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TMI Blog2015 (12) TMI 107X X X X Extracts X X X X X X X X Extracts X X X X ..... essing officer followed the assessment order for assessment year 2003-04, wherein identical disallowances had been made. 3. The assessee preferred appeal for AY 2003-04 before Ld CIT(A) and then to the ITAT. The Tribunal, vide is order dated 25-11-2008 passed in ITA No.7144/Mum/2006, restored all the matters to the file of the assessing officer on the reasoning that the assessee was not given proper opportunity. When the appeal filed by the assessee for AY 2004-05 also reached the ITAT, the Tribunal, vide its order dated 26-06-2009 passed in ITA No.990/Mum/2008, restored all the matters again to the file fo the assessing officer by following the order passed by the Tribunal for AY 2003-04. Hence the impugned assessment order was passed by the AO in the set aside proceedings. 4. Since the assessing officer had made the impugned disallowances by following the order passed for assessment year 2003-04, a specific query was posed to both the parties as to the position of the assessment order passed by the AO in the set aside proceedings. The Ld A.R submitted that the assessee has not received any assessment order for AY 2003-04 so far. Hence the Ld D.R was directed to ascertain the fa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ioner on or after the 1st day of April, 2005, the provisions of this sub-section shall have effect as if for the words "one year", the words "nine months" had been substituted. Provided also that where the order under section 254 is received by the Chief Commissioner or Commissioner or, as the case may be, the order under section 263 or section 264 is passed by the Commissioner on or after the 1st day of April, 2006, and during the course of the proceedings for the fresh assessment of total income, a reference under sub-section (1) of section 92CA- (i) was made before the 1st day of June, 2007 but an order under sub-section (3) of section 92CA has not been made before such date; or (ii) is made on or after the 1st day of June, 2007, the provisions of this sub-section shall, notwithstanding anything contained in the second proviso, have effect as if for the words "one year", the words "twenty-one months" had been substituted." Since the order was passed by the Tribunal for AY 2003-04 on 25.11.2008, the second proviso to sec. 153(2A) shall be applicable and hence the assessing officer should have passed the assessment order within nine months from the end of the financial ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re was no such person in the given address. Accordingly, he refused to offer any comments. The assessee thereafter submitted his correct address and hence the Ld CIT(A) requested the AO to furnish remand report again, but the AO did not furnish any report. Hence the Ld CIT(A) proceeded to examine the additional evidences and adjudicate the issues. 10. With regard to the deduction claimed u/s 80IB of the Act, the Ld CIT(A) took the view that the assessee has failed to prove that he was manufacturing the goods. The Ld CIT(A) has also accepted the view of the AO that the assessee's unit has been established by reconstruction, since the partnership firm has been converted into a proprietary concern. He also accepted the view of the AO that the assessee could not have purchased machinery from M/s Mahavir Mercantile Co., since the supplier has denied the sale to the assessee. The Ld CIT(A) also took the view that the assessee did not furnish any other evidence to support the claim of machinery. Accordingly, he upheld the rejection of claim for deduction u/s 80IB of the Act. 11. It is noticed that the undertaking eligible for deduction u/s 80IB of the Act was initially formed as a partn ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rd to the same, the assessee submitted that the AO had asked the supplier about the supplies made to the assessee's personal name, whereas the machinery was purchased in the concern's name M/s Master metals. This explanation of the assessee was not examined by the Ld CIT(A). 13. Since the machinery was held as not purchased, the tax authorities have taken the view that the assessee has not actually manufactured goods and hence the assessee was not eligible for deduction u/s 80IB of the Act. However, a perusal of the documents filed in paper book would show that the assessee has obtained permanent SSI certificate, which is normally given after commencement of production only that too after physical inspection. Further, the assessee has also furnished copies of registration made under Central Excise Act, Sales tax Act, Pollution control committee, import & export code, electricity payment bills, labour register etc. Further, the books of accounts also support the claim of manufacture of goods. With regard to the purchase of machineries, the assessee has furnished copies of relevant bills supporting the claim of purchase of machinery and also the particulars of payments made. We noti ..... 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