Commissioner of Income Tax vs Rajasthan Co-operative Spinning Mills Ltd.

B.R. Arora, J.—The Income Tax Appellate Tribunal, Jaipur Bench, Jaipur, for the assessment year 1975-76, at the instance of the Revenue, . has referred the following question of law for the opinion of the High Court u/s 256(1) of the Income Tax Act, 1961 :

" Whether, on the facts and in the circumstances of the case, the Tribunal was justified in confirming the Commissioner of Income Tax (Appeals) direction that the amount of 20 per cent. has to be calculated with reference to the profit and loss account of the assessee and deductions on account of depreciation, initial or additional depreciation, development rebate, investment allowance, adjustment on account of unabsorbed depreciation, additional depreciation, investment allowance, development rebate, etc., are not to be adjusted at all and agreeing with the Income Tax Officer in allowing deduction u/s 80HH with reference to profit as per profit and loss account of the assessee. They further erred in quashing the order passed by the Commissioner of Income Tax for the assessment year 1980-81 ?"

An identical question came up for consideration before the Division Bench of this court in D. B. Income Tax Reference No. 1 of 1991 Commissioner of Income Tax Vs. Vishnu Oil and Dal Mills, decided on November 13, 1995) and the Division Bench of this court answered the question as follows (at page 74) :

" If we read Section 80HH with Section 80AB of the Act then it is very much clear that for the purpose of determination of the relief u/s 80HH of the Act, the gross total income of the assessee has to be worked out after deducting unabsorbed losses and unabsorbed depreciation and the income eligible for deduction u/s 80HH will be the net income as computed in accordance with the provisions of the Act and not the gross income. "

For the reasons given in our judgment in Commissioner of Income Tax Vs. Vishnu Oil and Dal Mills, we are of the opinion that the learned Tribunal was not justified in confirming the Commissioner of Income Tax (Appeals) direction that the amount of 20 per cent. has to be calculated with reference to the profit and loss account of the assessee and deductions on account of depreciation, ''initial or additional depreciation, development rebate, investment allowance, adjustment on account of unabsorbed depreciation, additional depreciation, investment allowance, development rebate, etc., are not to be adjusted at all and the learned Tribunal was not right in agreeing with the Income Tax Officer in allowing deduction u/s 80HH with reference to profit as per profit and loss account of the assessee. The income eligible for deduction u/s 80HH will be the net income as computed in accordance with the provisions of the Act and not the gross income.

Consequently, the reference is answered in favour of the Revenue and against the assessee.