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TMI Blog2003 (3) TMI 13X X X X Extracts X X X X X X X X Extracts X X X X ..... fect from April 1,1978 - Assessing Officer to decide this question afresh in the light of Explanation (b) to section 80HHA inserted by the Finance Act, 1999, with retrospective effect from 1st April, 1978, and to pass a fresh assessment order in accordance with law - - - - - Dated:- 24-3-2003 - Judge(s) : G. SIVARAJAN., J. M. JAMES. JUDGMENT The judgment of the court was delivered by G. SIVARAJAN J. - The following questions of law are referred by the Income-tax Appellate Tribunal (for short "the Tribunal"), under section 256(1) of the Income-tax Act, 1961 (for short "the Act"), for the decision of this court at the instance of the Revenue: "1. Whether, on the facts and in the circumstances of the case, the cost of generator se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ricity Board would be excluded. It is against the said orders of the Tribunal that the question set out in the opening paragraph has been referred to this court. Today, when the matter came up for hearing learned counsel appearing for the parties submitted that the provisions of section 80HHA have been amended by modifying Explanation (b) to the said section by the Finance Act of 1999, with retrospective effect from April 1,1978 (from the assessment year 1978-79 onwards) as per which an industrial undertaking shall be deemed to be a small-scale industrial undertaking which is, on the last date of the previous year, regarded as a small-scale industrial unit under section 11B of the Industries (Development and Regulation) Act, 1951 (65 of 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... B, in the circumstances and within the period specified in that section; (iii) it is not formed by the transfer to a new business of machinery or plant previously used for any purpose; (iv) it employs ten or more workers in a manufacturing process carried on with the aid of power, or employs twenty or more workers in a manufacturing process carried on without the aid of power. Explanation. - Where in the case of a small-scale industrial undertaking, any machinery or plant or any part thereof previously used for any purpose is transferred to a new business and the total value of the machinery or plant or part so transferred does not exceed twenty per cent. of the total value of the machinery or plant used in the business, then, for the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Assessing Officer as to whether the assessee satisfies the provisions of clause (b) of the Explanation to section 80HHA added by the Finance Act, 1999, with retrospective effect from April 1,1978. This is also a matter for evidence to be produced by the assessee. Since this question has not been considered by the Assessing Officer and by the two appellate authorities, we set aside the orders passed by the two appellate authorities and direct the Assessing Officer to decide this question afresh in the light of Explanation (b) to section 80HHA inserted by the Finance Act, 1999, with retrospective effect from 1st April, 1978, and to pass a fresh assessment order in accordance with law. It is open to the assessee to adduce evidence for satis ..... X X X X Extracts X X X X X X X X Extracts X X X X
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