Asst Cit Cir 1, Kalyan vs Asb International P. Ltd, Ambernath on 19 December, 2016
In fact, the Bombay High Court in the case of Hindustan Unilever Ltd.
v. Deputy CIT [2010] 325 ITR 102 (Bom) interpreting section 10B as
amended held as under :
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1 - 10 of 21 (0.84 seconds)Commissioner Of Income Tax Tds And ... vs State Bank Of India And Another on 12 October, 2015
In the first place, when the power is invoked, the right
of the concerned party to get the amount by way of refund will stand
extinguished. The very words in Section 245 indicate that an amount must
be due by way of refund. Therefore, there is a right with the party to claim
the amount as such. Secondly, as noted in the decision of the Bombay
High Court in Hindustan Unilever Limited vs. Deputy Commissioner of
Income Tax-1(1) & others (supra), there could be areas of genuine dispute
such as factual disputes, which may strike at the very root of the action
proposed under Section 245. Thirdly, it may be open to the assessee to
point out that the assessee has pursued the matter in appeal and, in fact,
obtained interim order of stay, which may not be even known to the
competent authority acting under Section 245. The assessee may even
bring to the notice of the authority any recent pronouncement of a binding
superior court, which will have the effect of rendering the assessment
completely vulnerable in law and in a matter where he is pursuing the
statutory remedies within the time. He may point out that, though an
31
order of stay was not granted by the appellate authority, it is not so
granted on the basis that the appeal, itself, will be heard on a very near
date. When there is no interim order obtained, then, certainly, in terms of
the assessment order passed, the amount, as per law, when it falls due,
will become payable and, therefore, legally, there cannot be any illegality
as such in the amount being adjusted. But, even there, the authority
would stay its hands on various relevant considerations. It may include
the consideration that an identical issue, as raised in the appeal, has
already been answered by the higher forum provided under the Act. The
order, under which the amount has become payable and remains payable,
may be shown to be palpably unsustainable as, for instance, where the
assessment was done in naked violation of the principles of natural
justice. Benefits do flow from compliance with the principles of natural
justice, as they tend to advance the cause of justice. They would make the
proceedings of the authority fair. Therefore, we would think that, in
keeping with the object of the provision and the change in the law brought
about by the Parliament, the intention was clearly not to reduce it to an
empty formality; but, it was intended that a bare opportunity of hearing
against the proposed refund being set off must be given to the party. It is,
certainly, not sufficient to merely send a communication simultaneously.
This flows from the words, which are specifically used, namely, proposal
to set off. No doubt, vexed question relating to the legality of the
assessment, under which the amount has fallen due, cannot be raked -up
before the authority. Such, in our view, would be the purport of the words
used.
Elitecore Technologies Private ... vs The Pr. Cit.-2,, Ahmedabad on 4 September, 2019
"Section 10A is a provision which is in the nature of a deduction and not
an exemption. This was emphasized in a judgment of a Division Bench of
this Court, while construing the provisions of section 10B, in case
of Hindustan Unilever Ltd. v. Dy. CIT [2010] 325 ITR
102/191 Taxman 119 (Bom.) at paragraph 24. The submission of the
Revenue placed its reliance on the literal reading of section 10A under
which a deduction of such profits and gains as are derived by an
undertaking from the export of articles or things or computer software
for a period of ten consecutive assessment years is to be allowed from the
total income of the assessee. The deduction under section 10A, in our
view, has to be given effect to at the stage of computing the profits and
gains of business. This is anterior to the application of the provisions of
section 72 which deals with the carry forward and set off of business
losses. A distinction has been made by the Legislature while
incorporating the provisions of Chapter VI-A. Section 80A(1) stipulates
that in computing the total income of an assessee, there shall allowed
from his gross total income, in accordance with and subject to the
provisions of the Chapter, the deductions specified in sections 80C to
80U. Section 80B(5) defines for the purposes of Chapter VI-A "gross
total income" to mean the total income computed in accordance with the
provisions of the Act, before making any deduction under the Chapter.
Indus Business Systems Ltd., Hyd, ... vs Assessee on 17 June, 2016
21. It may be observed that in the Bombay High Court case the loss suffered by
the eligible unit under Section 10B was set off against the normal business profit.
The view taken by the Assessing Officer in that case was that Section 10B
provided for an exemption which means that it does not enter the field of taxation
and, therefore, the loss arising therefrom cannot be set off against the normal
business profits. Disapproving the view taken by the Assessing Officer, the High
Court held that Section 10B, as substituted by the Finance Act, 2000 was a
Section providing for a deduction whereas prior to the substitution the earlier
provision was in the nature of an exemption. It was thus held that the basis on
which the assessment was sought to be reopened was wrong and the reassessment
notice was struck down.
