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TMI Blog2012 (11) TMI 349X X X X Extracts X X X X X X X X Extracts X X X X ..... ted that section 80-IA(9) has been introduced with a view to prevent the taxpayers from claiming repeated deductions in respect of the same amount of eligible income and that too in excess of the eligible profits. Bench has not considered two High Court decisions referred by the assessee which are in his favour & has relied on decision of Special bench of the Tribunal, thus when the judgments of High Court are available on this issue decision of Special bench of the Tribunal is no more relevant - This action of Hon’ble ITAT is against the principle of judicial hierarchy would constitute mistake apparent on record that requires to be modified - in favour of assessee. - M.A. No.147/Ahd/2012 - - - Dated:- 5-10-2012 - Shri G.C.Gupta, And ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e grant of relief u/s.HHC. The learned counsel for the assessee relied on decisions in the case of SCM Creations v ACIT 307 ITR 319 (Mad), ACIT v. Sreeja Hosieries (2009) 122 TTJ 849 (Chennai), JP tobacco Products P. Ltd. v. CIT (1998) 229 ITR 123 (MP) and other cases. In the case of SCM Creations (supra) before the Hon ble Madras high Court, Section 80-IA(9) had not raised nor examined nor decided by the Court. Therefore, the ratio of this case cannot be applied in this case. The Special Bench of the Delhi Tribunal in the case of ACIT v. Hindustan Mint and Agro Products (P) Ltd. (2009) 315 ITR 401 (Del)(SB) (AT) has considered the order of the SCM Creations (supra) wherein question was as to whether Rogini Garments overruled, was referre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1. Hon ble Bombay High Court has already considered the decision of Special bench of the Tribunal rendered in the case of CIT Vs Hindustan Mint (supra). This view of the Hon ble Bombay high Cfourt has also been followed by the Hon ble Karnataka High Court in CIT v Millipore India Pvt. Ltd. @ 341 ITR 219. Since now the judgments of two different High Courts are available on this issue, decision of Special bench of the Tribunal is no more relevant. So also the decision of ITAT, Ahmadabad in Cello Pens Stationary Pvt. Ltd. reproduced in the impugned order and relied upon is no longer valid and applicable to the facts of the case. 4. The Hon ble Tribunal not taking cognizance of the judgments of the Hon ble High Courts cited at the time ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n case of Friends Casting P. Ltd. Vs Commissioner of Income-tax, 340 ITR 305 (P H) for A.Y. 2000-01 order dated September 10, 2010 is in favour of Revenue and held that the restriction u/s. 80IA(9) is not only that the total deduction should not exceed the profit and gain but there is a further restriction that deduction allowed u/s. 80IA or 80IB will be barred to claim the deduction under section any other provision of this chapter. Being mistake apparent on record, as the Bench has not considered the case law cited by the appellant, during the course of hearing. Therefore, we recall our order on ground nos. 1 to 4 of ITA No. 579/Ahd/2010 and release the file for fresh hearing. 3. In the result, the M.A. of the assessee is allowed. - ..... X X X X Extracts X X X X X X X X Extracts X X X X
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