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TMI Blog2008 (8) TMI 983X X X X Extracts X X X X X X X X Extracts X X X X ..... ction under this section is allowable only to the Cooperative Societies other than those specified in section 80P(2)(a) and 80P(2)(b) of the Act. The assessee fall in section 80P(2)(b) of the Act. Hence, the claim of deduction amounting to ₹ 50,000/- claimed under section 80P(2)(c) is rightly disallowed by the A.O. 5. On the other hand, Shri Sunil H. Talati, C.A., appearing on behalf of the assessee contended that in order to fall in clause(b) of section 80P(2), an assessee has to be a primary cooperative society. The assessee is not a primary cooperative society because a primary cooperative society as per section 80P(2)(b) is a society which is engaged in supplying milk, oil seeds, fruits or vegetables raised or grown by its members to a federal cooperative society, etc. In view of this, the assessee's case falls under section 80P(2)(c) of the Income Tax Act and the assessee is entitled to deduction of ₹ 50,000/-. He therefore, contended that the order of Learned Commissioner of Income Tax(Appeals) be upheld. 6. We have given our careful consideration to the rival submissions made before us and have perused the orders of authorities below as well the order o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e other, the Shri Rajeev Agarwal, CIT (D.R.) appearing on behalf of Revenue could not controvert the aforesaid submission of the ld. counsel of the assessee. 10. We have given our careful consideration to the rival submissions made before us and have perused the orders of authorities below. In the impugned order, on page 25, the Learned Commissioner of Income Tax(Appeals) has followed the decision of this Tribunal in assessee's own case for the assessment years 1990-91 to 1993-94. The Learned Commissioner of Income Tax(Appeals) also mentioned that the A.O. has not proved that investments by the assessee were out of borrowed funds. In these circumstances, in our opinion, the Learned Commissioner of Income Tax(Appeals) is legally and factually correct in directing the Assessing Officer to allow deduction under section 80P(2)(d) to the assessee as claimed. We, therefore, incline to uphold the order of Learned Commissioner of Income Tax(Appeals). This ground of appeal filed by the Revenue is rejected. 11. Now we take up the appeal being I.T.A. No. 3599/Kol./2009 filed by the assessee, wherein the assessee has raised the following grounds :- (1) That on the facts and in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l and Allied Industries (1992} 201 ITR 325 (Guj.); Hon'ble Supreme Court in the case of Bajaj Tempo Ltd. v. CIT (1992)196 ITR 188 (SC) held that a provision for.deduction / exemption or relief should be interpreted liberally, reasonably and in favour of assessee and it should be so construed as to effectuate the object of the Legislature and not to defeat it. Since a provision for promoting economic growth has to be interpreted liberally the restriction on it is to be construed so as to advance the objective of the provision and not to frustrate it. Considering the above decisions, what is to be examined is whether the conditions laid down in sub-section-(2) of Section 80-IB of the Ac! are complied with or not. We find that in respect of Cattle Feed Plant set up in the financial year 1993-94 and 1997-98 by installing capacity of 40 MT and 100 MT were always considered in the past as eligible units for claiming deduction u/s,80-IB of the Act. Once the conditions are satisfied in the initial years, in subsequent years, [he Assessing Officer is not to examine whether the units are established by splitting up or reconstruction of a business already in existence Thus the assessee is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eligible profit of such units. On the basis of information furnished, the Assessing Officer shall compute the claim and grant deduction in accordance with law . 15. Following the aforesaid order of this Tribunal dated 07.11.2007, we restore this issue to the file of Assessing Officer with the direction that the assessee should comply the similar direction in the assessment year under appeal. After examining the claim of the assessee, the Assessing Officer will adjudicate this issue afresh keeping in view the direction of the Tribunal in the assessment year 2004-05 after giving opportunity of being heard to the assessee. 16. Ground No. 2 of this appeal relates to denial of deduction under section 80-IB claimed on Banas-II Dairy Unit. The facts relating to controversy involved in this ground of appeal are that before the Learned Commissioner of Income Tax(Appeals), the assessee raised an additional ground which reads as under :- The A.O. erred in law and on facts in not granting deduction u/s. 80IBfor Banas-II Dairy Unit, that the appellant should be allowed the same, as admissible under the provisions of the Act . 17. In respect of the aforesaid ground, the assessee sta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... missioner of Income Tax(Appeals), the assessee is in appeal before us. 20. Before us, the ld. counsel of the assessee contended that this issue is squarely covered by the decision dated 07.11.2008 of the Tribunal in ITA No. 1188/AHD/2008 in assessee's own case, wherein for the assessment year 2004-05, the Tribunal in para 11 at page 9 directed the A.O. to allow the deduction under section 80IB in respect of Banas-II Dairy Unit. The relevant portion of the decision reads as under :- 11. After considering the rival submissions, we find that the assessee is stated to have satisfied the requisite conditions for claiming deduction under section 80IB of the Act in respect of Banas-II Dairy Unit. The deduction is claimed for production of butter milk powder. Separate figures for production of each such item is available separate identifiable expenses are provided three against. Mere technicalities like certain information in audit report or filing audit report after filing return of income, but before completion of assessment proceedings are not to come in a way of claiming deduction u/s. 80IB of the Act. Since no error in the order of ld. C.I.T.(Appeals) is pointed out, the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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