J.P . Morgan Services India P. Ltd, ... vs Assessee on 30 November, 2015
"Section 10A is a provision which is in the nature of a
deduction and not an exemption. This was
emphasised in a judgment of a Division Bench of this
court, while construing the provisions of section 10B,
in Hindustan Unilever Ltd. v. Deputy CIT [2010] 325
ITR 102 (Bom) at paragraph 24. The submission of
the Revenue placed its reliance on the literal reading
of section 10A under which a deduction of such
profits and gains as are derived by an undertaking
from the export of articles or things or computer
software for a period of ten consecutive assessment
years is to be allowed from the total income of the
assessee. The deduction under section 10A, in our
view, has to be given effect to at the stage of
computing the profits and gains of business. This is
anterior to the application of the provisions of section
72 which deals with the carry forward and set off of
business losses. A distinction has been made by the
Legislature while incorporating the provisions of
9 J.P. Morgan S. P. Ltd.
M/S Ramsoft Technologies Pvt. Ltd.,, ... vs Assessee on 30 June, 2016
In fact, the Bombay High Court in the case of Hindustan
Unilever Ltd. v. Dy. CIT [2010] 325 ITR 102/191 Taxman 119
(Bom) interpreting section 10B as amended held as under
Riviera Home Furnishings Pvt. Ltd., ... vs Assessee on 21 October, 2016
As noticed, the Bombay High
Court reached in the case of CIT v. Yokogava (supra), in its
judgments in Hindustan Unilever Ltd. (supra) and CIT v. Black &
Veatch Consulting Pvt. Ltd. (supra), despite taking the view that the
Section provides for a deduction and not an exemption.
We have already seen that Section 10A, as it presently stands,
though worded as deduction provision, is essentially and in
substance an exemption provision.
Ito 8(2)2, Mumbai vs Kiara Jewellery P.Ltd, Mumbai on 19 December, 2016
), the decision of Hon'ble Bombay High
Court in the case of CIT v. Black & Veatch Consulting P. Ltd. [2012] 348 ITR
72 (Bom) and in the case of Hindustan Unilever v. Dy CIT [2010] 325 ITR 102
(Bom) and held as under:-
Dcit Rg 8(2), Mumbai vs Health Prime Services (I) P.Ltd, Mumbai on 18 November, 2016
"Section 10A is a provision which is in the nature of a decision and not an
exemption. This was emphasised in a judgment of a Division Bench of this court,
while construing the provisions of section 10B, in Hindustan Uniliver Ltd. vs. Deputy
CIT (2010) 325 ITR 102 (Bom) at paragraph 24. The submission of the Revenue
placed its reliance on the literal reading of section 10A under which a deduction of
such profits and gains as are derived by an undertaking from the export of articles or
things or computer software for a period of ten consecutive assessment years is to be
allowed from the total income of the assessee. The deduction under section 10A, in
our view, has to be given effect to at the stage of computing the profits and gains of
business. This is anterior to the application of the provisions of section 72 which has
been made by the Legislature while incorporating the provisions of Chapter VI-A.
Section 80A(1) stipulates that in computing the total income of an assessee, there
shall be allowed from his gross total income, in accordance with and subject to the
provisions of the Chapter the deductions specified in sections 80C to 80U. Section
80B(5) defines for the purposes of Chapter VI-A "gross total income" to mean the
total income computed in accordance with the provisions of the Act, before making
any deduction under the Chapter. What the Revenue in essence seeks to attain is to
telescope the provisions of Chapter VI-A in the context of the deduction which is
allowable under section 10A, which would not be permissible unless a specific
statutory provisions to that effect were to be made. In the absence thereof, such an
approach cannot be accepted. In the circumstances, the decision of the Tribunal
would have to be affirmed since it is plain and evident that the deduction under
9
ITA No.122/Mum/2013
(Assessment Year 2009-10)
section 10A has to be given at the stage when the profits and gains of business are
computed in the first instance."
Shrenuj Gems & Jewellery Ltd, Mumbai vs Ito 8(3)(1), Mumbai on 16 November, 2016
"Section 10A is a provision which is in the nature of a decision and not an exemption.
This was emphasised in a judgment of a Division Bench of this court, while construing
the provisions of section 10B, in Hindustan Uniliver Ltd. vs. Deputy CIT (2010) 325 ITR
102 (Bom) at paragraph 24. The submission of the Revenue placed its reliance on the
literal reading of section 10A under which a deduction of such profits and gains as
are derived by an undertaking from the export of articles or things or computer
software for a period of ten consecutive assessment years is to be allowed from the
10
ITA No.1311/Mum/2015
(Assessment Year 2010-11)
total income of the assessee. The deduction under section 10A, in our view, has to be
given effect to at the stage of computing the profits and gains of business. This is
anterior to the application of the provisions of section 72 which has been made by
the Legislature while incorporating the provisions of Chapter VI-A. Section 80A(1)
stipulates that in computing the total income of an assessee, there shall be allowed
from his gross total income, in accordance with and subject to the provisions of the
Chapter the deductions specified in sections 80C to 80U. Section 80B(5) defines for
the purposes of Chapter VI-A "gross total income" to mean the total income
computed in accordance with the provisions of the Act, before making any deduction
under the Chapter. What the Revenue in essence seeks to attain is to telescope the
provisions of Chapter VI-A in the context of the deduction which is allowable under
section 10A, which would not be permissible unless a specific statutory provisions to
that effect were to be made. In the absence thereof, such an approach cannot be
accepted. In the circumstances, the decision of the Tribunal would have to be
affirmed since it is plain and evident that the deduction under section 10A has to be
given at the stage when the profits and gains of business are computed in the first
instance."