w w w . L a w y e r S e r v i c e s . i n



Karle International Private Ltd. v/s Assistant Commissioner of Income-Tax Reserve Bank of India Bangalore


Company & Directors' Information:- KARLE INTERNATIONAL PRIVATE LIMITED [Active] CIN = U51909KA2008PTC047741

Company & Directors' Information:- K N INTERNATIONAL LIMITED [Active] CIN = U45201UP2002PLC026841

Company & Directors' Information:- D B H INTERNATIONAL PRIVATE LIMITED [Active] CIN = U74899DL1950PTC057209

Company & Directors' Information:- V AND S INTERNATIONAL PVT LTD [Active] CIN = U74899DL1992PTC049964

Company & Directors' Information:- S S A INTERNATIONAL LTD [Active] CIN = U15122DL1995PLC068186

Company & Directors' Information:- A T N INTERNATIONAL LIMITED [Active] CIN = L65993WB1983PLC080793

Company & Directors' Information:- D D INTERNATIONAL PRIVATE LIMITED [Active] CIN = U51909PB1995PTC016929

Company & Directors' Information:- T K INTERNATIONAL LIMITED [Active] CIN = U55101OR1982PLC001092

Company & Directors' Information:- N R INTERNATIONAL LIMITED [Active] CIN = L74999WB1991PLC051738

Company & Directors' Information:- K J INTERNATIONAL LIMITED [Active] CIN = L15142PB1993PLC011274

Company & Directors' Information:- A K S INTERNATIONAL LIMITED [Active] CIN = U74899DL1996PLC076327

Company & Directors' Information:- S P INTERNATIONAL PRIVATE LIMITED [Active] CIN = U70100WB1994PTC063228

Company & Directors' Information:- B. K. INTERNATIONAL PRIVATE LIMITED [Active] CIN = U74999DL2006PTC157013

Company & Directors' Information:- R S C INTERNATIONAL LIMITED [Active] CIN = L17124RJ1993PLC007136

Company & Directors' Information:- J C INTERNATIONAL LIMITED [Active] CIN = U51109WB1999PLC089037

Company & Directors' Information:- M T L INTERNATIONAL PRIVATE LIMITED [Amalgamated] CIN = U24219UP2001PTC025965

Company & Directors' Information:- T C N S INTERNATIONAL PRIVATE LIMITED [Amalgamated] CIN = U51311DL1996PTC080096

Company & Directors' Information:- K V S INTERNATIONAL PRIVATE LIMITED [Active] CIN = U18101DL2003PTC120770

Company & Directors' Information:- G N INTERNATIONAL PRIVATE LIMITED [Active] CIN = U51909DL2001PTC110766

Company & Directors' Information:- S H A M INTERNATIONAL PRIVATE LIMITED [Active] CIN = U45200MH1994PTC079867

Company & Directors' Information:- M K INTERNATIONAL LIMITED [Active] CIN = U51909DL1996PLC083430

Company & Directors' Information:- V. G. INTERNATIONAL PRIVATE LIMITED [Active] CIN = U51101DL2007PTC162540

Company & Directors' Information:- D R INTERNATIONAL PRIVATE LIMITED [Active] CIN = U24132DL1996PTC079867

Company & Directors' Information:- R H INTERNATIONAL LIMITED [Active] CIN = U72900DL2007PLC159452

Company & Directors' Information:- G & G INTERNATIONAL PRIVATE LIMITED [Active] CIN = U17120DL2012PTC234047

Company & Directors' Information:- A & D INTERNATIONAL PRIVATE LIMITED [Active] CIN = U36109RJ2007PTC024176

Company & Directors' Information:- H G E INTERNATIONAL PRIVATE LIMITED [Active] CIN = U19115UP2011PTC045112

Company & Directors' Information:- K A I INTERNATIONAL PRIVATE LIMITED [Active] CIN = U13100OR2007PTC009647

Company & Directors' Information:- C G INTERNATIONAL PRIVATE LIMITED [Active] CIN = U99999MH1996PTC097577

Company & Directors' Information:- K C INTERNATIONAL LIMITED [Active] CIN = U74899DL1994PLC060402

Company & Directors' Information:- M P INTERNATIONAL PRIVATE LIMITED [Active] CIN = U29130MH1997PTC107943

