of the Central Board of Direct Taxes reported in [1999] 235 ITR (St.) 35 and also the memorandum explaining the provisions of Finance (No. 2) Bill, 1998, explaining the intention behind introducing the provisions of section 80-IA(9) of the Act. He then drew the attention of the Bench to the aforesaid Circular and the memorand ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ;s claim under section 80HHC at gross basis as per the methodology prescribed under section 80HHC should not be disallowed. He then submitted that the effect should be given to the provision of sections 80HHC and 80AB and also to the legislative intent behind introducing section 80-IA(9) so that the inconsistencies between sections 80AB, 80-IA(9) and 80HHC are removed and the matter is brought to its logical conclusion. 31. With reference to the scope and meaning of Board Circular No. 772 dated December 23, 1998, learned counsel for the assessee submitted that the said circular has been highly misread by the Special Bench of the Income-tax Appellate Tribunal in the case of Rogini Garments [2007] 294 ITR (AT) 15 (Chennai) while observing that based on the said circular, the assessee was justifying a claim of more than 100 per cent. of the profit of undertaking as a deduction. He contended that this understanding of the Special Bench is incorrect since it is not at all the assessee's case that more than 100 per cent. of deduction of profits and gains of undertaking is to be allowed but on the contrary in the facts of the present case, the assessee had on its own in its return of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and concluded by various High Courts including the hon'ble Supreme Court and the Central Board of Direct Taxes. 34. Learned counsel for the assessee then submitted that the controversy arising about the meaning and scope of section 80HH(9) has been considered and resolved by the hon'ble Madhya Pradesh High Court in the case of J. P. Tobacco Products Pvt. Ltd. v. CIT [1998] 229 ITR 123. Relevant observations of the High Court shall be discussed hereinafter. 35. It was further submitted by learned counsel for the assessee that based on the reasoning laid down by the hon'ble Madhya Pradesh High Court in the case of J. P. Tobacco Products Pvt. Ltd. [1998] 229 ITR 123 the division benches of the Income-tax Appellate Tribunal in the following cases had held that section 80HHC does not authorize adjustment of deduction claimed under any other section in computation of profits eligible for deduction under section 80HHC and, accordingly, deduction under section 80HHC is to be completed in accordance with the provision of Explanation (baa) to section 80HHC on a gross basis : (i) Asst. CIT v. Rajoo Engineers Ltd. [2006] 284 ITR (AT) 119 (Rajkot); [2006] 100 ITD 555; (ii) Bha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ition (as set out below) would apply to the present controversy arising in the context of sections 80-IA/80-IB and 80HHC of the Act : (i) Section 80-IB/80-IA and section 80HHC are independent sections operating in different fields ; (ii) If the assessee fulfils conditions of both these sections then it should be entitled for deduction under both these sections ; and (iii) Section 80HHC nowhere permits reduction from the profits of the undertaking the a mount of deduction availed under section 80-IA/ 80-IB of the Act. 40. The above cases were not at all considered and addressed in the decision of Special Bench of the Income-tax Appellate Tribunal in the case of Rogini Garments [2007] 294 ITR (AT) 15 (Chennai). 41. With regard to the effect of sections 80-IA(9) and 80-IB(13) on all other sections of Chapter VI-A, it was submitted by Shri Piyush Kaushik learned counsel for the assessee that section 80-IA(9) and 80-IB(13) cannot be construed as non-obstante clause overriding all other sections of Chapter VI-A as it is pertinent to note that whenever and wherever the Legislature had intended to extend the restrictive clause in one section of Chapter VI-A to the other independent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... th considered the situations in which a restrictive clause in one section can influence the claim of deduction of other sections. He then submitted that it would thus, be not appropriate for a Tribunal to treat the decision of the High Court as sub-silentio or per incurium, and the jurisdiction to do so vests only with the Supreme Court or larger Bench of the same High Court, and the Tribunal is bound by the decision of even non-jurisdictional High Court in the absence of any contrary decision. 43. It was further pointed out by learned counsel for the assessee that as against the decision of the Special Bench in the case of Rogini Garments [2007] 294 ITR (AT) 15 (Chennai), the decision of the Madras High Court in the case of SCM Creations [2008] 304 ITR 319 has been followed by various benches of the Tribunal in large number of cases. He furnished details of the cases. Shri Ajay Vohra, learned counsel for the intervener also raised argument on the above lines. We would make appropriate reference to these arguments. Rejoinder by the learned Departmental representative. 