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TMI Blog2010 (10) TMI 906X X X X Extracts X X X X X X X X Extracts X X X X ..... the Act ) vide his order dated 17-3-2006 for assessment year 2003-04. 2. The first issue in this appeal of assessee is against the order of CIT(A) enhancing the assessment in directing the Assessing Officer to withdraw the deduction allowed under section 80-IB of the Act to the extent of Rs. 6,12,026, by holding that the assessee is not engaged in manufacture or production of article or thing as envisaged in section 80-IB of the Act. For this, assessee has raised the following ground Nos. 1 and 2 : "(1) That the learned CIT(A) has grievously erred in law and on facts in enhancing the assessment and directed the Assessing Officer to withdraw the deduction partly allowed under section 80-IB of the Act (Rs. 6,12,026 allowed by Assessin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . The assessee has filed complete chart for all assessment years, from which it is noticed that in all the assessment years assessee was allowed deduction under section 80-IB or 80-IA of the Act after making certain adjustment on account of depreciation or other disallowance. The Assessing Officer in this very year has allowed deduction after considering the dehydration of onion as manufacturing under section 80-IA by restricting deduction keeping in view the provisions of section 80HHC as well as section 80-IA(9) of the Act. The CIT(A) enhanced the addition and not allowed even the deduction which was allowed by Assessing Officer. 5. We have heard the rival contentions and gone through facts and circumstances of the case. We have also ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the law as applicable. Further, res judicata is not applicable in an income-tax assessment is also an established position of law but the principle of consistency is to be followed. In section 80-IB of the Act, there are several conditions like the industrial units should not be formed by reconstruction or splitting up of an existing unit. These conditions are to be examined in the initial year of the claim and when found satisfied in the assessment of the initial year the Assessing Officer in the assessment of subsequent year cannot ignore that and take a different view. 6. We further find from the case law relied on by learned counsel for the assessee on the Tribunal s order of Chandigarh Bench "B" in the case of Jain Udhay Hosiery ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... contended that in any case, it is an admitted fact that assessee had set up a new industrial undertaking and it had not been formed by transfer of old machinery the value of which exceeded 20 per cent of the total value of the machinery. It was accordingly pleaded that the decision of the CIT(A) for the assessment year 1997-98 may be upheld and for the assessment year 1996-97 the decision of the CIT(A) may be reversed and deduction allowed to the assessee." 7. We find that once the deduction for the very first year is allowed then in subsequent year the deduction cannot be disallowed on the same ground. He relied on the Hon ble jurisdictional High Court decision in the case of Saurashtra Cement Chemical Industries Ltd. v. CIT [198 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s legis it has to be given full effect. Therefore, if restriction is placed on the claim of repetitive deduction in section 80-IA(9) and is made applicable in respect of all deductions under Chapter VI-A, then this restriction is to be applied. Since the wordings used are "any other deduction under Chapter VI-A" full effect is to be given to this provision and whenever an assessee wants to claim deduction under section 80-IA(9) restriction is to be read in every other provision providing for deduction under Chapter VI-A. Apropos the argument that the provision is couched with ambiguities, and therefore the spirit of the Act is to be seen and justice be done, we find that the freedom for the search of the spirit of the Act or the mischief ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he sentetia legis . There is no estoppel against the statute. We have gone through the circular relied on by learned counsel for the assessee. It nowhere suggests that more than 100 per cent deduction on the same profit can be granted to the assessee under various sections enumerated in Chapter VI-A. Section 80HHC is part of Chapter VI-A. The Hon ble jurisdictional High Court in the case of CIT v. Sharon Vaneers (P.) Ltd. [2007] 213 CTR (Mad.) 215 : [2007] 294 ITR 18 (Mad.) [Tax Case (Appeal) No. 62 of 2004 dated 26-2-2007], has made it clear that it is not correct to say that section 80HHC of the Act is a self-contained provision. The deduction cannot be allowed ignoring the restrictive clause contained in section 80-IA(9). The rest ..... X X X X Extracts X X X X X X X X Extracts X X X X
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