Company & Directors' Information:- A S INTERNATIONAL LIMITED [Strike Off] CIN = U74899DL1993PLC056158

Company & Directors' Information:- H C S INTERNATIONAL PRIVATE LIMITED [Active] CIN = U15312PB2012PTC036219

Company & Directors' Information:- L N G INTERNATIONAL LIMITED [Active] CIN = U51909DL1993PLC053438

Company & Directors' Information:- S. D. INTERNATIONAL PRIVATE LIMITED [Active] CIN = U74900UP2008PTC036047

Company & Directors' Information:- S AND I INTERNATIONAL PRIVATE LIMITED [Active] CIN = U51909DL1995PTC072210

Company & Directors' Information:- L T INTERNATIONAL LIMITED [Active] CIN = U74899DL1999PLC097892

Company & Directors' Information:- A. INTERNATIONAL PRIVATE LIMITED [Active] CIN = U51102GJ2008PTC053840

Company & Directors' Information:- S J M INTERNATIONAL LIMITED [Active] CIN = U52110DL1987PLC028571

Company & Directors' Information:- S B S INTERNATIONAL PRIVATE LIMITED [Active] CIN = U18101DL1997PTC085878

Company & Directors' Information:- R. A. INTERNATIONAL PRIVATE LIMITED [Active] CIN = U51225DL2008PTC177405

Company & Directors' Information:- B G INTERNATIONAL PRIVATE LIMITED [Active] CIN = U50300PB2014PTC038889

Company & Directors' Information:- S F INTERNATIONAL PRIVATE LIMITED [Active] CIN = U74999PB2000PTC023654

Company & Directors' Information:- R T S INTERNATIONAL PRIVATE LIMITED [Active] CIN = U63022DL1997PTC089328

Company & Directors' Information:- I K INTERNATIONAL PRIVATE LIMITED [Active] CIN = U74899DL1995PTC066267

Company & Directors' Information:- C K INTERNATIONAL PRIVATE LIMITED [Active] CIN = U74899DL1991PTC045625

Company & Directors' Information:- L A INTERNATIONAL PRIVATE LIMITED [Active] CIN = U51909PB2010PTC033683

Company & Directors' Information:- H R V INTERNATIONAL PRIVATE LIMITED [Amalgamated] CIN = U74899UP1993PTC057665

Company & Directors' Information:- K P INTERNATIONAL PRIVATE LIMITED [Active] CIN = U24110GJ2007PTC050026

Company & Directors' Information:- V S INTERNATIONAL PRIVATE LIMITED [Active] CIN = U85100MH1997PTC109647

Company & Directors' Information:- N N INTERNATIONAL PRIVATE LIMITED [Active] CIN = U01111DL1999PTC099094

Company & Directors' Information:- S R V INTERNATIONAL PRIVATE LIMITED [Active] CIN = U74140DL2012PTC243060

Company & Directors' Information:- V. S. Y. INTERNATIONAL PRIVATE LIMITED [Active] CIN = U74999UP2008PTC035521

Company & Directors' Information:- U M I INTERNATIONAL LTD [Strike Off] CIN = U51909WB1990PLC049671

Company & Directors' Information:- A. R. INTERNATIONAL PRIVATE LIMITED [Active] CIN = U51900MH2010PTC228539

Company & Directors' Information:- B R INTERNATIONAL PRIVATE LIMITED [Active] CIN = U74899DL1993PTC055562

Company & Directors' Information:- M J INTERNATIONAL PRIVATE LIMITED [Amalgamated] CIN = U74899DL1982PTC013231

Company & Directors' Information:- D N INTERNATIONAL LIMITED [Active] CIN = U36911TN1996PLC034205

Company & Directors' Information:- M. H. INTERNATIONAL PRIVATE LIMITED [Active] CIN = U70102DL2007PTC164267

Company & Directors' Information:- H AND Z INTERNATIONAL LIMITED [Active] CIN = U10102AS1995PLC004509

Company & Directors' Information:- M G M INTERNATIONAL PVT LTD [Active] CIN = U74899DL1982PTC013580

Company & Directors' Information:- J J INTERNATIONAL PRIVATE LIMITED [Active] CIN = U51109DL1992PTC047657