44. In counter reply, the learned Departmental representative submitted that the full effect to section 80-IA(9) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he case of CIT v. Nima Specific Family Trust reported in [2001] 248 ITR 29. The judgment of the Madhya Pradesh High Court has been taken to the Supreme Court and the Supreme Court in Joint CIT v. Mandideep Engineering and Packaging Indus tries P. Ltd. [2007] 292 ITR 1, has rejected the S. L. P. by giving the following reasons : 'The Madhya Pradesh High Court in J. P. Tobacco Products P. Ltd. v. CIT reported in [1998] 229 ITR 123 took the view that both the sections are independent and, therefore, the deductions could be claimed both under sections 80HH and 80-I on the gross total income. Against this judgment, a special leave petition was filed in this court which was dismissed on the ground of delay on July 21, 2000 (See [2000] 245 ITR (St.) 71 ). The decision in J. P. Tobacco Pro ducts P. Ltd. v. CIT reported in [1998] 229 ITR 123 (MP) was followed by the same High Court in the case of CIT v. Alpine Solvex P. Ltd. in I. T. A. No. 92 of 1999 decided on May 2, 2000. Special leave petition against this was dismissed by this court on January 12, 2001, (see [2001] 247 ITR (St.) 36 ). This view has been followed repeatedly by different High Courts in a number of cases against whi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing under different provisions. We, therefore, do not find any support for the case of the assessee in these decisions. In the case of SCM Creations [2008] 304 ITR 319 their lordships merely followed and applied the earlier decisions as per the agreement and prayer made before their lordships by the parties. No reference was made to the statutory provision nor their lordships were called upon to decide any issue. The counsel appearing on behalf of the Revenue had fairly conceded the issue without taking into account or without bringing to the notice of their lordships, the change made in the statutory provisions of sub-section (9) of section 80-IA of the Income-tax Act with effect from April 1, 1999. This would be clear on a simple reference to cases cited and followed in the case of SCM Creations [2008] 304 ITR 319. These cases are discussed hereinafter. 48. The first decision referred to by their lordships is the decision of the Madhya Pradesh High Court in the case of J. P. Tobacco Products Pvt. Ltd. [1998] 229 ITR 123. The said case pertained to the assessment year 1984-85. The assessee, a bidi manufacturer, had claimed deduction both under section 80-I and under section 80HH ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... amount of gross total income so reduced. Learned counsel for the Department has, however, argued that the purpose of sub-section (9) of section 80HH is apparently to first allow deductions admissible under section 80HH and then to reduce the gross total income by the deductions so allowed and consider the income so reduced for the purpose of allowing deductions under section 80-I or 80J. Sub-section (9) of section 80HH, as it stood prior to the insertion of section 80-I by the Finance (No. 2) Act, 1980, with effect from April 1, 1981, originally included only section 80J. Section 80J providing for deduction in respect of the profits and gains from newly established industrial undertakings or ships or hotel business in certain cases did not make any provision for reduction of the gross total income by the amount of deduction admissible to the assessee under section 80HH. It was only by an amendment of the said section 80J that the pro vision for reducing the gross total income by the amount of deduction under section 80HH of the Act by the Direct Taxes (Amendment) Act, 1974, with effect from April 1, 1974, was inserted. Section 80-I was inserted in its present form by the Finan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dgment as is evident from the portion highlighted. The Revenue had relied in the cited case on the provisions of sub-section (9) of section 80HH which, according to the court, did not serve the purpose. The said provision was as under : "80HH. (9) In a case where the assessee is entitled also to the deduction under section 80-I or section 80J in relation to the profits and gains of an industrial undertaking or the business of a hotel to which this section applies, effect shall first be given to the provisions of this section." 51. The above sub-section obviously did not provide for reducing deduction allowed under section 80HH while computing deduction under section 80J. The sub-section only provided that the effect shall first be given to deduction under section 80HH if the assessee was also entitled to deduction under section 80-I or 80J of the Act. This is what has been clearly laid down by their lordships. There was no question of consideration of the provisions of section 80-IA(9) in that case. The above provision which is the matter of main controversy in this case, in fact was not in statute book in the year under consideration by the court. 