2005 (11) TMI 184 - AT - Income Tax

Summary

Issues Involved:
1. Legal validity of the CIT's order under section 263 directing the Assessing Officer to withdraw deductions under sections 80HH and 80-I.
2. Entitlement of simultaneous reliefs under sections 80HH and 80-I.
3. Requirement for the Assessing Officer to personally determine profits attributable to the new industrial undertaking.
4. Establishment of Factory No. III as a new industrial undertaking.
5. Adequacy of gross total income for deduction under section 80HH.

Detailed Analysis:

1. Legal Validity of the CIT's Order under Section 263:
The appeal challenges the CIT's revisional order under section 263, which directed the Assessing Officer to withdraw deductions under sections 80HH and 80-I. The CIT's order was contested on the grounds that it exceeded jurisdiction, was based on incorrect facts, and was not disclosed to the assessee in the show-cause notice, making it legally untenable.

2. Entitlement of Simultaneous Reliefs under Sections 80HH and 80-I:
The CIT argued that simultaneous reliefs under sections 80HH and 80-I were not permissible, citing opinions from commentaries on Income-tax. However, the Tribunal noted that there was no statutory prohibition or binding judicial decision preventing simultaneous deductions under both sections. High Courts have held that deductions under both sections are permissible if the conditions laid down in the respective sections are satisfied. The Tribunal concluded that the CIT's direction to withdraw the deduction under section 80-I was legally untenable.

3. Requirement for the Assessing Officer to Personally Determine Profits:
The CIT observed that the Assessing Officer failed to personally determine the reasonable profits attributable to the new industrial undertaking, leading to excessive profit determination. However, the Tribunal found that the Assessing Officer had conducted proper inquiries and verified the books of account and other materials before allowing the deductions. The Tribunal held that the CIT could not substitute his opinion for that of the Assessing Officer and that the Assessing Officer's order was not erroneous.

4. Establishment of Factory No. III as a New Industrial Undertaking:
The CIT questioned the establishment of Factory No. III as a new industrial undertaking and its eligibility for deductions under sections 80HH and 80-I. The Tribunal found that the assessee had consistently disclosed the establishment of Factory No. III as a new industrial undertaking from assessment year 1985-86 onwards. The Tribunal noted that the factory had a new Factory Licence and Central Excise Licence and that the Central Excise authorities certified the first dispatch from the factory in March 1984. The Tribunal concluded that the CIT was not justified in doubting the establishment of Factory No. III as a new industrial undertaking.

5. Adequacy of Gross Total Income for Deduction under Section 80HH:
The CIT directed the withdrawal of the deduction under section 80HH on the ground of inadequacy of gross total income due to unabsorbed depreciation, investment allowance, and business loss. The Tribunal found that the unabsorbed loss, depreciation, and investment allowance related to Factory No. III were already set off against the profits of other undertakings in earlier years, and no such amounts were available for set off in the assessment year 1991-92. The Tribunal relied on the jurisdictional Calcutta High Court's decision, which held that past losses set off against other income in earlier years could not be considered for deduction under section 80HH. The Tribunal concluded that the CIT's direction to withdraw the deduction under section 80HH was not justified.

Conclusion:
The Tribunal held that the Assessing Officer's order was not erroneous and that the CIT was not justified in invoking section 263 to withdraw the deductions under sections 80HH and 80-I. The Tribunal canceled the CIT's revision order and restored the Assessing Officer's order. The appeal of the assessee was allowed.