Company & Directors' Information:- H D INTERNATIONAL LIMITED [Active] CIN = U74899DL1994PLC060720

Company & Directors' Information:- K. A. INTERNATIONAL PRIVATE LIMITED [Active] CIN = U51101UP2012PTC049338

Company & Directors' Information:- J & G INTERNATIONAL PRIVATE LIMITED [Active] CIN = U18109DL2012PTC238392

Company & Directors' Information:- K R INTERNATIONAL PRIVATE LIMITED [Active] CIN = U17291DL2008PTC172188

Company & Directors' Information:- D. J. INTERNATIONAL LIMITED [Strike Off] CIN = U65910MH1999PLC119298

Company & Directors' Information:- S P INTERNATIONAL PVT LTD [Strike Off] CIN = U99999UP1965PTC003091

Company & Directors' Information:- J M INTERNATIONAL PVT LTD [Active] CIN = U45201WB1991PTC050829

Company & Directors' Information:- D P C INTERNATIONAL PVT LTD [Active] CIN = U74210WB1984PTC037378

Company & Directors' Information:- B M INTERNATIONAL PRIVATE LIMITED [Active] CIN = U74899DL1992PTC048736

Company & Directors' Information:- S G INTERNATIONAL PRIVATE LIMITED [Strike Off] CIN = U51109WB1998PTC086547

Company & Directors' Information:- B N INTERNATIONAL PRIVATE LIMITED [Active] CIN = U15412WB1999PTC089316

Company & Directors' Information:- V A INTERNATIONAL PRIVATE LIMITED [Active] CIN = U01111DL2000PTC104712

Company & Directors' Information:- S. J. INTERNATIONAL PRIVATE LIMITED [Active] CIN = U27310DL2007PTC169438

Company & Directors' Information:- N H B INTERNATIONAL PRIVATE LIMITED [Converted to LLP] CIN = U67190MH1997PTC107387

Company & Directors' Information:- P D K INTERNATIONAL PVT LTD [Active] CIN = U74140WB1992PTC056468

Company & Directors' Information:- G. S. C. INTERNATIONAL PRIVATE LIMITED [Active] CIN = U29120MH1994PTC080380

Company & Directors' Information:- A J INTERNATIONAL PRIVATE LIMITED [Converted to LLP] CIN = U74899DL1994PTC060818

Company & Directors' Information:- J S M INTERNATIONAL LIMITED [Active] CIN = U85110KA1996PLC020046

Company & Directors' Information:- M K N INTERNATIONAL PRIVATE LIMITED [Active] CIN = U51909DL2002PTC117207

Company & Directors' Information:- N M INTERNATIONAL PRIVATE LIMITED [Active] CIN = U74120MH2012PTC234492

Company & Directors' Information:- S S M INTERNATIONAL PRIVATE LIMITED [Active] CIN = U51909DL1997PTC089876

Company & Directors' Information:- A P J INTERNATIONAL PRIVATE LIMITED [Strike Off] CIN = U51909HR2010PTC040304

Company & Directors' Information:- T. INTERNATIONAL PRIVATE LIMITED [Active] CIN = U72900DL1997PTC091049

Company & Directors' Information:- V R INTERNATIONAL PRIVATE LIMITED [Active] CIN = U51101UP2011PTC043952

Company & Directors' Information:- A & F INTERNATIONAL PRIVATE LIMITED [Strike Off] CIN = U00265KA1995PTC018998

Company & Directors' Information:- M E C INTERNATIONAL PRIVATE LIMITED [Active] CIN = U33111GJ1963PTC082423

Company & Directors' Information:- J K INTERNATIONAL PRIVATE LIMITED [Active] CIN = U01100MH2004PTC144492

Company & Directors' Information:- D. S. R. INTERNATIONAL PRIVATE LIMITED [Active] CIN = U74999UP2010PTC039954

Company & Directors' Information:- B L S INTERNATIONAL PRIVATE LIMITED [Active] CIN = U74900UR2010PTC033210

Company & Directors' Information:- R B INTERNATIONAL LTD [Strike Off] CIN = U18101WB1993PLC059515

Company & Directors' Information:- P Y INTERNATIONAL PRIVATE LIMITED [Converted to LLP] CIN = U51102RJ1995PTC010133

