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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 22ND DAY OF MARCH, 2018
PRESENT
THE HON’BLE MR.JUSTICE B.S.PATIL
AND
THE HON’BLE MR.JUSTICE S. SUNIL DUTT YADAV
I.T.A. No.424/2009
BETWEEN
THE COMMISSIONER OF INCOME TAX, C.R.BUILDING, QUEENS ROAD, BANGALORE
THE ASSISTANT COMMISSIONER OF INCOME TAX CIRCLE-11(3) NO.14/3-A, 5TH FLOOR, RASHTROTHANA BHAVAN, NRUPATHUNGA ROAD, BANGALORE 560 001.
... APPELLANTS
(BY SRI K.V.ARAVIND, ADV.)
AND
M/s GE THERMOMETRICS INDIA PVT.LTD., NO.181, LAKE SHORE ROAD
BTM LAYOUT II STAGE BANGALORE- 560 076.
... RESPONDENT
(BY SRI S.SHARATH, ADV. FOR SRI CHYTHANYA K.K., ADV.)
THIS ITA IS FILED U/S.260A OF I.T. ACT, 1961, PRAYING THAT THIS HON'BLE COURT MAY BE PLEASED TO: (i) FORMULATE THE SUBSTANTIAL QUESTIONS OF LAW STATED THEREIN; (ii) ALLOW THE APPEAL AND SET ASIDE THE ORDERS PASSED BY THE ITAT, BANGALORE, IN ITA NO.97/BANG/2008, DATED 08-4-2009 AND CONFIRM THE ORDER PASSED BY THE ASSISTANT COMMISSIONER OF INCOME TAX, CIRCLE-11(3), BANGALORE.
THIS APPEAL COMING ON FOR HEARING THIS DAY, B.S.PATIL J, DELIVERED THE FOLLOWING:-
JUDGMENT
This appeal is filed by the Revenue under Section 260A of the Income Tax Act, 1961 (for short ‘the Act’) aggrieved by order passed by the Income Tax Appellate Tribunal in I.T.A.No. 97(Bang)/2008 dated 08.04.2009.
Issue raised before the Tribunal was; whether the assessee was entitled to the benefit of deduction under Section 10B of the Act. The Tribunal has found that the assessee’s claim for such deduction was well founded as the provisions contained under Section 10B(9) were no
more in existence in the statute book and therefore, if deduction had been claimed for the assessment year 2005- 06 the assessee was entitled for the same.
It is contended for the revenue that Tribunal committed an error in holding that in view of omission of sub-section 9 of Section 10B of the Act with effect from 01.04.2004, it had to be construed that the said section never existed in the statute book, and therefore, benefit claimed by the assessee under Section 10B should be allowed.
During the course of arguments, learned counsel for both parties bring to our notice the judgment of this Court rendered in I.T.A.NO.876/2008 C/W I.T.A.NO.877/2008 ON 25.11.2014 in the case of COMMISSIONER OF INCOME TAX AND ANOTHER vs. M/S. GE THERMOMETRICS INDIA (P) LIMITED and submit that this Court having considered a similar question has in similar circumstances, affirmed the order passed by the Tribunal.
Perusal of the aforesaid judgment makes it clear that this Court, after considering the substantial question of law raised with regard to the correctness of the view taken by the Tribunal to the effect that in view of the omission of sub-Section (9) in Section 10B with effect from 01.04.2004 should it be understood that the said section never existed in the statute book and therefore, the benefit claimed by the assessee under Section 10B should be allowed, has held in paragraph 8 after referring to the judgment of the Supreme Court in the case of KOLHAPUR CANESUGAR WORKS LTD., vs. UNION OF INDIA – AIR 2000 SC 811 as under:
“Admittedly, in the instant case, there is no saving clause or provision introduced by way of an amendment while omitting sub-section (9) of Section 10B. Therefore, once the aforesaid section is omitted from the statute book, the result is it had never been passed and be considered as a law that never exists and therefore, when the assessment orders were passed in 2006, the Assessing Officer was not justified in taking note of a provision which was
not in the statute book and denying benefit to the assessee. The whole object of such omission is to extend the benefit under Section 10B of the Act irrespective of the fact whether during the period to which they are entitled to the benefit, the ownership continues with the original assessee or it is transferred to another person. Benefit is to the undertaking and not to the person who is running the business. We do not see any merit in these appeals. The substantial question of law is answered in favour of the assessee and against the revenue. Accordingly, the appeals are dismissed”.
As the aforesaid judgment is applicable in all force to the facts and circumstances of the present case, following the said judgment, this appeal is also dismissed.
Sd/- JUDGE
Sd/-
JUDGE