TMI Blog2019 (5) TMI 842X X X X Extracts X X X X X X X X Extracts X X X X ..... nd if it does so, then the provisions of sub-section (1) of section 10B shall be made applicable to it for the relevant assessment year. Accordingly, the provisions of sub-section (4) of section 10B shall also apply while computing the total income of the assessee for the relevant assessment year immediately succeeding the last of such assessment year or in subsequent years. In the present case, the assessee has not opted for the deduction u/s. 10B in its return of income and also has not filed the relevant details so as to avail deduction u/s. 10B before framing of the assessment. As such the assessee cannot be granted deduction u/s. 10B. So long as the assessee has not made available the audit report and other documents pointed out by the CIT(A) in terms of section 10B before framing of the assessment, the claim of deduction u/s. 10B cannot be granted. Further, the assessee cannot claim the exemption u/s. 10B without withdrawing the claim which was already granted u/s. 80HHC - Decided against assessee Addition towards interest u/s. 244A on income tax refund as income from other sources - CIT(A) rejected this ground of the assessee on the reason that since the interest wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mount of interest as finally determined for the relevant assessment years. 6) For these and other grounds that may be permitted to be adduced at the time of hearing of the case, it is prayed that the order of the lower authorities may be ordered to be modified suitably. 3. The facts of the case are that the assessee is an exporter of seafoods. The income tax assessment u/s. 143(3() was completed vide order dated 26/02/1999 determining the total income at ₹ 1,04,19,530/-. In the said order, deduction u/s. 80HHC was not granted on exports made through export houses on the ground that no disclaimer certificates were filed. The assessee filed an appeal against the assessment order which was disposed of vide order dated 22/03/2000 on the technical grounds and reasoning that since the assessee had not complied with the provisions of sub-section (4) of section 249 of the Act, the appeal was held as not maintainable and accordingly dismissed. 3.1 Against this order, the assessee filed an appeal before the ITAT in ITA No.244/coch/2000 which was disposed of vide order dated 30/01/2004 by directing the CIT(A) to consider the issue afresh if t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (2) This section applies to any undertaking which fulfils all the following conditions namely:- (i) it manufactures or produces any article or thing; (ia) in relation to an undertaking which begins to manufacture or produce any article or thing on or after the 1st day of April, 1994, its export of such articles and things are not less than 75% of the total sales thereof during the previous year: (ii) it is not formed by the splitting up, or the reconstruction, of a business already in existence: Provided that this condition shall not apply in respect of any undertaking which is formed as a result of the re-establishment, reconstruction or revival by the assessee of the business of any such industrial undertaking as is referred to in section 338, in the circumstances and within the period specified in that section: (iv) it is not formed by the transfer to a new business of machinery or plant previously used for any purpose. 3.3 The CIT(A) noticed that the permission to set up 100% EOLJ was given to the assessee in 1992 and according to the certificate of the Dy. Devel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e CIT(A) for the reason that no claim for deduction u/s.10B was made in the return of income. The Ld. AR submitted that the CIT(A) had overlooked the provisions of section 10B, prevailing at that time. Sub-section (1) reads as follows:- Subject to the provisions of this section, any profits and gains derived by an assessee from a 100% Export Oriented undertaking (hereafter in this section referred to as the undertaking) to which this section applies shall not be included in the total income of the assessee . 4.1 It was submitted that section 10B is falling under Chapter III of the Income Tax Act incomes which do form part of total income . The profits and gains from a 100% Export Oriented Unit therefore will not form part of the total income. It was submitted that there was a clear distinction between deduction under Chapter VIA where deductions are granted from gross total income and exemption u/s. 10B. As the appellant had not opted out of the application of the provisions of section 10B as required under sub section (7) the income of 100% Export Oriented Unit should not have been included in the total income. 4.2 The Ld. AR referr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of income which was duly granted. Subsequently, before the first appellate authority, the assessee made a claim of deduction u/s. 10B of the I.T. Act in respect of the profit of the CAPs Sea Food Unit which is said to be 100% EOU, without withdrawing the claim u/s. 80HHC of the Act. In our opinion, the assessee may exercise his option before the due date of furnishing the return of income under sub-section (1) of section 139 for the assessment year commencing form 1st April, 1989, furnishes to the Assessing Officer a declaration in writing that the provisions of sub-section (1) of section 10B may be made applicable to it for the relevant assessment year and if it does so, then the provisions of sub-section (1) of section 10B shall be made applicable to it for the relevant assessment year. Accordingly, the provisions of sub-section (4) of section 10B shall also apply while computing the total income of the assessee for the relevant assessment year immediately succeeding the last of such assessment year or in subsequent years. In the present case, the assessee has not opted for the deduction u/s. 10B in its return of income and also has not filed the relevant details so as to avail d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1996 for assessment year 1992-93 ₹ 8,436 10.1 It was submitted that the assessment for assessment year 1994-95 was taken for scrutiny and completed as per order dated 28.2.1997. Interest was reduced to ₹ 31,416/-. The assessment was reopened and completed as per order dated 19.2.2002. The interest granted as per order dated 28.2.1997 amounting to ₹ 31,416/- was withdrawn and balance tax of ₹ 20,64,714/- was demanded Therefore, it was submitted that the assessee was not eligible for any interest for assessment year 1994-95 which could be assessed for assessment year 1996-97. The Ld. AR submitted that for the assessment year 1992-93, interest granted as per intimation u/s. 143(1)(a) dated 23.8.1993 was ₹ 23,928/- and no interest was granted when the assessment was completed u/s.143(3) as per order dated 27.9.1994. According to the Ld. AR, the assessment was again revised giving effect to the order of the CIT(A) vide proceedings dated 19.1.1996 and interest granted was at ₹ 8,436/-. 10.2 The Ld. AR drew our attention to the departmental appeal (ITA No.204/Coch/199 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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