JUDGMENT
P.D. Dinakaran, J.
The above tax case appeals have been preferred by the Revenue against the order of the Tribunal dt. 18th July, 2005 made in ITA Nos. 1164 and 1165/Mad/2001 for the asst. yrs. 1995-96 and 1996-97, respectively.
2.1 The Revenue is the appellant. The assessment years involved are 1995-96 and 1996-97. The case of the appellant is that the assessee-company is a hundred per cent export unit manufacturing cotton yarn and exporting it to foreign countries. It started business in the year 1993-94. Since it was 100 per cent export oriented unit, it claimed exemption under Section 10B of the IT Act (hereinafter referred to as ‘the Act’), on condition that if the AO arrives at positive income after making additions in the assessment order for the export oriented unit, exemption under Section 10B of the Act should be allowed in the assessee’s case. The assessee-company had returned loss of Rs. 42,59,637 and 78,41,439 in its return of income for the asst. yrs. 1995-96 and 1996-97. Though the business income was loss, but due to the income from the other sources, mainly interest income, the total income was a positive income.
2.2 The AO however held that the assessee had exercised its option under Section 10B, even though the business income was a negative figure. On appeal to the CIT(A) by the assessee, the CIT(A) decided the issue in favour of the assessee following the Tribunal order in ITA No. 520/Mad/1996-97, dt. 5th July, 1997. Against that order, the Revenue preferred appeals before the Tribunal and the Tribunal following the assessee’s own case in Tax Case No. 302 of .2001, dt. 9th Dec., 2003 dismissed the appeals.
3. Aggrieved against the order of the Tribunal, the Revenue has preferred these appeals raising the following substantial questions of law :
(i) Whether, on the facts and in the circumstances of the case, the Tribunal is correct in law in deciding that the assessee had rightly exercised its option under Section 10B(5) of the Act vide its letter dt. 25th Dec., 1993 and also by its note appearing on the memo of total income and in allowing exemption under Section 10B of the Act ?
(ii) Whether the Tribunal is correct in law in holding that the conditional option can also be exercised under Section 10B of the Act ?
(iii) Whether the Tribunal is correct in law in holding that it was open to the assessee to claim the option already exercised under Section 10B of the Act, when the assessee has incurred a loss under the head ‘Business’, and that Revenue is not justified in foisting the said provision of the assessee ?”
4. It is fairly submitted by the learned counsel appearing for the appellant that the issue raised in the above questions is covered against the Revenue by the decision of this Court in Tax Case No. 302 of 2001, dt. 9th Dec., 2003.
5. Section 10B(8) which opens with non obstante clause, clearly confers a right on the assessee to declare that the provisions of the Act (sic-section) may not be made applicable to the assessee, provided such a declaration is given on or before the due date for furnishing the return under Section 139(1) of the Act. It was therefore, open to the assessee, notwithstanding the fact that the assessee had exercised the option to have Section 10B made applicable, to withdraw that option, provided such withdrawal was made on or before the due date for filing the return.
6. This Court in assessee’s own case in Tax Case No. 302 of 2001 held that in this case, the withdrawal was made along with the return which return had been filed before the expiry of the due date. Hence, applying the ratio laid down by this Court in the abovesaid decision, we do not see any question of law much less substantial question of law that arises for consideration. Accordingly, both the appeals stand dismissed. Consequently, TCMP No. 1347 of 2005 is also dismissed.