Sh. Narendra Kumar Bargoti, Haridwar V. ITO, Haridwar

ITA 2157/DEL/2012

• Counselvise Citation: [2015] 120 COUNSELVISE.COM (IT) 9961 (ITAT-DELHI)
• Duration Of Justice: 3 year(s) 6 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 13-05-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: E
• Next Hearing Date: 30-03-2015
• Assessment Year: 2008-2009
• Appeal Filed On: 07-05-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: P DAM KANUNJNA
• Assessee Lawyers: DR RAKESH GUPTA
• Keywords: Wrong claim
• Section: 143(3); 148; 154

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCHES E , NEW DELHI BEFORE SHRI J. SUDHAKAR REDDY, ACCOUNTANT MEMBER AND SHRI C.M. GARG , JUDICIAL MEMBER ITA NO. 2157 /DEL/201 2 AY: 200 8 - 09 SH.NARENDRA KUMAR BARGOTI VS. ITO, WARD 2 M/S HOTEL SHIV MURTI HARDWAR SHARWAN NATH NAGAR HARDWAR PAN: ABGPB 7950 B (APPELLANT) (RESPONDENT) APPELLANT BY : DR.RAKESH GUPTA, ADV. RESPONDENT BY : SH. P.DAM KANUNJNA, SR.D.R ORDER PER J. SUDHAKAR REDDY, ACCOUNTANT MEMBER THIS IS AN APPEAL FILED BY THE ASSESSEE AND IS DIRECTED AGAINST THE ORDER OF THE LD.CIT(A) - II, DEHRADUN DATED 14.02.2012 PERTAINING TO THE ASSESSMENT YEAR ( AY ) 2008 - 09 ON THE FOLLOWING GROUNDS. 1. THE AUTHORITIES BELOW HAS ERRED IN LAW AND ON FACTS IN DISALLOWING RS.8,16,195/ - CLAIMED BY THE ASSESSEE U/S 80 IC OF THE ACT. 2. THE AUTHORITIES BELOW HAS NOT BRING HOTEL IN T HE AMBIT OF ECO - TOURISM AND DEVIATED FROM THE MAIN SECTION 80IC OF THE ACT. 3. THE ITEM NO. 15 OF PART - C OF XIV SCHEDULE INCLUDES HOTELS UNDER ECO - TOURISM WHICH IS GROSSLY MISTAKEN BY BOTH THE AUTHORITIES BELOW. 4. IT IS PRAYED TO ALLOW THE CLAIM OF DEDUCT ION U/S 80IC OF RS.8,16,195/ - AND DELETE THE ENTIRE ADDITION. 2. FACTS IN BRIEF : - THE ASSESSEE IS A COMPANY AND FILED ITS RETURN OF INCOME ON 26.8.2008 DECLARING NIL INCOME AFTER CLAIMING DEDUCTION U/S 80 IC AT RS.8,16,195/ - FOR THE AY 2008 - 09 . T HE ASSE SSING OFFICER (THE AO ) ITA 2157/DEL/2012 AY: 2008 - 09 SH. NARENDRA KUMAR BARGOTI, HARIDWAR 2 DENIED EXEMPTION CLAIMED BY THE ASSESSEE U/S 80 IC OF THE INCOME TAX ACT, 1961 (THE ACT ) BY OBSERVING AS FOLLOWS: 3.8 I HAVE CONSIDERED THE SUBMISSION OF ASSESSEE ALONG WITH DISCUSSION MADE ABOVE IN TOTALITY. CONTENTION OF ASSESSEE IS NOT FOUND ACCEPTABLE ON FOLLOWING GROUNDS: 1 . ECO - TOURISM IS PRIMARY INGREDIENT FOR AVAILING THE DEDUCTION U / S 80 I C OF THE IT ACT 1961, AS DISCUSSED ABOVE IN PARA NO.3.3 AND 3.4. 