TMI Blog2010 (10) TMI 789X X X X Extracts X X X X X X X X Extracts X X X X ..... g unabsorbed loss and unabsorbed depreciation of the previous years, appeal ITA No.1007/2008 is disposed of setting aside the orders of the three authorities by remitting back the matter to the assessing authority - ITA Nos. 1005/2008 and 1007/2008 - - - Dated:- 6-10-2010 - Manjula Chellur, K. Govindarajulu, JJ. M.V. Sheshadchala, Adv., for the Appellant Deepak Kumar, Adv., Malhara Rao, Adv., and S. Parthasarathy, Adv., for the Respondents JUDGEMENT The first appeal, ITA No.1005/2008 pertains to challenge made by the Revenue so for as the orders of the Tribunal and the second appeal ITA No.1007/2008 pertains to the fresh assessment made by the assessing officer subsequent to the orders of the CIT dated 30/12/1999. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assessee went before the Tribunal. The Tribunal by its order dated 29/06/2004 held that deductions under section 80HHC should be allowed first and thereafter unabsorbed 80HHC should be allowed first and thereafter unabsorbed loss and unabsorbed depreciation brought forward from the previous years should be taken into account. This opinion of the Tribunal was based on the judgment of the High Court of Karnataka in the case of CIT vs. HMT Ltd., (199 ITR 235). Aggrieved by the order of the Tribunal, the revenue is before us in ITA No.1005/2008. 4. Subsequent to the orders of the Commissioner dated 30/12/1999, the assessing authority passed orders giving effect to the orders of the Commissioner under section 263 of the Act on 09/03/2000. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ew of section 80J being enacted by the time the present assessment in question came to be considered by the Assessing Officer, hence the Assessing Officer was bound by the provisions of Section 80 HHC subject to Section 80AB which was in force w.e.f. 01/04/1981. According to the learned counsel for the appellant revenue, CIT was justified in sending back the matter holding that the order of the Assessing Officer was erroneous and prejudice to the interest of the revenue as by the time, the assessment order came to be passed, Kerala High Court had decided the relevant issue i.e., Sec. 80AB and 80HHC in CIT vs. V.T. Joseph's case. 8. According to the learned counsel for the respondent-assessee, the Tribunal was justified in holding that t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n existence and in the absence of assessing authority not referring to Section 80AB at all, learned counsel for the assessee would contend that in fact, the Assessing authority followed the view taken by the jurisdictional High Court in HMT,s case cannot be accepted. The assessing authority ought to have simply followed the provisions of the Act which were very much in existence with effect from 01/04/1984 and it ought to have proceeded with the computation of the tax payable by the assessee taking into consideration the deduction allowable under section 80-HHC subject to section 80AB. Therefore the substantial question in so far as first appeal ITA 1005/2008 is answered in favor of the revenue. 10. Then coming to the second appeal we h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aid judgment. In a situation where there was only single unit it did not envisage the computation of income vis-a-vis multi unit facilities. 11. The following substantial question of law arises for consideration: "Whether the Tribunal was correct in holding that the relief U/s 80HHC of the Act should be allowed before adjusting the brought forward loss and unabsorbed depreciation of the earlier year from the total income"? 12. According to the learned counsel for the assessee, IPCA Laboratories was a case, where their Lordships had an occasion to deal with the single unit assessee and the case on hand being a multi unit business the computation of tax has to be with reference to each unit taking into consideration whether such u ..... X X X X Extracts X X X X X X X X Extracts X X X X
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