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TMI Blog2021 (10) TMI 1271X X X X Extracts X X X X X X X X Extracts X X X X ..... on of the court so as to challenge the order dated 24th April 2009 passed by the tribunal. Denied benefit u/s 80IB on failure to produce evidence regarding consumption of electricity - The petitioner has not produced the requisite bills or payment vouchers to establish that electricity was consumed for the purposes of production and that payment thereof was duly made to the department. The mere obtaining a sanction for electricity connection was rightly not deemed to be a proof of the consumption of electricity. The submission that the petitioner has provided a certificate of electricity department to establish certain payment which was not considered by the authorities and, as such, the decision of the tribunal stands vitiated is c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r the respondents. 2. The petitioner M/s Kashmir Fabric Industries through its proprietor has preferred this petition under Article 226 of the Constitution of India so as to challenge the judgment and order of the Income Tax Appellate Tribunal dated 30.12.2008 in respect to the assessment year 2005-2006 and the subsequent order dated 24.04.2009 again passed by the Tribunal rejecting the application of the petitioner for rectifying the earlier order. 3. Briefly stated the assessing authority for the relevant year vide assessment order dated 28.12.2007 denied benefit under Section 80IB of the Income Tax Act as the petitioner could not produce evidence regarding consumption of electricity to establish actual production. The appeal agains ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the same. 5. The Apex Court in Commissioner of Income Tax and Ors. vs. Chhabil Dass Agarwal (2014) 1 SCC 603 in context with the matter under the Income Tax Act clearly laid down that when a statutory forum is created by law for redressal of any grievance, a writ petition should not be entertained. 6. There is no dispute to the fact that the petitioner by means of this writ petition have challenged the two orders passed by the tribunal i.e. dated 30.12.2008 and 24.04.2009. The first order has been passed by the tribunal in an appeal arising from the assessment order and the order of Commissioner of Income Tax (Appeals). The other order is an order of rejection of an application moved by the petitioner under Section 254(2) of the A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t is an order passed on an application of the petitioner filed under Section 254(2) of the Act. 12. The issue whether the order passed on an application under Section 254(2) of the Act is an order in appeal which is amenable to further appeal under Section 260-A of the Act was the bone of contention before the Full Bench of the Delhi High Court in Lachman Dass Bhatia vs. Assistant Commissioner of Income Tax connected appeals (2011) 330 ITR 243 Del. The Full Bench upon consideration of the entire law categorized the orders passed under Section 254(2) of the Act into three categories and laid down as under: (i) An order passed under Section 254(2) recalling an order in entirety would not be amenable to appeal under Section 260A of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cannot be accepted. The petitioner in moving the rectification application has raised the above point and argued that a certificate from electricity department showing payment of ₹ 68,906/- for electricity consumption for the year 2004-2005 relevant to the assessment year 2005-2006 was produced, but a perusal of the said certificate itself as enclosed by the petitioner himself would reveal that the same was issued by the Department on 26th August 2009 much after the assessment order, the appellate order by the Commissioner of Income Tax (Appeals) and the order by the tribunal have been passed. Thus, a certificate issued subsequent to the culmination of the above proceedings could not have been produced before any of the authorities an ..... X X X X Extracts X X X X X X X X Extracts X X X X
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