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TMI Blog2018 (11) TMI 1335X X X X Extracts X X X X X X X X Extracts X X X X ..... e contention of the assessee that when deduction under Section 10B is not claimed for a particular year, then necessarily there should be permitted a carry forward of unabsorbed depreciation, since sub-section (6) of Section 10B would only be applicable if there is a deduction claimed under the beneficial provision has to be accepted since, when a claim under Section 10B is made in a relevant year; the claim for depreciation arising in that year alone would be deemed to have been allowed, giving the provision for set off full effect. The unabsorbed depreciation carried forward from the earlier years would be permitted set off against any other income or allowed to be carried forward. The unabsorbed depreciation claimed by the assessee i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cision of the Hon'ble Supreme Court in the assessee's own case. The learned Senior Counsel for Government of India (Taxes), however, submits that the issue herein is quite distinct and different from that decided by the High Court, which decision was overruled by the Hon'ble Supreme Court. We will first look into the preliminary objection raised on the strength of the decision of the Hon'ble Supreme Court in Civil Appeal No.8549/2013 [ M/s.Patspin India Ltd. v. Commissioner of Income Tax ], which arose from the decision of a Division Bench of this Court in CIT v. Patspin India Ltd. [(2011) 245 CTR 97 (Ker.)]. 2. A reading of the aforesaid decision of the Division Bench of this Court indicates that for the assessment yea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing the benefits under Section 10B, as it stood then, from the year 1994-95 and Unit-B from 1997-98. Section 10B as it stood prior to its amendment with effect from 01.04.2001 provided for a benefit of deduction in any five consecutive assessment years falling within a block period of eight years. Unit-A, hence, though commencing in the year 1994-95 and entitled to the benefit under Section 10B, did not claim the same for the first three years, obviously intending to claim the benefit in the last five consecutive years. Unit-B, likewise, though commencing from 1997-98 and entitled to the benefit under Section 10B from that year, also did not claim the benefit for the said year intending to have it in the later years within the eight year pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hority to give benefit of set off of unabsorbed depreciation of Unit A for Asst.Years 1994-95 to 1996-97 against the assessable income for the Asst. Years 2001-02, 2002-03, 2004-05 and 2006-07? ( 2) Whether, on the facts and in the circumstances of the case unabsorbed depreciation of Unit B for Asst.Year 1997-98 could be set off against taxable income for Asst. Year 2006-07? 6. The learned Senior Counsel placed emphasis on sub-section (6) of Section 10B to contend that when there is a tax holiday provided entitling the entire income generated by a 100% export-oriented undertaking to be granted deduction, all other allowances and deductions under the Act would be deemed to have been granted under sub-section (6) of Section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (2) of section 32, clause (ii) of sub-section (3) of section 32A, clause (ii) of sub-section (2) of section 33, sub-section (4) of section 35 or the second proviso to clause (ix) of sub-section (1) of section 36, as the case may be, shall not apply in relation to any such allowances or deduction; ( ii) no loss referred to in sub-section (1) of section 72 or sub-section (1) or sub-section (3) of section 74, in so far as such loss relates to the business of the undertaking, shall be carried forward or set-off where such loss relates to any of the relevant assessment years ending before the 1st day of April, 2001. ( iii) no deduction shall be allowed under section 80HH or section 80HHA or section 80-I or section 80-IA or section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... also makes inapplicable the provisions which permit carry forward of such deductions, depreciation or losses. The relevant assessment year also has been defined under clause (v) of Explanation 2 to mean ...any assessment year falling within a period of ten consecutive assessment years, referred to in this section . 8. Hence, when there is a tax holiday provided for ten consecutive assessment years to 100% EOUs, among others, depreciation, which is the specific subject matter of the present appeals, would be deemed to have been claimed and allowed in the relevant assessment year in which there is eligible a tax holiday. The contention of the respondent-assessee is that when deduction under Section 10B is not claimed for a particular ..... X X X X Extracts X X X X X X X X Extracts X X X X
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