Tax appeal dismissed in favor of assessee due to depreciation setoff rules.

The Court dismissed the tax case appeal filed by the Revenue, ruling in favor of the assessee. The Court held that the set off of brought forward unabsorbed depreciation should be considered before allowing the deduction under Section 10B for the assessment year 2003-04. It was also determined that the deduction under Section 10B should not be allowed without considering depreciation loss. The Court found that the decision in the Himatsingke Seide case regarding set off of unabsorbed depreciation loss against other incomes was applicable. The appeal was allowed, and no costs were awarded.

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Issues:
1. Set off of brought forward unabsorbed depreciation before deduction under Section 10B for the assessment year 2003-04.
2. Correctness of allowing deduction under Section 10B without considering depreciation loss.
3. Applicability of the decision in the case of Himatsingke Seide regarding set off of unabsorbed depreciation loss against other incomes.

Issue 1: Set off of Brought Forward Unabsorbed Depreciation
The appeal raised the question of whether the set off of brought forward unabsorbed depreciation of the Assessment year 2001-02 and 2002-03 should be considered before allowing the deduction under Section 10B for the assessment year 2003-04. The Tribunal was tasked with determining the priority of set off in this scenario.

Issue 2: Deduction under Section 10B and Depreciation Loss
Another substantial question of law was whether the Tribunal was correct in allowing the deduction under Section 10B without taking into account the depreciation loss. Reference was made to a previous case, Yokogawa India Ltd, which discussed the allowance of Section 10B deduction while computing the gross total income of the eligible undertaking under Chapter -IV of the Income Tax Act.

Issue 3: Applicability of Himatsingke Seide Decision
The third issue revolved around whether the Tribunal should have applied the decision of the Apex Court in the case of Himatsingke Seide, which held that the unabsorbed depreciation loss of a Section 10B unit cannot be set off against other incomes. This decision was not overruled or discussed in the Yokogawa India Ltd case, raising a question of its relevance and applicability.

The judgment highlighted that the issue in the appeal was previously addressed in the assessee's own case, where the appeal was allowed, and the substantial questions of law were answered in favor of the assessee. Consequently, following the precedent set in the assessee's case, the tax case appeal filed by the Revenue was dismissed. The substantial questions of law were resolved in favor of the assessee and against the Revenue, with no costs being awarded in the matter.

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