2006 (1) TMI 113 - HC - Income Tax

High Court affirms assessee's right to withdraw option under section 10B(8) before return due date.

The High Court of MADRAS dismissed the Revenue's appeals against the Tribunal's decision for the assessment years 1995-96 and 1996-97. The court upheld ... Claim for exemption u/s 10B - assessee-company is a 100% EOU manufacturing cotton yam and exporting it to foreign countries - Since it was 100% EOU, it claimed exemption under section 10B on condition that if the Assessing Officer arrives at positive income after making additions in the assessment order for the export oriented unit, exemption under section 10B should be allowed - AO held that the assessee had exercised its option u/s 10B, even though the business income was a negative figure - Section 10B(8) which opens with a non obstante clause, clearly confers a right on the assessee to declare that the provisions of the Act may not be made applicable to the assessee, provided such a declaration is given on or before the due date for furnishing the return under section 139(1). It was therefore, open to the assessee, notwithstanding the fact that the assessee had exercised the option to have section 10B made applicable, to withdraw that option, provided such withdrawal was made on or before the due date for filing the return. Issues:1. Appeal by Revenue against Tribunal's order for assessment years 1995-96 and 1996-97.2. Exemption under section 10B of the Income-tax Act claimed by the assessee.3. Dispute regarding the assessee's exercise of option under section 10B.4. Questions of law raised by the Revenue against the Tribunal's decision.5. Interpretation of section 10B(8) regarding the right of the assessee to withdraw the option.Analysis:The High Court of MADRAS addressed the appeal filed by the Revenue against the Tribunal's order for the assessment years 1995-96 and 1996-97. The appellant, an export-oriented unit manufacturing cotton yarn, claimed exemption under section 10B of the Income-tax Act. Despite reporting business losses, the appellant had positive total income due to income from other sources, mainly interest income. The Assessing Officer contended that the appellant had exercised the option under section 10B even with negative business income. The Commissioner of Income-tax (Appeals) ruled in favor of the assessee, following previous Tribunal orders. The Revenue challenged this decision, leading to the current appeals.The substantial questions of law raised by the Revenue included the correctness of the Tribunal's decision on the assessee's exercise of option under section 10B, the permissibility of conditional option under the Act, and the right of the assessee to claim the option despite incurring business losses. The court noted that the issue was previously decided against the Revenue in a specific case. Section 10B(8) grants the assessee the right to declare non-applicability of the Act by a specified due date. The court emphasized that the assessee could withdraw the option before the return due date, as seen in a prior case where withdrawal was made with the return before the deadline.Based on the precedent set in the earlier case, the court found no substantial question of law for consideration. Consequently, the appeals by the Revenue were dismissed, along with the related Miscellaneous Petition. The judgment reaffirmed the assessee's right to withdraw the option under section 10B(8) before the due date for filing the return, settling the dispute in favor of the assessee based on legal provisions and previous judicial decisions.