M/S. ASSOCIATED CAPSULES PVT. LTD, MUMBAI v. THE DCIT CEN CIR-43, MUMBAI

ITA 1922/MUM/2008 | 2002-2003
Pronouncement Date: 03-12-2010 | Result: Dismissed

Appeal Details

RSA Number 192219914 RSA 2008
Assessee PAN AAACA4769K
Bench Mumbai
Appeal Number ITA 1922/MUM/2008
Duration Of Justice 2 year(s) 8 month(s) 16 day(s)
Appellant M/S. ASSOCIATED CAPSULES PVT. LTD, MUMBAI
Respondent THE DCIT CEN CIR-43, MUMBAI
Appeal Type Income Tax Appeal
Pronouncement Date 03-12-2010
Appeal Filed By Assessee
Order Result Dismissed
Bench Allotted A
Tribunal Order Date 03-12-2010
Date Of Final Hearing 08-01-2010
Next Hearing Date 08-01-2010
Assessment Year 2002-2003
Appeal Filed On 17-03-2008
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL 'A' BENCH MUMBAI BEFORE SHRI J. SUDHAKAR REDDY ACCOUNTANT MEMBER AND SHRI V. DURGA RAO JUDICIAL MEMBER ITA NO. 1922/MUM/2008 (ASSESSMENT YEAR: 2002-03) M/S. ASSOCIATED CAPSULES P. LTD. DCIT CENTRAL CIRC LE 43 1001 DALAMAL HOUSE 6TH FLOOR AAYAKAR BHAVAN NARIMAN POINT MUMBAI 400021 VS. M.K. ROAD MUMBAI 400020 PAN - AAACA 4769 K APPELLANT RESPONDENT APPELLANT BY: SHRI M.D. INAMDAR RESPONDENT BY: SHRI SHRAVAN KUMAR O R D E R PER J. SUDHAKAR REDDY A.M. THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAIN ST THE ORDER OF THE CIT(A) CENTRAL II MUMBAI DATED 13.12.2007 FOR A.Y . 2003-03. 2. THE BRIEF FACTS ARE THAT THE ASSESSEE IS A COMPANY AND IS IN THE BUSINESS OF MANUFACTURE OF EMPTY HARD GELATIN CAPSU LES FILED ITS RETURN OF INCOME ON 31.10.2002 DECLARING TOTAL INCOME OF ` 10 76 58 408/-. THE RETURN WAS PROCESSED UNDER SECTION 143(1) ON 10.03.2003. T HE RETURN WAS SELECTED FOR SCRUTINY AND ORDER UNDER SECTION 143(3) WAS PAS SED ON 05.07.2004 DETERMINING THE TOTAL INCOME AT ` 13 51 74 320/-. AGGRIEVED BY THIS ORDER THE ASSESSEE WENT IN APPEAL AND THE FIRST APPELLATE AUT HORITY GRANTED RELIEF FOR COMPUTING DEDUCTION BOTH UNDER SECTION 80HHC AS WE LL AS 80IA. REVENUE CARRIED THE MATTER IN FURTHER APPEAL. 3. LATER THE A.O. ISSUED NOTICE UNDER SECTION 148 DATE D 06.12.2005 AND REOPENED THE ASSESSMENT UNDER SECTION 147 OF THE AC T. IN THE LAST PARA OF PAGE NO. 1 OF THE ASSESSMENT ORDER THE A.O. OBSERVE D AS FOLLOWS: - IN THE ASSESSMENT ORDER THE ASSESSEE WAS ALLOWED D EDUCTION U/S 80HHC AMOUNTING TO RS.210.58 LAKHS AND 80IA DEDUCTI ON AMOUNTING TO RS.153.98 LAKHS RESPECTIVELY. IT IS OBSERVED