9911796707
TMI Blog2015 (11) TMI 5X X X X Extracts X X X X X X X X Extracts X X X X ..... rned Commissioner of Income Tax (Appeals) has erred in directing the Assessing Officer to allow the entire claim of _10,59,37,589/- under section 80IB(10) of the I. T. Act which was disallowed by the Assessing Officer on the ground that certain expenditure debited in 80IB units were less and the expenditure debited in non 80IB units were more, so as to gain more deduction from 80IB and reduce the taxable profits from the non 80IB units. 2.2 The learned Commissioner of Income Tax (Appeals) ought to have appreciated the reworking of expenditure made by the Assessing Officer between 80IB and non 80IB units''. 3. The assessee in Cross Objection has raised the following grounds:- ''2. The assessee ought to have appreciated that the appeal l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... whether the repository of a discretion although acting in good faith has abused its power by exercising it for an inadmissible purpose or an irrelevant grounds or without regard to relevant consideration or with gross unreasonable . We find the following statement of law on this point: The emphasis that the court have recently placed on an implied duty to exercise discretionary powers fairly must normally be understood to mean a duty to adopt a fair procedure. Bu there is no doubt that the ideal of fairness is also a substantive principle. It is implicit in the concept of a judicial discretion, and it includes a duty to be impartial and not to discriminate on unacceptable grounds or to delay the making of a decision to the prejudice of f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e. The assessee justified the delay only with reference to the affidavit filed by the Director and it cannot be said that there is any good and sufficient reason to condone the delay. It clearly shows that the delay was due to the negligence and inaction on the part of the assessee. The assessee could have very well avoided the delay by the exercise of due care and attention. Being so, there is no sufficient and good reason for the delay of 122 days and even the number of days of delay mentioned in affidavit is also incorrect. Therefore, we declined to condone the delay and thus the Cross Objection filed by the assessee is dismissed. 5. Coming to the appeal of the Revenue , the facts of the case are that the Assessing Officer has found tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ppeals) that the assessee was running six other projects in addition to the 80IB project. With regard to apportionment of interest, the Id. AR has submitted that since 80IB unit has got more surplus funds as the project was nearing completion and advances towards flats were being received on their registration, the company was having surfeit of funds over liabilities and has put them in its other non 80IB units. The Commissioner of Income Tax (Appeals) further observed that in the assessment order that the Assessing Officer has hand-picked some of the heads of expenditure for reworking out of several heads of expenditure debited to the P&L account. The Assessing Officer has picked up those heads which were found to have been debited at a lo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e material on record. The Commissioner of Income Tax (Appeals) deleted the addition made by the Assessing Officer without any basis. The facts brought on record by the Assessing Officer suggest that the assessee lowered the profits of the units not enjoying deduction u/s.80IB, so as to reduce the liability of tax. It is appropriate to remit the issue back to the file of the Assessing Officer with a direction to examine the details furnished by the assessee with regard to all expenses including interest, finance charges, depreciation and other general administrative expenses on the basis of incremental inventory of work in progress from earlier assessment year to this assessment year, after giving due credit to the inflow of funds, if any in ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
