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M/s. Sodecia India P. Ltd Versus The Deputy Commissioner of Income-tax, Company Circle-I (1) , Chennai.

2016 (5) TMI 951 - ITAT CHENNAI

Deduction u/s.80IB denied - Held that:- Commissioner of Income-tax(Appeals) is justified in rejecting the claim of the assessee u/s.80IB of the Act as the assessee is ceased to be a small industrial undertaking. Accordingly, this ground of appeal of the assessee is dismissed. - Decided in favour of revenue - ITA Nos. 1959, 1960 & 1961/Mds/2014 - Dated:- 16-3-2016 - SHRI CHANDRA POOJARI, ACCOUNTANT MEMBER AND SHRI DUVVURU RL REDDY, JUDICIAL MEMBER For The Appellant : Shri S. Sridhar, Advocate F .....

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llowance of the claim of deduction u/s.80IB(10) of the Act. 3. The facts of the case are that the assessee, manufacturing automobile components, filed its return of income for the assessment years 2006-07, 2007-08 and 2008-09 after claiming deduction u/s.80IB of the Act as under: Asst. Year Income returned 2006-07 ₹ 11,15,337/- 2007-08 ₹ 62,31,868/ - 2008-09 ₹ 44,22,629/- The case was selected for scrutiny and notices u/s.143(2) and 142(1) were issued to the assessee. Scrutiny .....

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e of the claim of deduction under section 801B.. The grounds of appeal taken by the assessee are also directed towards the action of the AO in disallowing the assessee s claim u/s.801B of the Act. 3.2 It is seen that out of the assessee's 4 units of manufacturing automobile components, the assessee claimed deduction with respect to unit 2 at Pukkathurai in Chinglepet District which is about 50 kms away from Chennai. The assessee's undertaking commenced the manufacturing activity in the y .....

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activity before 31 March 1995 and since the assessee's undertaking had commenced its manufacturing activity after 31st of March 1995 but before 31st of March 2002, it could be eligible for deduction under section 80-IB only if it was a small-scale industrial undertaking. The AO referred to the definition of the term 'Small Scale Industrial Undertaking' as per clause (g) of section 80- IB (14) and held that the assessee's undertaking was not a small-scale industrial undertaking, .....

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essee s industrial undertaking is held as a non-small scale industrial undertaking under Industries (Development and Regulation) Act, 1951, then the assessee is not eligible for deduction u/s.80IB of the Act. However, the contention of the assessee is that the condition as prescribed under sub-sec.(3) is required to be seen only in the initial year or the first year of the claim and that the condition need not be satisfied every year or year after year. The AO did not accept the contention of th .....

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stems Ltd. v. DCIT in ITA No.477 of 2013 dated 28.7.2014, wherein the Karnataka High Court considering the observation of the Tribunal that the CIT is justified in invoking the jurisdiction u/s.263 of the Act so as to withdraw the deduction u/s.80IB of the Act on the reason that as in the 9th year, the assessee is ceased to be a small scale industry, reversed the order of the Tribunal by observing as follows : 4. Sec.80IB is an incentive provision. It provides deduction in respect of profits and .....

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of machinery or plant previously used for any purpose. The third condition is that the industrial undertaking manufactures or produces any article or thing not being any article or thing specified in the list in Eleventh Schedule. However, in respect of a small scale industry undertaking, even that condition is waived. In other words, a small scale industry manufacturing or producing any article or thing specified in the list in the Eleventh Schedule, is also entitled to the aforesaid deduction. .....

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ndertaking. Sub-sec.(3) mandates that the industrial undertaking shall be eligible for the said deduction for a period of 10 consecutive years, beginning with the initial assessment year. However, it is subject to two conditions as stipulated therein. The second condition is what is applicable to the case on hand which provides, if the industrial undertaking is a small scale industry undertaking, it has to begin manufacture or produce articles or things at any time during the period beginning on .....

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10 years. When once the benefit of 10 years, commencing from the initial year, is granted, if the undertaking satisfy all these conditions initially, the undertaking is entitled to the benefit of 10 consecutive years. The argument that, in the course of 10 years, if the growth of the industry is fast and it acquires machinery and the total value of the machinery exceeds ₹ 1 crore, it ceases to have the said benefit, do not follow from any of the provisions. It is true that there is no expr .....