THAT W HILE COMPUTING ELIGIBLE DEDUCTION U/S 80HHC THE PROFIT OF THE BUSINESS WAS WORKED AT ` 1357.86 LAKHS WITHOUT REDUCING THE AMOUNT OF PROFIT ALLOWED U/S 80IA AS PER THE PROVISION OF THE ACT. AS PER SECTION 80I A(9) WHERE ANY AMOUNT ITA NO. 1922/MUM/2008 M/S. ASSOCIATED CAPSULES P. LTD. 2 OF PROFIT OR GAINS OF AN INDUSTRIAL UNDERTAKING OR AN ENTERPRISE IS CLAIMED AND ALLOWED U/S 80IA FOR ANY ASSESSMENT YEAR DEDUC TION TO THE EXTENT OF SUCH PROFITS AND GAINS SHALL NOT BE ALLOWED UNDE R ANY PROVISION OF THIS CHAPTER (CHAPTER VIA) UNDER THE HEADING C DEDUCT ION IN RESPECT OF CERTAIN INCOMES AND SHALL NO CASE EXCEED THE PROFI TS AND GAINS OF SUCH ELIGIBLE BUSINESS OF INDUSTRIAL UNDERTAKING OR ENTE RPRISE AS THE CASE MAY BE . THUS FOR WANT OF DEDUCTION U/S 80IA NOT TAKIN G INTO ACCOUNT WHILE COMPUTING THE DEDUCTION U/S 80HHC THE INCOME CHARG EABLE TO TAX HAS ESCAPED THE ASSESSMENT AS ELABORATED IN SECTION 147 OF THE I.T. ACT. 4. THEREAFTER THE A.O. RESTRICTED THE CLAIM ON ACCOUNT OF 80HHC AND COMPLETED THE ASSESSMENT. AGGRIEVED THE ASSESSEE CA RRIED THE MATTER IN APPEAL BEFORE THE FIRST APPELLATE AUTHORITY WHERE HE CHALLENGED THE REOPENING OF THE ASSESSMENT AS WELL AS THE RESTRICTION OF CLA IM UNDER SECTION 80HHC TO THE EXTENT OF DEDUCTION GRANTED UNDER SECTION 80IA OF THE ACT. THE FIRST APPELLATE AUTHORITY IN ITS ORDER DATED 13.12.2007 U PHELD THE REOPENING BY OBSERVING THAT THE ALLOWANCE OF EXCESSIVE DEDUCTION WOULD AMOUNT TO INCOME ESCAPING ASSESSMENT AS PER EXPLANATION 2(C)(IV) OF SECTION 147. HE RELIED ON THE DECISION OF THE HON'BLE SUPREME COURT IN THE CA SE OF ACIT V. RAJESH JHAVERI STOCK BROKERS (P) LTD. 291 ITR 500 AND REJE CTED THE CONTENTIONS OF THE ASSESSEE. HE ALSO REJECTED THE SECOND LIMB OF T HE ARGUMENT OF THE ASSESSEE ON THE ISSUE OF MERGER. THE LEARNED CIT(A) HELD THAT THE ISSUE WAS NEVER BEFORE THE CIT(A) AND THUS THE QUESTION OF ME RGER DOES NOT ARISE. ON MERITS HE FOLLOWED THE JUDGEMENT OF THE SPECIAL BEN CH OF THE TRIBUNAL IN THE CASE OF ROGINI GARMENTS 295 ITR (AT) 15 (CHENNAI) ( SB) AND DISMISSED THE GROUND OF THE ASSESSEE. AGGRIEVED ASSESSEE IS IN A PPEAL BEFORE US; (I) ON THE ISSUE OF REOPENING AND (II) INVOKING OF PROVISIONS OF SECTION 80IA(9) AND THEREBY RECALCULATING DEDUCTION ALLOWABLE UNDER SEC TION 80HHC. 5. THE LEARNED COUNSEL FOR THE ASSESSEE SHRI INAMDAR FILED PAPER BOOK RUNNING