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Income Tax Appellate Tribunal, DELHI BENCH “SMC-I”, NEW DELHI
Before: SHRI S.V. MEHROTRA
O R D E R PER S.V. MEHROTRA, A.M :
This is an appeal filed by the assessee against the order dated 22.03.2016 passed by the Commissioner of Income Tax (Appeals)-7, New Delhi, u/s 143(3) of the Income Tax Act, 1961 (in short “the Act”) relating to assessment year 2011-12.
Brief facts of the case are that during the year under consideration, the assessee derived income from business of IT enable services. It had filed its return of income declaring Nil income under normal provisions and paid tax on book profit of Rs.39,32,253/- u/s 115JB. The Assessing Officer noticed from the computation of income that during the relevant assessment year 2011-12 deduction u/s 10B of Rs.39,14,450/- had been claimed out of net income from business of Rs.65,75,707/- and, therefore, the resultant ‘net taxable income’ of Rs.26,61,257/- had been reduced to Nil after setting off brought forward business loss pertaining to assessment year 2007-08. The Assessing Officer further observed that for assessment year 2007-08, the assessee had been computed at (-) Rs.1,26,05,974/-. He further observed that assessee had claimed deduction u/s 10B during the assessment years 2008-09, 2009-10 & 2010-11 amounting to Rs.6,42,842/-, Rs.1,26,16,196/- and Rs.1,13,30,006/- respectively. After claiming deduction u/s 10B, assessee had set-off the balance amounts against brought forward losses pertaining to assessment year 2007-08. The Assessing Officer, after taking into consideration the provisions of sections 10A and 10B from assessment year 2000-01, pointed out that the provisions had been brought at par with other sections dealing with deduction allowed under Chapter VI-A. He, further, noted that as per the CBDT Circular No.007/(DV) dated 10.07.2013, deduction u/s 10A/10B is to be allowed from the total income of the assessee after setting off the losses. After considering the definition of total income of section 2(45), he pointed out that the same refers to the total income computed in the manner laid down as per section 5 of the Act.
After considering these provisions and the Circular, the Assessing Officer observed that business loss pertaining to assessment year 2007-08 had to be set-off for assessment years 2008-09, 2009-10 and 2010-11 (if needed) before claiming deduction u/s 10B. He, further, pointed out that since assessee had more than sufficient income in assessment years 2008-09 and 2009-10 to set-off its brought forward loss for assessment year 2007-08, losses for assessment year 2007-08 could not be allowed to be set-off in assessment year 2011-12. He, therefore, disallowed the set-off of Rs.26,61,257/- against business loss for assessment year 2007-08.
Before ld. CIT(A), assessee had advanced detailed submissions which have been reproduced in his order. After considering the same and following the decision of Hon’ble Karnataka High Court in the case of Himatasingke Seide 286 ITR 255 approved by Hon’ble Apex Court and decision of ITAT Delhi Bench in the Case of Global Vantage (P) Ltd. vs. DCIT in & 2321/Del/2009 held that brought forward business loss and depreciation on eligible unit is to be set-off first and only on the balance deduction u/s 10B is to be allowed.
Ld. counsel referred to all the factual aspects as noted above and referred to the decision of ITAT Pune Bench in the case of M/s KPIT Cummins Infosystems Ltd. vs. ITO in for assessment year 2007-08 order dated 30.11.2015 wherein the Tribunal had considered following two grounds :-
“1. The Learned CIT (A) has erred in artificially restricting the deduction of Rs.7,09,04,587/- U/s10A to Rs.4,50,57,831/-. The deduction U/s 10A had been claimed from the 'Profits and Gains' of the eligible unit applying the provisions from Sec.28 to Sec. 44C only, as intended and provided for by Sec.10A, the deduction being qua-undertaking and not qua-assessee. 7. The appellant prays that the deduction be granted in the manner and at the stage as claimed by the assessee in the return before applying the provisions of Chapter VI relating to aggregation of income.”
He referred to para 5 of Tribunal’s order which reads as under :-
“5. We find that identical issue of sequences of allowing the benefit of deduction under section 10B of the Act and the adjustment of brought forward losses / unabsorbed depreciation, arose before Pune Bench of Tribunal in M/s. Vishay Components India Pvt. Ltd. Vs. Addl.CIT & Anr. (supra). The Tribunal after considering the facts of the case, which are identical to the facts before us, observed as under:- “27. We have heard the rival contentions and perused the record. The issue arising vide ground of appeal
No.3 is in relation to the computation of deduction under section 10B of the Act after the amendment to section w.e.f. 01.04.2001. The persons invoking the said provisions are entitled to a deduction under the Act, as compared to the pre-amended provisions of the section, under which the income comprising under the said section was exempt from the total income. The issue arising before us is whether while computing deduction under 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’ble Karnataka High Court in the said case reflects that the years under appeal related to assessment years 1988-89 to 1990-91 i.e. the years where the benefit under section 10B of the Act was for being exempt from total income. However, the year under appeal before us is assessment year 2005-06, wherein the said section has been amended and the deduction now is allowable to the assessee as against the said income being exempt in the earlier years. The issue is settled by the Hon’ble Bombay High Court in CIT Vs. Black & Veatch Consulting Pvt. Ltd. (2012) 348 ITR
72. (Bom), wherein it was held as under:- “The deduction under s. 10A, has to be given effect to at the stage of computing the profits and gains of business. This is anterior to the application of the provisions of s.72 which deals with the carry forward and set off of business losses. A distinction has been made by the Legislature while incorporating the provisions of Chapter VI-A. Section 80A(1) stipulates that in computing the total income of an assessee, there shall be allowed from his gross total income, in accordance with and subject to the provisions of the Chapter, the deductions specified in ss.80C to 80U. S.80B(5) defines for the purpose of Chapter VI-A “gross total income” to mean the total income computed in accordance with the provisions of the Act, before making any deduction under the Chapter. What the Revenue in essence seeks to attain is to telescope the provisions of Chapter VI-A in the content 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.”