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it generates employment and it adds to the wealth of the country. Merely because an industry stabilizes early, makes profits, makes future investment in the said business, and it goes out of the definition of the small scale industry, the benefit under Sec.80IB cannot be denied. If such a literal interpretation is placed on the said provision, it would run counter to the very object of granting incentives. It would kill the industry. Therefore keeping in mind the object with which these provisio .....

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finition of a small scale industry, that should not come in the way of its claiming benefit under Sec.80IB for 10 consecutive years, from the initial assessment year. Therefore the approach of the authorities runs counter to the scheme and the intent of the Legislature. Thereby they have denied the legitimate benefit, an incentive granted to the assessee. Both the said orders cannot be sustained. Therefore the substantial question of law is answered in favour of the assessee and against the Reve .....

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(Development and Regulation) Act, 1951 (65 of 1951). According to the ld. DR, it is to be seen that whether the assessee is a small scale industry or not, during the last day of the previous year relevant to the assessment year and the same has not been looked into by the Karnataka High Court in the aforesaid case cited supra. 4.2 We have gone through the judgment of the Karnataka High Court cited supra and we find that there is merit in the argument of the ld. DR. More so, similar issue was co .....

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ction to the assessee u/s 80IB vide order of assessment dated 3.12.2008 was erroneous and prejudicial to the interest of the Revenue. 14. The assessee, before us, challenged the above order of the CIT. The assessee has not disputed the fact that its investment in plant and machinery was actually more than the limit of ₹ 1 crore specified u/s 11B of the Industries (Development and Regulation) Act, 1951. The A.R of the assessee, in fact, has filed a chart during the course of hearing showing .....

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80IB claim allowed u/s 143(1). Intimation not traceable 2003-04 2,14,11,103.89 1,00,22,823.43 1,13,88,280.46 80IB claim allowed in processing of return u/s 143(1) and in reassessment u/s 147. 2004-05 3,28,35,650.05 1,40,71,742.43 1,87,63,907.62 80IB claim allowed u/s 143(1) 2005-06 4,25,98,617.91 2,08,31,032.19 2,17,67,585.72 80IB claim allowed u/s 143(3) 2006-07 6,44,57,445.74 3,09,41,157.19 3,35,16,288.55 Originally allowed u/s 143(3). Order 143(3) r.w.s 263 has been passed denying the 80IB c .....

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ll scale industrial undertaking and therefore, the assessee should be treated as small scale industrial undertaking under section 11B of the Industries (Development and Regulation) Act, 1951. We do not find any merit in this contention of the assessee. We find that clause (g) of subsection( 14) of section 80IB reads as under: small scale industrial undertaking means an industrial undertaking which is, as on the last day of the previous year, regarded as a small scale industrial undertaking under .....

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ed 11.9.2000 and not a certificate which has been issued on the last day of the relevant previous year or on any date subsequent thereto. 17. Further, we find that as per provisions of section 11B of the Industries (Development and Regulation) Act, 1951, an undertaking to be regarded as small scale industrial undertaking therein must not have investment in plant and machinery exceeding ₹ 1 crore. Thus, in our considered view, the assessee s undertaking cannot be regarded as small scale ind .....

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r: 8. The other question as to whether it is incumbent upon the assessee that it is registered under the IDR Act for claiming the benefit under sub-section (3) of section 80-IB of the Income-tax Act. The answer to this depends on the interpretation which is to be given to clause (g) of sub-section (14) of section 80-IB of the Income-tax Act, which reads as under: "(g)"small-scale industrial undertaking" means an industrial undertaking which is, as on the last day of the previous y .....

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ause (g) sub-section (14) of section 80-IB of the Income-tax Act reproduced above. As per this provision, small scale industrial undertaking is regarded as "small-scale industrial undertaking under section 11B of the IDR Act". The IDR Act is enacted to provide for development and regulation of certain industries. For the purpose of regulating those industries in the meaning prescribed under the Act, industrial undertaking is defined in section 3(d) to mean any undertaking pertaining to .....

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xcept under and in accordance with a licence issued in that behalf by the Central Government. However, in case of small scale industrial undertaking, exemption and favourable benefits are provided which means those small scale industrial undertakings which fulfil the conditions of being small scale industrial are not to be regulated as per the provisions of IDR Act. It is in this context, section 11B is inserted in the statute which gives power to the Central Government to specify the requiremen .....

