TMI Blog2008 (12) TMI 266X X X X Extracts X X X X X X X X Extracts X X X X ..... sue. (c) The deduction of the CIT(A) goes against sub-s. (9A) as the amount available for the deduction under s. 80-IA will be greater and overlap with the deduction already availed under s. 80HHC. (d) The CIT(A) has failed to appreciate the fact that s. 80-IA(9) was introduced not only to limit the deduction under Chapter VI-A to the profit of the eligible business but also to avoid multiple deduction/double deduction on the same income. While the first limb of the section prevents multiple deduction on same income, the second limb of that section limit the deduction to 100 per cent of profit of eligible business due to multiple deductions. As per the first limb when an assessee has claimed deduction under s. 80-IA/80-IB and allowed an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... DTR (Mad) 247 : (2008) 304 ITR 319 (Mad) decided the issue in favour of the assessee and against the Department and that the decision of Tribunal, Chennai Special Bench in the case of Rogini Garments was overruled by the jurisdictional High Court. 6. The learned Departmental Representative brought to our notice a decision of Tribunal, Delhi in the case of Nodi Exports vs. Asstt. CIT (2008) 117 TTJ (Del) 913 : (2008) 12 DTR (Del)(Trib) 1 where, it was held that the decision of Madras High Court in the case of SCM Creations was sub silentio and that the decision of Tribunal, Chennai Special Bench dt. 27th April, 2007 in the case of Rogini Garments was a binding precedent. 7. Shri V. Balaji, the learned Authorised Representative, on the o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... makes it abundantly clear that wherever deduction under any other section of Chapter VI-A(C) is claimed, the computation will be subject to the restrictions laid down in s. 80-IA(9). It precludes pro tanto, all the deductions of such profits and gains claimed under Chapter VI-A(C). Sec. 80HHC is part of Chapter VI-A(C). It is not a self-contained provision. There is absolutely no ambiguity on this aspect. We are therefore of the opinion that relief under s. 80-IA should be deducted from the profits and gains of the business before computing relief under s. 80HH of the Act." 10. We find that in the case of SCM Creations, the same issue was for consideration of the Madras High Court. It was as under: "The issues involved in these two appe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... should be computed independently and with a only rider that the total deduction should not exceed more than 100 per cent of the eligible profit computed under any of the provisions independently as well as cumulatively. The decision of Hon'ble Madras High Court referred to above is also to the same effect. In view of the above, we hold that deduction under s. 80-IA should not be reduced from the deduction allowable under s. 80HHC. Grounds of the appeal of the assessee are allowed." 13. The Tribunal, Delhi in its order dt. 25th July, 2008, in the case of Nodi Exports has discussed, in detail, the doctrine of precedent relating to the decisions which are sub silentio. 14. In the present appeal, we have a decision of Tribunal (Special Benc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nthi Suresh Kumar vs. Jagadeeshan (2002) 2 SCC 420. 17. There is no doubt that a decision which is based on non-consideration of the material provisions of law cannot be said to be a binding precedent, because of the doctrines of sub silentio and per incuriam. But the question is, whether a Tribunal has jurisdiction to hold that a particular decision of the jurisdictional High Court was rendered per incuriam or sub silentio, and that it did not create any binding precedent. The answer to this question, as given by the Madhya Pradesh High Court, in the case of National Textile Corporation Ltd. (M.P.), was in the 'negative'. 18. The Andhra Pradesh High Court also examined the above question in the case of CIT vs. B.R. Constructions (1993) ..... X X X X Extracts X X X X X X X X Extracts X X X X
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