TMI Blog2017 (5) TMI 428X X X X Extracts X X X X X X X X Extracts X X X X ..... DGMENT Per Hon ble Jhaveri, J. 1. By way of this appeal, the appellant has challenged the judgment and order of the Tribunal whereby the Tribunal has partly allowed the appeal of the department reversing the view taken by the CIT(A). 2. This Court while admitting the appeal on 11.12.2007 has framed the following substantial questions of law: (i) Whether on facts and in the circumstances of the case, the Income Tax Appellate Tribunal was justified in holding that there was a preemptive utilization of the reverse and, therefore, the appellant was not eligible to claim deduction under Section 80HHD(1)? (ii) Whether on the facts and in the circumstances of the case, the Income Tax Appellate Tribunal was justified in holding that no disallowance could be made to the assessee in the year under consideration, even if if assumed that there was no utilization of reserve and thereby not properly applying Section 80HHDD(4) (5) of the Income Tax Act? 3. The brief facts of this case are that the assessee filed the return of income on 23.10.2000 declaring income of ₹ 21,77,124/-. The case was processed u/s 143(1) on 19.12.2000 at total income of ₹ 21,77,1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed by the assessee in respect of the ship or aircraft or machinery or plant; (ii) an amount equal to seventy-five per cent of the investment allowance to be actually allowed is debited to the profit and loss account of any previous year in respect of which the deduction is to be allowed under sub-section (3) or any earlier previous year (being a previous year not earlier than the year in which the ship or aircraft was acquired or the machinery or plant was installed or the ship, aircraft, machinery or plant was first put to use) and credited to a reserve account (to be called the Investment Allowance Reserve Account ) to be utilised- (a) for the purposes of acquiring, before the expiry of a period of ten years next following the previous year in which the ship or aircraft was acquired or the machinery or plant was installed, a new ship or a new aircraft or new machinery or plant [other than machinery or plant of the nature referred to in clauses (a), (b) and (d) of the second proviso to sub-section (1)] for the purposes of the business of the undertaking; and (b) until the acquisition of a new ship or a new aircraft or new machinery or plant as aforesaid, for the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the case of Shri. Guru Ram Dass Ji Educational Trust vs. Chief Commissioner of Income Tax, Amritsar, the relevant portion of which reads as under: Sections 10(23C)(iiiab), 10(23C)(iiiad), 10(23C)(vi) along with its 1st and 14th proviso, which are relevant for adjudicating upon the present petition, are reproduced below for reference :- Section 10(23C) - any income received by any person on behalf of - xx xx xx xx (iiiab) any university or other educational institution existing solely for educational purposes and not for purposes of profit, and which is wholly or substantially financed by the Government ; or xx xx xx xx (iiiad) any university or other educational institution existing solely for educational purposes and not for purposes of profit if the aggregate annual receipts of such university or educational institution do not exceed the amount of annual receipts as may be prescribed ; or xx xx xx xx (vi) any university or other educational institution existing solely for educational purposes and not for purposes of profit, other than those mentioned in sub-clause (iiiab) or sub-clause (iiiad) and which may be approved by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 30th September of the relevant Assessment Year, from which the exemption is sought. We find no necessity to do so. 7. He has also contended that sub-clause (5) provides charging of the amounts which was utilised even during the same year in which the amount was credited to the reserves account and under clause (b) of sub-section (1) even the amount of ₹ 42,00,000/- has been disallowed can be taxed after six years and not for the year it has been taxed. 8. Counsel for the respondent Mr. Mathur has taken us to the order of the Tribunal and more particularly paras 24 31 which reads as under: 24. The ld. CIT(A) after considering the facts of the case and taking into consideration the arguments of counsel of the assessee and remand report of AO have held as per para 7 and 7.1 of his order as under: I have perused the assessment records, papers and the submission made before me and have also referred the Remand Report and have found that the contention raised by the ld. Counsel is having force that out of the reserve created u/s 80HHD if, any amount is to be put to tax than the same is governed by the provisions of Section 80HHD(5) and that section does not ..... X X X X Extracts X X X X X X X X Extracts X X X X
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