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able treatment under this Act to enable them to maintain their viability and strength so as to be effective in :- (a )promoting in a harmonious manner the industrial economy of the country and easing the problem of unemployment, and (b )securing that the ownership and control of the material resources of the community are so distributed as best to subserve the common goods,specify, having regard to the factors mentioned in sub-section (2), by notified order, the requirements which shall be compl .....

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parts, components, sub-assemblies, tooling or intermediates; or (ii )rendering of services, or supplying or rendering, not more than fifty per cent of its production or its total services, as the case may be, to other units for production of other articles. 2.The factors referred to in sub-section (1) are the following, namely :- (a )the investment by the industrial undertaking in :- ( i)plant and machinery, or ( ii)land, buildings, plant and machinery; (b )the nature of ownership of the indust .....

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visions of IDR Act. 11. As is clear from the reading of section 11B of the IDR Act, it is for the Central Government to specify the requirements which shall be complied with by the industrial undertaking to enable it to be regarded for the purpose of the said Act as small scale Industrial undertaking. Appropriate exercise in this behalf has been carried out by the Central Government by issuing notification dated 10-12-1997. Operative portion of the said notification lays down the following condi .....

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e following factors on the basis of which an industrial undertaking shall be regarded as a small scale or as an ancillary industrial undertaking for the purposes of the said Act :- 1. Small scale industrial undertaking.-An industrialundertaking in which the investment in fixed assets in plant and machinery, whether held on ownership terms of on lease or on hire purchase, does not exceed rupees three crores; 2. Ancillary industrial undertaking.-An industrial undertaking which is engaged or is pro .....

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2. At the end of this notification, it is provided that every industrial undertaking which has been issued a certificate of registration under section 10 of the said Act or a license under sections 11, 11A and 13 of the IDR Act by the Central Government and are covered by the provisions of paragraphs (1) and (2) above relating to the ancillary or small scale industrial undertaking, may be registered at the discretion of the owner as such within a period of 180 days from the date of publication o .....

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t the appellant-assessee fulfils these requirements. However, as mentioned above, benefit is denied only on the ground that it is not registered under the provisions of IDR Act. We are of the considered opinion that the registration under the IDR Act will be of no consequence for availing the benefit under section 80-IB of the Income-tax Act. Clause (g) of sub-section (14) of section 80-IB of the Incometax Act only mandates that such an industrial undertaking should be regarded as small scale in .....

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industrial undertaking. That registration is prescribed for altogether different purpose, viz., to avail the benefit under the IDR Act either of section 11B or section 29B. Thus, insofar as extending the provision of section 80-IB of the Income-tax Act is concerned, the only aspect which is relevant and is to be considered is as to whether the conditions stipulated in the notification issued under section 11B of the IDR Act for regarding the same as small scale industrial Act are fulfilled or n .....

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ry Form prescribed for availing this benefit, viz., Form 10CCB, such a form has to be filled and submitted by the assessee to the Assessing Officer for claiming the benefit. The details which are required to be given as per this form include the information which is to be supplied to ascertain, whether such industrial undertaking would be regarded as small scale industrial undertaking for the purpose of section 11B of the IDR Act in as much the assessee is called upon to give the value of machin .....

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ndertaking to qualify itself as small scale industrial undertaking. Since the Central Government has to prescribe such conditions by notification in view of provisions of section 11B of the IDR Act, the Legislature in its wisdom deemed it fit to incorporate those conditions for the purpose of Income-tax Act as well. This issue came up for consideration before the Gujarat High Court, albeit, in the context of depreciation which is to be allowed to an assessee under section 32 of the Income-tax Ac .....

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alue of any machinery or plant shall be, - (a)in the case of any machinery or plant owned by the assessee, the actual post thereof to the assessee; and (b)in the case of any machinery or plant hired by the assessee, the actual cost thereof as in the case of the owner of such machinery or plant." 16. The question which was posed for consideration before the Gujarat High Court in the case of CIT v. J.H. Kharawala [1994] 208 ITR 691 was as to whether it was incumbent upon a small scale industr .....

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ofession. Clause (vi) of subsection (1) provided for one time depreciation of 20 per cent on the actual cost of ship, aircraft, machinery or plant. It gave an option to assessee to claim depreciation either in the year in which the machinery or plant was installed or the year in which the assessee had put it to use. But this special depreciation was confined to small scale industrial undertakings. Thus, it was a special provision made for the benefit of small-scale industrial undertakings. By th .....

