AI Drafter 
TaxTMI 
TaxTMI 
TaxTMI 
2016 (6) TMI 120
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....circumstances prevailing in the case and as per provisions & scheme of the Act it be held that, notice issued u/s. 148 for re-opening of the assessment u/s. 147 is without satisfying the conditions prescribed in the section and therefore such reopening proceedings are unlawful, unwarranted, not tenable in law and not in accordance with the provisions of the Act. The assessment framed thereunder is therefore be declared as null and void. Just and proper relief be granted to the appellant on this score. 2. Assuming without admitting that the proceedings of reopening are lawful and tenable in law, on facts and circumstances prevailing in the case and as per provisions & scheme of the Act it be held that deduction u/s. 10B claimed in respect....
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....ssessee pointed out that the said decision referred to the earlier provisions of the Act. It was further pointed out by the learned Authorized Representative for the assessee that the ground of appeal No.1 against reopening of assessment under section 147 of the Act would become academic in case the ground of appeal No.2 is decided in favour of the assessee. 6. We have heard the rival contentions and perused the record. The assessee was engaged in the manufacturing and processing of chemical and had claimed deduction under section 10B of the Act of Mahad Unit, which was 100% EOU. The Assessing Officer noted that the assessee had not considered the brought forward depreciation of Mahad unit while computing eligible profits for claiming de....
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....& Veatch Consulting (P.) Ltd. (supra) and in Hindustan Unilever Ltd. Vs. DCIT (2010) 325 ITR 102 (Bom). The Assessing Officer was of the view that the facts of the case before the Hon'ble Bombay High Court were different as the decision related to the claim of deduction under section 10A of the Act. Another distinction drawn by the Assessing Officer was that in the case before him, the deduction under section 10B of the Act was claimed without setting off of brought forward depreciation of said unit itself. The Assessing Officer in turn, relied on the ratio laid down by the Hon'ble Karnataka High Court in CIT Vs. Himatasingike Seide Ltd. (2006-TIOL-448-HC-KAR-IT) and also Delhi Bench of Tribunal in Global Vantedge Pvt. Ltd. Vs. DCIT (2010- ....
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....nder section 10B of the Act, in cases where the assessee has unabsorbed losses or depreciation, brought forward from earlier years, then whether the said unabsorbed business losses / depreciation are to be adjusted from the gross total income before allowing the deduction under section 10B of the Act or the said losses or the deduction under section 10B of the Act is to be allowed in the hands of the assessee without considering the brought forward unabsorbed losses / depreciation, which can be set off against the other income of assessee. Both the authorities below had denied the claim to the assessee, in view of the ratio laid down by the Hon'ble Supreme Court in Himasingka Seide Ltd. Vs. CIT (supra). The perusal of the judgment of Hon'bl....
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....of the deduction which is allowable under s.10A, which would not be permissible unless a specific statutory provision to that effect were to be made. In the absence thereof, such an approach cannot be accepted. Thus ITAT was correct in holding that the brought forward unabsorbed depreciation and losses of the unit the Income which is not eligible for deduction under s.10A of the Act cannot be set off against the current profit of the eligible unit for computing the deduction under s.10A of the IT Act." 28. The said proposition of law has further been applied by the Hon'ble Bombay High Court in CIT Vs. M/s. Ganesh Polychem Ltd. in Income Tax Appeal No.2083 of 2012, order dated 25.02.2013 and in CIT Vs. Schmetz India Pvt. Ltd. (2012) 79 DT....
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....was whether the brought forward losses had to be adjusted before computing deduction under section 10A of the Act. It may be pointed out that the provisions of section 10A and 10B of the Act are at parametria. Following the ratio laid down by the Hon'ble Bombay High Court, we hold that the deduction under section 10B of the Act is to be computed in the hands of the assessee before adjusting brought forward unabsorbed losses/depreciation. The ground of appeal No.3 raised by the assessee is thus, allowed." 8. The perusal of the order of Tribunal at para 27 would reflect that the Tribunal had considered the ratio laid down by the Hon'ble Supreme Court in Himasingka Seide Ltd. Vs. CIT in Civil Appeal No.1501 of 2008, judgment dated 19.09.201....