TaxTMI 
TaxTMI 
2006 (8) TMI 637
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.... 1961 (Act). This ground is common to all the appeals. The assessee had claimed deduction u/s 80-IA in respect of profits on sale of software produced in the industrial undertaking. The claim of the assessee was disallowed by the Assessing Officer on the ground that the software being intangible asset, could not be considered as an article or thing in terms of Claus (iv) of Sub-section (2) of Section. Reliance was placed by the Assessing Officer on the judgment of the Hon'ble Supreme Court in the case of N.C. Budharaja and Co., 204 ITR 412. On appeal, the Learned CIT (A), following the decision of the Tribunal, Mumbai, Bench, in the case of Tangerine Exports, 49 ITD 386 = (2003-TIOL-40-ITAT-MUM) held that software exported by the assess....
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....ct matter before it and cannot travel beyond the same. Reliance has been placed by him on the decision of the Hon'ble Supreme Court in the case of Stepwell Industries Ltd., 228 ITR 171. On the other hand, the Learned D.R. has placed reliance on the judgement of Calcutta High Court in the case of Steel Containers Ltd., 112 ITR 995, wherein it has been held that if the disallowance of certain expenditure is wrong by certain provisions of law where the allowance or disallowance is the subject matter of appeal, the Tribunal is competent to deal with that question and decide the same in accordance with law. Further reliance was placed on the judgment of the Hon'ble Supreme Court in the case of National Thermal Power Corporation, 229 ITR ....
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....case National Thermal Power Corp. (supra), wherein it has been held that the entire tax proceedings is the subject matter of appeal before the Tribunal and the appellant can raise the question of law regarding taxability of a receipt even though it was not raised before the Assessing Officer. This judgment was rendered by a larger Bench of three Judges while the decision in the case of Stepwell Industries Ltd. (supra) was rendered by the Division Bench. Therefore, the later decision would prevail. Similarly, the larger Bench of three Judges of the Hon'ble Supreme Court in the case of Mahalaxmi Textile Mills Ltd., 66 ITR 710, had to consider the powers of the Tribunal u/s 33(4) of Income Tax Act, 1992, which is analogous to Section 254 o....
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....is aspect of the matter can only be decided after considering the factual details in this regard. Since, in our view, the assessee is required to prove the fulfillment of all the conditions and since the Assessing Officer has not examined the entire aspects of the matter, we are of the view that the matter should go back to the file of Assessing Officer for fresh adjudication. Accordingly, we partially set aside the order of the Learned CIT (A) and direct the Assessing Officer to adjudicate the issue afresh in accordance with law. 5. The second ground raised by the Revenue is whether, the Learned CIT (A) was justified in deleting the addition to the closing stock on account of unutilized MODVAT credit relying on the decision of the Hon&#....