TaxTMI 
TaxTMI 
2012 (9) TMI 36
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....d 2005-06 in a consolidated manner. In all the years, there was a common dispute regarding license and technology fee which had been allowed by the Tribunal in favour of the assessee. 2. In assessment year 2003-04, there was an additional ground regarding Reduction of profit eligible for deduction under section 80HHC while computing book profits under section 115 JB. The authorities below had not allowed the deduction as profit of the business computed under normal provisions of the Act after adjusting the brought forward business loss and depreciation was nil and therefore, there was no profit eligible for deduction under section 80HHC. The ld. Sr. Counsel for the assessee at the time of hearing of the appeal, had argued that CIT(A) had....
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....e was also a third ground regarding validity of re-opening of the assessment under section 147 and validity of the assessment on the ground of notice under section 143(2) being not served within limitation period. The Tribunal in the order dated 21.12.2011 held that since claim of the assessee had been allowed on merit, it was not necessary to go into this legal issue and accordingly the Tribunal dismissed the ground as having become infructuous. 4. In the miscellaneous application, the assessee has submitted that the profit eligible for deduction under section 80HHC as per clause-(iv) of Explanation to Section 115 JB(2) is required to be computed on the basis of the book profit and not on the basis of profit computed under normal provis....
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....ase of ACIT vs. Saurashtra Kutch Stock Exchange (305 ITR 227). It was accordingly requested that this apparent mistake should be rectified and claim of the assessee based on book profit should be allowed. 4.1 In regard to the ground relating to legal validity of assessment as well as legal validity of re-opening of the assessment, it was submitted by the Ld. Sr. Counsel that there was an apparent mistake in the order of the Tribunal in stating that since claim of the assessee had been allowed on merit, the ground had become infructuous. In fact, the claim of the assessee had been allowed only in relation to the licence and technology fees and the claim had been rejected in relation to the claim of reduction under section 115JB on account....
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.... profit after set off of loss/unabsorbed depreciation, no reduction was required to be made on account of section 80HHC while computing book profit. The said judgment was in relation to computation of deduction under section 80HHC while computing income under normal provisions and not in relation to section 115JB but since the words used in clause (iv) of Explanation -1 to section 115JB(2) were "profit eligible for deduction under section 80HHC", the Tribunal had followed the judgment of Hon'ble Supreme Court in the case of Shirke Construction Pvt. Ltd. (supra), which also related to computation of "profit eligible for deduction under section 80HHC". 5.1 However, the judgment of the Hon'ble Apex Court in the case of CIT vs. M/s Bhari Inf....
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.... under section 80HHC are similar to those in section 115JA. Thus, in view of the judgment of Hon'ble Supreme Court in the case of M/s Bhari Information Tech Systems Pvt. Ltd.(supra), the profit eligible for deduction under section 80HHC for the purpose of reduction under section 115JB is required to be computed on the basis of book profit and, therefore, brought forward loss/unabsorbed depreciation are not required to be adjusted. The said judgment of Hon'ble Supreme Court had been delivered prior to the impugned order of the Tribunal and even if the judgment had been referred subsequent to the order of the Tribunal, an issue covered by the judgment of the Jurisdictional High Court or the Apex Court whether rendered prior or subsequent t....