2 . THE HOTEL IS NOT FOUND IN PROMOTING ECO - TOURISM ON FACTUAL GROUNDS. 3. THE HOTEL IS NEITHER A PART OF ANY E C O - TOURISM UNIT PROMOTING/MANAGING ECO - TOURISM NOR DOING ANY ACTIVITIES TO PROMOTE ECO - TOURISM. IT IS ALSO NOTED THAT ASSESSEE IS NEITHER MAKING ANY INVESTMENT FOR CONSERVING THE ENVIRONMENT OR NATURAL RESOURCES NO R MAKING ANY C ONTRIBUTION IN ANY SUCH PROJECT/ PROGRAM. 4. HOTEL IS USING CFL ALONG WITH NORMAL TUBE - LIGHTS IN ROOMS, TELEVISIONS, SMALL REFRIGERATORS, CEILING FAN, EXHAUST FAN, NORMAL TABL E LAMPS USING BULBS, HAVING THEIR NEGATIVE IMPACT ON ENERGY CONSERVATION. 5. MOST OF ROOMS IN THE HOTEL ROOM IS USING ONE AIR - CONDITIONER HAVING DIFFERENT CAPACITIES AS PER ROOM SPECIFICATION HAVING T H ERE NEGATIVE IMPACT ON ENERGY CONSERVATION AS WELL AS ENVIRONMENTAL POLLUTION BY EMISSION OF CFC AND OTHER GASES BY AIR CONDITIONER. 6. ASSESSE E IS NOT AT ALL USING NON CONVEN TIONAL/ A LTERNATIVE ENERGY RESOURCES. 7. NO WATER RECYCLING OR WASTE TREATMEN T IS AVAILABLE IN THE HOTEL 8. NO RAIN WATER HARVESTI NG IS DONE IN THE HOTEL. 9. HOTEL IS NORMALLY USING THE DISPOSABLE MATERIALS, PLASTIC MATERIALS. 10. NO SOLAR SYSTEM IS FOUND TO BE USED FOR LIGHTING AND OTHER PURPOSE. 11. THE IT I OF THIS OFFICE HAS VISITED THE HOTEL AND FOUND THAT NO MEASURES FOR PROM OTING ECOTOURISM ARE ADOPTED BY THE HOTEL. 3.9 ASSESSEE MADE A WRIT PETITION BEFORE THE HON'BLE HIGH COURT OF UTTARANCHAL, NAINITAL AGAINST THE ASSESSMENT PROCEEDINGS BEFORE ANY ASSESSMENT ORDER WAS PASSED BY THE A.O. THE HON'BLE HIGH COURT OF UTTARANCHAL NAINITAL HAS DISMISSED THE WRIT PETITION OF THE ASSESSEE WITH DIRECTIONS 'THAT ASSESSING OFFICER SHALL CONCLUDE THE PROCEEDINGS OF ASSESSMENT AS EXPEDITIOUSLY AS POSSIBLE, PREFERABLE WITHIN A PERIOD OF THREE . MONTHS, IF NOT ALREADY CONCLUDED FROM THE DATE OF PRODUCTION OF CERTIFIED COPY OF THIS OR DER BEFORE HIM. THE ABOVE ACTION OF THE ASSESSEE PROVES THAT THE ASSESSEE WAS WELL AWARE ABOUT HIS FALSE CLAIM FOR DEDUCTION U/S 80 IC OF THE I T.ACT AND TRIED TO LITIGATE THE ASSESSMENT PROCEEDINGS BY FILING WRIT BEFORE THE HON'BLE HIGH COURT. 3. THE ASSESSEE CARRIED THE MATTER IN APPEAL BEFOR E THE FIRST APPELLATE AUTHORITY WITHOUT SUCCESS. 