9911796707
TMI Blog2017 (2) TMI 1095X X X X Extracts X X X X X X X X Extracts X X X X ..... 07, filed against the order of Commissioner of Income-tax (Appeals)-38, Mumbai [hereinafter called CIT(A)] dated 28-02-2013 passed against the order u/s 143(3) r.w.s. 153A dated 31.12.2010 on the following grounds:- "1. The learned CIT(A) erred in confirming order of learned Assessing Officer denying claim of assessee u/s. 10B of Rs. 65,06,583/- without apprec iat ing that as ses see has compl ied wi th al l condi t ions prescribed u/s. 10B and there is no violation of condition prescribed U/s. 10B(2)(iii) as new undertaking of the assessee is not formed by the transfer of plant and machinery previously used by the assessee and hence assessee claim u/s.10B may be allowed. 1.1 The learned CIT(A) erred in not appreciating the decision of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n was directly in favour of assessee and there was no other contrary decision and hence assessee claim u/s. 10B may be granted in cur rent year wherein assessee has fulfilled all conditions prescribed u/s.10B. Additional Ground 3. The learned CIT(A) & A.O. failed to appreciate that claim u/s.10B is to be allowed before setting off unabsorbed losses of earlier years." 3. The solitary issue raised in all these grounds is about allowability of deduction u/s 80IB. The AO denied the benefit of deduction u/s 10B inter-alia on the ground that assessee's eligible unit was formed by transfer of plant & machinery which was previously used and it was not new plant & machinery. The CIT(A) also upheld the order of the AO. 4. During the course of he ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Ltd vs CIT 18 Taxmann 106 (Bom), 5. Per contra, the Ld. DR vehemently opposed the arguments of the assessee and submitted that no finding has been recorded by any of the authorities below that percentage of old plant & machinery in the year 2006-07 came down to less than 20%. The assessee's claim in this regard remained unverified and unsubstantiated. It was further submitted that in law also, the assessee is NOT eligible to claim the deduction in subsequent years if the conditions are not fulfilled in the first year itself in view of the following judgements:- 1. Sami Labs Ltd vs ACIT 334 ITR 157 9(Kar) 2. ACIT vs Omax Test Equipments (P) Ltd 23 ITR (T) 187 (Chen) 3. JCIT, SR 70 vs Nalco Chemicals (I) Ltd 97 ITD 348 (Kol) 4. CIT vs M ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... noted that issues involved are identical in all the remaining appeals are identical. Therefore, issues in these appeals are also sent back to the file of the AO to be decided afresh along with same directions as given above. 9. Further, in AY 2009-10, the assessee has raised one different issue in ground No.3 with regard to addition on account of excessive stock. It is noted that this issue has been decided by the lower authorities without verifying proper facts. Further, in any case, this issue is dependent upon allowability of deduction u/s 10B. Therefore, this issue also is required to be examined and decided afresh by the AO. Therefore, this issue is also sent back to the file of the AO. This ground may also be treated as allowed, for ..... X X X X Extracts X X X X X X X X Extracts X X X X
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