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TMI Blog2008 (4) TMI 468X X X X Extracts X X X X X X X X Extracts X X X X ..... section 263 holding that the assessee-company was not entitled to deduction under section 80-I for lack of satisfaction of the condition laid down in clause (ii) of sub-section (2) of section 80-I of the Income-tax Act. 2. Whether on the facts and circumstances of the case the Tribunal was right in law in holding that the Commissioner of Income-tax (Appeals) rightly refused to entertain the appeal against the order of the Assessing Officer giving effect to the order of the Commissioner of Income-tax under section 263 for the assessment year 1987-88?" 3. The assessment years in question are the assessment years 1987-88 and 1988-89 and the relevant accounting periods are calendar years ended on December 31, 1986 and December 31, 1987. The a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oner of Income-tax accordingly directed the Assessing Officer to withdraw the relief granted under section 80-I of the Act for the assessment year 1987-88, while assessment for the assessment year 1988-89 was set aside to make a fresh assessment considering the claim of the assessee on the merits after making inquiries about the admissibility of the claim under section 80-I of the Act. 5. In relation to the assessment year 1987-88, the Assessing Officer with-drew the deduction under section 80-I of the Act against which the asses-see preferred an appeal before Commissioner (Appeals). The first appellate authority did not entertain the appeal against the order giving effect to the order of the Commissioner of Income-tax as according to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... subsequent assessment years, viz., the assessment years 1990-91 to 1993-94 and the set aside assessment for the assessment year 1988-89, the assessee had produced necessary evidence before the Com-missioner (Appeals) and had succeeded. Referring to the consolidated order dated July 16, 1994, of the Commissioner (Appeals) it was submitted that despite the said details having been produced before the Assessing Officer the same were not considered by the Assessing Officer but were considered favourably by the Commissioner (Appeals) who held that the claim of the assessee that new machines were given on hire was correct. 8. On behalf of the respondent Revenue reliance was placed on the findings recorded by the Tribunal to submit that no interf ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3, 2002 recorded : "It is not disputed that the facts for the assessment years under appeal before us are exactly identical." 11. The position in law is therefore that the Tribunal has in the first instance held that there is no material available on record to show as to when the machines belonging to Himson Engineering Private Ltd., which were leased out to the assessee-company, were used by the said lessor company; that there was no material to show that the machines hired by the assessee-company was a new industrial unit set up by the assessee-company, nor was there any material to show that such leased out machines were new at the time of taking on lease. The Tribunal has therefore found that condition No. (ii) under sub-section (2) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Act.
14. In the light of the findings recorded by the Tribunal, it is not possible to record any other finding contrary to the findings recorded by the Tribunal. The Tribunal was right in confirming the order made by the Commissioner of Income-tax under section 263 of the Act holding that the assessee-company was not entitled to relief under section 80-I of the Act. Accordingly, question No. 1 is answered in the affirmative, i.e., in favour of the Revenue and against the assessee.
15. In the light of the answer to question No. 1 it is not necessary to record any answer so far as question No. 2 is concerned.
16. The reference stands disposed of accordingly. There shall be no order as to costs. X X X X Extracts X X X X X X X X Extracts X X X X
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