4. FURTHER AGGRIEVED THE ASSESSEE FILED APPEAL BEFORE US. ITA 2157/DEL/2012 AY: 2008 - 09 SH. NARENDRA KUMAR BARGOTI, HARIDWAR 3 5. THE LD.COUNSEL FOR THE ASSESSEE DR.RAKESH GUPTA SUBMITTED THAT THE AO HAS GRANTED DEDUCTION U/S 80 IC TO THE ASSESSEE FOR THE AY 2005 - 06 IN AN ORDER DT. 27.3.2006 PASSED U/S 154 OF THE ACT. FURTHER HE SUBMITTED THAT FOR THE AY 2006 - 07 THE CLAIM OF THE ASSESSEE HAS NOT BEEN DISTURBED BY THE REVENUE AUTHORITIES. SIMILARLY FOR THE AY 2007 - 08 THE AO REOPENE D THE ASSESSMENTS BY ISSUE OF NOTICE U/S 148 ON THE GROUND THAT THE ASSESSEE IS NOT ELIGIBLE FOR DEDUCTION U/S 80 IC AND THEREAFTER ACCEPTED THE CLAIM OF THE ASSESSEE. UNDER THESE CIRCUMSTANCES HE RELIED ON THE DECI SION IN ITA 764/DEL/2013 FOR THE AY 2009 - 10 IN THE CASE OF ITO VS. M/S GANGA BEACH RESTORTS ORDER DT. 27.9.2013 AND SUBMITTED THAT THE AO IS NOT ENTITLED TO RE - EXAMINE THE CLAIM OF THE ASSESSEE FOR DEDUCTION U/S 80 IC, WITHOUT DISTURBING THE CLAIM ALLOWED IN THE INITIAL AYS. HE SUBMITTED THAT THE CASE OF THE ASSESSEE HAS TO BE ALLOWED. 6. THE LD.SR.D.R. MR.P.DAMKANUNJNA, ON THE OTHER HAND OPPOSED THE CONTENTIONS OF THE ASSESSEE AND SUBMITTED THAT IT IS NOT PROPER TO ARGUE THAT ONCE A MISTAKE HAS BEEN CO MMITTED IN A PARTICULAR AY BY THE REVENUE AUTHORITIES, SUCH A MISTAKE CAN BE PERPETUATED YEAR AFTER YEAR. HE RELIED ON THE ORDER OF THE REVENUE AUTHORITIES AND SUBMITTED THAT THE TERM ECHO TOURISM HAS TO BE PROPERLY A PPRECIATED AND AS THE ASSESSEE DOES NOT POSSESS ANY CLEARANCE FROM POLLUTION CONTROL BOARD OF UTTARAKHAND GOVT. , T HE EXEMPTION CANNOT BE GRANTED. 7. AFTER HEARING RIVAL CONTENTIONS, PERUSING PAPERS ON RECORD, ORDERS OF AUTHORITIES BELOW, WE HOLD AS FOLLOWS. 8. THE ASSESSEE HAS BEEN GRANTED DED UCTION U/S 80 IC FOR THE AY 2005 - 06, 2006 - 07 AND 2007 - 08. THE FIRST YEAR OF CLAIM WAS THE A.Y. 2005 - 06. THAT THE IMPUGNED AY I.E. AY 2008 - 09 IS THE FOURTH YEAR OF THE CLAIM. THIS BENCH OF THE TRIBUNAL IN THE CASE OF ITO VS. M/S GANGA BEACH RESTORTS ORDE R DT. 27.9.2013 HAS HELD AS FOLLOWS. 