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TMI Blog2009 (10) TMI 572X X X X Extracts X X X X X X X X Extracts X X X X ..... s is that there should have been some finding by the authorities below that the conditions contained in section 80-IB were satisfied even in respect of 1997-98 especially when the Tribunal found that no such finding was arrived at either by the Assessing Officer or by the Commissioner of Income-tax (Appeals). - the approach of the Tribunal in remitting the case back to the Assessing Officer for determination of the question is without blemish and perfectly justified - ITA NO 138/09, ITA NO 365/09 - - - Dated:- 5-10-2009 - SIKRI A. K. and SIDDHARTH MRIDUL, JJ. Judgment: The judgment of the court was delivered by A. K. Sirri J.- The appellant assessee in her return filed for the assessment year 2003-04 had claimed deductio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r the assessment year 1997-98 or not, since as per the assessee otherwise in the year of incorporation itself, i.e., 1997-98 the production/export had also started. While doing so, the Income-tax Appellate Tribunal took note of the fact that as per the provisions of section 80-IB, it was for the assessee to satisfy that she was entitled to the claim of deduction under the aforesaid pro-vision for the assessment year 1997-98, since it was the first year of the business. Challenging that decision, the assessee has filed the present appeal (i.e., I. T. A. No. 138 of 2009). We may also note at this stage that the assessee had preferred an application under section 254(2) of the Act for correction in the impugned order on the premise that such a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to comply with such direction. In these circumstances, the Commissioner of Income-tax (Appeals) had gone into those very records and had arrived at a finding that the claim of deduction under section 80-IB made by the assessee was found to be in order. On this premise, his submission is that it was not proper on the part of the Tribunal to remit the case back to the Assessing Officer for determination of the same issue. He also submits that when the entire record was available with the Assessing Officer and if the Assessing Officer failed to look into the same, the inference has to be drawn in favour of the assessee, particularly, in view of the aforesaid findings of the Commissioner of Income-tax (Appeals). In support of his submissions, l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... omes out from the aforesaid facts is that there should have been some finding by the authorities below that the conditions contained in section 80-IB were satisfied even in respect of 1997-98 especially when the Tribunal found that no such finding was arrived at either by the Assessing Officer or by the Commissioner of Income-tax (Appeals). 5. We are of the opinion that the approach of the Tribunal in remitting the case back to the Assessing Officer for determination of the question is without blemish and perfectly justified. We may observe at this stage that the application filed by the assessee under section 254 of the Act, while dismissing that application, the Tribunal rightly observed as under : "4. During the course of hearing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under section 80-IB, the deduction for assessment year 2003-04 should be allowed. From the above facts, it is clear that the Bench has taken considered view for setting aside the matter for reconsideration by the Assessing Officer. The assessee will be eligible for deduction under section 80-IB of the Act or not in assessment year 1997-98 will depend on verifi-cation of the facts. Simply because the learned Commissioner of Income-tax (Appeals) has allowed the claim of the assessee, will not constitute a mistake apparent from record to be rectified under sec-tion 254(2) of the Act. The learned Commissioner of Income-tax (Appeals) has nowhere examined the conditions to the assessment year 1997-98. Whatever has been argued by the assessee befo ..... X X X X Extracts X X X X X X X X Extracts X X X X
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