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2019 (4) TMI 103 - GAUHATI HIGH COURTRevision u/s 263 - merger of appellate order - Issue involved is subject matter of appeal before CIT(A) - Deduction u/s 80 IC(2)(b)(iii) - whether all the 59 oil well are to be treated as separate undertaking - form 10CCB was filed consolidated - ITAT set aside revision proceedings u/s 263 and also allowed appeal on merit HELD THAT:- The revision proceedings under Section 263 of the Act will disclose that the very issue which was considered by the CIT(A) and concluded was reopened, which is indicative by the observation of CIT, wherein he has stated that the perusal of the record shows that the Assessing Officer had not examined or applied his mind on the basic issue as to whether the assessee is actually a mineral based industry or not. As noticed, the question of considering the wells of the assessee as an undertaking was not accepted by the Assessing Officer though the claim of mineral based industry was not rejected. Whether such acceptance was erroneous and whether the CIT(A) has committed an error in allowing the claim will lose its relevance when it is to be noticed only to the extent of finding out whether the same issue could have been examined in a subsequent revision proceeding under Section 263 of the Act. When in the revision proceedings the CIT accepts during the course of the order that the assessee had claimed deduction under Section 80 IC claiming to be a mineral based industry and in that background when the claim was disallowed by the Assessing Officer but allowed by the CIT(A), the issue would stand concluded and there would be no scope for re-examination in the jurisdiction under Section 263 of the Act as the assessment order has merged in the appellate order. The matter not having been examined in the same manner or to the same extent and depth is immaterial. When the claim for deduction was on that basis, the exception as contained in Clause-(c) to Explanation-1 to sub-section (1) of Section 263 of the Act would not apply nor will the circumstance stated by the Hon’ble Supreme Court in the case of Shri Arbuda Mills Ltd., Ahmedabad [1996 (1) TMI 11 - SUPREME COURT] be relevant to the present fact situation. In that view, the revision proceedings under Section 263 of the Act in the present context was not sustainable. - Decided in favour of assessee
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