TMI Blog2012 (12) TMI 862X X X X Extracts X X X X X X X X Extracts X X X X ..... CIT(A) as he raised two different grounds in appeal before him. Thus CIT(A) is found to have misconstrued the order of the earlier Tribunal None of the authorities have recorded their satisfaction that the assessee has created adequate reserve and the same does not exceed twice the aggregate of the amount of share capital and assessee having satisfied of conditions as laid down under Section 33AC of the Act, is eligible for deduction in that section. In this view of the matter the matter remitted back to AO for recording a finding of fact as to whether the insurance claim received by the assessee is his profit derived from the business of operation of ships and the same is assessable under the head profits or gains of business or profes ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he correctness of the claim, the assessee was given a show cause notice as to why the claim to the extent of Rs. 1,29,09,141/- should not be disallowed. In response thereto, the assessee vide his letter dated 29-11-2010, placed reliance on the Appellate Tribunal order dated 25-6-2007 for the assessment year 1997-98. The Assessing Officer after perusing the said order, found that the Appellate Tribunal did not allow the deduction but it had only remitted the matter back for re-adjudication as to whether the insurance claim, so received, is in the course of the business of shipping operations of the assessee and if it is so, then the deduction be allowed or otherwise, it would be treated as "income from other sources". The Assessing Officer t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... p. 4. Learned departmental representative assailing the impugned order, contends that the learned CIT(A) has erred in construing that the earlier Tribunal has found that the insurance claim received for carrying out repairs or repair expenses incurred on the ship are assessee's income from the business of operation of ships. He, thus, is not justified in directing the learned Assessing Authority to allow deduction under Section 33AC of the Act, in as much as in assessment year 1997-98, the earlier Tribunal merely remitted the matter back to the Assessing Authority to re-adjudicate the issue and record specific finding as to whether the insurance claim has been received during the course of the business of operations of ships of the assess ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of fact at internal page 3 of his order that the assessee did not discharge the onus that lay upon him for producing evidence to prove that such insurance receipt is his business receipt. He also recorded a finding that such insurance receipt is not assessee's business income and, thus, the same does not qualify for deduction under Section 33AC of the Act. This finding of fact is not shown to have been challenged by the assessee in appeal before the learned CIT(A) as he raised following two grounds only in appeal before him on this issue. The same are reproduced below :- "3. That the ld. Dy CIT erred in disallowing deduction u/s 33AC to the extent of Rs. 1,29,09,141/- on insurance claim received from Oriental Insurance Co. towards repair ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ied of conditions as laid down under Section 33AC of the Act, is eligible for deduction in that section. In this view of the matter, we consider it proper to remit the matter back to the Assessing Authority for recording a finding of fact as to whether the insurance claim received by the assessee is his profit derived from the business of operation of ships and the same is assessable under the head profits or gains of business or profession or otherwise, it was his other income assessable under the head "income from other sources". In case, the same is found as assessee's profits derived from business operation of ships, the amount so received, shall be taken as an eligible profit for the purpose of creating reserve and allowing deduction i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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