Company & Directors' Information:- R C INTERNATIONAL LIMITED [Strike Off] CIN = U51909TG1991PLC012477

Company & Directors' Information:- N J INDIA INTERNATIONAL LIMITED [Strike Off] CIN = U70101UP2004PLC028722

Company & Directors' Information:- I AND A INTERNATIONAL PRIVATE LIMITED [Active] CIN = U72200TG1995PTC019936

Company & Directors' Information:- P V INTERNATIONAL PRIVATE LIMITED [Active] CIN = U74899DL1998PTC094598

Company & Directors' Information:- I B INTERNATIONAL PRIVATE LIMITED [Under Process of Striking Off] CIN = U72200DL2000PTC105735

Company & Directors' Information:- A M INTERNATIONAL PRIVATE LIMITED [Strike Off] CIN = U74899DL1995PTC066228

Company & Directors' Information:- K K M INTERNATIONAL PRIVATE LIMITED [Active] CIN = U17110MH1995PTC089836

Company & Directors' Information:- Z. H. INTERNATIONAL PRIVATE LIMITED [Active] CIN = U21098MH2010PTC210735

Company & Directors' Information:- J R INTERNATIONAL PRIVATE LIMITED [Active] CIN = U51909TN2002PTC048744

Company & Directors' Information:- H P AND B G INTERNATIONAL PRIVATE LIMITED [Active] CIN = U50500DL1999PTC100851

Company & Directors' Information:- L S INTERNATIONAL PRIVATE LIMITED [Strike Off] CIN = U74999DL2009PTC193390

Company & Directors' Information:- M B INTERNATIONAL PVT LTD [Strike Off] CIN = U52190DL2001PTC110572

Company & Directors' Information:- O K R INTERNATIONAL PRIVATE LIMITED [Strike Off] CIN = U74900DL1996PTC077152

Company & Directors' Information:- B B C INTERNATIONAL PVT LTD [Strike Off] CIN = U25209WB1984PTC037383

Company & Directors' Information:- K S INTERNATIONAL PRIVATE LIMITED [Strike Off] CIN = U51909MH2001PTC134345

Company & Directors' Information:- A TO Z INTERNATIONAL PRIVATE LIMITED [Strike Off] CIN = U51101TN1992PTC022507

Company & Directors' Information:- C & A INTERNATIONAL PRIVATE LIMITED [Strike Off] CIN = U51900MH1982PTC026718

Company & Directors' Information:- J S INTERNATIONAL PVT LTD [Strike Off] CIN = U51900MH1982PTC027604

Company & Directors' Information:- A C INDIA INTERNATIONAL PRIVATE LIMITED [Active] CIN = U74899DL1989PTC034784

Company & Directors' Information:- S. S. N. INTERNATIONAL PRIVATE LIMITED [Active] CIN = U29306DL1981PTC012616

Company & Directors' Information:- INDIA INTERNATIONAL COMPANY PRIVATE LIMITED [Active] CIN = U51228MH1955PTC009483

Company & Directors' Information:- A H INTERNATIONAL PRIVATE LIMITED [Active] CIN = U55101RJ2021PTC073171

Company & Directors' Information:- R K INTERNATIONAL PVT LTD [Strike Off] CIN = U63040PB1982PTC004926

Company & Directors' Information:- L & P INTERNATIONAL PRIVATE LIMITED [Active] CIN = U52100DL2016PTC292025

Company & Directors' Information:- J D K INTERNATIONAL PVT LTD [Active] CIN = U74899DL1982PTC014087

Company & Directors' Information:- R B N INTERNATIONAL PRIVATE LIMITED [Active] CIN = U52300DL2012PTC243998

Company & Directors' Information:- P AND P INTERNATIONAL PRIVATE LIMITED. [Strike Off] CIN = U24100OR1993PTC003244

Company & Directors' Information:- B P INTERNATIONAL PVT LTD [Strike Off] CIN = U31909HP1984PTC005785

Company & Directors' Information:- E C INTERNATIONAL PVT LTD [Strike Off] CIN = U99999DL1982PTC013146

Company & Directors' Information:- R A R E INTERNATIONAL PRIVATE LIMITED [Active] CIN = U31900DL2005PTC134395

Company & Directors' Information:- D I D INTERNATIONAL PRIVATE LIMITED [Converted to LLP] CIN = U28112MH2014PTC258750

