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2011 (6) TMI 18 - DELHI HIGH COURTRevision - Deduction u/s 80IB - Order of the tribunal - It also filed Audit Report in Form No.10CCB, wherein it was mentioned that the operation of the assessee company commenced in Financial Year 1995-96 and the initial assessment year from which deduction is being claimed was Assessment Year 1996-97 - The year of commencement of operation would be relevant to find out as to whether the assessee would be entitled to deduction under Section 80IB of the Act for the Assessment Year 2005-06 as only on that determination, it would be known whether the instant year is the 10th year or the 11th year - it is clear that twin conditions laid down for exercising revisionary jurisdiction under Section 263 of the Act stood satisfied inasmuch as the lack of inquiry/investigation resulted in allowing the deduction which could be erroneous and prejudicial to the interest of Revenue, if it was the 11th year from the year when the operation commenced - Decided against the assesee Tinkering an issue by the ITAT - the conjoint and accumulative reading of the order in its entirety would clearly show that the CIT had not conclusively determined that the year of commencement of the business was Financial Year 1994-95 - Once it is found that the invocation of the provisions of Section 263 of the Act was proper and valid, such an order passed by the CIT could not have been tinkered with by the Tribunal by going into the merits of this issue CIT while exercising powers under Section 263 of the Act, sets aside the order of the AO on merits as well and gives his categorical finding on the issue involved, naturally the Tribunal will be within its right to examine as to whether the decision on the said issue was proper or not and for this purpose, the Tribunal itself would be entitled to examine the issue on merits - where the issue was not examined by the AO and on this ground CIT revised the order without giving his own findings, but directing the AO to do the necessary exercise, it was not proper for the Tribunal to decide the same, converting itself to a Court of first instance and deciding the factual aspect on which neither AO nor CIT(A) had returned any findings - Issue to be decided by AO.
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