13. WE ARE NOT EXPRESSING ANY OPINION ON THE ABOVE FINDINGS OF THE LD. CIT(A) FOR THE REASON THAT IT WOULD BE AN ACADEMIC EXERCISE IN THE CASE OF THIS ASSESEE, AS WE FIND THAT THE ASSESEE HEREIN HAS BEEN CLAIMING DEDUCTION U/S ITA 2157/DEL/2012 AY: 2008 - 09 SH. NARENDRA KUMAR BARGOTI, HARIDWAR 4 80IC OF THE ACT FOR THE EARLIER YEARS AND THAT THE AO HAS ALLOWED THE SAME IN THE FIRST YEAR U/S 143(3) AND AS IT IS WELL SETTLED THAT IF THE CONDITIONS FOR ALLOWABILITY OF A DEDUCTION IS EXAMINED BY THE AO IN THE INITIAL YEAR OF CLAIM THEN, IN THE SUBSEQUENT YEAR, THIS ASPECT CANNOT BE REVIEWED BY THE AO AND A CONTRARY VIEW TAKEN. THE PARTICULARS OF THE ASSESSMENTS WHERE THE CLAIM HAS BEEN MADE AND ALLOWED IN THE EARLIER YEARS IS GIVEN IN THE TABLE BELOW. SL.NO. A.Y. DEDUCTIONS CLAIMED U/ S 80 IC ( RS.) DISALLOWANCE 80 IC (RS.) ASSESSMENT U/S I. 2005 - 06 31,069/ - -- 143(3) (PAGE 18 OF PAPER BOOK) II. 2006 - 07 23,25,655/ - -- 143(3) (PAGES 19, 20 OF PAPER BOOK) III. 2007 - 08 67,18,255/ - -- 143(1) IV. 2008 - 09 1,06,03,655/ - -- 143(3) (PAGE 23 OF PAPER BOOK) V. 2009 - 10 72,28,540/ - 72,28,540/ - DISPUTED IN APPEAL VI. 2010 - 11 8,72,235/ - -- 143(1) 13.1. THE ASSESSMENTS OF THE EARLIER YEARS OR THE LATER YEARS ARE NOT DISTURBED AND THE ASSESSEE WAS ALLOWED THE CLAIMS U/S 80IC. 14. THE HON BLE DELHI HIGH COURT IN THE CASE OF CIT VS. DELHI PATRA PRAKASHAN LTD. 355 ITR 14 CONSIDERED THE QUESTION AS TO WHETHER THE ITAT WAS RIGHT AND HOLDING THAT REQUISITE CONDITIONS TO BE FULFILLED FOR ALLOWABILITY OF DEDUCTION U/S 80 I OUGHT TO BE SATISFIED, NOT ONLY IN THE FIRST OR THE INITIAL YEAR, BUT IN ALL THE ASSESSMENT YEARS IN WHICH THE DEDUCTION U/S 80I IS CLAIMED BY THE ASSESSEE. THE HON BLE HIGH COURT AT PARA 74 TO PARA 80 HELD AS FOLLOWS : - 74. IN THE PRESENT CASE, THE CLAIM OF THE AS SESSEE U/S 80 - I OF THE ACT WAS EXAMINED AND ALLOWED BY THE ASSESSING OFFICER FOR THREE YEARS PRECEDING THE ASSESSMENT YEAR 1991 - 92. IT IS RELEVANT TO NOTE THAT ASSESSMENTS IN THE EARLIER YEARS I.E RELATING TO ASSESSMENT YEARS 1988 - 89, 1989 - 90 AND 1990 - 91 H AS NOT BEEN DISTURBED BY THE ASSESSING OFFICER AND THERE HAS BEEN NO CHANGE THAT COULD JUSTIFY THE ASSESSING OFFICER ADOPTING A DIFFERENT VIEW IN THE ASSESSMENT YEARS 1991 - 92 AND THEREAFTER. AS STATED HEREINBEFORE, IN CERTAIN CASES WHERE THE ISSUES INVOLVE D HAVE ATTAINED FINALITY ON ACCOUNT OF THE ITA 2157/DEL/2012 AY: 2008 - 09 SH. NARENDRA KUMAR BARGOTI, HARIDWAR 5 SUBJECT MATTER OF DISPUTE HAVING BEEN FINALLY ADJUDICATED, THE QUESTION OF REOPENING AND REVISITING THE SAME ISSUE AGAIN IN SUBSEQUENT YEARS WOULD NOT ARISE. THIS IS BASED ON