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TMI Blog2013 (12) TMI 656X X X X Extracts X X X X X X X X Extracts X X X X ..... Hari Om Maratha And Shri N. K. Saini,JJ. For the Appellant : Shri N. R. Mertia For the Respondent : Shri G. R. Kokani ORDER Per N. K. Saini, A.M. This is an appeal by the assessee against the order dated 29.10.2009 of C IT(A), Jodhpur. 2. Following grounds have been raised in this appeal:- 1. That order u/s 143(3) framed by the CIT(A) Jodhpur is bad in law and in facts. 2. That the learned CIT(A) has erred in disallowing the deduction of Rs. 1554615/- claimed by the appellant u/s 80P. 3 That in the alternative and without prejudice to above the learned CIT(A) has erred in not allowing proportional deduction u/s 80P(2)(a)(iii) and 80P(2)(a)(iv) considering the Trading account submitted by Samiti for transactions of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... impugned order confirmed the action of the AO by observing at pages 4 5 of the impugned order, as under:- "It is found that the issues involved and the relevant facts in the instant proceedings are similar and identical to those for AY 04-05 for which my predecessor has already decided the issue in order no. 47/2007-08 dated 4-10-2007. The issue relating to allowability of deduction u/s 80P(2)(a)(iii) 80P(2)(a)(iv) of the I. T. Act for the AY 06-07 is squarely covered by the decision of the CIT (A) for the AY 04-05, the facts regarding nature of activity undertaken by the assessee being similar. The decision of the CIT (A) for AY 04-05 on the issue relating to allowability of deduction u/s 80P(2)(a)(iii) 80P(2)(a)(iv) therefore, ho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (2)(a)(iv) is accordingly, upheld and confirmed. The appeals on these grounds are not allowed. In the written submission dated 27-2-2009, the appellant has claimed that deduction u/s 80P(2)(d) was also claimed as per return of income, included in total claim of Rs. 15,54,615/-. However, the Assessing Officer has specifically mentioned in the assessment order that the assessee society claimed deduction of Rs. 15,54,615/- u/s 80P(2)(a)(iii) 80P(2)(a)(iv) as per computation of income. From such observation of the Assessing Officer, it is established that the assessee had not claimed deduction u/s 80P(2)(d) in the return of income. The appellant cannot be allowed to raise such claim for the first time during the appellate proceeding having ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... both the parties and the material on record, it is noticed that a similar issue has been adjudicated by this Bench of the Tribunal in assessee's own case in ITA No. 646/Ju/2008 wherein relevant findings has been given in paras 9 10 of the said order, which read as under:- "9. Issues No. 4 5 relate to claim of the assessee u/s 80P(2)(a)(iii) and 80P(2)(a)(iv) contending that the assessee has produced separate trading account for transactions of sale and purchase to the members and non members of the society and this was not considered by the Ld. CIT(A) while passing the impugned order. But in the impugned order the Ld. CIT(A) has categorically found after examining the material produced by the assessee before him that the chart showing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssessment year 2004-05 for this period." 7. So, respectfull y following the aforesaid referred to order, this issue is restored to the file of the AO to be decided afresh as indicated in the aforesaid referred to order dated 28.10.2009 in assessee's own case in ITA No. 646/Ju/2008. 8. As regards to the issue raised in Ground No. 5 relating to 80P(2)(d) of the Act, the contention of the ld. counsel for the assessee is that this issue was rejected by the learned CIT(A) for the reasons that no such claim was made in the return of income before the AO. It was contended that this issue was raised before the AO, therefore, the learned C IT(A) ought to have allowed this claim. 9. Since the facts are not clear for this issue, therefore, it is ..... X X X X Extracts X X X X X X X X Extracts X X X X
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