Company & Directors' Information:- S R A INTERNATIONAL PVT LTD [Strike Off] CIN = U99999DL1980PTC010389

Company & Directors' Information:- R Z INTERNATIONAL PRIVATE LIMITED [Active] CIN = U74900KA2012PTC064445

Company & Directors' Information:- M M INTERNATIONAL PVT LTD [Converted to LLP] CIN = U51312DL1977PTC008583

Company & Directors' Information:- A K INDIA INTERNATIONAL PRIVATE LTD [Strike Off] CIN = U45201DL1981PTC012389

Company & Directors' Information:- O P INTERNATIONAL PRIVATE LIMITED [Strike Off] CIN = U55101PB2013PTC037499

Company & Directors' Information:- J & A INTERNATIONAL PRIVATE LIMITED [Strike Off] CIN = U51900PB2013PTC037302

Company & Directors' Information:- A P M INTERNATIONAL PRIVATE LIMITED [Strike Off] CIN = U74900TN2014PTC095953

Company & Directors' Information:- Y. A. INTERNATIONAL PRIVATE LIMITED [Strike Off] CIN = U74900RJ2012PTC040431

Company & Directors' Information:- D & A INTERNATIONAL PRIVATE LIMITED [Active] CIN = U74999MH2015PTC262713

Company & Directors' Information:- R L INTERNATIONAL PRIVATE LIMITED [Active] CIN = U18204UP2016PTC076344

Company & Directors' Information:- V P S INTERNATIONAL PRIVATE LIMITED [Strike Off] CIN = U93030UP2014PTC066242

Company & Directors' Information:- J V INTERNATIONAL PRIVATE LIMITED [Strike Off] CIN = U51102DL2012PTC240197

Company & Directors' Information:- R I K INTERNATIONAL PRIVATE LIMITED [Under Process of Striking Off] CIN = U52590DL2015PTC283801

Company & Directors' Information:- Y & H INTERNATIONAL PRIVATE LIMITED [Active] CIN = U63000DL2014PTC266649

Company & Directors' Information:- S R L INTERNATIONAL PRIVATE LIMITED [Under Process of Striking Off] CIN = U20296AP2013PTC085533

Company & Directors' Information:- M D INTERNATIONAL LIMITED [Active] CIN = U74140MH1981PTC025007

Company & Directors' Information:- INTERNATIONAL CO PRIVATE LIMITED [Strike Off] CIN = U51109UR1935PTC000663

Company & Directors' Information:- BANGALORE BANK LIMITED [Strike Off] CIN = U99999KA1900PLC000590

Company & Directors' Information:- A B C INTERNATIONAL PVT LTD [Strike Off] CIN = U99999DL1990PTC041062

Company & Directors' Information:- D C M INTERNATIONAL LTD. [Strike Off] CIN = U99999DL2000PTC004208

Company & Directors' Information:- B C I INTERNATIONAL LIMITED [Strike Off] CIN = U74900DL1977PLC008468

    Income Tax Appeal No. 377 of 2012

    Decided On, 07 September 2020

    At, High Court of Karnataka

    By, THE HONOURABLE MR. JUSTICE ALOK ARADHE & THE HONOURABLE MR. JUSTICE H.T. NARENDRA PRASAD

    For the Appearing Parties: A. Shankar, M. Lava, K.V. Aravind, Advocates.