INTO 25 PAGES ALONGWITH ANOTHER PAPER BOOK RUNNING INTO 115 PAGES. MR. INAMDAR SUBMITTED THAT REOPENING IS WITH IN A PERIOD OF FOUR YEARS. HE POINTED OUT TO PAGE NO. 25 OF ASSESSEES PAPER BOOK NO 2 WHICH CONTAINS A SUMMARY OF TOTAL INCOME AND DREW THE ATT ENTION OF THE BENCH TO THE CALCULATION OF DEDUCTION UNDER SECTION 80IA OF UNDERTAKING III UNDERTAKING IV AND PVC/PVDC STOCK AS WELL AS COMPUT ATION OF DEDUCTION UNDER SECTION 80HHC. HE THEREAFTER POINTED OUT TH AT THIS QUANTIFICATION IS SUPPORTED BY AN AUDIT REPORT IN THE PRESCRIBED FORM WHICH IS AT PAGE 37 TO ITA NO. 1922/MUM/2008 M/S. ASSOCIATED CAPSULES P. LTD. 3 38 OF ASSESSEES PAPER BOOK. HE SUBMITTED THAT ALL THE DETAILS WERE FILED AND WERE AVAILABLE WITH THE A.O. HE FURTHER REFERRED TO PAGE 5 OF ASSESSEES PAPER BOOK WHICH CONTAINS COPY OF THE ASSESSMENT ORDER PA SSED UNDER SECTION 143(3) ORIGINALLY ON 05.07.2004 AND DREW THE ATTENT ION OF THE BENCH TO PAGE 2 OF THE ORDER WHERE THE COMPUTATION OF DEDUCTION U NDER SECTION 80HHC HAS BEEN DISCUSSED AND ALSO TO PAGE 3 OF THE ORDER WHER E COMPUTATION OF DEDUCTION UNDER SECTION 80IA WAS ALSO DISCUSSED. HE FURTHER DREW THE ATTENTION OF THE BENCH TO THE ORDER OF THE CIT(A) D ATED 29.03.2005 WHICH IS ON PAGE 72 OF ASSESSEES PAPER BOOK AND POINTED OUT THAT IN AN APPEAL FILED AGAINST THE ORIGINAL ASSESSMENT ORDER COMPUTATION OF RELIEF UNDER SECTION 80HHC AS WELLS AS COMPUTATION OF RELIEF UNDER SECTI ON 80IA/80IB WAS A SUBJECT MATTER OF APPEAL. HE ARGUED THAT THE ORDER OF THE A.O. ON THESE ASPECTS HAS MERGED WITH THE ORDER OF THE CIT(A) AND HENCE THE REOPENING WAS WRONG. HE FURTHER SUBMITTED THAT THE ASSESSEE H AS FILED APPEAL ON THIS ORDER OF THE CIT(A) BEFORE THE ITAT. THEREAFTER HE DREW THE ATTENTION OF THE BENCH TO PAGE 18 OF THE PAPER BOOK WHICH CONTAINS REASON FOR REOPENING AND SUBMITTED THAT THE ISSUES WERE ALSO CONSIDERED IN THE ORIGINAL ASSESSMENT AND WAS SUBJECT MATTER IN THE APPEAL AND UNDER THESE CIRCUMSTANCES THE REOPENING IS BAD IN LAW. HE VEHEM ENTLY CONTENDED THAT THERE IS A CHANGE IN OPINION AND ARGUED THE REOPENI NG IS NOT POSSIBLE ON CHANGE OF OPINION. HE RELIED ON THE DECISION IN THE CASE OF SIEMENS INFORMATION SYSTEM LTD. VS. ACIT 295 ITR 333 (BOM) FOR THE PROPOSITION THAT ON THE VERY SAME MATERIAL THE A.O. CANNOT REOPEN A SSESSMENTS AND THE DECISIONS IN THE CASE OF CARTINI INDIA LTD. VS. ACI T & OTHERS 314 ITR 275 (BOM) CIT VS. KELVINATOR OF INDIA LTD. 256 ITR 1 ( DEL) & 320 ITR 51 (SC) GERMAN REMEDIES LTD. VS. DCIT 285 ITR 26 (BOM) AND RALLIS INDIA LTD. VS. ACIT IN THE WRIT PETITION NO. 2514 OF 2009 (BOM) FO R THE PROPOSITION THAT THE REASONS FOR REOPENING HAS TO BE JUDGED AT THE TIME OF RE-OPENING AND IF TWO VIEWS ARE POSSIBLE REOPENING CANNOT BE DONE. HE SU BMITTED THAT AS ON THE DATE OF REOPENING THERE WERE TWO CONFLICTING VIEWS OF THE ISSUE AND THE DECISION OF THE SPECIAL BENCH OF THE TRIBUNAL EITHE R IN THE CASE OF ROGINI GARMENTS (SUPRA) OR IN THE CASE OF ACIT VS. HINDUST AN MINT AND AGRO PRODUCTS P. LTD. 119 ITD 107 (DEL)(SB) WERE NOT IN EXISTENCE AND THERE WERE SOME TRIBUNAL DECISIONS IN FAVOUR OF THE ASSESSEE. ITA NO. 1922/MUM/2008 M/S. ASSOCIATED CAPSULES P. LTD. 4 6. THE SECOND ARGUMENT OF THE LEARNED COUNSEL FOR THE ASSESSEE IS THAT THE DOCTRINE OF MERGER COMES INTO PLAY AS THE ISSUE OF QUANTIFICATION OF DEDUCTION UNDER SECTION 80HHC WAS A MATTER OF APPEA L BEFORE THE CIT(A) AND HE ADJUDICATED THE SAME. FOR THIS PURPOSE HE RE LIED ON THE FOLLOWING CASE LAWS: - (I) METRO AUTO CORPORATION 286 ITR 618 (BON) (II) CIT VS. MAX INDIA LTD. 295 ITR 282 9SC) 7. COMING TO GROUND NO. 2 THE LEARNED COUNSEL RELIED O N THE FOLLOWING CASE LAWS: (I) TOSHICA CREATION VS. ITO 150 TAXMAN 48 (JAIPUR) (II) MITTAL CLOTHING CO. VS. 626 (BANG) 8. THE LEARNED D.R. ON THE OTHER HAND SUBMITTED THAT THE ISSUE OF 80IA(9) HAS NEVER COME FOR ANY DISCUSSION OR EXAMIN ATION IN THE ORIGINAL ASSESSMENT ORDER UNDER SECTION 143(3) A PROVISION OF THE STATUTE WAS NOT AT ALL CONSIDERED BY THE A.O. MUCH LESS ADJUDICATED UPON AND HENCE THE QUESTION OF CHANGE OF OPINION DOES NOT ARISE. HE TO OK THIS BENCH TO THE ORDER OF THE A.O. TO SUBMIT THAT THERE IS NO DISCUSSION A T ALL ON THIS ISSUE AND HENCE THERE WAS EXCESSIVE DEDUCTION GRANTED AND THI S AMOUNTS TO INCOME ESCAPING ASSESSMENT AS PER EXPLANATION 2(C)(IV) OF SECTION 147. SHRI SHRAVAN KUMAR THE LEARNED D.R. FURTHER SUBMITTED THAT THE FIRST APPELLATE AUTHORITY HAS CONSIDERED THIS ISSUE AT LENGTH AND HAS RIGHTLY COME TO A CONCLUSION THAT THE A.O. HAS COME TO PRIMA FACIE CONCLUSION TH AT INCOME HAS ESCAPED ASSESSMENT AND ALSO THAT THE ISSUE WAS NEVER EXAMIN ED DURING THE ORIGINAL ASSESSMENT PROCEEDINGS AND THUS IT WAS RIGHT ON THE PART OF THE A.O. TO COME A CONCLUSION THAT CERTAIN INCOME HAS ESCAPED A SSESSMENT. HE DISTINGUISHED THE JUDGEMENT RELIED UPON BY THE ASSE SSEE. ON MERIT IT WAS SUBMITTED THAT THE ISSUE IS COVERED IN FAVOUR OF TH E REVENUE BY THE DECISION OF THE SPECIAL BENCH OF THE TRIBUNAL IN THE CASE OF ACIT VS. HINDUSTAN MINT AND AGRO PRODUCTS P. LTD. 119 ITD 109. 