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TMI Blog2017 (7) TMI 214X X X X Extracts X X X X X X X X Extracts X X X X ..... ot be allowed to blow hot and cold. Having set up and established the claim of being engaged in the manufacturing activity during a particular period, which stand of the assessee was accepted by the department, the assessee cannot be allowed to shift the stand merely because in the later year the assessee finds that it would be more advantageous to shift the beginning of 10 consecutive years for the exemption under section 10B of the Act. - TAX APPEAL NO. 414 of 2017, AND TAX APPEAL NO. 415 of 2017 - - - Dated:- 5-7-2017 - MR. AKIL KURESHI, AND MR. BIREN VAISHNAV, JJ. For The Appellant : Mr S.N. Divatia, Advocate ORAL ORDER ( PER : HONOURABLE MR.JUSTICE AKIL KURESHI) 1. Facts are common in both the Tax Appeals. We m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... essment year 1998-1999 and since the exemption under section 10B would be available for 10 consecutive years from the beginning of the manufacturing activity, the assessee was entitled to such exemption for the assessment year 2007-2008 also. The Assessing Officer rejected such claim holding that the manufacturing activity had commenced during the financial year 19951996 i.e. relevant to the assessment year 1996-1997 and that therefore, such exemption under section 10B of the Act would not be available for the assessment year 2007-2008. 4. The Commissioner allowed the appeal of the assessee on this ground holding that there was insufficient manufacturing activity set up of the assessee during the earlier years and that therefore, the ass ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... machinery. It did not possess plant machinery during the F.Y.1995-96. The 1d.CIT (A) has accepted this fact. In our Opinion, the assessee cannot be permitted to breath hot and cold simultaneously. When we confronted the ld.counsel for the assessee, as to how assessee can claim deduction in these assessment years, when deduction were claimed under section 80HHC and 801A in the Asstt. Year 1996-97, the reply of the ld.counse1 for the assessee was that the Revenue might have committed an error in granting such deduction in those years. But the assessee cannot be denied from its right to claim in these years. In the light of the above situation, we are called upon to appreciate two sets of facts. On one hand, evidence in the shape of income ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case the issue was set aside to the A0 to find out whether the assessee has earned profit on sale of outsourced items and claimed deduction under section 10B of the Act. The profit derived by an assessee on selfmanufactured item was considered to be eligible for deduction under section 10B of the Act No such circumstances are there in the present appeals. Therefore. in our opinion. The ld. CIT(A) has erred in allowing deduction to the assessee in both these years. We set aside order of the ld. CIT(A) and restore that of the A0 on this issue. 5. From the record, it emerges that for the assessment year 1996-1997, the assessee had claimed deduction under section 80HHC and 80IA of the Income Tax Act which would be available to an industr ..... X X X X Extracts X X X X X X X X Extracts X X X X
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