9911796707
TMI Blog2012 (3) TMI 546X X X X Extracts X X X X X X X X Extracts X X X X ..... f the Income tax Act, 1961. 2) On the facts and circumstances of the case, the Ld. CIT(A) ought to have upheld the order of the A.O. 3) It is therefore, prayed that the order of Ld. CIT(A) may be set aside and that of the A.O. be restored." 3. The brief facts regarding this issue are that it is noted by the A.O. in the assessment order that the assessee company has claimed deduction u/s 80-IA to the tune of Rs. 32,68,568/- @ 30% of the profits in the ereturn filed. It is also noted that in the statement of total income filed along with the return, the assessee has claimed deduction u/s 80-I of the Act for the same amount. The A.O. has observed that the assessee company is not sure that whether it is eligible for deduction u/s 80-I o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nce has been furnished by the assessee to substantiate this claim. The A.O. rejected the claim of the assessee regarding deduction u/s 80-IB by making these observations. Being aggrieved, the assessee carried the matter in appeal before ld. CIT(A) who has deleted this disallowance and now, the revenue is in appeal before us. 4. Ld. D.R. supported the assessment order. He submitted that a clear finding is given by the A.O. that no evidence was furnished before him by the assessee in respect of starting of new unit in assessment year 2001- 02 and, therefore, the order of Ld. CIT(A) should be reversed and that of the A.O. should be restored. 5. As against this, Ld. A.R. of the assessee supported the order of Ld. CIT(A). He submitted a copy o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... me filed by the assessee for the present year, it is not justified to draw any adverse inference. He further submitted that Ld. CIT(A) has decided this issue in favour of the assessee by following the judgment of Hon'ble jurisdictional High Court i.e. Hon'ble Gujarat High Court rendered in the case of Saurashtsra Cement & Chemical Industries Ltd. Vs CIT as reported in 123 ITR 669. He submitted that it was held by the Hon'ble Gujarat High Court in that case that in respect of income from newly established industrial undertaking, if the assessee's claim for deduction u/s 80-J was allowed in the initial year and the same was not disallowed in that year, the claim of the assessee cannot be disallowed in a subsequent year. He submitted that in t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... this form, the auditors have certified that production of foldable lens was started from A.Y. 2001-02. On the strength of Form 10CCB dtd. 3-9-2004 the A.O, has allowed deduction u/s.8OIB to the appellant in the assessment for A.Y. 2004-05, assessed u/s.143(3) of IT. Act dtd. 7-12-2006. Deduction u/s.80IB has again been allowed to the appellant for the A.Y. 2006-07. For the A.Y. 2006- 07 assessment u/s. 143(3) was completed vide assessment order dtd. 24-11-2008 wherein deduction u/s,80IB of Rs. 52,33,100/- was allowed to the appellant. This deduction was in respect of new unit which was commissioned in A.Y, 2001-02. The above facts clearly reveals that disallowance of deduction u/s.80IB has been made on wrong premise. Accordingly, the action ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arding this contention of the Ld. D.R. that no evidence was furnished by the assessee before the A.O. in respect of putting up of new unit in assessment year 2001-02, we find that as per the assessment order passed by the A.O. u/s 143(3) for the assessment year 2004-05 and assessment year 2006-07, deduction was allowed by the A.O. to the assessee u/s 80- IB. The A.O. himself has stated in the assessment order that for the unit established by the assessee in assessment year 1994-95, assessee was getting deduction u/s 80-IA up to assessment year 2004-05. If this be so, then for new unit only, deduction was allowed by the A.O. u/s 80-IB in assessment year 2006-07. This goes to show that this fact was very much available in the record of the de ..... X X X X Extracts X X X X X X X X Extracts X X X X
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