9. IN REPLY THE LEARNED COUNSEL FOR THE ASSESSEE SUBMI TTED THAT THE IN THE CASE OF KELVINATOR OF INDIA LTD. (SUPRA) THE HON'BL E DELHI HIGH HAS HELD THAT THERE IS A PRESUMPTION THAT THE A.O. HAS APPLIED HI S MIND ON MERGER AND ITA NO. 1922/MUM/2008 M/S. ASSOCIATED CAPSULES P. LTD. 5 SUBMITTED THAT THE QUANTUM OF DEDUCTION UNDER SECTI ON 80HHC AND 80IA WAS SUBJECT MATTER OF APPEAL AND HENCE THERE IS A M ERGER. 10. RIVAL CONTENTIONS ARE HEARD. A CAREFUL CONSIDERATIO N OF THE FACTS AND CIRCUMSTANCES OF THE CASE AND A PERUSAL OF THE PAPE R ON RECORD AND ORDERS OF THE LOWER AUTHORITIES BELOW AS FAR AS THE CASE ARE CITED WE HOLD AS UNDER: THE REOPENING WAS WITHIN A PERIOD OF FOUR YEARS. TH E REASONS FOR REOPENING ARE EXTRACTED BELOW: - IT IS OBSERVED THAT YOU HAVE BEEN ALLOWED DEDUCTIO N U/S 80HHC AND 80IA OF I.T. ACT 1961. BUT WHILE ALLOWING THE DEDU CTION U/S 80HHC THE PROFIT OF THE BUSINESS FOR THE SAID SECTION HAS BEE N COMPUTED WITHOUT REDUCING THE AMOUNT OF PROFIT ALLOWED U/S 80IA OF T HE ACT. AS PER SECTION 80IA(9) WHERE ANY AMOUNT OF PROFIT OR GAINS OR ANY INDUSTRIAL UNDERTAKING OR AN ENTERPRISE IS CLAIMED AND ALLOWED U/S 80IA FOR ANY ASSESSMENT YEAR DEDUCTION TO THE EXTENT OF SUCH PR OFITS AND GAINS SHALL NOT BE ALLOWED UNDER ANY PROVISION OF THE CHAPTER ( CHAPTER VIA) UNDER THE HEADING C-DEDUCTION IN RESPECT OF SUCH INCOMES AND SHALL NO CASE EXCEED THE PROFITS AND GAINS OF SUCH ELIGIBLE BUSIN ESS OF INDUSTRIAL UNDERTAKING OR ENTERPRISE AS THE CASE MAY BE. THERE FORE FOR WANT OF DEDUCTION U/S 80IA NOT TAKEN INTO CONSIDERATION WHI LE COMPUTING THE DEDUCTION U/S 80HHC THE INCOME CHARGEABLE TO THE TA X HAS ESCAPED ASSESSMENT AS ELABORATED U/S 147 OF THE I.T. ACT 1 961. A PERUSAL OF THE ASSESSMENT ORDER PASSED UNDER SECT ION 143(3) ON 05.07.2004 DOES NOT DEMONSTRATE THAT THE A.O. HAS E XAMINED THE APPLICABILITY OF SECTION 80IA(9) OF THE ACT. IT IS VERY CLEAR THAT THIS WAS NEVER A SUBJECT MATTER OF ADJUDICATION OR ENQUIRY OR APPL ICATION DURING THE COURSE OF ORIGINAL ASSESSMENT PROCEEDINGS OR IN THE APPEAL PROCEEDINGS. ON