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TMI Blog2016 (8) TMI 512X X X X Extracts X X X X X X X X Extracts X X X X ..... ONENT : MR MIHIR THAKORE, SENIOR COUNSEL with MR HS MUNSHAW, ADVOCATE COMMON ORAL JUDGMENT (PER : HONOURABLE MR.JUSTICE KS JHAVERI) 1. By way of these Appeals, the Appellant Department has challenged the order dated 16.03.2007 of the Income Tax Appellate Tribunal, Ahmedabad Bench 'D' as per the following details :- Tax Appeal ITA No. Assessment Year 166/2008 1754/Ahd./2001 1993-1994 167/2008 1755/Ahd./2001 1995-1996 168/2008 1756/Ahd./2001 1996-1997 169/2008 1757/Ahd./2001 1997-1998 170/2008 1986/Ahd./2001 1998-1999 2. By way of Tax Appeal No.594/2008, the Appellant Department has challenged the order dated 22.06.2007 passed by the Income Tax Appellate Tribunal, Ahmedabad Bench A in ITA No.3061/Ahd./2002 for the Assessment Year : 1994-1995. In all the above Appeals, the Tribunal dismissed the Appeals preferred by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hir Thakore appearing for the assessee company has also relied on the above decision in the case of Assistant Commissioner of Income-Tax v. Micro Labs Ltd. (supra), especially Paragraphs 13 and 43 of the above which reads as under:- So far as section 80-IA is concerned, it pertains to deduction in respect of profits and gains from industrial undertakings or enterprises engaged in the business of infrastructure development. Section 80-IA(9) of the Act specifically provides that when any deduction is claimed and allowed under the provisions of section 80- IA of the Act, deduction to the extent of such profits and gains cannot be allowed under any other provisions under heading C. - Deductions in respect of certain incomes of the Chapter in which section 80HHC has been included. Similarly, it had been submitted by the learned counsel that so far as section 80-IB is concerned, it pertains to deduction in respect of profits and gains from certain industrial undertakings other than the business of infrastructure development. He had further submitted that section 80-IB(13) also provides that certain provisions of section 80-IA would also apply to section 80-IB, like the provisio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... han one. As expected, various Benches of the Income-tax Appellate Tribunal were the first to express their opinions. The issue was considered by a Special Bench of the Tribunal in case of Rogini Garments reported in (2007) 294 ITR (AT) 15 (Chennai) (SB). The Tribunal held that the restriction placed on claim of repetitive deduction contained in section 80IA(9) of the Act is to be made applicable in respect of all deductions under Chapter VIA. Full effect of such a provision is to be given, and wherever an assessee wants to claim deduction, restriction contained in section 80IA(9) is to be read in every provision providing for deduction under Part `C' of Chapter VIA. Despite this pronouncement by the Special Bench of the Tribunal, different Benches of the Tribunal adopted different interpretations. The question was, therefore, referred to a Larger Bench, which constituted of five members, and its decision was rendered in the case of Asst. C.I.T. v. Hind. Mint and Agro Products reported in (2009) 315 ITR 401 (Delhi) (SB). The Tribunal went deep into the issues, and traced the background for introduction of sub- section (9) of section 80IA. It was noticed that in case of J.P. Toba ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... extent of such profit and gain shall not be allowed under any other provision of this chapter (Heading C Deduction in respect of certain incomes ), AND b) deduction shall in no case exceed the profit and gain of the undertaking or hotel as the case may be. 67. The contention on behalf of the assessee and intervener is that total deductions under various sections should not exceed profits and gains of undertaking. We are unable to accept this contention. It is seen that CBDT Circular No. 772 clarified and only dealt with (b) above and did not deem it necessary to make reference to restriction (a). In order to accept the contention of the assessee, we would have to exclude portion of the provision covered by (a) and ignore the restriction placed therein. Why such course should be adopted when words used by the legislature, claimed and allowed under this section for any assessment year, deduction to the extent of such profits and gains shall not be allowed under any other provisions are quite clear and unambiguous and are to be given effect to as rightly contended by the revenue. The profit or gains of industrial undertaking, which has already been allowed as a deduction u/s 8 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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