Ita/194/2010 Of The Commissioner Of Income Tax.kottayam v. M/S.torry Harris Sea Foods(P)Ltd,Alpy

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.N.RAMACHANDRAN NAIR & THE HONOURABLE MR. JUSTICE B.P.RAY MONDAY, THE 31ST JANUARY 2011 / 11TH MAGHA 1932 ITA.No. 194 of 2010() --------------------- ITA.541/COCH/2008 of I.T.A.TRIBUNAL,COCHIN BENCH .................... APPELLANT/RESPONDENT ---------------------------------------- THE COMMISSIONER OF INCOME TAX, KOTTAYAM. BY ADV. SRI.JOSE JOSEPH, SC, FOR INCOME TAX RESPONDENT(S): APPELLANT ------------------------ TORRY HARRIS SEA FOODS PVT.LTD., ALLEPPEY. ADV. SRI.P.BALAKRISHNAN (E) THIS INCOME TAX APPEAL HAVING BEEN FINALLY HEARD ON 31/01/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: C .N. RAMACHANDRAN NAIR, &BHABANI PRASAD RAY, JJ. -------------------------------------------- I.T.A. No. 194 of 2010 -------------------------------------------- Dated this the 31st day of January, 2011 JUDGMENT Ramachandran Nair, J. Heard standing counsel appearing for the appellant and advocateSri. P. Balakrishnan appearing for the respondent-assessee. 2. The question raised is whether the assessee which has notfurnished declaration under Section 10B(8) opting out of exemptionavailable to it under the said provision before filing of the return canclaim the benefit of carry forward of business loss for the next yearunder Section 10B(6) of the I.T. Act. The assessee was 100% EOUthat was claiming the benefit of Section 10B until the assessment year1999-2000. However, for the assessment year 1999-2000, assesseefiled return of loss without making any claim for deduction underSection 10B. In the absence of prior intimation in terms of Section10B(8) the assessing officer declined the benefit of carry forward ofloss claimed by the assessee. Even though first appeal was rejected, Tribunal on second appeal held that non-filing of the declaration underSection 10B (8) was only a rectifiable mistake and accordingly assesseewas given opportunity to furnish declaration in terms of Section 10B(8)of the Act. The assessee's claim for computation of current year's lossand the carry forward of the same in the subsequent year was allowedby the Tribunal on this ground. It is against this order the revenue hasfiled this appeal. 3. After hearing both sides and after going through the records,we find that respondent had forfeited the claim under Section 10Bbecause they were debonded by the Development Commissionerinitially on provisional basis and thereafter through final order passedon 21.10.1999. The assessee in fact was well aware of the withdrawalof the benefit by the Development Commissioner, and so much so inthe income tax return filed for 1999-2000 they had not claimed thebenefit of deduction under Section 10B. In view of these facts, we donot think the technicality of non-compliance of Section 10B(8) shoulddeprive the assessee from claiming the benefit of carry forward ofbusiness loss computed for that year. We therefore do not find any merit in the appeal filed against Tribunal's order. Consequently appeal is dismissed. (C.N.RAMACHANDRAN NAIR)Judge. (BHABANI PRASAD RAY) Judge. kk