TMI Blog2013 (3) TMI 488X X X X Extracts X X X X X X X X Extracts X X X X ..... l is set-aside; proceedings are placed before the Assessing Officer for ascertaining the facts in light of the observations made above and decide the claim of deduction under Section 80IB of the Act of the assessee afresh. - TAX APPEAL No. 2588 of 2010 - - - Dated:- 1-2-2012 - MR. AKIL KURESHI AND MS SONIA GOKANI JJ. Appearance: MRS MAUNA M BHATT for Appellant MR SNL AGARWALA for Opponent ORAL ORDER (Per : HONOURABLE Mr..JUSTICE AKIL KURESHI) Tax Appeal is admitted. Learned counsel Shri Agarwal appears and waives service for and on behalf of the Opponent. We formulate the following substantial question of law for consideration:- Whether in law the Appellate Tribunal was justified in holding that there i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on under Section 80IB of the Act. In a recent decision delivered by this Court in Tax Appeal No. 1387 of 2010 and allied matters dated 17th January 2012, we had examined this issue at some length. We had held that in cases where the assessee who had not even applied for grant of Factories license before 31st March 2004, could not have been granted deduction under Section 80IB of the Act. However, with respect to this, the assessee who had made such an application before 31st March 2004 and were granted such license shortly thereafter, the breach was technical in nature and deduction could not be withheld. Our observations in this regard where as follow:- 20. From the above statutory provisions, it can be seen that before setting up o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... facto disqualify an assessee from claiming deduction under Section 80IB of the Act. In the present case, however, we are concerned with one of the basic requirements of setting up of a factory i.e. obtaining a license without which legally it would not be permissible to set up a factory and to commence manufacturing activity. In absence of such license, setting up of factory is prohibited. Setting up a factory without license is a penal offence. We have noticed that Factories Act makes large number of welfare measures. To implement such measures, it would be absolutely essential that licensing procedure is in place. While examining requirements of section 80IB(4) of the Act, we cannot be oblivion to such provision. 24. In those appea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nion that such lapse must be viewed as one which is purely technical even without accepting the contention of the counsel for the assessee that grant of license subsequently would relate back to the original date of application. We are inclined to uphold the Tribunal's view to this extent. 28. In the result, we answer question (A) in the negative i.e. in favour of Revenue and against the assessee. We answer question (B) in the affirmative i.e. in favour of the assessee and against the Revenue. 29. In Tax Appeal No. 1105/2010 and 1106/2010, the assessees had never applied for factory license before 31.3.2004. In view of our answer to above question (A), these Tax Appeals are allowed. Judgement of the Tribunal is reversed. 30. In Tax Ap ..... X X X X Extracts X X X X X X X X Extracts X X X X
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