N.P.GUPTA, J. - (1.) THIS appeal of the Revenue has been admitted, vide order dated November 6, 2006, by framing the following substantial question of law: Whether the assessee is entitled to claim deduction under Section 80HH as well as under Section 80 -I both in respect of the industrial unit run by it?
(2.) THE perusal of the judgment of the learned Tribunal, so far as it relates to this question, shows that the learned Tribunal has decided the appeal by relying upon the judgment of this Court in CIT v. Chokshi Contacts P. Ltd. [2001] 251 ITR 587 : [2001] 166 CTR 383 (Raj), and has also relied upon the judgment to the same effect of the Madhya Pradesh High Court in I. T. A. No. 92/99, S.L.P. against which has been dismissed by the hon'ble Supreme Court (see : [2001]247ITR36(SC) ). We have gone through the judgment in Chokshi Contacts' case [2001] 251 ITR 587 , and find that, that judgment does fully cover the controversy involved in the present case against the Revenue as decided by the Tribunal.
(3.) LEARNED Counsel for the appellant tried to make out a distinction to the effect that since in the present case, the assessee -factory came into production only after April 1, 1990, deduction under Section 80HH could not be claimed. It would suffice to say, that the learned Commissioner in paragraph 3.2 has clearly found, that the assessee has been manufacturing quick lime, with effect from August 1, 1989, i.e., before April 1, 1990, to which effect, the assessee was given a certificate by the District Industries Department, Jodhpur. The production of hydrated lime was started after April 1,1990, but it was found by the Commissioner, that it does not make any difference with regard to the entitlement of deduction under Section 80HH, because the assessee has started production of quick lime before April 1, 1990. In the appeal before the Tribunal, this aspect about availability of deduction under Section 80HH has been decided by the learned Tribunal, on the ground, that such deduction was never denied to the assessee in the earlier assessment years, so much so, that in immediately preceding year, being 1996 -97, despite the fact that the assessment was made under Section 143(3), the deduction was allowed. In that view of the matter, it was found that the principle of consistency requires, that the view taken by the Department in the preceding years should not be disturbed, unless there is a change in the factual and legal position.;