THIS FACTUAL MATRIX WE HAVE TO SEE WHETHER THE REOPENING IS BAD IN LAW. IN OUR CONSIDERED OPINION THE A.O. HAS NOT FORMED A NY OPINION ON THIS ISSUE IN THE ORIGINAL ASSESSMENT ORDER AND HENCE THE QUES TION OF CHANGE OF OPINION DOES NOT ARISE. THUS THE DECISION IN THE CA SE OF SIEMENS INFORMATION SYSTEM LTD. (SUPRA) DOES NOT APPLY. IN THAT CASE TH E SECOND A.O. HAD ON THE SAME SET OF FACTS TAKEN A VIEW WHICH IS DIFFERENT F ROM THE VIEW TAKEN BY THE PREVIOUS A.O. THIS IS A CASE WHERE NO VIEW WAS TAKE N BY THE ORIGINAL A.O. COMING TO THE DECISION IN THE CASE OF CARTINI INDIA LTD. WE ARE OF THE OPINION THAT THE SAME DOES NOT APPLY FOR THE REASON S THAT IN THAT CASE REOPENING OF ASSESSMENT WAS BASED ON MATERIAL WHICH WAS ALREADY ITA NO. 1922/MUM/2008 M/S. ASSOCIATED CAPSULES P. LTD. 6 CONSIDERED AND ADJUDICATED. IN THIS CASE THE MATERI AL IN THE FORM OF SECTION 80IA(9) HAS NEVER BEEN CONSIDERED IN THE ORIGINAL A SSESSMENT ORDER. COMING TO THE DECISION OF KELVINATOR OF INDIA LTD. AS ALREADY STATED THERE IS NO OPINION FORMED IN THE ORIGINAL ASSESSMENT ORDER AND THUS THE QUESTION OF CHANGE OF OPINION DOES NOT ARISE. EVEN IN THE ISSUE OF PRESUMPTION A PLAIN READING OF THE ASSESSMENT ORDER AS WELL AS CIT(A)S ORDER CLEARLY DEMONSTRATE THAT THE ASSESSEE HAS NEVER CONSIDERED SPECIFIC SUB -SECTION IN THE STATUTE I.E. SECTION 80IA(9). WHEN THE FACT THAT THE A.O. H AS NOT CONSIDERED THE SECTION IS STARING ON US THE QUESTION OF PRESUMING THAT THE A.O. MIGHT HAVE CONSIDERED DOES NOT ARISE. COMING TO THE DECISION OF GERMAN REMEDIES LTD. (SUP RA) IT WAS A CASE WHERE THE NOTICE WAS BASED ON MERE SUSPICION. IN TH AT CASE ALSO THE ORIGINAL ASSESSMENT ORDER WAS PASSED AFTER DETAILED DISCUSSI ON AND THE HON'BLE HIGH COURT HELD THAT THE A.O. MUST HAVE PRUDENT BELIEF T HAT INCOME HAS ESCAPED ASSESSMENT AND NOT A MERE CHANGE OF OPINION. IN FAC T THE COURT HELD AS FOLLOWS; THE ASSESSMENT ORDER PASSED AFTER DETAILE D DISCUSSION CANNOT BE REOPENED WITHIN A PERIOD OF FOUR YEARS FROM THE END OF THE RELEVANT ASSESSMENT YEAR UNLESS THE ASSESSING OFFICER HAS R EASON TO BELIEVE THAT DUE TO SOME INHERENT DEFECT IN THE ASSESSMENT INCOME C HARGEABLE TO TAX HAS BEEN UNDERASSESSED OR ASSESSED AT TOO LOW A RATE OR EXCESSIVE RELIEF HAS BEEN GRANTED OR EXCESSIVE LOSS OF DEPRECIATION ALLOWANCE OR ANY OTHER ALLOWANCE UNDER THE ACT HAS BEEN COMPUTED. THIS CASE