TMI Blog2009 (7) TMI 920X X X X Extracts X X X X X X X X Extracts X X X X ..... ed deductions under section section 10B in the light of the provisions and rules as it stood for those relevant assessment years. In completing the assessments, the Assessing Officer by and large accepted almost all claims of deductions made by the assessee except certain adjustments made in respect of unabsorbed depreciation not set off against the taxable profit even though the said unabsorbed depreciation was not set off against the profits eligible under section 10B exemption. 4. On verification of the records, the Commissioner of Income-tax came to a conclusion that the computation of section 10B benefit to the assessee as made by the Assessing Officer is erroneous and prejudicial to the interest of the Revenue for all the four assessment years. She also specifically found that the Assessing Officer has erred in not making deduction under section 35D while computing the profits for the purpose of section 10B(1) and also has gone wrong in including the interest on deposits as part of eligible profit for the purpose of section 10B. 5. On examining all the objections and explanations offered by the assessee before her, the CIT set aside the assessment orders exercising he ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... A" in ITA No. 800/HYD./2007 through their order dated 23-1-2009 passed in the case of ITC Technologies (P.) Ltd. v. Dy. CIT . In that case also, the assessee had claimed set-off of brought forward business loss and unabsorbed depreciation after claiming deduction under section 10B of the Act. In other words, in that case as well, the assessee has not set off the brought forward business loss and unabsorbed depreciation against the profit computation for section 10B. The deduction under section 10B was made and claimed by the assessee was not disturbed by the brought forward business loss and unabsorbed depreciation. In this case also the fact is the same. 10. While deciding the above issue, the Tribunal relied on the judgment of the Chennai Bench of the Appellate Tribunal in the case of Ford Business Services Centre (P.) Ltd. v. Asstt. CIT [2008] 114 TTJ 881 and the decision of the Mumbai Bench of the Appellate Tribunal in the case of Enercon Wind Farms (Krishna) Ltd. v. Asstt. CIT [2008] 21 SOT 29. After examining the relevant case laws relied before them, the Tribunal observed as follows: "We have duly considered the rival contentions and the material on record. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Whether it is section 10A or section 10B, the nature of issue is very same. The Tribunal has held in the said case that deduction under section 10A has to be allowed before set-off of unabsorbed depreciation and business loss of the assessee. 12. It will be only academic on our part to go any further and deliberate upon the issue, which would only result in repetition of all the propositions considered and discussed by the Tribunal in its various orders. The Tribunal in the above orders has unanimously held that the benefit of section 10B has to be allowed to the assessee before setting-off of brought forward loss and unabsorbed depreciation. Respectfully, following the orders of the Tribunal on the subject, we find that the direction of the Commissioner of Income-tax on this particular issue is not sustainable in law. Accordingly, we set aside the direction of the Commissioner "to adopt profits of the business of the undertaking A B after set-off of unabsorbed depreciation of the relevant undertaking under section 32(2) for the limited purposes of computing profits under sub-section (4) of section 10B of the Act". The computation made by the Assessing Officer shall not be d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is to be carried forward following the ten year period. Similarly, no loss under the head "Profits and gains of business or profession" under section 72(1) or under the head "Capital gains" under section 74(1) in respect of the relevant assessment years, will be carried forward or set off in computing the income of the undertaking after the .period of benefit." [Emphasis supplied] 16. The definition of "relevant assessment year" has been explained in Explanation 2( v ) as under : "( v )"Relevant assessment years" means any assessment year falling within a period of ten consecutive assessment years, referred to in this section." [Emphasis supplied] 17. As could be seen from the above, if the appellant had availed the benefit of section 10B, it will not be eligible for other tax concessions available under other provisions of the Act which, inter alia, including depreciation under section 32. In view of specific use of the words "deductions referred to therein and relating to other allowable for any of the relevant assessment years ending before the first day of April, 2001", it could only refer to those years where the benefit of deduction under section 10B has bee ..... X X X X Extracts X X X X X X X X Extracts X X X X
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