Gujarat High Court Case Information System
Print
TAXAP/351/2002 3/ 5 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
TAX
APPEAL No. 351 of 2002
With
TAX
APPEAL No. 352 of 2002
With
TAX
APPEAL No. 353 of 2002
With
TAX
APPEAL No. 354 of 2002
With
TAX
APPEAL No. 355 of 2002
=========================================================
HIMSON
FADIS MACHINERY PVT. LTD. - Appellant(s)
Versus
DY.C.I.T.
(ASSTT.) - Opponent(s)
=========================================================
Appearance
:
MR
RK PATEL for
Appellant(s) : 1,
MR BB NAIK for Opponent(s) :
1,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE K.A.PUJ
and
HONOURABLE
MR.JUSTICE R.H.SHUKLA
Date
: 07/07/2008
ORAL ORDER
(Per
: HONOURABLE MR.JUSTICE K.A.PUJ)
These
five Tax Appeals are filed by the appellant/assessee challenging the
order of the Income-tax Appellate Tribunal passed in Income-tax
Appeal Nos.4230 to 4234 of 1996 pertaining to assessment years
1988-89, 1990-91 to 1993-94 decided on 3.7.2002. While disposing of
the said Appeals, the Tribunal has relied on its earlier order for
assessment years 1987-88 and 1988-89 setting aside the orders passed
by the Commissioner of Income-tax under Section 263 of the Act.
Against the said order of the Tribunal, at the behest of the
assessee Reference is made to this Court being Income-tax Reference
No.17 of 1998. Following two questions of law were referred to by
the Tribunal to this Court.
?S1. Whether
on the facts and circumstances of the case the Tribunal was right in
confirming the orders of the C.I.T. made u/s. 263 holding that the
assessee company was not entitled to deduction u/s.80-I for lack of
satisfaction of the condition laid down in clause (ii) of sub-section
(2) of Sec.80-I of the I.T.Act.
2. Whether
on the facts and circumstances of the case the Tribunal was right in
law in holding that the CIT (A) rightly refused to entertain the
appeal against the order of the A.O.giving effect to the order of the
C.I.T. U/s. 263 for the A.Y.1987-88???
While
disposing of the said Reference on 15.4.2008 this Court has observed
as under:-
?S11. In this state of
affairs and the findings recorded by the Tribunal even if, for the
sake of argument one accepts the contention that the ownership of an
industrial undertaking may not be necessary for claiming relief
u/s.80I of the Act, when factually it is found by the Tribunal that
the machineries and plant used by the assessee were not new there is
no question of going behind the said finding. Hence, it is not
necessary to enter into the larger controversy as regards whether
ownership of plant and machineries is, or is not, a necessary
requisite for claiming relief u/s. 80I of the Act.??
?S12 In light of the
findings recorded by the Tribunal, it is not possible to record any
other finding contrary to findings recorded by the Tribunal. The
Tribunal was right in confirming the order made by CIT u/s. 263 of
the Act holding that the assessee company was not entitled to relief
u/s.80I of the Act. Accordingly question No.1 is answered in the
affirmative i.e. in favour of the revenue and against the assessee.??
Since
this Court has decided Reference on merit, question regarding the
validity of the order under Section 263 passed by the Commissioner
has not been gone into by this Court.
While
admitting the present Appeals on 29.10.2002, this Court has framed
question as under:-
?SWhether
on the facts and in the circumstances of the case, the Tribunal is
right in law in holding that the appellant is not entitled to
deduction u/s.80 I for lack of satisfaction of condition laid down
in Clause-(ii) of sub-section 2 of Section 80 I of the Income-tax
Act, 1961 ???
The
issue involved in the present Appeals is squarely covered by the
earlier decision of this Court in I.T.R. No.17 of 1998 decided on
15.4.2008 wherein it is held that the assessee is not entitled to
relief under Section 80 I of the Act. Following the earlier decision
of this Court, all these Tax Appeals are decided in favour of the
revenue and against the assessee. We accordingly, hold that the
Tribunal is right in taking the view that the appellant is not
entitled to deduction under Section 80-I for lack of satisfaction of
the condition laid down in Clause (ii) of sub Section (2) of Section
80-I of the I.T. Act, 1961.
All
these Appeals are dismissed without any order as to costs.
Registry
is directed to place copy of this order in each of the above matter.
(K. A. PUJ, J.) ( R. H. SHUKLA, J)
kks
Top