9911796707
TMI Blog2003 (4) TMI 77X X X X Extracts X X X X X X X X Extracts X X X X ..... r of the Commissioner of Income-tax under section 263 and restoring the order of the Income-tax Officer?" The relevant assessment year was 1979-80. For the previous year ended March 31, 1979, the assessee filed a return of income on July 31, 1979, declaring "nil" income. The assessee was allowed deduction under section 80HH in respect of the new industrial undertaking in the backward area. As regards the relief claimed under section 80J of the Act in respect of its project No.2, i.e., the powder plant which was started from November 1, 1972, the Income-tax Officer allowed the amount of Rs. 8,40,624 to be carried forward as the profit of the new undertaking. The decision of the Income-tax Officer was taken up in revision under section 263 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ppeals) dated January 31, 1984, which was passed prior to the making of the order by the Commissioner on September 11, 1985, under section 263 of the Act. The Tribunal noted that the question of computation of relief under section 80J was the subject-matter of the appeal before the Commissioner of Income-tax (Appeals), who had dealt with that aspect in paragraph 8 of the appellate order. The Commissioner, therefore, could not have exercised his revisional powers in respect of the relief granted under section 80J of the Act to the assessee. As regards the relief granted under section 80HH of the Act, the Tribunal found that a consistent approach was adopted in respect of the earlier previous years by the assessee who divided the expenses on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s under section 263 could not have been invoked when the order taken in revision was already subjected to appeal and the appellate order was made in respect thereof as was made in the instant case. The Division Bench of this court in CIT v. Shashi Theatre Pvt. Ltd. [2001] 248 ITR 126, has in terms held that the revisional powers under section 263 did not extend to matters on which the appellate authority had bestowed consideration and given a decision. It is thus clear that the Commissioner could not have exercised his revisional powers under section 263 against the order of the Income-tax Officer granting deduction under section 80J of the Act, which order was appealed against and had merged in the order of the Commissioner of Income-tax ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e preliminary objection of the assessee on this count cannot be sustained, being contrary to the decision of the Supreme Court, in Tamil Nadu Civil Supplies Corporation Ltd.'s case [2003] 260 ITR 82, and also against the decision of this court rendered in CIT v. Shreyas Land Development Corporation--I.T.R. No. 120 of 1986 decided on July 9, 2001, which has followed the decision of the Andhra Pradesh High Court in the case of CIT v. East Coast Marine Products (P.) Ltd. [1990] 181 ITR 314. The only question that now remains to be considered is whether the Tribunal was justified in setting aside the order of the Commissioner in respect of deduction granted under section 80HH of the Act. The Tribunal has found as a matter of fact that the asse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... able. The Income-tax Officer as well as the Tribunal have found that the expenses were apportioned on a rational basis and it would not be open for this court to go beyond that finding which appears to have been reached on the basis of the material on record which showed that in the earlier years the same proportion for dividing the expenses was consistently followed. The Department has not been able to show that for those earlier two years any objection was raised against such apportionment. For the foregoing reasons, while holding that the Tribunal had committed an error in upholding the preliminary objection of the assessee against the revisional exercise of powers under section 263 of the Act in the context of the order made by the In ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
