TMI Blog2016 (8) TMI 517X X X X Extracts X X X X X X X X Extracts X X X X ..... een filed in one of the appeals will be covered by the decision of this Court in the case of Dahod Sahakari Kharid Vechan Sangh Ltd. (2005 (7) TMI 45 - GUJARAT High Court ). In that view of the matter, we are of the view that the Tribunal is justified in holding that the Assessing Officer had no jurisdiction to initiate proceedings against the CIT(A)’s order upholding the jurisdiction of the Assessing Officer to initiate reopening proceedings. Accordingly, the said question is answered in favour of assessee. Deduction u/s 80HH on income not derived from industrial undertaking is not being decided in view of the fact that we have already answered the question with regard to section 147 proceedings in favour of the assessee. So far as questions with regard to penalty proceedings are concerned, we are of the opinion that the same shall not survive in view of the fact that the substantial question has already been decided in favour of the assessee. - TAX APPEAL NO. 976 of 2007 With TAX APPEAL NO. 940 of 2007 With TAX APPEAL NO. 1870 of 2008 With TAX APPEAL NO. 1693 of 2009 TO TAX APPEAL NO. 1694 of 2009 - - - Dated:- 4-8-2016 - MR. KS JHAVERI AND MR. G.R.UDHWANI, JJ. FOR TH ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Appellate Tribunal was right in law and on facts in confirming the order passed by the CIT(A) directing the Assessing Officer to allow deduction u/s.80HH on income not derived from industrial undertaking? TAX APPEAL NO. 1870 OF 2008 Whether the Appellate Tribunal is right in law and on facts in allowing the appeal of the assessee on the ground that, in the revenue s appeal it had held the reassessment to be bad in law and thereby deleting the addition made? TAX APPEAL NO. 1693 OF 2009 Whether the Appellate Tribunal is right in law and on facts in confirming the order passed by the CIT(A) in cancelling the penalty levied u/s 271(1)(c) of the I.T. Act? TAX APPEAL NO. 1694 OF 2009 Whether the Appellate Tribunal is right in law and on facts in confirming the order passed by the CIT(A) in cancelling the penalty levied u/s 271(1)(c) of the I.T. Act? 4. Tax Appeal No. 976 of 2007 is being taken as lead matter in these set of appeals and therefore we advert to the facts of the said case. The original assessment was completed in this case u/s 143(3) of the Act determining the total income at ₹ 21,58,02,400/- as against the return income of &# ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nal was limited in such cases but the Tribunal erred in travelling beyond the scope of its jurisdiction. 5.2 Mr. Mehta submitted that even the CIT(A) as well as the Tribunal erred in allowing the assessee s claim of deduction u/s 80HH of the Act. He submitted that the Tribunal ought to have seen that the Assessing Officer had proceeded on the footing that the revenue had not accepted the decision of the CIT(A) for earlier years. 6. Mr. S.N. Soparkar, learned Senior counsel appearing with Mr. B.S. Soparkar, learned advocate for the assessee submitted that so far as Section 80HH is concerned, the deduction is rightly allowed after bifurcating its activity into two components; namely trading activities and manufacturing activities on the business of total turnover as shown in the books of account. He has relied upon decision of the Apex Court in the case of Dahod Sahakari Kharid Vechan Sangh Ltd. vs. Commissioner of Income Tax reported in [2006] 282 ITR 321 and a decision of this Court rendered in Special Civil Application No. 3352 of 2001 on 08.03.2011 . He has also relied upon another decision of this Court in the case of Commissioner of Income Tax- II vs. Mohmed Juned Dad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s regards the explanation offered is based on a misconception of facts and law. It was never the assessee's case that, out of the amount received from the Insurance Company, such amount was actually paid out and claimed as a deduction. In fact, this becomes clear when one reads the assessment order and the penalty order wherein the assessing officer has stated that the assessee cannot claim the sum of ₹ 68,332/- as a deduction on due basis. The assessee has never claimed any deduction qua this amount. The deduction claimed is qua a separate amount, and that too, on actual payment basis. There is no claim for deduction on due basis. The entire premise, therefore, is incorrect. 25. Once there is absence of mens rea, mere omission from the return of income of an item of receipt neither amounts to concealment, nor deliberate furnishing of inaccurate particulars of income, as laid down by the Apex Court, unless and until there is some evidence or some circumstances to show that the omission was attributable to an intention or desire on part of the assessee to conceal the income so as to avoid imposition of tax thereon. In the present case, the assessee is a cooperative soci ..... X X X X Extracts X X X X X X X X Extracts X X X X
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