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TMI Blog2012 (9) TMI 36X X X X Extracts X X X X X X X X Extracts X X X X ..... ought forward loss/unabsorbed depreciation are not required to be adjusted. The said judgment of Supreme Court had been delivered prior to the impugned order of the Tribunal and even if the judgment had been referred subsequent to the order of the Tribunal, an issue covered by the judgment of the Jurisdictional High Court or the Apex Court whether rendered prior or subsequent to the order will be valid ground for an apparent mistake in the order from record as held in the case of ACIT vs. Saurashtra Kutch Stock Exchange Ltd.(2008 (9) TMI 11 - SUPREME COURT). AO directed to compute the book profit accordingly. Since order is already amended and aforesaid claim of assessee is allowed on merit. Therefore, there is no apparent mistake in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the case of Ajanta Pharma Ltd. (318 ITR 252) and since the said judgment had been over ruled by the Hon'ble Supreme Court subsequently as reported in 327 ITR 305, the claim of the assessee was allowable. 2.1 The Tribunal, however distinguished the judgment of Hon'ble Supreme Court in the case of Ajanta Pharma Ltd. (supra) on the ground that the said judgment was on the issue as to whether the profit eligible for deduction under section 80HHC should be reduced while computing book profit or only the deduction actually allowable under section 80-HHC which should be reduced. The Tribunal referred to another judgment of the Hon'ble Supreme Court in the case of Shirke Construction Equipment Ltd. (291 ITR 380) in which it was held that while ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eciation were not required to be adjusted. The Ld. Sr. Counsel argued that this position was now settled by the judgment dated 20.10.2011 of Hon'ble Supreme Court in the case of CIT vs. M/s Bhari Information Tech Systems Pvt. Ltd. (340 ITR 593) in which the Hon'ble Supreme Court while considering similar provisions of clause-(ix) of the Explanation to section 115 JA(2) upheld the decision of the Special Bench of the Tribunal in the case of DCIT vs. Syncome Formulations (106 ITD 193), in which it was held that profit eligible for deduction under section 80HHC for the purpose of reduction under section 115 JA has to be computed with respect to book profit and not with respect to the profit computed under the normal provisions of the Act. It w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , there was a mistake in stating that claims of the assessee had been allowed on merit. It was accordingly submitted that this ground was required to be adjudicated in case the ground relating to reduction under section 115JB on account of deduction under section 80HHC was decided against the assessee. 5. We have perused the records and considered the matter carefully. The assessee in the assessment year 2003-04 had raised a dispute regarding reduction of profit eligible for deduction under section 80HHC from the profit of the business under the provisions of Clause-(iv) of Explanation-1 to section 115JB(2) while computing book profit. As per provisions of Clause (iv) of Exlanation-1 to section 115 JB(2), the profit eligible for deduction ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... profit eligible for deduction under section 80HHC in relation to computation of book profit under section 115JA. In that case also, revenue authorities had disallowed the claim of reduction on account of profit eligible for deduction under section 80 HHE while computing book profit under section 115 JAA on the ground that the profit computed under normal provisions after setting off brought forward loss/unabsorbed depreciation was nil. The Hon'ble Supreme Court held that profit eligible for deduction under section 80HHE for the purpose of computation of book profit under section 115JA has to be based on the book profit and not on the basis of profit computed under the normal provisions. The Hon'ble Supreme Court upheld the view taken by t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... held by Hon'ble Supreme Court in the case of ACIT vs. Saurashtra Kutch Stock Exchange Ltd.(supra). We, therefore amend the order of the Tribunal dated 21.12.2011 in relation to ground No. by holding that profit eligible for deduction under section 80 HHC for the purpose of computing book profit under section 115JB will be computed on the basis of book profit and not under normal provisions. The AO will compute the book profit accordingly. 6. The other apparent mistake pointed out is regarding the ground relating to legal validity of assessment and legal validity of re-opening of the assessment. The Tribunal had dismissed the ground as having become infrustuous. Since we have already amended the order and allowed the claim of the assesse ..... X X X X Extracts X X X X X X X X Extracts X X X X
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