Judgment Text

Alok Aradhe, J.This appeal under Section 260A of the Income Tax Act, 1961 (hereinafter referred to as the Act for short) has been preferred by the assessee. The subject matter of the appeal pertains to the Assessment year 2008-09. The appeal was admitted by a bench of this Court vide order dated 23.12.2004 on the following substantial question of law:(i) Whether the Tribunal was justified in law in not setting off the losses from Export Oriented Unit (Section 10B unit) against the income earned in the Domestic Tariff Area Unit in accordance with section 70 of the Act on the facts and circumstances of the case?(ii) Whether the Tribunal was justified in law in holding that the appellant is not entitled to set off the loss of the Export Oriented Unit against the income in Domestic Tariff Area Unit contrary to the ratio of the Hon'ble High Court decision in the case of CIT Vs. Yokogawa India Limited and Ors. on the facts and circumstances of the case?(iii) Whether the Tribunal was justified in law in not adjudicating the ground No.3 related to the issue of the appellant not claiming deduction under Section 10B of the Act and consequently entitled for set off losses on the facts and circumstances of the case?(iv) Whether the Tribunal was justified in law in not adjudicating the grounds raised in respect of levy of interest under section 234B and 234D of the Act on the facts and circumstances of the case?2. Facts leading to filing of this appeal briefly stated are that the assessee is a private limited company engaged in the business of manufacture and export of readymade garments. The assessee for the Assessment year 2008-09 filed the return of income declaring total income of Rs.12,89,760/-. The assessee has three units and showed profit and loss from Units I to III. The assessee had set off losses of the units against the profits of the unit making profits and offered the balance as income tax payable under the head 'income from business' at Rs.12,89,762/- which was declared in the return of income. The Assessing Officer by order dated 31.12.2010 inter alia held that losses of export oriented units cannot be allowed to set off against the profits of Unit No.I and added back the losses of export oriented unit i.e., Rs.6,65,23,391/- against the income of profit making unit and determined the total income of the assessee at Rs.6,78,13,151/- and created a demand of Rs.2,99,27,080/-.3. The assessee challenged the order passed by the Assessing Officer in an appeal before the Commissioner of Income Tax (Appeals), which was dismissed by an order dated 02.02.2012. Being aggrieved, the assessee filed an appeal before Income Tax Appellate Tribunal (hereinafter referred to as 'the Tribunal', for short). The Tribunal by an order dated 12.10.2012 dismissed the appeal preferred by the assessee and upheld the order of the Commissioner of Income Tax (Appeals). In the aforesaid factual background, the assessee has filed this appeal.4. Learned Senior counsel for the assessee while inviting the attention of this court to the return of income for the Assessment year 2008-09 submitted that the assessee has neither claimed any deduction under Section 10B of the Act in respect of any of the three units of the assessee nor has filed any audit report in Form 56G in accordance with Section 10B(5) of the Act read with Rule 16E for the Assessment year 2008-09, which is a mandatory requirement for claiming deduction under Section 10B of the Act. It is also argued that since, the assessee had not claimed deduction under Section 10B of the Act, the assessee is eligible to set off losses incurred in the eligible (EOU) against the profits earned by ineligible (DTA) units in accordance with Section 70 of the Act, even assuming that the assessee had claimed deduction under Section 10B of the Act. It is also urged that claim for deduction under Section 10B of the Act cannot be thrust upon the assessee. It is also submitted that the claim of the assessee for set off of the loss from one unit against profit of other units is also supported by circular issued by Central Board of Direct Taxes (CBDT) dated 16.07.2013. In this connection, our attention has been invited to paragraph 5.2 of the Circular and it is argued that the Circulars are binding on the authorities. It is also pointed out that similar issue has been decided by a bench of this court against the revenue by Income Tax Appellate Tribunal in 'MINDTREE CONSULTING P LTD., VS. ASSISTANT COMMISSIONER OF INCOME TAX and the aforesaid decision has been upheld by this court in 'COMMISSIONER OF INCOME TAX VS. YOKOGAWA INDIA LTD, (2012) 341 ITR 385'. In support of aforesaid submissions, reference has also been made to decisions in 'CIT VS. YOKOGAWA INDIA LTD, (2017) 391 ITR 274' (SC), 'CIT VS. YOKOGAWA INDIA LTD, (2012) 341 ITR 385' (KARNATAKA), 'CIT VS. GALAXY SURFACANTS LTD, (2012) 343 ITR 108' (BOMBAY), 'MINDTREE CONSULTING (P) LTD VS. ACIT, (2006) 102 TTJ 691' (BANGALORE), 'HINDUSTAN UNILEVER LTD. VS. DCIT, (2010) 325 ITR 102' (BOMBAY), 'CIT VS. BALCK AND VEATCH CONSULTING (P) LTD, (2012) 348 ITR 72' (BOMBAY), 'CIT VS. SHANTIVIJAY JEWELS LTD, (2015) 374 ITR 520' (BOMBAY), 'CIT VS. CHESLIND TEXTILES LTD, (2013) 354 ITR 29' (KARNATAKA), 'CIT VS. MINDTREE CONSULTING LTD. IN ITA NO.797/2006 DATED 09.08.2011 and BOARD CIRCULAR 7/DV/2013 DATED 16.07.2013.5. On the other hand, learned counsel for the revenue submitted that due date of filing the return under Section 139(1) of the Act was 30.09.2008. However, the return, which was referred to by learned Senior counsel for the assessee is dated 07.11.2012 and was not even filed. Therefore, the Assessing Officer was not under an obligation to take note of the return which was filed beyond the prescribed time limit, which otherwise had not legal sanctity. Alternatively, it is submitted that even if return filed by the assessee on 30.09.2008 is examined, it is evident that same does not contain any declaration that the assessee is not making a claim under Section 10B of the Act. It is further submitted that declaration has to be made in writing before the return and mere mentioning of the word 'not applicable' in the return does not amount to compliance with requirements of Section 10B(8) of the Act. It is further submitted that since, the assessee had not filed declaration before filing of the return, Section 70 of the Act does not apply to the fact situation of the case. It is also submitted that while construing taxing statute, literal construction has to be adhered to unless the context renders it plain that such a construction cannot be put up on the words. In support of his submissions, learned counsel for the revenue has referred to decision of the Supreme Court in YOKOGAWA INDIA LTD. supra as well as 'COMMISSIONER OF INCOME TAX-III VS. CALCUTTA KNITWEARS,2014 43 TAXMANN.COM 446' (SC) and 'K.NAGESH VS. ASSISTANT COMMISSIONER OF