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TMI Blog2019 (3) TMI 19X X X X Extracts X X X X X X X X Extracts X X X X ..... Any other view would be opposed to the plain language used in this sub-section. We do not discern any indication in this sub-section to come to the conclusion that while providing exclusion of anything contrary to contained in Sections 28 to 41, the legislature intended to exclude Section 32 and, particularly, sub-section (2) thereof. The decision of this Court in case of Hindustan Petroleum Corporation Ltd. [1990 (7) TMI 44 - BOMBAY HIGH COURT] would not change this position. The deeming infection provided under sub-section (1) of Section 44BB of the Act, relates to the profits and gains of an assessee arising out of a business and is not directly connected with or corelated with the non-obstinate clause with which, the said sub-sec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... including natural gas. Section 44BB of the Income Tax Act, 1961 (in short the Act ), reference to which would be made in detailed later, makes special provisions for taxing the income arising from such activities. (ii) The assessee had certain carry forward unabsorbed depreciation of ₹ 8.64 Crores (rounded of), relating to Assessment Years 2001-02 and 2002-03. Similarly, the assessee had unabsorbed business loss, relating to Assessment Year 2002-03 of ₹ 24.30 Crores (rounded of). (iii) In the return of income filed for Assessment Year 2008-09, the assessee had declared its total income of ₹ 42.96 Crores (rounded of). In such return, the assessee had computed the income in terms of Section 44BB of the Act, after ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bunal, consequently, rejected the assessee's claim in this respect. Question (1) raised by the assessee relates to this issue. 5. Learned Counsel Shri Agrawal for the assessee, strenuously urged that, Tribunal has committed serious error. The legislature under sub-section (1) of Section 44BB of the Act, never intended to disallow the benefit of carried forward of unabsorbed depreciation of earlier years which is available in terms of Section 32(2) of the Act. The interpretation adopted by the Tribunal, is erroneous. He relied upon the decision of this Court in case of CIT v/s. Hindustan Petroleum Corporation Limited reported in 187 ITR 1, in which, it was observed that, legal fiction has to be carried to its logical conclusion bu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ident], engaged in the business of providing services or facilities in connection with, or supplying plant and machinery on hire used, or to be used, in the prospecting for, or extraction or production of mineral oils, a sum equal to ten percent of the aggregate of the amounts specified in sub-section (2) shall be deemed to be the profits and gains of such business chargeable to tax under the head Profits and gains of business or profession. Provided that this sub-section shall not apply in a case where the provisions of section 42 or section 44D or [section 44DA or] section 115A or section 293A apply for the purposes of computing profits or gains or any other income referred to in those sections. (2) The amounts referred to in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ngaged in the business of providing services or facilities in connection with or supplying plant and machinery on hire used or to be used in prospecting for or extraction or production of mineral oils, a sum equal to 10% of the aggregate amounts specified in sub-section (2) shall be deemed to be the profits and gains of such business, chargeable to tax under the head 'Profits and gains of business or profession'. Sub-section (2) of Section 44BB specifies amounts referred to in sub-section (1), 10% of which would be the deemed profits and gains of the assessee's business. Sub-section (3) of Section 44BB provides that notwithstanding anything contained in sub-section (1) assessee may claim lower profits and gains, if he keeps an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ded under sub-section (1) of Section 44BB of the Act. Sub-section (1) of Section 44BB of the Act as noted, starts with non-obstinate clause overriding anything contained to the contrary in Sections 28 to 41 of the Act which includes Section 32 also. In that view of the matter, in plain terms, the legislature has ruled out applicability of sub-section (2) of Section 32 of the Act while computing the profits and gains of an eligible assessee, arising out of the business in terms of sub-section (1) of Section 44BB of the Act. Any other view would be opposed to the plain language used in this sub-section. We do not discern any indication in this sub-section to come to the conclusion that while providing exclusion of anything contrary to contain ..... X X X X Extracts X X X X X X X X Extracts X X X X
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