THE PRINCIPLE THAT THERE SHOULD BE FIN ALITY IN ALL LEGAL PROCEEDINGS. THE SUPREME COURT IN THE CASE OF PARASHURAM POTTERY WORKS CO. LTD. VS. ITO (1977) 106 ITR 1 HAD HELD AS UNDER : - THAT THE POLICY OF LAW IS THAT THERE MUST BE A POINT OF FINALITY IN ALL LEGAL PROCEEDINGS, THAT STALE ISSUES S HOULD NOT BE REACTIVATED BEYOND A PARTICULAR STAGE AND THAT LAPSE OF TIME MUST INDUCE REPOSE IN AND SET AT REST JUDICIAL AND QUASI - JUDICIAL CONTROVERSIES AS IT MUST IN OTHER SPHERES OF HUMAN ACTIVITY. 75. IN THE FACTS OF THE PRESENT CASE, WHERE ALTHOUGH THE ASSESSING OFFICER HAS ALLOWED THE ASSESSEE DEDUCTION UNDER SECTION 80 - 1 OF THE ACT IN THE PRECEDING YEARS, ONE MAY STILL HAVE CERTAIN RESERVATIONS AS TO WHETHER THE ISSUE OF ELIGIBILITY OF UNIT NOS. 2 AND 3 FULFILLING THE CONDITIONS HAS BEEN FINALLY S ETTLED, SINCE THE QUESTION HAS NOT BEEN A SUBJECT MATTER OF ANY APPELLATE PROCEEDINGS IN THE YEARS PRECEDING THE ASSESSMENT YEAR 1991 - 92. HOWEVER, THERE IS YET ANOTHER ASPECT WHICH NEEDS TO BE CONSIDERED. BY VIRTUE OF SECTION 80 - I(5) OF THE ACT, DEDUCTION E TO AN ASSESSEE IN RESPECT OF THE ASSESSMENT YEAR (REFERRED TO AS THE INITIAL ASSESSMENT YEAR) RELEVANT TO THE PREVIOUS YEAR IN WHICH THE INDUSTRIAL UNDERTAKING BEGINS TO MANUFACTURE OR PRODUCE ARTICLES OR THINGS, OR TO OPERATE ITS COLD STORAGE PLANT OR P LANTS OR THE SHIP IS FIRST BROUGHT INTO USE OR THE BUSINESS OF THE HOTEL STARTS FUNCTIONING OR THE COMPANY COMMENCES WORK BY WAY OF REPAIRS TO OCEAN - GOING VESSELS OR OTHER POWERED CRAFT. SUCH DEDUCTION IS ALSO AVAILABLE FOR THE SEVEN ASSESSMENT YEARS IMMED IATELY SUCCEEDING THE INITIAL ASSESSMENT YEAR. SURELY IN CASES WHERE AN ASSESSEE IS HELD TO BE ELIGIBLE FOR DEDUCTION IN THE INITIAL ASSESSMENT YEAR, THE SAME CANNOT BE DENIED IN THE SUBSEQUENT ASSESSMENT YEARS ON THE GROUND OF INELIGIBILITY SINCE THE SET OF FACTS WHICH ENABLE AN ASSESSEE TO CLAIM TO BE ELIGIBLE FOR DEDUCTION UNDER SECTION 80 - 1 OF THE ACT OCCUR IN THE PREVIOUS YEAR RELEVANT TO THE INITIAL ASSESSMENT YEAR AND HAVE TO BE EXAMINED IN THE INITIAL ASSESSMENT YEAR. IN SUCH CASES WHERE THE FACTS O N THE BASIS OF WHICH THE DEDUCTIONS ARE CLAIMED ARE SUBJECT MATTER OF AN EARLIER ASSESSMENT YEAR AND DO NOT ARISE IN THE CURRENT ASSESSMENT YEAR, IT WOULD NOT BE POSSIBLE FOR AN ASSESSING OFFICER TO TAKE A DIFFERENT VIEW IN THE CURRENT ASSESSMENT YEAR ITA 2157/DEL/2012 AY: 2008 - 09 SH. NARENDRA KUMAR BARGOTI, HARIDWAR 6 WITH OUT ALTERING OR REOPENING THE ASSESSMENT PROCEEDINGS IN WHICH THE ELIGIBILITY TO CLAIM THE DEDUCTION HAS BEEN ESTABLISHED. 