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2016 (9) TMI 1191 - GUJARAT HIGH COURT

2016 (9) TMI 1191 - GUJARAT HIGH COURT - TM - Deduction under Section 80HHC to be worked out without giving effect to the provision of Section 80IA(9) - Held that:- Admitted facts are that on identical issue, this Court has in case of Commissioner of Income Tax vs. Atul Intermediates [2014 (4) TMI 676 - GUJARAT HIGH COURT] held that nothing contained in Section 80HHC suggests that the deduction provided therein was immune from any outside influence that the provision was impregnable by any other .....

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Supreme Court has granted SLP and is in seizing of the controversy. Learned Judges of the Bench, who heard the appeals, were divided in their opinion each passing reasoned order. In view of this disagreement, the issue is now referred to the larger bench. These orders are reported in case of Assistant Commissioner of Income Tax vs. Micro Labs Ltd. reported in [2015 (12) TMI 708 - SUPREME COURT ]. Learned counsel for the assessee, therefore, submitted that these questions may also be kept pending .....

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n is, therefore, rejected. - The last surviving suggestion of counsel for the assessee, however, needs to be accepted. He submitted that the certificate in terms of Section 261 of the Income Tax Act may be granted with respect to this question. Section 261 of the Act which pertains to appeal to Supreme Court provides inter alia that an appeal to High Court shall lie from any judgement of the High Court, in any case which the High Court certifies to be fit one for appeal to the Supreme Court. .....

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E FOR THE OPPONENT : MR KM PARIKH, ADVOCATE ORAL ORDER (PER : HONOURABLE MR.JUSTICE AKIL KURESHI) 1. Leave to amend. 2. Tax appeal is admitted for consideration of following question of law: Whether, in the facts and circumstances of the case, the Income Tax Appellate Tribunal was right in law in directing the AO to reallocate R & D expenditure for the purpose of determining profits of new industrial undertaking u/s. 80IB of the Act? 3. To be herd with Tax Appeal No. 649 of 2016 and connecte .....

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se, the Income Tax Appellate Tribunal is right in law in not allowing the deduction u/s. 115JB (2)(iii) of the Act being brought forward business loss or unabsorbed depreciation, whichever is less amounting to ₹ 8,78,99,400/- of M.J.Pharmaceuticals Limited an entity that amalgamated with the appellant? (iii) Whether in the facts and circumstances of the case, the Income Tax Appellate Tribunal is right in law and on facts in not accepting the contention of the appellant that the deduction u .....

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el for the assessee did not press question No.4 and such question is, therefore, not considered without any further discussion. With respect to question Nos. 1and 2 also, counsel for the assessee candidly pointed out that such issues have been decided against the assessee by this Court in Tax Appeal No. 652 of 2015 in judgement dated 19.08.2016 making following observations: 2. Learned Counsel for the appellant assessee has contended that the tribunal has committed an error of law and facts in n .....

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with the said findings and appeal may be dismissed, which reads thus: 3.2 We have heard both the sides. At the outset, we have been informed that this issue has not been raised in the past in A.Y. 199900 and 200001. We have also been informed that the Assessee has moved an application u/s. 154 of IT Act. However that too was decided against the Assessee. We have examined the facts as narrated above. One of the important finding of the AO is that after the merger was completed there was no amount .....

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reciation but the provision of this clause shall not apply if the amount of loss brought forward or unabsorbed depreciation as Nil . The Assessee has not controverted this fact as noted by the AO that after the amalgamation there was Nil amount of brought forward loss and unabsorbed depreciation. Due to this reason, we are of the view that the Assessee has made a wrong claim which was rightly rejected by the AO. Resultantly, we find no force in this ground of the Assessee, hence dismissed. 4. Ha .....

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lso not entertained. 6. This leaves us with the sole surviving question of deduction under Section 80HHC to be worked out without giving effect to the provision of Section 80IA(9) of the Act. Admitted facts are that on identical issue, this Court has in case of Commissioner of Income Tax vs. Atul Intermediates reported in [2015] 373 ITR 638 held that nothing contained in Section 80HHC suggests that the deduction provided therein was immune from any outside influence that the provision was impreg .....

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