52. The decision of the Madhy ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s operative on reaching the last stage of computation of income from different sources. The expression 'gross total income', in various sections of Chapter VI-A, has been assigned a special meaning to mean total income computed in accordance with the provisions of the Income-tax Act, 1961, except any provision under Chapter VI-A. Computation of gross total income of the industrial undertaking for the purpose of deduction under section 80HH and section 80-I operates independently and has to be made without making any deduction under Chapter VI-A. The language and intent of the provisions of sub-section (9) of sec tion 80HH make it clear that the three deductions, viz., under section 80HH, section 80-I and section 80J, are simultaneously permissible and not mutually exclusive. The provision only fixes the priority of order in which deduction under each provision is to be adjusted in the gross total income derived from such industrial undertaking to which section 80HH or section 80-I or section 80J respectively apply simultaneously. In case any industrial undertaking falls in the cate gory of new unit established in a backward area and it is entitled to avail of the benefit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing 'C.-Deductions in respect of certain incomes', and shall in no case exceed the profits and gains of such eligible business of undertaking or enterprise, as the case may be." 57. The provision has been made applicable to section 80-IB by insertion of sub-section (13) noted above. 58. The above provision seems to have been introduced after taking note of observations of their lordships in the case of J. P. Tobacco Products Pvt. Ltd. [1998] 229 ITR 123 and other similar decisions noted above. The Madhya Pradesh High Court had held that "no such provision was made in so far as section 80-IA was concerned." The courts have elaborately discussed that under sub-section (9) of section 80HH and other provisions only priorities of deduction under different sections were fixed. In order to meet the lacuna pointed out by the High Courts, the Legislature added sub-section (9) in section 80-IA and a provision (sub-section (13)) with a similar effect in section 80-IB of the Act. It is therefore evident that there was change in the legislative policy. The mischief was sought to be removed. To the extent deduction allowed under section 80-IA or for that matter in section 80-IB was not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... own, is an authority for the proposition that it decides and not what can logically be deduced therefrom. A point not raised nor argued at the Bar cannot be said to be the ratio of the decision." 62. The Full Bench also observed as under (page 15) : "It is a well settled principle of interpretation of statute that the entire statute should be read as a whole and the same has to be considered thereafter chapter by chapter and then section by section and ultimately word by word." 63. In the light of the above settled proposition, it cannot be said that the decision of the hon'ble Madras High Court is an authority for the proposition how the provisions of section 80-IA(9) made applicable with effect from the assessment year 1999-2000 is to be applied. Effect and implementation of the above provision was neither raised, nor examined nor decided by the hon'ble the Madras High Court. The later decision of the Madras High Court in the case of General Optics (Asia) Ltd. v. Deputy CIT [2009] 315 ITR 400 decided on December 27, 2008, has made our task easier. In the said case, similar question was raised and the Tribunal, after following the decision of the Special Bench in the c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ew that further discussion of the question is not necessary. However, to meet the ends of justice, we would briefly comment on other submissions of the assessees and the interveners. 65. It was submitted that the computation of deductions under both the provisions like sections 80-I and 80HHC is to be made independently and for this purpose, reference was made to section 80AB of the Income-tax Act. In other words, it was contended that deductions under section 80-IA and section 80HHC were to be computed independently and, thereafter, adjustments were called for only if total deduction exceeded 100 per cent. of the profits and gains of eligible business of undertaking or enterprise. If deduction under both the provisions computed independently did not exceed profits and gains of eligible business, there was no question of placing any restriction on the deduction permissible under section 80HHC or any section in the same Chapter under the heading "C". In this connection, reliance was placed on the Circular of Central Board of Direct Taxes No. 772 dated December 23, 1998, which has been noted earlier. Reliance was also placed on several other decisions noted above. It was contended t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d as (a) nor is it possible to accept that in Circular No. 772, there is a suggestion to ignore restriction (a) mentioned above. As per the settled law, courts and Tribunals must see the mandate of the Legislature and give effect to it as rightly argued by the Revenue. Therefore, restriction (a) above has to be respected and followed. 