COMMISSIONER OF INCOME TAX Vs. STARTRONICS ENTERPRISES (P) LTD.
LAWS(GJH)-2008-2-235
HIGH COURT OF GUJARAT
Decided on February 13,2008

COMMISSIONER OF INCOME TAX Appellant
VERSUS
Startronics Enterprises (P) Ltd. Respondents

JUDGEMENT

D.A.MEHTA, J. - (1.) THE following questions of law have been referred for the three assessment years by Tribunal, Ahmedabad Bench 'A' under s. 256(1) of the IT Act, 1961 (the Act) at the instance of the CIT. Asst. yr. 1987 -88 : "(1) Whether, on the facts and in the circumstances of the case, the Tribunal is right in law in holding that the investment allowance is allowable on computers ? (2) Whether, on the facts and in the circumstances of the case, the Tribunal is justified in law in holding that data processing and print out would certainly be a thing produced by the assessee and thereby the assessee company is entitled to deduction under s. 32A of the Act ? (3) Whether, on the facts and in the circumstances of the case, the Tribunal is justified in holding that the AO has no jurisdiction to dwell upon and consider a fresh claim under s. 80 -I, when the requirements for allowing deduction under ss. 80 -I and under s. 32A are almost the same - For Asst. yr. 1988 -89 : "(1) Whether, on the facts and in the circumstances of the case, the Tribunal is justified in holding that the AO has no jurisdiction to dwell upon and consider a fresh claim under s. 80 -I, when the requirements for allowing deduction under ss. 80 -I and 32A are almost the same - For Asst. yr. 1989 -90 : "(1) Whether, on the facts and in the circumstances of the case, the Tribunal is right in law in holding that the investment allowance is allowable on computers ? (2) Whether, on the facts and in the circumstances of the case, the Tribunal is justified in law in holding that data processing and print out would certainly be a thing produced by the assessee and thereby the assessee is entitled to deduction under s. 32A of the Act ? (3) Whether, on the facts and in the circumstances of the case, the Tribunal is justified in holding that the AO has no jurisdiction to dwell upon and consider a fresh claim under s. 80 -I, when the requirements for allowing deduction under ss. 80 -I and 32A are almost the same - The assessment years are 1987 -88, 1988 -89 and 1989 -90.
(2.) HEARD Mr. M.R. Bhatt, learned senior Central Government standing counsel for the applicant Revenue. Insofar as the respondent assessee is concerned, though the board shows that notice is unserved, considering the fact that the issue is being decided in favour of the assessee the Court has taken up the reference for hearing and final disposal.
(3.) THOUGH the Tribunal has referred questions for the three assessment years as noted hereinbefore insofar as asst. yr. 1987 -88 is concerned, the facts reveal that the appeal of the Revenue was allowed in entirety by the Tribunal for the of the CIT for asst. yr. 1987 -88 do not arise out of the impugned order of Tribunal. Hence, the said questions for asst. yr. 1987 -88 are returned unanswered. Insofar as the only question for asst. yr. 1988 -89 and question No. 3 for asst. yr. 1989 -90 is concerned the issue stands concluded by a decision of this Court in the case of CIT vs. D.N. Dosani (2006) 200 CTR (Guj) 76 : (2006) 280 ITR 275 (Guj) whereunder this Court has come to the conclusion that pursuant to an order under s. 263 of the Act the AO cannot consider any other item while giving effect to the order under s. 263 of the Act. Accordingly question for asst. yr. 1988 -89 and question No. 3 for asst. yr. 1989 -90 are answered in the affirmative i.e. in favour of the assessee and against the Revenue.;


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