2017 (5) TMI 967 - AT - Income Tax

Benefit of deduction u/s 10B - whether the brought forward losses/unabsorbed deprecation is to be set off against profit of unit first and thereafter compute deduction u/s 10B of the Act or vise-versa? - Held that - Hon ble Karnataka High Court in the case of M/s Yokogawa India Ltd reported in 2011 (8) TMI 845 - Karnataka High Court had categorically held that exemption u/s 10B is to be calculated prior to the setting off brought forward losses and unabsorbed deprecation. It was held by the Hon ble High Court that the profits of the eligible unit, is to be calculated on stand-alone basis. It was further held by the Hon ble High Court that section 10B being an exemption provision, income of the 10B unit has to be excluded at the source itself before arriving at the gross total income and since this income is not at all to be in the income of the assessee, there is no occasion to set off of brought forward loss of the assessee in respect of its other business against the profits of the exempted units.

Issues:
1. Disallowance of deduction u/s 10B claimed by the assessee.
2. Validity of reopening of assessment.
3. Whether brought forward losses/unabsorbed depreciation should be set off against profit of the unit before computing deduction u/s 10B.

Issue 1: Disallowance of deduction u/s 10B claimed by the assessee:
The appeal by the revenue and cross objection by the assessee were against the CIT(A)'s order concerning the disallowance of deduction u/s 10B. The revenue contended that the deduction was erroneously deleted by the CIT(A) as the total income returned by the assessee was 'Nil,' leading to excess business loss. The Assessing Officer withdrew the deduction, citing that it can only be allowed from the total income of the assessee. The CIT(A) relied on a decision of the Karnataka High Court, which the revenue argued was not applicable to the present case. The issue revolved around the incorrect allowance of deduction u/s 10B and its impact on the total income of the assessee.

Issue 2: Validity of reopening of assessment:
The assessee objected to the reopening of the assessment, arguing that the deduction u/s 10B was already allowed in the original assessment order. The Assessing Officer issued a notice u/s 148, contending that the allowance u/s 10B was incorrect, resulting in excess carry forward business loss. The assessee relied on a judgment of the Karnataka High Court to challenge the reopening, but the Assessing Officer proceeded with the reassessment, denying the benefit of deduction u/s 10B. The CIT(A) upheld the assessee's argument, emphasizing the relevance of the Karnataka High Court's decision in the matter.

Issue 3: Treatment of brought forward losses/unabsorbed depreciation for deduction u/s 10B:
The core issue was whether the brought forward losses/unabsorbed depreciation should be set off against the profit of the unit before computing the deduction u/s 10B. The Hon'ble Karnataka High Court's decision in the case of M/s Yokogawa India Ltd clarified that the exemption u/s 10B should be calculated before setting off such losses. The High Court held that the income of the eligible unit should be excluded at the source itself, emphasizing that deductions under section 10B are specific to the eligible undertaking and should be independent of other units or undertakings of the assessee. The Hon'ble Apex Court upheld this view, stating that the deduction under section 10B should be computed while determining the gross total income of the eligible undertaking under Chapter IV of the Act.

In conclusion, the ITAT Cochin dismissed the appeal by the revenue and the cross objection by the assessee, as the issue on merit favored the assessee based on the judgments of the Hon'ble Karnataka High Court and the Hon'ble Apex Court. The judgment clarified the treatment of deductions u/s 10B and emphasized the independent calculation of profits for the eligible undertaking. The issue of the validity of reopening the assessment was not adjudicated due to the favorable ruling on the merit issue.

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