68. The statutory provision of section 80AB, no doubt, provides that deduction under each section of Chapter VI-A is to be computed independently. But as laid down by the Full Bench decision of the Delhi High Court, not only the total scheme of the statute but scheme of every section is to be read and interpreted and every word given proper meaning. In several sections under Chapter VI-A, it is provided that if deduction is allowed under that section, then no deduction under any other section under Chapter VI-A would be allowed. Thus, where deduction under such specific section has been claimed and allowed, there is no need to compute deduction permissible under other sections of Chapter VI-A. It would be a futile and useless exercise. Therefore, no question of computing deduction in the above circumstances would arise and section 80AB would have no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r Chapter VI-A is applicable. Therefore, provision of section 80AB is of no assistance in resolving the problem in hand. 69. Learned counsel for the assessee further contended that where the Legislature intended to deduct the amount of deduction out of some other deduction, a different phraseology was used. Learned counsel referred to sub-section (5) of section 80HHB, sub-section (4) of section 80HHBA and sub-section (4) of section 80-IE and submitted that in all these provisions, the Legislature had specifically used "non-obstante" clause whereas no overriding effect has been given in section 80-IA or 80-IB. The difference in language clearly pointed out that the Legislature did not intend that deduction allowed under the above provisions should be deducted from relief permitted by other sections. 70. On careful consideration, we do not find any substance in the above argument. It is a settled law that the Legislature adopts different ways and means in order to achieve its goal and there is no justification for insistence on identical language. What is required to be seen is the language employed, which, if clear and unambiguous, is to be given effect. We are not concerned here ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... no doubt, be doing violence to the clear language. The argument is accordingly rejected. 73. The learned representative for the assessee and interveners also laid stress to notes of objects and reasons pertaining to the introduction of subsections (9), and (13) in section 80-IA, and section 80-IB. Our attention was also drawn to the Circular of Central Board of Direct Taxes No. 772 dated December 23, 1998, to emphasise that the Legislature only intended to limit deduction under all the provisions to 100 per cent. of eligible profit. In other words, the intention was to see that the total amount of deduction under all the provisions of Chapter VI-A should not exceed the eligible profit. It was not intended to impose restriction or deduct profit allowed under section 80-IA/80-IB from deduction permissible under section 80HHC. The decision relied upon for the above provisions have already been noted above and considered in detail. 74. Having done so, we are unable to find any substance in the argument advanced on behalf of the taxpayers. The notes on objects and accompanying reasons are only an aid to construction. Such aid to construction is needed when literal reading of the prov ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uch other provision". He argued that the above language clearly provided that deduction allowed under section 80HH or 80HHA shall not qualify for deduction under any other provision of Chapter VI-A. The Legislature deliberately used different language under section 80-IA which clearly showed that the purpose of section 80-IA(9) not to deduct the deduction allowed but was to restrict overall deduction under Chapter VI-A to 100 per cent. of eligible profit of eligible undertaking or enterprise. 77. We have considered and discussed the above submissions of Shri Vohra, but have not found any force in them. In our considered opinion, the language used in section 80-IA(9)/80-IB(9A) is clear and unambiguous and is required to be given effect to. Deduction of profits and gains allowed under section 80-IA/80-IB is not to be allowed again under any other provision. There is then further restriction on total deduction not exceeding eligible profit of the undertaking. No useful purpose would be served in repeating what we have observed above. 78. Shri Vohra then contended that section 80HHC and section 80-IA or section 80-IB operate in different fields inasmuch as section 80HHC is applicable ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 80-IA/80-IB of the Act. We are unable to find any substance in the above argument of learned counsel. 81. Shri Vohra, on the applicability of the decision of the hon'ble Madras High Court in the case of SCM Creations [2008] 304 ITR 319, submitted that principle of sub-silencio rule could not be applied to the decision. The aforesaid decision of the High Court being decision of a superior court has to be given preference over the decision of Rogini Garments [2007] 294 ITR (AT) 15 (Chennai) (Special Bench). In support of this contention, it was submitted that even decision of the non-jurisdictional High Court is to be given preference over the Special Bench decision. In this connection, reliance was placed on the decision of the Madhya Pradesh High Court in the case of National Textile Corporation Ltd. v. CIT [2008] 171 Taxman 339 (MP) as also on the decision of the hon'ble Delhi High Court in the case of All India Lakshmi Commercial Bank Officers' Union v. Union of India [1984] 150 ITR 1. Shri Vohra also submitted that certain observations of the bench of the Income-tax Appellate Tribunal in the case of Nodi Exports v. Asst. CIT Moradabad, clearly exceeded its jurisdict ..... X X X X Extracts X X X X X X X X Extracts X X X X
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