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TMI Blog2019 (2) TMI 59X X X X Extracts X X X X X X X X Extracts X X X X ..... ge of computation of the total income under Chapter VI of the Act. As pointed out by us earlier, the arguments advanced by the learned counsels for the parties was not the arguments which were put forth before the Tribunal. That apart, the decision of the Tribunal was rendered in the year 2007 and the law on the issue has been interpreted by the Appellate Courts and some of the decisions have been referred supra. All the decisions which were referred by us, the latest being the decision of the Apex Court in the case of Yokogawa India Ltd (2016 (12) TMI 881 - SUPREME COURT). The issue requires to be decided afresh, more particularly, in the light of the law laid down by the Hon'ble Supreme Court as to its applicability to the case on hand. Thus, we are of the view that the matter requires to be remanded to the Assessing Officer for fresh consideration. Tax case appeals filed by the assessee are allowed and the orders passed by the Tribunal and CIT(A) are set aside and the matter is remanded to the Assessing Officer to take a fresh decision - Tax Case Appeal Nos.1456 & 1169 of 2008 - - - Dated:- 11-1-2019 - Mr. Justice T.S. Sivagnanam And Mrs. Justice V. Bhavani Subbaro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for exemption under Section 10B of the Act. In other words, it was contended that an assessee is eligible for carry forward and set off of losses within the ten year period. However, in view of the restriction given under Section 10B(6) of the Act, the losses of the assessee incurred during the ten year period cannot be carried forward beyond the ten year period. Hence, the exemption under Section 10B of the Act would be operative only when there is a resultant income after set off of the carried forward losses. The assessee furnished the following table and contented that after the carry forward losses are considered, the resultant income after set off would be NIL. Asst. Year Depreciation loss Business loss Total Position of asst. 2001-02 52463487 - 52463487 2000-01 67694487 26003471 93697830 Order passed u/s. 143(1) dt. 11.3.2002 7.The CIT(A) held that in terms of Section 10B(6) of the Act, any ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the Explanation means any assessment year falling within a period of ten consecutive assessment years referred to in the section. It held that where an assessee avails the benefit of Section 10B for ten consecutive assessment years, namely, 2000-01 to 2009-10, the overriding provision of Section 10B(6) of the Act comes into operation for the assessment year 2010-11 and any subsequent assessment year. It further held that entitlement of tax holiday for a period of ten years is visited with a bar on availment of other provisions of the Act, consequently, after the expiry of the tax holiday period in the assessment year of non-tax holiday, it will be presumed that full effect was given during the tax holiday period in respect of depreciation allowance, etc. Thus, the Tribunal held that the unabsorbed business loss, etc. relating to the tax holiday period will not be taken after that period and similarly, the unabsorbed business losses, etc. relating to the tax holiday profits of the tax holiday period cannot be carried forward and set off. Thus, it held that the deduction under Section 10B is to be computed without set off any carried forward losses of earlier assessment years an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for the assessment year 2005-06 [The CIT(A) in the said case issued notice under Section 263 of the Act and ordered revision of assessment for the first four years, 2001-02 to 2004-05 holding that deduction under Section 10B(4) of the Act on the export profit of both 100% EOUs have to be computed after setting off carried forward unabsorbed depreciation as provided under Section 32(2) of the Act]. 10.On the other hand, the learned counsel for the revenue referred to another decision of the Division Bench of High Court of Kerala in the case of Akay Flavours Aromatics (P.) Ltd. vs. Deputy Commissioner of Income Tax reported in (2012) 20 taxmann.com 384 (Kerala) . To be noted that the decision in the case of Akay Flavours Aromatics (P.) Ltd. was not brought to the notice of the Division Bench in the case of Patspin India Ltd . In the case of Akay Flavours Aromatics (P.) Ltd ., the question which fell for consideration was whether the Tribunal was justified in holding that the assessee is not entitled to carry forward depreciation loss from 2002-03 to 2003-04, the years of assessment under appeal. In the said case, the Assessing Officer while completing the as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... set off against the profits of another 10A Units of the assessee? 12.The Hon'ble Supreme Court pointed out the cardinal principles of interpretation of taxation statute and by relying to the decision in the case of Cape Brandy Syndicate vs. Inland Revenue Commissioner [(1921) 1 KB 64] , it was pointed out that in a taxing Act one has to look merely at what is clearly said. There is no room for any intendment. There is no equity about a tax. There is no presumption as to a tax. Nothing is to be read in, nothing is to be implied. One can only look fairly at the language used. While answering the above questions, it was held that sub-section (4) of Section 10A which provides for prorata exemption, necessarily involving deduction of the profits arising out of domestic sales, is one instance of deduction provided by the amendment. The provisions of sub-section (6) of Section 10A as amended by Finance Act of 2003, granting the benefit of adjustment of losses and unabsorbed depreciation etc. commencing from the year 2001-02 on a completion of the period of tax holiday also virtually works as a deduction which has to be worked out at a future point of time, namely, after th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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