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TMI Blog2021 (6) TMI 111X X X X Extracts X X X X X X X X Extracts X X X X ..... nt year 2005-2006 as is evident from the preamble to be final order dated 30.08.2013 of the Tribunal as noted that the submission of the Respondent that this was not the first time the petitioner had claimed deduction under Section 10B of the IT Act, 1961. It appears that for the aforesaid year, CIT(Appeals)-IV vide order dated 21.09.2010, had observed that, Since transfer cost of materials between the EOU and all EOU units has been wrongly recorded the deduction u/s 10B should be restricted to the profits of the EOU units after recording the transfer of the material at the correct cost. . The issue on merits is apparently covered in favour of the petitioner in the case of Scientific Atlanta India Technology Private Ltd [ 2010 (2) TMI 658 - ITAT, CHENNAI ] and similar views in Changpond Technologies (P) Ltd vs ACIT [ 2008 (2) TMI 486 - ITAT MADRAS-A ] and Enercon Wind Farm (Krishna) Ltd. [ 2007 (12) TMI 306 - ITAT MUMBAI ] It is therefore for the petitioner to substantiate its case before the respondent by citing the above decisions and get the issue decided on merits in its favour. Writ petition is dismissed. The Respondent is therefore directed to pass appropriate orders in accor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 154 of the IT Act was debatable and in its opinion deduction under Section 80 HHC and 10B cannot be dealt with the proceedings under Section 154 of the IT Act for determining the book-profit under Section 115 J of the IT Act. While holding so, the appeal filed by the petitioner came to be allowed. 5. During the pendency of the said appeal before the Income Tax Tribunal, a Scrutiny Assessment Order dated 22.12.2006 came to be passed by the Deputy Commissioner of Income Tax under Section 143(3) of the Income Tax Act, 1961, wherein, while computing the book-profit, the deduction claimed by the petitioner under Section 80HHC of the IT Act was denied. As far as the exemption under Section 10B of the IT Act was concerned, the petitioner declared a sum of ₹ 84,40,581/- but squared off the same by bringing forward a loss for an equal amount and therefore stated that there was a total loss from the EOU operation. 6. In the above background, the issued impugned notice under Section 148 of the IT Act was issued on 11.11.2009 to the petitioner under Section 148 of the IT Act, 1961. The reasons for reopening of the assessment as communicated by letter dated 23.04.2010 bearing Company C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mitted that during the interregnum, the assessment order passed under Section 143(3) of the IT Act has also disallowed the deduction under Section 80HHC of the IT Act. Therefore, the purported reasons for reopening of the assessment cannot be countenanced. As far as the proposal to deny exemption under Section 10B of the IT Act on the ground that the petitioner was in the habit of claim deduction under Section 10B of the IT Act by reporting higher profit in EOU unit by way of expenditure that are relatable not on EOU units and that deduction under Section 10B of the IT Act can be allowed only on the total income of the assessee and not on individual units is concerned. It is submitted that it is based on change of opinion. 10. It is submitted that similar issue for the Assessment Year 2005-2006 went up to the Tribunal and the Tribunal by its order dated 30.08.2013 in ITA.No.2165/Mds/2010 dismissed the department's appeal. It is further submitted that against the order of the Tribunal, the Income Tax Department had also filed statutory appeal before this Court under Section 260A of the IT Act, 1961 in T.C.A. No. 519 of 2014 which was withdrawn by the Income Tax Department on 12. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tioner is to be accepted. She submits that speaking order passed by the respondents is well considered and all the defences that are available to the petitioner should be raised and therefore that the petitioner should participate in the said proceedings and therefore prays for dismissal of the writ petition. 15. By way of Rejoinder, the learned counsel for the petitioner submits that the order passed under Section 143(1) of the IT Act as rectified merged with the order passed by the Tribunal and order with the order passed under Section 141(3) of the IT Act and therefore there is no case made out for reopening of the assessment and therefore prayed for allowing the writ petition. 16. I have considered the arguments of the learned counsel for the petitioner and the learned senior standing counsel for the respondent/Income Tax Department. 17. The case of the respondent is that the petitioner was in the habit of making an excess claim under Section 10B of the IT Act, 1961 and this fact came to be knowledge of the Department only when a survey was conducted during March 2010. It is submitted that, this information was not available earlier when the assessment orders were passed both u ..... X X X X Extracts X X X X X X X X Extracts X X X X
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