IN OUR OPINION DEFINITELY FALLS UNDER THE CATEGORY OF EXCESSIVE ALLOWANCE BEING GRA NTED UNDER THE ACT. IN THE CASE OF RALLIS INDIA LTD. WRIT PETITION NO. 1514 OF 2009 ORDER DATED 4 TH MARCH 2010 RELIED UPON BY THE LEARNED COUNSEL FOR THE ASSESSEE THE REASONS FOR REOPENING RELATE TO ; (I) WRITE OFF OF BAD DEBTS AND (II) COMPUTATION OF BOOK PROFITS UNDER SECTION 115JB. IN THAT CASE DURING THE ASSESSMENT PROCEEDINGS UNDER SECTION 143(3) A SPECI FIC QUERY WAS RAISED WITH REGARD TO ALLOWANCE OF BAD DEBT BY THE CIT(A) UNDER SECTION 36(1)(VII) R.W.S. 36(2) AND ON COMPUTATION OF BOOK PROFIT UNDE R SECTION 115JB. THE PETITIONER HAS RESPONDED TO THE QUERY AND FURNISHED ALL THE INFORMATION. HERE THERE IS NEITHER SUCH QUERY NOR RESPONSE BY TH E ASSESSEE. THUS WE UPHOLD THE REOPENING OF THE ASSESSMENT. ITA NO. 1922/MUM/2008 M/S. ASSOCIATED CAPSULES P. LTD. 7 11. COMING TO THE ISSUE OF DOCTRINE OF MERGER WHEN THI S ISSUE OF SECTION 80IA(9) HAS NEVER BEEN DISCUSSED IN THE ASSESSMENT ORDER THE QUESTION OF APPEAL TO THE CIT(A) AND ADJUDICATION OF THE SAME D OES NOT ARISE. THE DEDUCTION ALLOWABLE UNDER SECTION 80HHC HAS BEEN IN DEPENDENTLY COMPUTED AND THE DEDUCTION ALLOWABLE UNDER SECTION 80IA HAS BEEN INDIVIDUALLY COMPUTED. THE ISSUE OF REDUCING THE QU ANTUM OF DEDUCTION ALLOWABLE UNDER SECTION 80HHC TO THE EXTENT OF RELI EF GRANTED UNDER SECTION 80IA AS REQUIRED UNDER SECTION 80IA(9) WAS NEVER T HE SUBJECT MATTER AND THUS THE DOCTRINE OF MERGER DOES NOT ARISE. THE DEC ISION RELIED UPON BY THE ASSESSEE IN THIS REGARD ARE NOT APPLICABLE TO THE F ACTS OF THE CASE. HENCE THIS GROUND ON THE VALIDITY OF RE-OPENING IS DECIDED AGA INST THE ASSESSEE. 12. COMING TO THE MERGER THE ISSUES ARE COVERED BY THE DECISION OF THE SPECIAL BENCH OF THE TRIBUNAL IN THE CASE OF HINDUS TAN MINT AND AGRO PRODUCTS P. LTD. (SUPRA). RESPECTFULLY FOLLOWING TH E SAME WE DISMISS GROUND NO. 2 OF THE ASSESSEE. 13. IN THE RESULT APPEAL OF THE ASSESSEE IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 3 RD DECEMBER 2010. SD/- SD/- (V. DURGA RAO) (J. SUDHAKAR REDDY) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI DATED: 3 RD DECEMBER 2010 COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT(A) CENTRAL IV MUMBAI 4. THE CIT CENTRAL IV MUMBAI CITY 5. THE DR A BENCH ITAT MUMBAI BY ORDER //TRUE COPY// ASSISTANT REGISTRAR ITAT MUMBAI BENCHES MUMBAI N.P.