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TMI Blog2013 (2) TMI 150X X X X Extracts X X X X X X X X Extracts X X X X ..... by necessary implication made to have retrospective operation - against assessee. Invalid deduction u/s 80I granted by ITAT - Held that:- Considering the ratio of decision of n Aspinwall and Co. Ltd., v. CIT [2001 (9) TMI 3 - SUPREME COURT] and considering the order passed by the ITAT there is no evidence to come to a definite conclusion as to whether the assessee is doing manufacturing activity or not, thus it is appropriate to remand the matter to the AO for the purpose of eliciting and proving the same. X X X X Extracts X X X X X X X X Extracts X X X X ..... ted the assessing officer to grant investment allowance and also deduction under Section 80I for all these years. Aggrieved over that, the Revenue preferred appeals to the Income Tax Appellate Tribunal. The Tribunal sustained the orders of the Commissioner of Income Tax. 6. Though deduction under Section 80HHC was allowed, by the Assessing Officer, for all the three years, the assessments were reopened under Section 148 of the Act to withdraw the deduction under Section 80 HHC pursuant to the decision rendered by the Apex Court in the case of M/s. Stone Craft Enterprise's case reported in 237 ITR 131. The original assessment in respect of the year 1989-1990 was also completed without giving deduction under Section 80HHC. 7. The assessee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the amendment made by the Finance Act 2 of 1991 introducing schedule XII is effective from the assessment year 1991-1992 only is valid in law? (ii) Whether on the facts and in the circumstances of the case, the Tribunal was right in holding that the assessee is entitled to the allowance claimed under Section 80 HHC retrospectively is valid in law? (iii) Whether on the facts and in the circumstances of the case, the Appellate Tribunal was right in holding, even though the assessee is not engaged in the industrial activity, the claim for deduction under Section 80I of the Income-Tax Act, is valid in law?" 9. The main contention of the learned counsel for the Revenue / appellant is that the Tribunal was incorrect in holding that the deduct ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y or by necessary implication made to have retrospective operation. 8.3. Therefore, in view of the Apex Court decision, issue Nos.1 and 2 is answered in favour of the Revenue and as against the assessee. 9. The second contention of the Revenue is that the assessee is not at all engaged in the industrial activity and therefore, the claim for deduction under Section 80I of the Act granted by the appellate Tribunal is not valid in law. 9.1. To claim deduction under Section 80I of the Act, it is necessary that the industrial undertaking should manufacture or produce any article or thing. 9.2. Learned counsel for the Revenue relied upon the following decisions in order to support the contention that the assessee is not engaged in any indust ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... simply jumped to the conclusion on the premise that cutting the rough edges processing in different sizes, shapes colour would amount to manufacture, without discussing the processes involved. In the absence of any particulars on record to construe that the exported granites are value added, even assuming that the Circular is explanatory and as such the benefit u/s. 80HHC is available for the assessment year under consideration, the benefits cannot be granted to the assessee." 9.3. Relying upon the very same decision, the learned counsel for the assessee contended that the mistake of the CIT / Tribunal shall not cause prejudice to the rights of the assessee and it is a fit case to remand with liberty to both sides to adduce evidence with ..... X X X X Extracts X X X X X X X X Extracts X X X X
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