Olam Exports (India) Ltd. Vs. Commissioner of Income-tax - Court Judgment

Excerpt:
- code of civil procedure, 1908.[c.a. no. 5/1908]. order 9, rule 4: [v.k. bali, cj, kurian koseph & k. balakrishnan nair, jj] restoration of petition for enhancement of maintenance dismissed for default held, application under order 9, rule 4 c.p.c., is not maintainable. reason being while exercising powers under section 7(2)(a) and entertaining maintenance petition under section 125 of cr.p.c., family court cannot be deemed or treated as civil court. proceedings for maintenance before the family court under section &(2)(a) is criminal in nature. [kunhimohammammed v nafeesa, 2003 (1) klt 364; 2004 cri lj 1000 (ker) overruled]. reference to full bench; held, single judge cannot refer the case to full bench. he can refer the case to division bench. power to refer to full bench is expressly reserved to division bench. merely because a single judge/division bench entertains another view or merely because another view is possible, the judgment shall not be distinguished. c.n. ramachandran nair, j.1. in the appeal filed by the assessee, the questions raised pertain to computation of deduction for export profit under section 80hhc of the income-tax act. the assessee having its industry in a backward area was entitled to deduction under section 80ib of the income-tax act. however, by virtue of section 80ib(13), read with section 80ia(9) of the act the assessee will not be entitled to claim deductions both under section 80ib and under section 80hhc of the act. tribunal following their full bench decision upheld the disallowance under section 80ib(13) of the act, but granted deduction under section 80hhc of the act. even though senior counsel appearing for the assessee contended that deduction under section 80hhc is a full code by itself and no exclusion would be made while computing eligible deduction, we notice that section 80ib and under section 80hhc come under chapter vi-a and by virtue of specific exclusion under section 80ib(13) of the act the assessee is not entitled to simultaneous deduction of both. in other words, while computing deduction under section 80hhc deduction granted under section 80ib cannot be reckoned or has to be excluded. we find the order of the tribunal is consistent with the statutory provisions and, therefore, appeal on this issue is rejected.2. so far as computation of relief under section 80hhc is concerned, we find that assessment requires reconsideration because by virtue of the decision of the supreme court in janatha cashew exporting co. v. cit : [2009] 309 itr 440 : [2008] 166 taxman 88 the assessee is entitled to deduction of export profit arising from export of goods made through export houses, the assessee acting as supporting manufacturer. however, it is on condition of availability of disclaimer certificate issued by the export houses. it is for the assessee to produce disclaimer certificate in revised assessment proceedings before the officer. so far as assessee's claim for determination of deduction before excluding carry forward or set-off loss is concerned, the decision of the supreme court in cit v. shirke construction equipment ltd. [2007] 291 itr 380 : 161 taxman 212 is against the proposition canvassed by the assessee. therefore, assessment on this does not warrant any modification. appeal is consequently disposed of partly allowing the claim and directing the assessing officer to re-work relief under section 80hhc in terms of the decision above referred after giving an opportunity of hearing to the assessee.