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आदेश/Order
Per Bench:
The captioned appeals preferred by the Revenue and Cross Objection by the assessee are against the separate orders dated 29.06.2018 of Commissioner of Income Tax (Appeals)-1, Chandigarh [hereinafter referred to as ‘CIT(A)’]
ITA Nos. 1172/Chd/2018 & C.O. 1/Chd/2019 M/s Arion Healthcare, Manimajra 2
At the outset, the Ld. DR has submitted that the only issue involved
in these appeals is as to whether the assessee is entitled to deduction at
the rate of 100% of the eligible profits u/s 80IC of the Income-tax Act,
1961 (in short 'the Act') for another five years in the case of substantial
expansion of unit. In other words, whether the year in which the
substantial expansion is carried out is to be taken as initial assessment year
for the purpose of grant of deduction u/s 80IC of the Act. He has further
submitted that the issue raised in these appeals has been earlier
adjudicated by the Hon'ble H.P. High Court in the case of ‘M/s Stovekraft
India Vs. CIT’ ITA No. 20 of 2015 dated 28.11.2017, wherein, the issue
was decided in favour of the assessee. However, the Department on the
issue of substantial expansion went in appeal before the Hon'ble Supreme
Court and the Hon'ble Supreme Court decided the issue in favour of the
Revenue by the decision dated 20.8.2018 in the group of cases with the
lead case titled as ‘CIT Vs. M/s Classic Binding Industries, in Civil Appeal
No(s) 7208 of 2018 dated 20.08.2018.
The Ld. DR has further fairly admitted that the order of the Hon'ble
Supreme Court in M/s Classic Binding Industries (supra) has been recalled
in a Review Petition filed by the Petitioners and proposition of law laid
down by the Hon'ble H.P. High Court in the case of ‘M/s Stovekraft India
Vs. CIT’ ITA No. 20 of 2017 dated 28.11.2017 has been reaffirmed
recently by the Hon'ble Supreme Court in the group of cases with the lead
case in ‘Pr. CIT Vs. M/s Aarham Softronics’ in ITA No. 1784 of 2019 vide
order dated 20.02.2019.
We have gone through the order of the Hon'ble Apex Court in the
case of 'Pr.CIT, Shimla Vs. M/s Aarham Softronics’ (supra) and find that
ITA Nos. 1172/Chd/2018 & C.O. 1/Chd/2019 M/s Arion Healthcare, Manimajra 3
the Hon'ble Apex Court dealt with the entire scheme of the Act relating to
the relevant section i.e. section 80IC of the Act, and arrived at the
conclusion that the definition of the initial assessment year contained in
clause (v) of sub-section(8) of section 80IC of the Act can lead to a
situation where there can be more than one initial assessment year within
the said period of ten years. The relevant finding of the Hon'ble Apex
Court at para 19 of its order is as under:-
“19. Having examined the scheme in the aforesaid manner, we arrive at the conclusion that the definition of ‘initial assessment year’ contained in clause (v) of sub-section (8) of Section 80-IC can lead to a situation where there can be more than one “initial assessment year” within the said period of 10 years. As per sub-section (6), cap is on the 10 assessment years. It is not on quantum. We have also to keep in mind the purpose for which Section 80-IC was enacted. The purpose was to establish the business of the nature specified in the said provision in the specified States. This provision was, thus, aimed at encouraging the undertakings or enterprises to establish and set up such units in the aforesaid States to make them industrially advanced States as well. Undoubtedly, these are difficult States as most of these States fall in hilly areas. Therefore, cost of production and transportation may also go up.
When we keep in mind these objectives for which Section 80-IC was enacted, an irresistible conclusion would be to grant 100% deduction of the profits and gains even from the year when there is substantial expansion in the existing unit. After all, this substantial expansion involves great deal of investment which has to be, at least 50% in the plant and machinery, of the book value thereof before taking depreciation in any year. With an expansion of such a nature not only there would be increase in production but generation of more employment as well, which would benefit the local populace. It is for this reason, carrying out substantial expansion by itself is treated as ‘initial assessment year’. It would mean that even when an old unit completes substantial expansion, such a unit also becomes entitled to avail the benefit of Section 80-IC. If that is the purpose of the legislature, we see no reason as to why 100% deduction of the profits and gains be not allowed to even those units who had availed this deduction on setting up of a new unit and have now invested huge amount with substantial expansion of those units.”
