2015 (2) TMI 992

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.... question of law: "Whether on the facts and the circumstances of the case and in law, the Tribunal is right in holding that the order of the Assessing Officer has got to be considered as having been merged in the order of Commissioner of Income Tax (Appeals) without appreciating the fact that the issue raised in the order passed by the Commissioner of Income Tax u/s. 263 of the I.T.Act was not considered by the Assessing Officer in his assessment order and was therefore not a subject matter of the order of the Commissioner of Income Tax(Appeals) and hence the doctrine of merger relied upon by the ITAT and the Respondent is not applicable to this case?" 4. The impugned order of the Tribunal allowed the assessee's appeal on the shor....

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....pondent preferred an appeal to the Tribunal. By the impugned order the Tribunal held that in view of the doctrine of merger, the assessment order dated 30 January 2004 of the Assessing Officer did not exist after the order dated 19 August 2004 was passed by the CIT(A). Thus the the impugned order dated 25 March 2008 held that the CIT had no jurisdiction to issue notice under Section 263 of the Act. 9. The grievance of the revenue as articulated by Mr. Suresh Kumar is that although the Assessing Officer while passing the assessment order dated 30 January 2004 considered the respondent's claim for benefit under Section 80 HHC of the Act yet in appeal the CIT(A) had not applied his mind and considered the issue of export incentive being....

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....ninety per cent of ( a) any sum referred to in clause (iiia) or clause (iiib) or clause (iiic), as the case may be, or (b) any sum referred to in clause (iiid) or clause (iiie), as the case may be, of Section 28,as applicable in the case of an assessee referred to in the second or the third or the fourth proviso,as the case may be, the same proportion as the export turnover bears to the total turnover of the business carried on by the assessee.] Thus this amendment permitted set off of losses against export incentives. Prior to the above amendment in terms of the first proviso to Section 80HHC(3) of the Act only profits could be increased by the export incentives. The first proviso to Section 80HHC(3) at all times read as under: "Provide....