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TMI Blog2009 (1) TMI 927X X X X Extracts X X X X X X X X Extracts X X X X ..... s. The assessee has filed an application for condonation of delay in filing the present appeal against the order passed under Section 263 of the Act by the learned Commissioner. In the application for condonation of delay, the assessee has submitted that assessee was under the bona fide belief that the matter with regard to the working of deduction under Section 80HHC vis- -vis Section 80-IA/80-IB shall be made by the assessing officer freshly as the learned Commissioner has set aside the assessing officers original order and remanded the matter back to him for his fresh consideration But, later on, it was realized by the assessee that the learned Commissioner in his order under Section 263 has made an observation that the deduction under Section 80HHC is to be reduced by the deduction already allowed under Section 80-IA/80-IB of the Act, and the thus, the assessing officer would decide the issue only order passed under Section 263 of the Act. The assessee was then advised by his counsel that an appeal against the order under Section 263 of the Act should have been filed. Therefore the assessee without any further delay has filed this appeal. In support of the application for conso ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ortunity to the assessee. 7. The learned Commissioner in his order has also mentioned certain decisions of learned Commissioner (Appeals) in some other cases deciding the issue in favour of the assessee but learned Commissioner with due regards to his colleagues was unable to agree with the view taken by them. This itself makes it clear that the issue involved in this appeal was a debatable one. In the order passed by the Tribunal, Delhi Bench D, Delhi, in the assessees own case for the assessment year 2001-02, the Tribunal has made a reference to the various orders, which are in favour of the assessee including the decision of Hon'ble Madras High Court in the case of SCM Creations v. Asstt. CIT (2008) 218 CTR (Mad) 126. The contrary decision referred to in the order is the decision of Tribunal, Delhi Bench, in the case of Nodi Exports us. Asstt. CIT, order dated 25-7-2008. This issue is thus, fully covered by the Tribunals decision dated 12-9-2008 in assessees own case for the assessment year 2001-02, and therefore, the present order passed by the learned Commissioner (Appeals) under Section 263 deserves to be set aside for the similar reasons as given by the Tribunal in th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) 108 ITD 49 (Chen)(SB), where the question was whether relief under Section 80-IA should be deducted from profits and gains of business before computing relief under Section 80HHC of the Act. 9. We therefore, have to see that on 17-3-2006, when the learned Commissioner passed the order under Section 263 of the Act whether there were two different views on the aforesaid issue. In this connection, the following decisions decided in favour of the assessee holding that deduction under Section 80HHC is available on profits without reducing it by the deduction already allowed under Section 80-IB may be referred to: Decisions on Section 80-IA(9) available as on 17-3-2006, i.e., the date of the order under Section 263 passed by the Commissioner: Name of the decision Date Infavour/against the assessee Paper book page Nos. Decision of the Bangalore Bench of the Tribunal in the case of Mittal Clothing Co. v. Dy. CIT (2005) 4 SOT 626 (Bang) 20-6-2005 Favour 195-198 Decision of the Jaipur Bench of the Tribunal in the ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e available at the point of time when the assessing officer passed the assessment order, and the same position was existing on the day when the CIT passed the order under Section 263 of the Act, we are of the considered view that the assessing officers action cannot be said to be erroneous inasmuch as prejudicial to the interest of revenue. It is altogether a different matter that a contrary view was subsequently taken by the Tribunal in the case of Nodi Export v. Asstt. CIT by the Delhi Bench of Tribunal vide order dated -25-7-2008 in ITA Nos. 1439 and 1440/Del/2004, but that by itself would not render the view taken by the assessing officer as erroneous and prejudicial to the interest of revenue. The assessing officer has taken one of the possible views prevailing at the relevant time. 11. In this connection, we may rely upon the decision of Tribunal, Delhi Bench E New Delhi, in the case of Anil Kumar Rastogi v. CIT, order dated 8-2-2008 in ITA Nos. 2627 and 2628/Del/2005 pertaining to the assessment years 2001-02 and 2002-03 where the Tribunal has held as under: 8. We have heard both the parties. In these cases the assessee filed entire information before assessing offic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tive from 1-4-1999, and we are concerned with the assessment year 1995-96, therefore, this amendment has nothing to do with the assessment year 1995-96 and this amendment in no way helps the department. From it is clear that Hon'ble Rajasthan High Court has not delivered any decision in the favour of the revenue. Further, Tribunal, Delhi Bench F New Delhi in the case of Ajit Gupta v. ITO (supra) in para 12 observed as under : In fact, the Hon'ble High Court specifically noted that after considering the provisions of Section 80-IA(9) of the Act and the language used in Section 80HHC there was no restriction on allowing deductions under any other section of Chapter VI-A on gross total income after deduction under Section 80HHC of the Act. The observation regarding the amendment with effect from 1-4-1999 has been made as a sequel to the argument of revenue and is not the ratio of decision as contended by the learned Departmental Representative. Even if it is accepted that the legal proposition of the learned departmental Representative is supported by the said decision, it merely reflects a possible view. In subsequent decisions of Tribunal relied upon by the assessee, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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