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State department was to be regarded as sufficient for making such undertaking a small-scale industrial undertaking, then the Legislature would not have made this special provision. Moreover, that would have resulted in discrimination inasmuch as the test laid down for treating an industrial undertaking as a small-scale industrial undertaking might have varied from State to State. Thus, the Legislature, in order to see that there was uniformity, made this special provision and for that reason, it .....

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l-Scale Industries Department, the benefit of section 32(1)(vi) was available to it irrespective of different provision made by that Explanation in that behalf." 17. The upshot of the aforesaid discussion is to answer this question of law in favour of the assessee, as otherwise, there is no dispute that the assessee fulfils eligibility conditions prescribed under section 80-IB of the Income-tax Act and is to be regarded as small scale industrial undertaking. We direct the Assessing Officer .....

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the decision of Hon'ble Bombay High Court in the case of CIT vs Paul Brothers(supra) which was followed again by the Hon'ble Bombay High Court in the case of CIT vs Western Outdoor Interactive Pvt. Ltd(supra). The Hon'ble Bombay High Court at page 6 in para 6 of its order has held as under: 6. We have considered the submissions. We find that the submissions made by Mr. Pardiwalla on the basis of the decision of this Court in the matter of Paul Brothers (supra) and Director of Informa .....

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set aside, the Income Tax officer cannot withdraw the relief for subsequent years. More particularly so, when the revenue has not even suggested that there was any change in the facts warranting a different view for subsequent years. In this case for the assessment years 2000- 01 and 2001-02 the relief granted under Section 10A of the Act to SEEPZ unit has not been withdrawn. There is no change in the facts which were in existence during the assessment year 2000-01 vis a vis the claim to exempt .....

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fact that a change in fact warrants different view in the subsequent year cannot be ruled out. However, the conditions which are regarded to be satisfied in the first year for being eligible for deduction in that year and subsequent year if satisfied in that year and deduction was allowed then unless that deduction was withdrawn it was not open for the Revenue to take a different view about the satisfaction of those conditions in the subsequent years. 20. Coming to the facts of the present case .....

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le industrial undertaking, it cannot be held that the assessee must be allowed deduction in subsequent eligible years irrespective of the fact whether the assessee remains a small scale industrial undertaking in the subsequent years or not when the condition for allowability of deduction is that the assessee should be a small scale industrial undertaking. Therefore, in our considered view, the above decisions of the Hon'ble Bombay High Court are not applicable for deciding the issue under co .....

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nt year 2004- 05, the assessee has been granted the claim of deduction u/s 80IA(4)(ii) the same cannot be denied for the subsequent assessment year by applying the restraints of section 80IA(3). 22. In contrast to the above, in the instant case, the formation of the industrial undertaking of the assessee is not an issue. Further, it is not the provisions of the law that for being eligible for deduction u/s 80IB of the Act, the assessee s industrial undertaking should be small scale industrial un .....

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, the above quoted decision of the Delhi Bench of the Tribunal is not applicable in the instant case. (emphasis supplied) 23. Lastly, the assessee relied upon the decision of the Hon'ble P&H High Court in the case of CIT vs Sohana Woollen Mills (supra) wherein it was held that mere audit objection, and merely because a different view can be taken are not enough to hold that the order of the Assessing Officer is erroneous or prejudicial to the interest of the Revenue. Thus, the Hon'bl .....

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assessee s investment in plant and machinery exceeds the value of the amount of ₹ 1 crore at the end of the previous year it can be regarded as small scale industrial undertaking u/s 11B of the Industries (Development and Regulation) Act, 1951. Thus, we find that the above decision relied upon by the A.R of the assessee is not applicable to the facts of the present case. 25. Lastly, the A.R of the assessee argued that the assessee s investment in plant and machinery at the last day of the .....

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e earlier years. It is a settled position that res judicata is not applicable in administration of tax laws. No vested right can be held to be created in favour of the assessee merely because of allowance of deduction in earlier years which was not legally entitled to. 26. In view of the above, we do not find any good reason to interfere with the order of the CIT passed u/s 263 of the Act. Therefore, we dismiss the grounds of appeal raised by the assessee. 27. In the result, the appeal filed by .....

