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TMI Blog2018 (11) TMI 441X X X X Extracts X X X X X X X X Extracts X X X X ..... ishi, Japan; there was any transfer of capital from the firm to the new concern or the capital was actually from the profit earned by the partnership firm needs to be taken into consideration. Apart from the said issues, the other issues raised by the Assessing Officer and the assessee are also required to be pointedly dealt with. It is clarified that facts mentioned herein are only illustrations. Thus be appropriate that without expressing any opinion on the merits of the case, the matter is remanded back to the Assessing Officer to decide the matter afresh after considering the material produced by the assessee and the contentions raised and by discussing the same in detail by passing a speaking order in accordance with law. - ITA No. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Tax Act, 1961 (for brevity, 'the Act') against the order of the Tribunal passed in ITA No.345 (ASR)/2009 dated 05.03.2015. According to the appellant, following substantial questions of law arises for consideration in the present appeal:- (i) Whether on the facts and circumstances of the case the Ld. ITAT is right in deleting the addition on account of disallowance of deduction of ₹ 24,59,300/- made by the AO u/s 10B of the Income Tax Act, 1961 ignoring the fact that the new unit has been formed by splitting up of the existing business of M/s Dynamech? (ii) Whether on the facts and circumstances of the case, Ld. ITAT is perverse in law and on the facts in admitting the additional evidence, a letter dated 14.12.2009 of Mi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gments were duly considered except one in the case of 138 ITR 338 in the case of CIT Vs. Oswal Wollen Mills (at S.No.4) of the set of nine citations. (vi) Whether the Ld. Tribunal has not erred in law in refusing to appreciate the mistake which it committed in recalling the order in ITA No.345/ASR/2009 on the ground that arguments of the assessee were not considered in their proper perspective as the same amounted to perversity and did not fell within domain of the provisions of Section 254(2) of the Income Tax Act, 1961. (vii) Whether the Ld. Tribunal has not erred in refusing to first do away with the mistake which it committed in MA No. 98/ASR/2010 before proceeding to hear the appeals in ITA No.345/ASR/2009 and three others. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (hereinafter referred as 'new concern') had a partnership firm by the name of M/s Dynamech. The partnership firm was also engaged in the business of supplying machine parts to the same purchaser i.e. M/s Mitsubishi Corporation, Japan. The Assessing Officer observed that the new concern has been set up after splitting up the old business and in view of clause 2(ii) of Section 10B, the deduction claimed by the assessee under Section 10B was disallowed vide order dated 31.12.2008. 6. Being aggrieved of the assessment order, the assesseee filed an appeal before the Commissioner of Income Tax (Appeal) (for short, 'CIT(A)'). The appeal was dismissed vide order dated 14.07.2009. Further, the appeal was preferred to Tribunal, sa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) It is not formed by the transfer to a new business of machinery or plant previously used for any purpose. Explanations XX XX XX 9. Section 10B of the Act is a special provision in respect to newly established 100% export oriented undertakings. As per Section 10B(1) of the Act subject to the provisions of the Section, there would be 100% deduction allowable towards profits and gains as are derived by an export oriented undertaking from the export of articles or things. The exemption would be for a period of ten years consecutively starting from the assessment year relevant to the previous year in which the manufacturing activity begins. Sub Section (2) to Section 10B l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he new concern but the profit earned by the partnership firm was used for establishing the new firm. The Tribunal reversed the findings recorded by the Assessing Officer and allowed the appeal. 13. Learned counsel for the revenue argued that the Tribunal erred in recalling its earlier order and allowing the appeal of the assessee. The grievance raised was that the Tribunal erred in holding that there was no transfer of capital from the existing business and it was not a case of splitting up of the business. 14. Learned counsel for the assessee submitted that the new unit and the partnership firm were producing different products. There was no question of transfer of business. It was argued that the machines imported were received earl ..... X X X X Extracts X X X X X X X X Extracts X X X X
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