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 DTR (Bom) 356 and also by the Hon’ble High Court of Gujarat in CIT Vs. Ace Software Exports Ltd. in Tax Appeal No.687 of 2012, order dated 18.02.2013. The Mumbai Bench of Tribunal has also applied the said proposition in various cases. KPIT Cummins Infosystems Ltd.
The learned Departmental Representative for the Revenue on the other hand, placed reliance on the ratio laid down by the Hon’ble Supreme Court in Synco Industries Ltd. Vs. AO, (2008) 299 ITR 444 (SC), wherein the issue was whether while computing the quantum of deduction under section 80I(6) of the Act, the Assessing Officer has to treat the profits derived from an industrial undertaking as only source of income in order to arrive at deduction under Chapter VI-A. The Hon’ble Supreme Court held that the gross total income under section 80B(5) of the Act, which is also referred to in section 80I(1) of the Act, was required to be computed in manner provided under the Act, which pre- supposes that gross total income shall be arrived at after adjusting losses of other division against profits derived from an industrial undertaking. The issue before the Hon’ble Supreme Court is at variance with the issue before us and the said ratio is not applicable to the facts of the present case. The issue in the present appeal is squarely covered by the ratio laid down by the Hon’ble Bombay High Court in CIT Vs. Black & Veatch Consulting Pvt. Ltd. (supra), wherein deduction under section 10A of the Act was to be computed in the hands of assessee and the same 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.”
6. Ld. counsel referred to section 10B(6)(ii) which reads as under :-
S.10B (6) Notwithstanding anything contained in any other provision of this Act, in computing the total income of the assessee of the previous year relevant to the assessment year immediately succeeding the last of the relevant assessment years, or of any previous year, relevant to any subsequent assessment year,— (i) xxxxx (ii) no loss referred to in sub-section (1) of section 72 or sub-section (1) or sub-section (3) of section 74, in so far as such loss relates to the business of the undertaking, shall be carried forward or set-off where such loss relates to any of the relevant assessment years ending before the 1st day of April, 2001”
Ld. counsel pointed out that ld. CIT(A) has relied on the judgement of the Hon’ble Karnataka High Court in the case of Himatasingke Seide (supra) which was with reference to assessment year prior to assessment year 2000-01 and, therefore, the said decision could not be applied to the facts of the present case as has been held in the case of M/s KPIT Cummins Infosystems Ltd. (supra). Ld. counsel further referred to page 45 of the Paper Book contained therein the decision of the ITAT Delhi Bench in the case of Canam International (P.) Ltd. vs. ACIT (2015) 59 taxmann.com 66 (Delhi-Trib.) wherein it has been held that deduction u/s 10A is to be calculated before reducing unabsorbed loss and depreciation from the profits of undertaking. Ld. counsel submitted that in the light of these decisions, the assessee’s claim is to be allowed. Ld. DR relied on the order of CIT(A).
I have considered both the parties and have perused the record of the case. I find that the Tribunal in the case of Canam International (P.) Ltd. (supra) has elaborately considered all the decisions and has observed from para 4 to 12 as under :-
“4. The brief fact in relation to this issue is as follows: The assessee for the AY under dispute claimed deduction u/s 10A of the Act amounting to Rs.93,38,312/-. In the assessment completed u/s 143(3) of the Act, the claim of deduction was reduced to Rs.81,55,777/-. The claim of deduction u/s 10A of the Act was reduced on account of adjustment of unabsorbed business loss and depreciation of Rs.16,49,809/- [A.Y. 2004-05]. 5. ………. 6. ………. 7. ………. 8. ……….. 9. ………..
10. The above judgments are distinguishable as under: (I) As regards ITAT, Bangalore judgment [111 TTJ 548] in the case of Yokogawa India Ltd, the Karnataka High Court has decided the issue in favour of the assessee as mentioned in 341 ITR 385; (II) As regards ITAT, Chennai Bench judgment (22 SOT 220) in the case of Changepond Technologies Pvt. Ltd., the said company was an Intervener in the ITAT, Chennai special Bench judgment in the case of Scientific Atlanta India Technology (P) Ltd v. ACIT reported in 129 TTJ 273 which has been decided in assessee’s favour. (III) As regards Karnataka High Court’s judgment in 286 ITR 255 in CIT v. HimatasigikeSeide Ltd the same has been distinghished in KPIT Cummins (Bangalore) P. Ltd v. ACIT 120 TTJ (Bang).
The judgment of the Hon’ble Supreme Court in the case of M/s. Motilal Pesticides (I) Pvt. Ltd. v. CIT [243 ITR 26 (SC)] as relied on by the AO, we find that there is no application to the facts of the assessee’s case since the ruling of the Hon’ble Apex Court was with reference to sections 80AA and 80AB of the Act. Further, if there is a difference of opinion or two views are possible on an issue, as laid down by the Hon’ble Supreme Court in the case of Union of India v. Onkar S Kunwar and Others reported in 258 ITR 761 (SC), ‘the view which is in favour of the assessee must be adopted.
In the light of the above judicial views and our reasoning, we hold that deduction u/s 10A of the Act is to be calculated before reducing the unabsorbed loss and depreciation from the profits of the undertaking. It is ordered accordingly.”
Respectfully following the decision of the ITAT Delhi Bench in the case of Canam International (P.) Ltd. (supra), I allow the claim of the assessee.
In the result, the appeal of the assessee is allowed. Order pronounced in the open court on this 19th day of December, 2016.