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-section (2) to suggest that the condition in clause (iii) thereof has to be examined only in the initial assessment year. We are in agreement with the position of the appellant that in so far as conditions prescribed in clauses (i) and (ii) are concerned, the same relate to a point of time which can only be examined in the course of the initial assessment year. Clause (i) requires an examination as to whether the industrial undertaking is formed by splitting up or reconstruction of a business a .....

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ial undertaking ought to be a small scale undertaking in the year of claim of deduction, be it be the initial year or any of the subsequent years, so long as it manufactures products listed in the Eleventh Schedule. Quite clearly, in this case admittedly the assessee is manufacturing articles or things stated in the Eleventh Schedule and it does not quality to be a small scale industrial undertaking in the instant year and, thus, the said condition is not fulfilled. 10. Much has been argued by t .....

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e facts were as follows. The assessee was carrying on business of manufacturing cement and the capacity of the first cement plant was 600 tons per day. In the year relevant to the assessment year 1968-69, the capacity was expanded and it was raised to 1600 tons per day. The assessee company therefore made a claim for relief under section 80J of the Act with reference to the capital employed in the expansion of the plant and machinery. The Assessing officer allowed the said claim for the assessme .....

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re expansion. The Appellate Commissioner, in appeal, held that in the absence of there being any specific provision in the Act that the new unit should be altogether distinct and even physically at a distance from the old unit, and that, if the relief was admissible for assessment year 1968-69, in respect of the expanded unit of the assessee company, that relief would continue to be available to the assessee for the subsequent period of four years. The Tribunal also upheld the order of the Appel .....

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entitled to continuance of that relief for the subsequent four years and the Assessing Officer would not be justified in refusing to continue the allowance for the assessment year 1969-70, without disturbing the relief for the initial year. In the words of the Hon ble High Court, - No doubt, the relief of tax holiday under section 80J can be withheld or discontinued provided the relief granted in the initial year of assessment is disturbed or changed on valid grounds. But without disturbing the .....

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wed by treating the expansion in capacity as formation of a new industrial undertaking. Whether expansion in capacity amounted to formation of a new industrial undertaking was a condition required to be examined only in the initial year, and which was done in the course of assessment for the assessment year 1968-69, being the initial year. In the assessment year 1969-70, the Assessing Officer sought to deny the deduction on the ground that expansion of manufacturing capacity did not amount to se .....

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ar, the Revenue cannot examine the question again to deny the relief in subsequent year. In our considered opinion, in the instant case matrix stands differently, inasmuch in the instant case the Assessing Officer is not attempting to review a position accepted with reference to the initial year. In fact, in the present case on account of changed condition namely the industrial undertaking of the assessee loosing the status of a small scale industrial undertaking under the IDR Act, the Assessing .....

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ar that the expansion in capacity amounted to setting up of a new unit, the same was sought to be reviewed in the subsequent year by holding differently. In fact, the Hon ble Gujarat High Court itself envisaged that the relief of tax holiday under section 80J can be withheld, provided the relief granted in the initial year is disturbed or changed on valid ground. In the present case, it is quite clear that on account of events subsequent to the initial assessment year the assessee fails to fulfi .....

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d by the Commissioner under section 263 of the Act for assessment years 1981-82 and 1982-83 which was quashed by the Tribunal, which was appealed by the Revenue before the Hon ble High Court. The facts were that the assessee firm had branches in backward areas carrying on the business of construction of buildings, transportation and manufacture and supply of bricks. For the use in construction activity, assessee also manufactured windows, concrete slabs etc. For assessment years 1980-81 and 1981 .....

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e assessment year 1981-82, the assessee had preferred an appeal before the Commissioner of Income-tax (Appeals) on certain other issues. Again for assessment year 1982-83 the Assessing Officer allowed deduction under section 80HH of the Act. The Commissioner exercising jurisdiction under section 263 of the Act quashed the orders of the Assessing Officer for assessment years 1981-82 and 1982-83. As per the Tribunal, (i) since the assessment order for assessment year 1981-82 was merged in the appe .....

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inted out that the parity of reasoning approved by the High Court to the effect that unless deduction allowed in a preceding year on the same ground is withdrawn, similar relief for the subsequent years could not be withheld. Secondly, the learned Counsel also referred to the observations of the Hon ble High Court that in sections 80HH or section 80J there is no provision for withdrawal of special deduction for the subsequent years for breach of conditions. It was pointed out that similar is the .....

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