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TMI Blog2013 (8) TMI 928X X X X Extracts X X X X X X X X Extracts X X X X ..... facts and circumstances of the case, the ITAT was justified in law in holding that appellant was not entitled to the deduction under Section 80IB on the surrendered amount though utilized for the business of the appellant without placing any evidence against the assessee on record and without rebutting the evidence presented by the assessee on record and thereby reversing a well versed and reasoned orders by the CIT(A)? 2)Whether on the facts and in the circumstances of the case the Income Tax Appellate Tribunal was justified in denying the claims of the appellant under Section 80IB of the Income Tax Act, 1961 by blindly relying upon the judgment of this Hon'ble Court in the case of National Legguard Works v. CIT and another, 288 IT ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d from industrial activities and no activity other than industrial activity was noticed during survey proceedings and, therefore, it is entitled to deduction under Section 80IB of the Act. The Assessing Officer held that according to Section 80IB of the Act, deduction was available on profits and gains derived from the business of an industrial undertaking and the onus was on the assessee to prove that the income had been derived from the industrial undertaking in order to claim deduction under Section 80IB of the Act. However, there was no such thing on the record which showed that the amount shown to have been invested in building account and cash was the result of income derived from industrial undertaking. By relying upon judgment of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d business or profession and, therefore, the assessee was entitled for deduction under Section 80IB of the Act. Reliance was placed upon judgments in CIT v. Abdul Rahman Industries, (2007) 293 ITR 475 (Mad.), CIT v. N.R.Paper Board Limited, (2009) 24 DTR 154 (Guj.), CIT v. Allied Industries, (2009) 31 DTR Judgments 323 (HP), CIT v. Sheth Developers (P) Limited, (2012) 77 DTR Judgments 249 (Bombay) and CIT v. Haswani Arts, (2013) 83 DTR Judgments 81 (Raj.) in support of the submissions. 4. Controverting the aforesaid submissions, learned counsel for the revenue relied upon judgments of this Court in Home Tex v. CIT, (2011) 59 DTR Judgments 165 and National Legguard Works's case (supra). Learned counsel for the revenue submitted th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dgment of the Hon'ble High Court in the case of National Legguard Works (supra), the burden on this aspect is clearly on the assessee and cannot be shifted to the Assessing Officer, as observed by the CIT(Appeals). Thus in our considered opinion, the CIT(Appeals) clearly fell in error while holding that the surrendered income on account of stocks and trade receivables had a direct nexus with the industrial undertaking of the assessee. Hence, the order of the CIT (Appeals) on this aspect is set aside and that of the Assessing Officer is restored. The plea of the assessee for deduction under Section 80IB with respect to the income surrendered on account of cash is also unsustainable in view of above discussion. On this limb, the orders of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... osed to be deposited vide post dated cheques. Since in the letter itself the assessee has accepted that this additional income was over and above the regular income as per books of account, the regular income which is arising out of industrial undertaking can only be subject to deduction u/s 80 IB and no other income surrendered on account of additional stock found during the course of survey can be considered for deduction u/s 80 IB. More particularly, in view of the decision of Hon ble Supreme Court in the case of Liberty India (supra) wherein even the income from DEPB and duty drawback which are received by the industrial undertaking as an incentive in the course of their business were held to be not eligible for claim of deduction u/s 8 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not reflected in the regular books of accounts. Learned counsel for the assessee was unable to show any perversity or illegality in the findings which may warrant interference by this Court. Similar view was recorded in National Legguard Works's case (supra) :- 7. We are unable to accept this submission. Deduction under Section 80HHC of the Act is available only on showing fulfilment of conditions specified therein and there could be no presumption that surrender made on account of unexplained stocks represented export income. The assessee was unable to give any explanation. There could be no presumption that additional amount surrendered represented income from exports. Deduction under Section 80HHC of the Act can be claimed ..... X X X X Extracts X X X X X X X X Extracts X X X X
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