IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION INCOME TAX APPEAL NO.1306 OF 2008 The CIT, Central-II,Mumbai )..Appellant V/s. Shri Rajesh Kapila )..Respondents ---- Mr.P.S.Sahadevan for the appellant. Mr.P.J.Pardiwala Sr.Counsel with Mr.A.K.Jasani for the respondents. ---- Coram : F.I.Rebello & R.S.Mohite,JJ Date : 16.02.2009. PC 1. Revenue has come in appeal on the following questions :- (i) Whether on the facts and in the circumstances of the case, the Hon’ble Tribunal was right in law in allowing the assessee’s claim of deduction u/s 80IB of Rs.44.37 lac when it was clearly established that the assessee failed to satisfy the conditions prescribed in that section relates to employment of minimum number of workers ? (ii) Whether on the facts and in the circumstances of the case, the Hon’ble Tribunal was right in law in preferring to rely on secondary evidence and discarding primary evidence in the form of attendance register recorded during search ? (iii) Whether on the facts and in the circumstances of the case, the Hon’ble Tribunal was right in law in failing to appreciate the clear findings of Ld CIT(A) and also failing to appreciate the judicial decision of the Hon’ble Supreme Court in the case of Sumati Dayal Vs CIT 214 ITR 801 applies to the present case ? (iv) Whether on the facts and in the circumstances of the case, the Hon’ble Tribunal was right in law in upholding assessee’s contention that no interest : 2 : u/s 234B is payable as the assessments were completed u/s 153A and no interest u/s 234B was payable as per intimation u/s 143(1) on the return originally filed u/s 139(1) and thus deleting the interest of Rs.2.93 lac ? (v) Whether on the facts and in the circumstances of the case, the Hon’ble Tribunal was right in law in not correctly appreciating the provisions of section 234B especially sec.234B(2), 234B(3) and also Explanation 2 there under, (which states regular assessments includes assessment completed under the provisions of sec.143 or 153A of the I.T. Act, if it is made for the 1st time), and thus arriving at conclusion that there is no default u/s 234B(a) ? 2. In so far as question nos.(i), (ii) & (iii) are concerned, these are also the issues in Income-tax Appeal No.1305 of 2008, which we have disposed off by a separate order passed today. All these appeals arose from a common order. Considering the finding recorded in that appeal in respect of questions (i), (ii) & (iii) the said questions will not arise. 3. In so far as questions (iv) & (v) are concerned, parties agree that once the assessee is entitled for benefit under Section 80IB, then the questions as raised are purely an academic and the said questions does not arise. 4. Considering the above, the questions as raised are purely academic and appeal disposed off accordingly. (R.S.Mohite,J) (F.I.Rebello,J)