INCOME-TAX, BANGALORE,2015 57 TAXMANN.COM 439' (KARNATAKA).6. We have considered the submissions made by the learned counsel for the parties and have perused the record. Before proceeding further, it is apposite to take note of the relevant statutory provisions namely Section 10B(i), 10B(5), 10B(6)(ii), and Section 70 as well as the para 5.2 of the Circular issued by the Central Board of Direct Taxes.Section 10B(1)Subject to the provisions of this section, a deduction of such profits and gains as are derived by a hundred per cent export-oriented undertaking from the export of articles or things or computer software for a period of ten consecutive assessment years beginning with the assessment year relevant to the previous year in which the undertaking begins to manufacture or produce articles or things or computer software, as the case may be, shall be allowed from the total income of the assessee.Section 10B(5)The deduction under sub-Section (1) shall not be admissible for any assessment year beginning on or after the 1st day of April 2001, unless the assessee furnishes in the prescribed form, along with the return of income, the report of an accountant, as defined in the Explanation below sub-Section (2) of Section 288, certifying that the deduction has been correctly claimed in accordance with the provisions of this section.Section 10B(6)(ii)Notwithstanding anything contained in any other provision of this Act, in computing the total income of the assessee of the previous year relevant to the assessment year immediately succeeding the last of the relevant assessment year, or of any previous year, relevant to any subsequent assessment year-(i)xxxxx(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.Section 70(1)Save as otherwise provided in this act, where the net result for any assessment year in respect of any source falling under any head of income, other than "Capital gains", is a loss, the assessee shall be entitled to have the amount of such loss set off against his income from any other source under the same head.(2) Where the result of the computation made for any assessment year under Sections 48 to 55 in respect of any short-term capital asset is a loss, the assessee shall be entitled to have the amount of such loss set off against the income, if any, as arrived at under a similar computation made for the assessment year in respect of any other capital asset.(3) Where the result of the computation made for any assessment year under Sections 48 to 55 in respect of any capital asset (other than a short-term capital Asset) is a loss, the assessee shall be entitled to have the amount of such loss set off against the income, if any, as arrived at under a similar computation made for the assessment year in respect of any other capital asset not being a short-term capital asset.Para 5.2 of Circular dated 10.7.2013The income computed under various heads of income in accordance with the provisions of Chapter IV of the IT Act shall be aggregated in accordance with the provisions of Chapter VI of the IT Act, 1961. This means that first the income / loss from various sources i.e., eligible and ineligible units, under the same head are aggregated in accordance with the provisions of Section 70 of the Act. Thereafter, the income from one ahead is aggregated with the income or loss of the other head in accordance with the provisions of Section 71 of the Act. If after giving effect to the provisions of Sections 70 and 71 of the Act there is any income (where there is no brought forward loss to be set off in accordance with the provisions of Section 72 of the Act) and the same is eligible in accordance with the provisions of Chapter VIA or Sections 10A, 10B etc. of the Act, the same shall be allowed in computing the total income of the assessee.7. Section 10B of the Act was substituted by Finance Act, 2000 w.e.f. 01.04.2001. Section 10B as it stands is not a provision in the nature of an exemption but provides for a deduction of such profit and gains as are derived by 100% export oriented undertaking from the export of articles or things or computer software for 10 consecutive assessment years beginning with the assessment year relevant to the previous year in which the undertaking begins to manufacture or produce. Section 10B does not contain any prohibition to prevent an assessee from setting off losses from one source against income from another source under the same head of income as prescribed under Section 70 of the Act. Section 10B(6)(ii) of the Act restricts carry forward and set off of loss under Sections 72 and 74 of the Act but does not provide anything regarding intra-head set off under Section 70 and inter-head set off under Section 71 of the Act. The business income can be computed only after set off of business loss against the business income in the year as per provisions of Section 70 of the Act. Section 10A of the Act is a code by itself and it is pertinent to note that Section 10A(6)(ii) does not preclude the operation of Sections 70 and 71 of the Act. Para 5.2 of the Circular issued by the Central Board of Direct Taxes dated 16.07.2013 clearly provides that income / loss from various sources i.e. eligible and ineligible units under the same head are aggregated in accordance with provisions of Section 70.8. It is equally well settled legal proposition that where the assessee does not want the benefit of deduction from the taxable income, the same cannot be thirst upon it. There is no provision which makes compulsory on the part of income tax officer to make deduction in all cases. (See: 'COMMISSIONER OF INCOME-TAX Vs. MAHINDRA MILLS, (2000) 243 ITR 56' (SC). From the return of income for the assessment year 2008-09 in Schedule BP, Sl.No.35(iii), the assessee has shown the deduction under Section 10B of the Act as zero. Similarly, at Sl.No.57 the assessee has filed the deduction under Section 10B as not applicable. Thus, from perusal of return of assessment year 2008-09 it is evident that the assessee has not claimed any deduction under Section 10B of the Act in respect of any of the three units of the assessee. It is pertinent to mention here that Section 10B(5) read with Rule 16E mandates that the assessee has to file audit report in Form-56G for claiming deduction under Section 10B of the Act. Admittedly, in the instant case, the assessee has not filed any audit report in Form-56G which is a mandatory requirement for claiming deduction under Section 10B of the Act. Therefore, the deduction under Section 10B of the Act cannot be thirst upon the assessee.9. Admittedly, in the instant case, two units of the assessee namely unit No.II and unit No.III were export oriented units and were eligible for exemption. The assessee had sustained loss in respect of unit No.I and therefore, the assessee had claimed set off, as permissible under Section 70 of the Act and had offered the balance as

