Contact us   Feedback   Annual Subscription   New User   Login      
Tax Management India .com
TMI - Tax Management India. Com
Extracts
Home List
← Previous Next →

2016 (8) TMI 512 - GUJARAT HIGH COURT

2016 (8) TMI 512 - GUJARAT HIGH COURT - TMI - Entitlement to deduction under Section 80IA - Held that:- Taking into account the above referred decision of this court in the case of Commissioner of Income-Tax v. Atul Intermediates (2014 (4) TMI 676 - GUJARAT HIGH COURT ) and the decision of the Hon'ble Supreme Court in the case of Assistant Commissioner of Income-Tax v. Micro Labs Ltd. (2015 (12) TMI 708 - SUPREME COURT ), we are of the view that the assessee is entitled to deduction under Sectio .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

HAVERI AND MR. G.R.UDHWANI, JJ. FOR THE APPELLANT : MR KM PARIKH, ADVOCATE FOR THE OPPONENT : MR MIHIR THAKORE, SENIOR COUNSEL with MR HS MUNSHAW, ADVOCATE COMMON ORAL JUDGMENT (PER : HONOURABLE MR.JUSTICE KS JHAVERI) 1. By way of these Appeals, the Appellant - Department has challenged the order dated 16.03.2007 of the Income Tax Appellate Tribunal, Ahmedabad Bench 'D' as per the following details :- Tax Appeal ITA No. Assessment Year 166/2008 1754/Ahd./2001 1993-1994 167/2008 1755/Ahd. .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

ax Appeals No.166/2008 to 169/2008 on 19.03.2008, the following common substantial question of law was framed by the Court for consideration :- Whether the ITAT was right in law and on facts in confirming the order passed by the CIT (A) holding that the deduction u/s. 80HHC should be calculated without excluding the profit of new unit under Section 80IA of the IT Act? 4. While admitting Tax Appeal No.170/2008 on 19.03.2008, the following substantial questions of law were framed by the Court for .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

lowing substantial question of law was framed by the Court for consideration :- Whether the ITAT was right in law and on facts in confirming the order passed by the CIT (A) directing the Assessing Officer to allow the claim under Section 80IA without reducing deduction under Section 80HHC of the Income-tax Act? 6. Learned Counsel for the appellant - Department Mr. K.M. Parikh has drawn the attention of this Court to the decision of the Hon'ble Supreme Court in the case of Assistant Commissio .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

, the matter was referred for consideration by a larger Bench. Therefore, at present it is submitted that the issue may be held in favour of the assessee subject to the decision of the larger Bench or the question/s may be referred back to the Tribunal. 7. Learned Senior Counsel Mr. Mihir Thakore appearing for the assessee company has also relied on the above decision in the case of Assistant Commissioner of Income-Tax v. Micro Labs Ltd. (supra), especially Paragraphs 13 and 43 of the above whic .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

certain incomes of the Chapter in which section 80HHC has been included. Similarly, it had been submitted by the learned counsel that so far as section 80-IB is concerned, it pertains to deduction in respect of profits and gains from certain industrial undertakings other than the business of infrastructure development. He had further submitted that section 80-IB(13) also provides that certain provisions of section 80-IA would also apply to section 80-IB, like the provisions of sub-section (5) an .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

to the extent of such profits and gains shall not be allowed under any other provisions of this Chapter under the heading '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. 80-IB. (13) The provisions contained in sub-section (5) and sub-sections (7) to (12) of section-80IA shall, so far as may be, apply to the eligible business under this section. 7.1. Learned Senio .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

d in [2005] 274 ITR 176 and paragraph 4 is reproduced hereunder :- Although the controversy in the present case is in the context of availing of deduction under section 80-I and section 80HH, the same principle would apply because subsection (5) of section 80-I also permits carry forward of the deduction upto seven assessment years after the initial assessment year. In fact, the assessee's case is strengthened in the context of availing of deduction under section 80HH and section 80-I. 7.4. .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

e Tribunal in case of Rogini Garments reported in (2007) 294 ITR (AT) 15 (Chennai) (SB). The Tribunal held that the restriction placed on claim of repetitive deduction contained in section 80IA(9) of the Act is to be made applicable in respect of all deductions under Chapter VIA. Full effect of such a provision is to be given, and wherever an assessee wants to claim deduction, restriction contained in section 80IA(9) is to be read in every provision providing for deduction under Part C' of C .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

noticed that in case of J.P. Tobacco Products Private Limited v. CIT reported in 229 ITR 123 Madhya Pradesh High Court considered the question, whether deduction under section 80I is to be allowed only on the balance of income after deducting the relief under section 80HH from the gross total income, and not from gross total income as defined under section 80B(5) of the Act. The question pertained to the assessment year 1984-85. It was held that the provision of law is clear. So far as the benef .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

s followed repeatedly by different High Courts in number of cases, against which no special leave petitions were filed, thus, the Department has accepted the view taken in these judgments. The Supreme Court, therefore, observed that the Department having accepted the view taken in these judgments cannot be permitted to take a contrary view in the present case involving the same point. Special leave petition was thus dismissed in the case of Joint Commissioner of Income-Tax v. Mandideep Eng. And .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

find that above arguments were considered and rejected in Rogini Garments for good reasons. We are not persuaded to take a view different from the one taken by the Special Bench. On consideration of provisions of Section 80-IA(9), we find that there are two restrictions in the statutory provision under consideration. These are :- a) where an assessee is allowed deduction under this section (80-IA or 80-IB), deduction to the extent of such profit and gain shall not be allowed under any other pro .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

ake reference to restriction (a). In order to accept the contention of the assessee, we would have to exclude portion of the provision covered by (a) and ignore the restriction placed therein. Why such course should be adopted when words used by the legislature, claimed and allowed under this section for any assessment year, deduction to the extent of such profits and gains shall not be allowed under any other provisions are quite clear and unambiguous and are to be given effect to as rightly co .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

doing violence to the language of the provision. We see no justification for adopting a course prohibited by the legislature. It is not possible to ignore the restriction placed as (a) nor it is 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 a .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

 

 

 

 

 



|| Home || Acts and Rules || Notifications || Circulars || Schedules || Tariff || Forms || Case Laws || Manuals ||

|| About us || Contact us || Disclaimer || Terms of Use || Privacy Policy || TMI Database || Members || Site Map ||

© Taxmanagementindia.com [A unit of MS Knowledge Processing Pvt. Ltd.] All rights reserved.

Go to Mobile Version