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2011 (3) TMI 1024 - DELHI HIGH COURTDeduction u/s 80IB declined - as per ITAT since the assessee had not claimed deduction under section 80-IB of the Income-tax Act, 1961, in the initial assessment year, i.e., 1998-99, it became disentitled to claim such a deduction in the instant assessment year 2004-05, despite the fact the assessee's undertaking fulfils the stipulated conditions for claiming deduction under section 80-IB - Held that:- If the assessee fulfils the requirement of small scale industrial under taking it is not in dispute that the assessee would have qualified for this deduction from the assessment year 1998-99. Had the assessee claimed this benefit in that year, he would have been allowed this benefit for 10 consecutive years, i.e., till the assessment year 2007-08. The assessee, thus, becomes entitled to claim the benefit in the assessment year 1998-99. However, merely because of the reason that though the assessee was eligible to claim this benefit, he did not claim in that year that would not mean that he would be deprived from claiming this benefit till the assessment year 2007-08, which is the period for which his entitlement would accrue. The provisions contained in section 80-IB nowhere stipulate any condition that such a claim has to be made in the first year failing which there would be forfeiture of such claim in the remaining years. It is not the case of the assessee that he should be allowed to avail of this claim for 10 years from the assessment year 2004-05. The assessee has realized his mistake in not claiming the benefit from the first assessment year 1998-99. At the same time, the assessee forgoes the claim up to the assessment year 2003-04 and is making the same only for the remaining period. There is no reason not to give the benefit of this claim to the assessee if the conditions stipulated under section 80-IB of the Income-tax Act are fulfilled. In favour of assessee. Whether it is incumbent upon the assessee that it is registered under the Industries (Development and Regulation) Act for claiming the benefit under sub-section (3) of section 80-IB - Held that:- Registration under the Industries (Development and Regulation) Act will be of no consequence for availing of the benefit under section 80-IB of the Income-tax Act - Since the Central Government has to prescribe such conditions by notification in view of the provisions of section 11B of the Industries (Development and Regulation) Act, the Legislature in its wisdom deemed it fit to incorporate those conditions for the purpose of the Income-tax Act as well. Depreciation claim - Held that:- For the purpose of determining whether an industrial undertaking is a smallscale undertaking or not, resort had to be taken to the Explanation to section 32(1)(vi) and not to any other provision of law whereby an industrial undertaking was to be regarded as a small-scale industrial undertaking for other purposes - there is no dispute that the assessee fulfils the eligibility conditions prescribed under section 80-IB of the Income-tax Act and is to be regarded as a small scale industrial undertaking - Appeal is allowed.
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