The Hon'ble Apex Court thereafter concluded that a newly set up
undertaking or enterprise in the State of Himachal Pradesh would be
entitled to deduction @ 100% of the Act its profits for the first five
years and even thereafter in the case of substantial expansion is carried
ITA Nos. 1172/Chd/2018 & C.O. 1/Chd/2019 M/s Arion Healthcare, Manimajra 4
out by it, with the previous year in which substantial expansion is
undertaken becoming the initial assessment year. That in any case the
period of deduction u/s 80IC of the Act would not exceed 10 years. The
conclusion of the Hon'ble Apex Court at para 24 of its order is as under:
“24. The aforesaid discussion leads us to the following conclusions: (a) Judgment dated 20th August, 2018 in Classic Binding Industries case omitted to take note of the definition ‘initial assessment year’ contained in Section 80-IC itself and instead based its conclusion on the definition contained in Section 80-IB, which does not apply in these cases. The definitions of ‘initial assessment year’ in the two sections, viz. Sections 80-IB and 80-IC are materially different. The definition of ‘initial assessment year’ under Section 80-IC has made all the difference. Therefore, we are of the opinion that the aforesaid judgment does not lay down the correct law. (b) An undertaking or an enterprise which had set up a new unit between 7th January, 2003 and 1st April, 2012 in State of HimachalPradesh of the nature mentioned in clause (ii) of sub-section (2) of Section 80-IC, would be entitled to deduction at the rate of 100% of the profits and gains for five assessment years commencing with the ‘initial assessment year’. For the next five years, the admissible deduction would be 25% (or 30% where the assessee is a company) of the profits and gains. (c) However, in case substantial expansion is carried out as defined in clause (ix) of sub-section (8) of Section 80-IC by such an undertaking or enterprise, within the aforesaid period of 10 years, the said previous year in which the substantial expansion is undertaken would become ‘initial assessment year’, and from that assessment year the assessee shall been entitled to 100% deductions of the profits and gains. (d) Such deduction, however, would be for a total period of 10 years, as provided in sub-section (6). For example, if the expansion is carried out immediately, on the completion of first five years, the assessee would be entitled to 100% deduction again for the next fiveyears. On the other hand, if substantial expansion is undertaken, say, in 8th year by an assessee such an assessee would be entitled to 100% deduction for the first five years, deduction @ 25% of the profits and gains for the next two years and @ 100% again from 8th year as this year becomes ‘initial assessment year’ once again However, this 100% deduction would be for remaining three years, i.e., 8th, 9th and 10th assessment years. 25. In view of the aforesaid, we affirm the judgment of the High Court on this issue and dismiss all these appeals of the Revenue. Likewise, appeals filed by the assessees are hereby allowed.”
In view of the above, it is now settled law that even a new
undertaking, which has claimed deduction of its eligible profits @ 100%
ITA Nos. 1172/Chd/2018 & C.O. 1/Chd/2019 M/s Arion Healthcare, Manimajra 5
thereof for the first five years, is entitled to claim deduction @ 100% of
its profits thereafter on account of substantial expansion undertaken by
it.
Since in the present cases the fact that the assessee had undertaken
substantial expansion is not disputed, the assessee, we hold, is entitled
to claim deduction @ 100% of its eligible profits even if it has already
claimed deduction of its profits at the said rate for five years, in view of
the law laid down by the Apex court in this regard in its decision in the
case of M/s Aarham Softronics(supra). We, therefore, uphold the orders
of the Ld.CIT(A) and dismiss the appeals of the Revenue.
In the result, the appeals of the Revenue are dismissed.
Now coming to the Cross objections of the assessee raised vide C.O. No. 01/Chd/2019 (in ITA No. 1172/Chd/2018) only relating to
assessment year 2011-12.
The Ld. Counsel for the assessee, at the very outset, stated that 8.
he is not interested in pursuing the Cross objections, as such, he intends
to withdraw the same. The Ld. DR has no objection for the said
withdrawal. Consequently, the Cross objection of the assessee is dismissed
as ‘withdrawn’
Order pronounced in the Open Court on 11/04/2019
Sd/- Sd/- (संजय गग� / SANJAY GARG) (एन. के. सैनी / N.K. SAINI) उपा�य� / Vice President �या�यक सद�य /Judicial Member
Dated : 11/04 /2019 “आर.के.”
ITA Nos. 1172/Chd/2018 & C.O. 1/Chd/2019 M/s Arion Healthcare, Manimajra 6
आदेश क� ��त�ल�प अ�े�षत/ Copy of the order forwarded to : 1. अपीलाथ�/ The Appellant 2. ��यथ�/ The Respondent 3. आयकर आयु�त/ CIT 4. आयकर आयु�त (अपील)/ The CIT(A) 5. �वभागीय ��त�न�ध, आयकर अपील�य आ�धकरण, च�डीगढ़/ DR, ITAT, CHANDIGARH 6. गाड� फाईल/ Guard File
आदेशानुसार/ By order, सहायक पंजीकार/ Assistant Registrar