76. IN CASES WHERE DEDUCTION IS GRANTED UNDER SECTION 80 - 1 OF THE ACT, THE APPLICABILITY OF THE SECTION IS DETERMINED IN THE YEAR I N WHICH THE NEW INDUSTRIAL UNDERTAKING IS ESTABLISHED. THE QUALIFICATION AS TO WHETHER ANY INDUSTRIAL UNDERTAKING FULFILLS THE CONDITION AS SPECIFIED UNDER SECTION 80 - 1 OF THE ACT HAS TO BE DETERMINED IN THE YEAR IN WHICH THE NEW INDUSTRIAL UNDERTAKING IS ESTABLISHED. ALTHOUGH THE DEDUCTION UNDER SECTION 80 - 1 OF THE ACT IS AVAILABLE FOR THE ASSESSMENT YEARS SUCCEEDING THE INITIAL ASSESSMENT YEAR, THE CONDITIONS FOR AVAILING THE BENEFIT ARE INEXTRICABLY LINKED WITH THE PREVIOUS YEAR RELEVANT TO THE ASSESSMEN T YEAR IN WHICH THE NEW UNDERTAKING WAS FORMED. IN SUCH CIRCUMSTANCES, IT WOULD NOT BE POSSIBLE FOR AN ASSESSING OFFICER TO REJECT THE CLAIM OF AN ASSESESE FOR DEDUCTION UNDER SECTION 80 - 1 OF THE ACT ON THE GROUND THAT THE INDUSTRIAL UNDERTAKING IN RESPECT OF WHICH DEDUCTION IS CLAIMED DID NOT FULFILL THE CONDITIONS AS SPECIFIED IN SECTION 80 - 1(2) OF THE ACT, WITHOUT UNDERMINING THE BASIS ON WHICH THE DEDUCTION WAS GRANTED TO THE ASSESSEE IN THE INITIAL ASSESSMENT YEAR. THIS IN OUR VIEW WOULD NOT BE PERMISS IBLE UNLESS THE PAST ASSESSMENTS ARE ALSO DISTURBED. 77. THE ASSESSING OFFICERS OVER A PERIOD OF THREE YEARS BEING ASSESSMENT YEARS 1988 - 89, 1989 - 1990 AND 1990 - 1991 HAVE CONSISTENTLY ACCEPTED THE CLAIM OF THE ASSESSEE FOR DEDUCTION UNDER SECTION 80 - I OF TH E ACT AND IT WOULD NOT BE OPEN FOR THE ASSESSING OFFICER TO DENY THE DEDUCTION UNDER SECTION 80 - 1 OF THE ACT ON THE GROUND OF NON FULFILLMENT OF THE CONDITIONS UNDER SECTION 80 - 1(2) OF THE ACT WITHOUT DISTURBING THE ASSESSMENT FOR THE ASSESSMENT YEARS RE LEVANT TO THE PREVIOUS YEAR IN WHICH THE UNIT NOS. 2 & 3 WERE ESTABLISHED. 