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income taxable under the head income from business of Rs.12,89,762/- which has been declared in the return. The provisions of Section 70 of the Act have to be given effect to. It is pertinent to mention here that Income Tax Appellate Tribunal had taken a similar view in MINDTREE CONSULTING (P) LTD., supra, which was upheld by a Division Bench of this Court in COMMISSIONER OF INCOME-TAX Vs. YOKOGAWA INDIA LTD., supra. Similar view has been taken by Bombay High Court in GALAXY SURFACTANTS LTD., supra. We respectfully agree with the view taken by the Division Bench of this Court as well as Bombay High Court.It is pertinent to mention here that decision of the Supreme Court in YOKOGAWA, supra is not an authority for the proposition that an assessee cannot claim set off under Section 70 of the Act and therefore, the aforesaid decision has no application to the facts of the case. Since we have dealt with the issues involved in this appeal with reference to the return filed for the assessment year 2008-09 on 30.08.2009, therefore, it is not necessary for us to deal with the contention raised by the learned counsel for the revenue that the return had filed beyond prescribed period and therefore, has no legal sanctity.In view of preceding analysis, the substantial question of law framed by this Court are answered in favour of the assessee and against the revenue. In the result, the order of the income tax appellate tribunal date 12.10.2012 in so far as it contains the finding against the Assessee is hereby quashed.In the result, the appeal is allowed.
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