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TMI Blog2011 (2) TMI 1095X X X X Extracts X X X X X X X X Extracts X X X X ..... - HARSHA DEVANI MS., ANTANI H. B., JJ. Judgment: Ms. Harsha Devani J.- 1. The Income-tax Appellate Tribunal, Rajkot Bench, Rajkot (the Tribunal), has referred the following questions for the opinion of this court under section 256(2) of the Income-tax Act, 1961 (the Act) : "(i) Whether the Appellate Tribunal is right in law and on facts in confirming the order passed by the Commissioner of Income-tax (Appeals) allowing the claim of the assessee under section 80HHA ? (ii) Whether the Appellate Tribunal while allowing the aforestated claim has not erred in placing reliance on the criteria for allowance of deduction under section 80HH when the claim of the assessee was under section 80HHA ?" 2. The assessment year is 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... red by the Revenue came to be dismissed by the Tribunal by placing reliance upon Notification No. 1953, dated June 20, 1992. 3. Heard Mr. M. R. Bhatt, learned senior advocate, appearing on behalf of the appellant-Revenue and Mr. Kirtikant Thaker, learned advocate, appearing on behalf of the respondent-assessee. 4. In the aforesaid backdrop it may be germane to refer to certain statutory provisions. Section 80HHA of the Act makes provision for "Deduction in respect of the profits and gains from newly established small scale industrial undertakings in certain areas". Sub-section (1) thereof, as it stood at the relevant time, provided that where the gross total income of an assessee includes any profits and gains derived from a small s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al limits of any municipality or cantonment board referred to in sub-clause (i), as the Central Government may, having regard to the stage of development of such area (including the extent of, and scope for urbanisation of such area) and other relevant considerations, specify in this behalf by notification in the Official Gazette." 6. The Central Government, in pursuance of sub-clause (ii) of clause (a) of the Explanation to section 80HHA of the Act has, having regard to the stage of development (including the extent of, and scope for urbanisation of the area) and other relevant considerations, by a notification in the Official Gazette specified the areas shown in column (3) of the Schedule thereto and falling outside the local limits o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e is not eligible for the benefit of section 80HHA of the Act as the assessee's unit is situated within fifteen kilometres from the municipal limits of Gandhidham. As to whether the case of the assessee falls within the categories laid down under the notification, viz., whether it is situated within a distance of 8 kilometres of the municipal limits of Gandhidham, in the absence of any foundational facts having been laid to indicate that the unit of the assessee is situated within a distance of eight kilometres from the municipal limits of Gandhidham, it is not possible to record any finding to that effect. In the circumstances, it is not possible to state that the Tribunal has committed any legal error so as to warrant interference. 8. I ..... X X X X Extracts X X X X X X X X Extracts X X X X
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