78. THIS VIEW HAS ALSO BEEN ACCEPTED BY A DIVISION BENCH OF GUJARAT HIGH COURT IN THE CASE OF SAURASHTRA CEMENT & CHEMICAL INDUSTRIES (SUPRA). IN THAT CASE, THE GUJARAT HIGH COURT H ELD THAT WHERE RELIEF OF A TAX HOLIDAY HAD BEEN GRANTED TO AN ASSESSEE IN AN INITIAL ASSESSMENT YEAR IN WHICH THE CONDITIONS FOR GRANT OF TAX HOLIDAY HAD TOBE EXAMINED, DENIAL OF RELIEF IN THE SUBSEQUENT YEARS WOULD NOT BE PERMISSIBLE WITHOUT DISTURBING TH E ASSESSMENT IN THE INITIAL ASSESSMENT YEAR. THE RELEVANT EXTRACT FROM THE DECISION OF THE GUJARAT ITA 2157/DEL/2012 AY: 2008 - 09 SH. NARENDRA KUMAR BARGOTI, HARIDWAR 7 HIGH COURT IN SAURASHTRA CEMENT & CHEMICAL INDUSTRIES (SUPRA) IS QUOTED BELOW : - THE NEXT QUESTION TO WHICH THE TRIBUNAL ADDRESSED ITSELF, AND NO OUR OPINIO N RIGHTLY, WAS WHETHER THE TRIBUNAL WAS JUSTIFIED IN REFUSING TO CONTINUE THE RELIEF OF TAX HOLIDAY GRANTED TO THE ASSESSEE - COMPANY FOR THE ASSESSMENT YEAR 1968 - 69, IN THE ASSESSMENT YEAR UNDER REFERENCE, THAT IS, 1969 - 70, WITHOUT DISTURBING THE RELIEF GRA NTED FOR THE INITIAL YEAR. IT SHOULD BE STATED THAT THERE IS NO PROVISION IN THE SCHEME OF S.80J SIMILAR TO THE ONE WHICH WE FIND IN THE CASE OF DEVELOPMENT REBATE WHICH COULD BE WITHDRAWN IN SUBSEQUENT YEARS FOR BREACH OF CERTAIN CONDITIONS. NO DOUBT, THE RELIEF OF TAX HOLIDAY UNDER SECTION 80J CAN BE WITHHELD OR DISCONTINUED PROVIDED THE RELIEF GRANTED IN THE INITIAL YEAR OF ASSESSMENT IS DISTURBED OR CHANGED ON VALID GROUNDS. BUT WITHOUT DISTURBING THE RELIEF GRANTED IN THE INITIAL YEAR, THE ITO CANNOT E XAMINE THE QUESTION AGAIN AND DECIDE TO WITHHOLD OR WITHDRAW THE RELIEF WHICH HAS BEEN ALREADY ONCE GRANTED. 79. THE DIVISION BENCH OF THE BOMBAY HIGH COURT IN THE CASE OF PAUL BROTHERS (SUPRA) HAS ALSO ADOPTED THE VIEW EXPRESSED BY THE GUJARAT HIGH COURT IN THE CASE OF SAURASHTRA CEMENT & CHEMICAL INDUSTRIES (SUPRA). 80. FOLLOWING THE AFORESAID DECISIONS , WE HOLD THAT IN FACTS OF THE PRESENT CASE UNIT NOS. 2 & 3 CANNOT BE STATED TO HAVE BEEN FORMED BY SPLITTING UP OR IN RECONSTRUCTION OF EXISTING BUSINE SS. (EMPHASIS OURS) . 9. CONSISTENT WITH THE VIEW TAKEN THEREIN, WE ALLOW THE GROUNDS OF THE A SSESSEE AND DIRECT THE AO TO GRANT DEDUCTION U/S 80IC OF THE ACT. 10. IN THE RESULT THE APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUN CED IN THE OPEN COURT ON 13 TH MAY, 2015. SD/ - SD/ - ( C.M. GARG ) (J.SUDHAKAR REDDY) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: THE 13 TH MAY, 2015 *MANGA ITA 2157/DEL/2012 AY: 2008 - 09 SH. NARENDRA KUMAR BARGOTI, HARIDWAR 8 COPY OF THE ORDER FORWARDED TO: 1.APPELLANT; 2.RESPONDENT; 3.CIT; 4.CIT(A); 5.DR; 6.GUARD FILE BY ORDER ASST. REGISTRAR