TMI Blog2008 (12) TMI 4X X X X Extracts X X X X X X X X Extracts X X X X ..... . Jolly For the Respondent : None CORAM :- HON'BLE MR JUSTICE BADAR DURREZ AHMED HON'BLE MR JUSTICE RAJIV SHAKDHER BADAR DURREZ AHMED, J (ORAL) This appeal by the revenue under Section 260A of the Income Tax Act, 1961 arises from the order dated 18.01.2008 passed by the Income Tax Appellate Tribunal in ITA No. 1870(Del)2007 relating to the assessment year 2003-04. The revenue is aggrieved by the fact that the Tribunal held that the order passed by the Commissioner of Income Tax under Section 263 of the said Act was without jurisdiction. The Commissioner of Income Tax had issued a notice under Section 263 of the said Act, in which it was stated that the assessee was not entitled to the deduction under Section 80-IA as the asses ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e, cancelled the assessment which had been earlier framed and directed the Assessing Officer to complete the assessment as per law, in terms of the directions given in the said order. Being aggrieved by the said order, the assessee preferred an appeal before the Tribunal which was allowed by the Tribunal by virtue of the impugned order. The Tribunal took the view that the provisions of section 80-IA(7) with regard to filing of the audit report along with the return were not mandatory and were merely directory. In coming to such conclusion, the Tribunal referred to the decision of the Gujarat High Court in CIT v. Gujarat Oil and Allied Industries, 201 ITR 325 (Guj). In that decision the provisions of Section 80J(6A) were considered. The wor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ming of the assessment, the requirement of section 80-IA(7) would be met. Mr R.D. Jolly, appearing on behalf of the Revenue drew our attention to another issue which was sought to be raised before the Tribunal by the revenue. The contention is that the deduction under Section 80-IA was not available because it was not of the specified nature. He referred to the order passed by the Commissioner, Income Tax and submitted that the said Commissioner held that the assessee did not fulfill the conditions mentioned in Section 80-IA to claim the deduction and that supplying of meters to electricity board/companies could not be considered as power generation, transmition or specification, renovation and moderanisation to existing distribution li ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ourt noted that the department cannot travel beyond the show cause notice. The Tribunal was of the view that the ground that the assessee had not fulfilled the conditions laid down under Section 80-IA did not form part of the show cause notice. The Tribunal accepted the argument of the assessee that the Commissioner of Income Tax did not even call for any explanation on this issue and, therefore, the assessee did not have any opportunity to meet this ground. The Tribunal was of the view that it would be against the principles of natural justice that a person who has not been confronted with any ground be saddled with the liability thereof. Consequently the Tribunal held that as the said issue did not form part of the show cause notice and t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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