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TMI Blog2008 (4) TMI 468X X X X Extracts X X X X X X X X Extracts X X X X ..... Manish R. Bhatt for the Commissioner. JUDGMENT The judgment of the court was delivered by 1. D. A. Mehta J.-The Income-tax Appellate Tribunal, Ahmedabad Bench "A" has referred the following two questions under section 256(1) of the Income-tax Act, 1961 (the Act) at the instance of the assessee-applicant : "1. Whether on the facts and circumstances of the case the Tribunal was right in confirming the orders of the Commissioner of Income-tax made under section 263 holding that the assessee-company was not entitled to deduction under section 80-I for lack of satisfaction of the condition laid down in clause (ii) of sub-section (2) of section 80-I of the Income-tax Act. 2. Whether on the facts and circumstances of the case the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... are not entitled for deduction under section 80-I of the Act. The deduction was therefore wrongly allowed to you under section 80-I of the Act?" 4. The reply furnished by the assessee was not found to be satisfactory by the Commissioner of Income-tax and he came to the conclusion that the conditions laid down in sub-section (2) of section 80-I of the Act were not fulfilled and therefore the assessee was not entitled to relief under section 80-I of the Act. The Commissioner of Income-tax accordingly directed the Assessing Officer to withdraw the relief granted under section 80-I of the Act for the assessment year 1987-88, while assessment for the assessment year 1988-89 was set aside to make a fresh assessment considering the claim of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct. It was further submitted that even if the word "transfer" would include transfer by lease the other condition had also to be considered and the object of the pro-vision borne in mind before making the disallowance. That in fact the impugned order of the Tribunal did not correctly record the facts and hence the order dated December 31, 1996, was sought to be rectified by filing a miscellaneous application under section 254(2) of the Act. It was further submitted that in subsequent assessment years, viz., the assessment years 1990-91 to 1993-94 and the set aside assessment for the assessment year 1988-89, the assessee had produced necessary evidence before the Com-missioner (Appeals) and had succeeded. Referring to the consolidated order ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation in the order of the Tribunal came to be rejected by the Tribunal vide order dated October 28, 1997, refusing to modify the earlier order dated December 31, 1996. The reliance on the proceedings of sub-sequent years by the assessee also cannot carry the case of the assessee any further for the simple reason that against the order made by the Com-missioner (Appeals), the Revenue had carried the matter in appeal before the Tribunal and the Tribunal has vide order dated July 3, 2002 recorded : "It is not disputed that the facts for the assessment years under appeal before us are exactly identical." 11. The position in law is therefore that the Tribunal has in the first instance held that there is no material available on record to sh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ention that the ownership of an industrial undertaking may not be necessary for claiming relief under section 80-I of the Act, when factually it is found by the Tribunal that the machines and plant used by the assessee were not new there is no question of going behind the said finding. Hence, it is not necessary to enter into the larger controversy as regards whether the ownership of plant and machines is, or is not, a necessary requisite for claiming relief under section 80-I of the Act. 14. In the light of the findings recorded by the Tribunal, it is not possible to record any other finding contrary to the findings recorded by the Tribunal. The Tribunal was right in confirming the order made by the Commissioner of Income-tax under secti ..... X X X X Extracts X X X X X X X X Extracts X X X X
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