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TMI Blog2014 (12) TMI 968X X X X Extracts X X X X X X X X Extracts X X X X ..... A)-XIII dt. 9.5.2013 pertaining to the AY 2010-11 on the following grounds. "1. Whether the CIT(A) under the facts and circumstances of the case and in law was justified in deleting the adjustment of a sum of Rs. 4,73,70,13,878/- in the books profit calculation u/s 115 JB of the Act on account of income derived from operations and maintenance of SEZ by the assessee, which was not claimed as deduction u/s 80IB of the Act. 2. The appellant craves leave to add, alter or amend any ground of appeal raised above at the time of hearing." 2.1. Facts of the case:- Facts of the case are brought out at para 4 of the Ld.CIT(A)'s order which is extracted below for ready reference. "The assessee is a private limited company incorporated on 10.3 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r of the assessee. 5. After going through rival contentions we find that the First Appellate Authority had at para 6.2 held as follows. "6.2 I have considered the submission of the appellant, observation of the Assessing Officer and provision of the Act. It is seen that the appellant is a Co- Developer of the SEZ projects and it has received income from SEZ operations. The provisions laid down in section 80IAB of the Income Tax Act provide that the deduction is admissible for 10 consecutive assessment years in a span of 15 years at the option of the assessee. The appellant has not yet exercised its option to claim the deduction admissible to it u/s 80IAB. The filing of audit report in Form No. 10 CCB referred by the Assessing Officer is c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... its. I agree with the submissions of the appellant that such adjustment not provided in explanation contained in section 115 JB which provide for certain additions and subtractions from the profit shown in the profit & loss account. I therefore hold that the income of the appellant is from SEZ operations and same is not required to be included for working of book profit u/s 115JB of the IT Act. Hence, the Assessing Officer was not justified in including the income received from SEZ Operations in working out book profit u/s 115 JB of the IT Act. Therefore, the book profit worked out by the Assessing Officer after including the SEZ income is not correct and same is deleted. As a result, the appellant gets a relief of Rs. 473,70,13,878/-." 5. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ubject to certain conditions. The book profit is to be determined u/s 115 JB(2) as per Part 11 & III of Schedule VI to Company's Act 1956. Explanation 1 to sec. 115JB (2) defines the expression 'book profit' and means the net profit as shown in the P&L A/c for the relevant previous year prepared under sub sec. (2) as increased by the amounts specified in clause (a) to (h) of the Explanation-1 . Clause (FJ of the Explanation 1 refers to the amount or amounts or expenditure relatable to any income to which section 10 (other than provisions contained in clause 38 thereof) or section 11 or sec. 12 apply. For applying the provisions of clause (f) of Explanation to section 115JB (2) there should be nexus between the amount of expendit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... AB of the Act. 2. Whether the CIT(A) under the facts and circumstances of the case and in law was justified in treating the income sale of assets as business income as against the capital gain held by the AO. 3. The appellant craves leave to add, alter or amend any ground of appeal raised above at the time of hearing." 6.1. Facts of the case:- Facts of the case are brought out at para 4 of the Ld.CIT(A)'s order which is extracted below for ready reference. "4. Facts of the case: The assessee company was incorporated on 1.1.2002. This company has been engaged in the business of developing, operating and maintaining real estate projects which includes development of SEZ and all related infrastructure. The assessee company filed its retur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 6.2 came to a conclusion that the assessee is entitled to deduction u/s 80IB of the Act. 8.2. The Delhi "B" Bench of the Tribunal in ITA no.2560/Del/2013 for the AY 2008-09 in the assessee's own case considered the issue and adjudicated the matter in favour of the assessee while quashing the order of Ld.CIT(A) u/s 263 of the Act. Thus, the claim of the assessee for the initial AY 2008- 09 stands allowed. This being the factual decision, no disallowance can be made in the subsequent AYs in view of the decision of Hon'ble Jurisdictional High Court in the case of CIT vs. Tata Communication Services Ltd., in ITA no. 531/2011, vide order dt. 8.8.2011 held that deduction u/s 80 IA of the Act cannot be denied after having been granted in the firs ..... X X X X Extracts X X X X X X X X Extracts X X X X
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