TMI Blog2020 (9) TMI 968X X X X Extracts X X X X X X X X Extracts X X X X ..... gible units under the same head are aggregated in accordance with provisions of Section 70. Where the assessee does not want the benefit of deduction from the taxable income, the same cannot be thirst upon it. There is no provision which makes compulsory on the part of income tax officer to make deduction in all cases. Admittedly, in the instant case, the assessee has not filed any audit report in Form-56G which is a mandatory requirement for claiming deduction under Section 10B of the Act. Therefore, the deduction under Section 10B of the Act cannot be thirst upon the assessee. Admittedly, in the instant case, two units of the assessee namely unit No.II and unit No.III were export oriented units and were eligible for exemption. The assessee had sustained loss in respect of unit No.I and therefore, the assessee had claimed set off, as permissible under Section 70 of the Act and had offered the balance as income taxable under the head income from business which has been declared in the return. The provisions of Section 70 of the Act have to be given effect to. - See MINDTREE CONSULTING (P) LIMITED. VERSUS ASSISTANT COMMISSIONER OF INCOME-TAX. [ 2005 (11) TMI 176 - ITAT BANG ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 12,89,762/- which was declared in the return of income. The Assessing Officer by order dated 31.12.2010 inter alia held that losses of export oriented units cannot be allowed to set off against the profits of Unit No.I and added back the losses of export oriented unit i.e., ₹ 6,65,23,391/- against the income of profit making unit and determined the total income of the assessee at ₹ 6,78,13,151/- and created a demand of ₹ 2,99,27,080/-. 3. The assessee challenged the order passed by the Assessing Officer in an appeal before the Commissioner of Income Tax (Appeals), which was dismissed by an order dated 02.02.2012. Being aggrieved, the assessee filed an appeal before Income Tax Appellate Tribunal (hereinafter referred to as the Tribunal , for short). The Tribunal by an order dated 12.10.2012 dismissed the appeal preferred by the assessee and upheld the order of the Commissioner of Income Tax (Appeals). In the aforesaid factual background, the assessee has filed this appeal. 4. Learned Senior counsel for the assessee while inviting the attention of this court to the return of income for the Assessment year 2008-09 submitted that the assessee has neither claime ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e is dated 07.11.2012 and was not even filed. Therefore, the Assessing Officer was not under an obligation to take note of the return which was filed beyond the prescribed time limit, which otherwise had not legal sanctity. Alternatively, it is submitted that even if return filed by the assessee on 30.09.2008 is examined, it is evident that same does not contain any declaration that the assessee is not making a claim under Section 10B of the Act. It is further submitted that declaration has to be made in writing before the return and mere mentioning of the word not applicable in the return does not amount to compliance with requirements of Section 10B(8) of the Act. It is further submitted that since, the assessee had not filed declaration before filing of the return, Section 70 of the Act does not apply to the fact situation of the case. It is also submitted that while construing taxing statute, literal construction has to be adhered to unless the context renders it plain that such a construction cannot be put up on the words. In support of his submissions, learned counsel for the revenue has referred to decision of the Supreme Court in YOKOGAWA INDIA LTD. supra as well as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the assessee shall be entitled to have the amount of such loss set off against his income from any other source under the same head. (2) Where the result of the computation made for any assessment year under Sections 48 to 55 in respect of any short-term capital asset is a loss, the assessee shall be entitled to have the amount of such loss set off against the income, if any, as arrived at under a similar computation made for the assessment year in respect of any other capital asset. (3) Where the result of the computation made for any assessment year under Sections 48 to 55 in respect of any capital asset (other than a short-term capital Asset) is a loss, the assessee shall be entitled to have the amount of such loss set off against the income, if any, as arrived at under a similar computation made for the assessment year in respect of any other capital asset not being a short-term capital asset. Para 5.2 of Circular dated 10.7.2013 The income computed under various heads of income in accordance with the provisions of Chapter IV of the IT Act shall be aggregated in accordance with the provisions of Chapter VI of the IT Act, 1961. This means that first the income / ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re is no provision which makes compulsory on the part of income tax officer to make deduction in all cases. (See: COMMISSIONER OF INCOME-TAX Vs. MAHINDRA MILLS (2000) 243 ITR 56 (SC). From the return of income for the assessment year 2008-09 in Schedule BP, Sl.No.35(iii), the assessee has shown the deduction under Section 10B of the Act as zero. Similarly, at Sl.No.57 the assessee has filed the deduction under Section 10B as not applicable. Thus, from perusal of return of assessment year 2008-09 it is evident that the assessee has not claimed any deduction under Section 10B of the Act in respect of any of the three units of the assessee. It is pertinent to mention here that Section 10B(5) read with Rule 16E mandates that the assessee has to file audit report in Form-56G for claiming deduction under Section 10B of the Act. Admittedly, in the instant case, the assessee has not filed any audit report in Form-56G which is a mandatory requirement for claiming deduction under Section 10B of the Act. Therefore, the deduction under Section 10B of the Act cannot be thirst upon the assessee. 9. Admittedly, in the instant case, two units of the assessee namely unit No.II and unit ..... X X X X Extracts X X X X X X X X Extracts X X X X
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