TMI Blog2017 (2) TMI 1095X X X X Extracts X X X X X X X X Extracts X X X X ..... by both the sides before us to decide whether the assessee would be eligible to claim the deduction in A.Y. 2006-07 (third year of formation of unit) particularly when all the conditions were not fulfilled in AY 2003-04, being first year of the formation. The assessee shall be free to raise all the legal and factual issues in this regard. With these directions, all the grounds are sent back to the file of the AO and may be treated as allowed, for statistical purposes. - I.T.A. No.3874/Mum/2013, I.T.A. No.3875/Mum/2013, I.T.A. No.3876/Mum/2013, I.T.A. No.3877/Mum/2013, I.T.A. No. 402 /Mum/2015 - - - Dated:- 15-2-2017 - SHRI D.T. GARASIA (JUDICIAL MEMBER) AND SHRI ASHWANI TANEJA (ACCOUNTANT MEMBER) For The Appellant : Shri Dr. K Sivr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... other contrary decision and hence assessee claim u/s.10B may be allowed. 2. Without prejudice to above, the learned CIT(A) erred in confirming order of learned Assessing Officer denying Assessee claim u/s. 10B of ₹ 65,06,583/- without appreciating that value of old/second hand plant and machinery has dipped below 20% of total plant and machinery during the current Assessment year and all conditions of S. 10B are satisfied in the current Asst. Year assessee has made claim u/s. 10B for the first time in the current Assessment year and hence assessee claim u/s. 10B may be granted from current Assessment year whi ch would be the relevant as ses sment year in view of Explanation 2(v) of S. 10B 9(A). 2.1 The learned CIT(A) er ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... than 20% and, therefore, benefit of deduction was not allowable to the assessee in AY 2003-04 and the same was not claimed by the assessee also because the assessee had incurred huge losses in AY 2003-04 and AY 2005-06. But in AY 2006-07, the percentage of old plant and machinery came down to less than 20%. Therefore, benefit of deduction should be allowed to the assessee from AY 2006-07 onwards because the conditions have been complied with from this year onwards. As per the Ld. Counsel, the assessee is eligible for the benefit of deduction for the remaining years from the year when all the conditions are fulfilled. It is not necessary that if the conditions are not fulfilled in the first year of formation of unit, then assessee becomes de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... joinder, the Ld. Counsel of the assessee also fairly stated this issue may be sent back to the file of the AO for deciding the same after verifying the facts and in accordance with law. 7. We have gone through the orders passed by lower authorities and find that the requisite finding of fact to decide the issue before us is conspicuously missing; therefore we send the matter to the file of the AO. The assessee shall submit all the requisite details and evidences to show compliance of all the conditions of section 10B including the condition of old plant and machinery being less than 20%. The AO shall take into account the facts of the case and also judgements placed by both the sides before us to decide whether the assessee would be elig ..... X X X X Extracts X X X X X X X X Extracts X X X X
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