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TMI Blog1987 (1) TMI 173X X X X Extracts X X X X X X X X Extracts X X X X ..... sment year 1977-78. The status of the assessee is shown as a registered firm. The accounting period which we are concerned, is the year ending31-3-1977. The assessee filed a revised return on29-12-1979claiming relief under section 80J of the Income-tax Act, 1961 ('the Act'). The learned ITO negatived such claim observing, the claim made under section 80J by the firm is not accepted and the deduction not allowed as all the conditions laid down in section 80J(4)(i) to (iv) and 80J(6A) are not fulfilled'. Thus, the claim was disallowed vide order dated30-1-1980passed under section 143(3) of the Act. 4. The said order was challenged by the assessee. The reliance before the learned AAC is said to have been placed on the ratios in the following cases: Brij Bhushan Lal Parduman Kumar v. CIT [1978] 115 ITR 524 (SC), National Projects Construction Corpn. Ltd. v. CWT [1969] 74 ITR 465 (Delhi) and Ramesh Chandra Chaturvedi v. CIT [1980] 121 ITR 116 (Pat.). The learned AAC considering that the ratio in the case of National Projects Construction Corpn. Ltd. was not in favour of the assessee and in fact was supporting the revenue's case, dismissed the appeal. Therefore, they present furthe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction 80J being a newly established industrial undertaking. The ITO negatived the claim as it found that the conditions prescribed in clauses (i) to (iv) of sub-section (4) of section 80J had not been fulfilled by the assessee-firm. It had been further found by the ITO that since the mandatory condition of getting its accounts audited by an accountant as defined in the Explanation to sub-section (2) of section 288 of the Act had not been fulfilled, the provisions of section 80J(6A) rendered the claim of the assessee inadmissible. The assessee had filed appeals against the rejection of its claim under section 80J and it had been contended on the basis of certain High Court decisions that the ITO was not justified in denying benefit to the assessee under section 80J. The AAC found that the decisions relied upon by the assessee were either not relevant to the point or went against its case and then held that he was in agreement with the decision of the ITO denying the assessee's claim under section 80J. 3. It was in the background of the above facts that the assessee had filed the captioned three appeals contending that the departmental authorities had no justification in denying th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under the provisions of section 80J having not been accepted as a correct decision and a reference under section 256(1) of the Act having been filed against that order of the Tribunal, the present appeal should be kept in abeyance. There was no justification for such a prayer and, therefore, the appeals had been only temporarily postponed for hearing on22-10-1984. The only point to which the assessee now seems to have clung was that the assessee's case should not be decided in accordance with the Full Bench decision in the case of Hydle Constructions (P.) Ltd. I do not see any substance in this contention of the assessee either. The Special Bench of the Tribunal has considered all the aspects of the matter while deciding the abovementioned case and then came to the conclusion that an assessee engaged in the business of a contractor would not be entitled to benefit under section 80J. Respectfully, following that decision, I would hold that for this reason also the assessee was not entitled to the benefit of section 80J. 5. For the abovementioned three reasons I do not see any substance in the appeals filed by the assessee which are hereby rejected. ORDER UNDER SECTION 255(4) O ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e recorded nor the facts denying the assessee of the benefit of the claim. The learned Judicial Member also pointed out that the AAC also did not do better. When the facts of a case were not brought out and discussed, the learned Judicial Member felt that merely relying upon certain decisions of the High Courts and dismissing the appeals would not be doing justice. As he was of the opinion that the AAC applied the law in vacuum, he thought it was proper to set aside the order passed by him, restore the matter to his file with a direction that he should bring the facts on record and record the findings thereafter in accordance with law. But the learned Accountant Member was of a totally different opinion. By referring to the submissions made in the application made for adjournment before the Tribunal, the learned Accountant Member pointed out that it was the duty of the assessee to have satisfied the ITO that it satisfied all the conditions laid down in section 80J(4) and that the assessee did nothing absolutely in that direction either before the ITO or before the AAC or before the Tribunal. The assessee did not also comply with the provisions of section 80J(6A), namely, getting th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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