2013 (11) TMI 9 - AT - Income Tax

100% EOU - Deduction u/s 10B of the Income Tax Act exemption period when EOU acts as a DTA unit - Held that - 10 year period of deduction u/s 10B should commence from AY 1996-97 during which the assessee started its production/manufacture - extension of existing unit cannot be treated as a new unit. - following the decision in CCL PRODUCTS 2011 (12) TMI 413 - ITAT, Hyderabad Decided against the Assessee. Disallowance of brought forward loss Held that - Deduction u/s 10B should be allowed first from the income and thereafter from the remaining income set off of brought forward loss and unabsorbed depreciation should be allowed since the matter is pending before the High Court, matter remanded back to AO for decision in accordance with HC decision.

Summary

Issues Involved:
1. Deduction claimed under section 10B of the Income Tax Act.
2. Disallowance of claim of brought forward loss.
3. Charging of interest under sections 234B, 234C, and 234D of the Income Tax Act.
4. Disallowance of depreciation claimed.

Detailed Analysis:

1. Deduction Claimed Under Section 10B:
The assessee contended that the 10-year period for deduction under section 10B should commence from the assessment year 2000-01, not 1995-96, and that new investments constituted independent new industrial undertakings eligible for deduction. However, the Tribunal referenced a previous decision in the assessee's own case for AY 2006-07, where it was held that the 10-year period should start from the year of commercial production, regardless of conversion to an Export Oriented Unit (EOU). The Tribunal concluded that the extension of an existing unit cannot be treated as a new unit and upheld the CIT(A)'s decision, denying the deduction under section 10B.

2. Disallowance of Claim of Brought Forward Loss:
The assessee claimed a brought forward loss of Rs. 82,42,226/- which was disallowed by the AO due to lack of records. The Tribunal noted that the Hon'ble High Court of AP had ruled in favor of the assessee for earlier years, stating that the deduction under section 10B should be allowed before setting off brought forward losses. Given that the matter for AY 2006-07 was still pending before the High Court, the Tribunal remitted the issue back to the AO for quantification post the High Court's decision.

3. Charging of Interest Under Sections 234B, 234C, and 234D:
The assessee argued against the levy of interest under sections 234B, 234C, and 234D. The Tribunal noted that the levy of interest is mandatory and consequential based on the final determination of income. Therefore, the AO's action in charging interest was upheld, and this ground was dismissed.

4. Disallowance of Depreciation Claimed:
The AO disallowed Rs. 16,98,681/- of depreciation due to the assessee's failure to produce bills for certain fixed assets. The CIT(A) upheld this disallowance after considering a remand report. The assessee argued that proper records were maintained and that the inability to produce bills was due to logistical issues. The Tribunal allowed the assessee another opportunity to produce the necessary bills and vouchers before the AO for verification. If substantiated, the AO was directed to allow the depreciation claim.

Conclusion:
The appeal was partly allowed for statistical purposes, with the Tribunal remitting certain issues back to the AO for further verification and quantification based on the pending High Court decisions and additional evidence to be provided by the assessee.