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Before: Shri Amit Shukla & Shri L.P. Sahu
ORDER Per L.P. Sahu, A.M.: This is an appeal filed by the assessee challenged the impugned order dated 27.04.2016 passed by ld. Pr. CIT, Karnal u/s. 263 of the IT Act on the following grounds:
On the facts and circumstances of the case, the order passed by the learned Commissioner of Income Tax (CIT) under Section 263 of the Act is bad, both in the eyes of law and on facts.
2. On the facts and circumstances of the case, the learned CIT has erred both on facts and in law in ignoring the contention of the appellant that the proceeding under Section 263 cannot be used for substituting opinion of the AO by that of the CIT.
3. On the facts and circumstances of the case, the learned CIT has erred both on facts and in law in ignoring the facts that the AO having taken one of the possible views, the power under section 263 of the Act cannot be invoked by CIT to substitute the alternative view.
4. On the facts and circumstances of the case, the order passed by CIT under section 263 of the Income Tax Act is unsustainable as power to revise can be invoked in the case of lack of enquiry, not in the case of inadequate enquiry. 5. (i) On the facts and circumstances of the case, the contention of the CIT that the deduction under section 80IC of the Act should be available to the assessee at the rate of 30% and not 100% is perverse and against the facts of the case. (ii) On the facts and circumstances of the case, the learned CIT has erred, both on facts and in law in raising the above contention by misinterpreting the provisions of section 80IC of the Act regarding the “substantial expansion”. On the facts and circumstances of the case, the learned CIT has erred both on facts and in law in setting aside the matter to the file of the AO without giving a finding as to the error and prejudice caused to the revenue by the assessment order, and as such the order passed is bad in law and liable to be quashed.
Briefly stated, the facts of the case are that the assessee company is engaged in manufacturing of pharmaceuticals preparation at Baddi (Himachal Pradesh) and filed its return of income for on 30.09.2012 declaring an income at Rs. 1,47,52,090/-. The case of the assessee was selected for scrutiny through CASS in order to examine the huge deductions claimed under Chapter Vl-A of the I.T. Act. The assessment u/s. 143(3) was completed on 19.12.2014 by Assessing Officer at a total income of Rs.1,56,17,960/-, thereby making an addition of Rs.8,65,873/- being the miscellaneous income not derived from undertaking as per provisions of section 80IC of the Act.
Resorting to the provisions of section 263, the Pr. CIT, Karnal examined the assessment records when it revealed that the Assessing Officer while passing assessment order u/s 143(3) allowed claim of 100% deduction of Rs.9,05,24,050/- made u/s 80IC of the Act considering the year of substantial expansion made by assessee in December 2011 as initial year of business. As per Pr. CIT, the provisions of section 80IC provide for 100% and 30% deductions respectively for first five assessment years and next five years in respect of profit and gains from the undertaking. The ld. Pr. CIT found that actually the business unit was setup in Baddi (Himachal Pardesh) in 2004-05 and business activity was commenced in April, 2006 and accordingly, the initial assessment year of the business was 2007-08 for claiming deduction u/s. 80IC. The assessee claimed 100% deduction on profit of Rs.9,05,24,050/- in AY 2012-13 by considering the impugned year as initial assessment year on the premise that substantial expansion was made in April 2009, whereas the initial assessment year was 2007-08 and, accordingly, the the assessee was entitled to deduction of 100% of profits for the first five years i.e. upto AY 2011-12 and 30% for next five assessment years as per sec. 80IC of the Act. As such, during the year under consideration, the assessee was eligible for deduction u/s 80IC @30% as this was the sixth assessment year of the business undertaking and the assessee company has already availed 100% of deduction u/s 80IC for the five assessment years which commenced from assessment year 2007-08 and expired in the assessment year 2011-12. The Pr. CIT was, therefore, of the view that the Assessing Officer while allowing 100% deduction did not examine/verify this aspect of the case and accordingly, the assessment order was erroneous in as much as prejudicial to the interest of Revenue. Show cause notice u/s. 263 was issued to the assessee and finding the reply of assessee as against the provisions of the Act and various judicial pronouncements, the ld. Pr. CIT therefore, set aside the assessment order and directed the Assessing Officer to allow 30% deduction u/s. 80IC for the year under appeal after giving an opportunity to the assessee of being heard. Aggrieved, the assessee is in appeal before the Tribunal.
We have heard the submissions of both the parties and have gone through the entire material available on record.
A perusal of the record reveals that the primary issue to be decided in this appeal is whether under attending facts and circumstances of the case, the ld. Pr. CIT was justified in holding that in the year under consideration, the assessee was entitled to deduction @ 30% of the profits instead of 100% under the provisions of section 80IC of the Act. It is an admitted fact that the business unit of assessee was setup in 2004-05 and business activity was commenced in April, 2006. It is also not in dispute that as per the year of commencement of business, the initial assessment year of the business was 2007-08 for claiming deduction u/s. 80IC. It is also not in dispute initially, the assessee claimed deduction @ 100% on the premise that new unit was set up in the State of Himanchal Pradesh and now the assessee wanted to continue this rate of 100% for next five years under the said provisions on the premise that they have made substantial expansion, which is not permissible as per scheme of the section 80IC regarding commencement of initial assessment year. The aforesaid issue has been finally decided by Hon’ble Supreme Court in recent decision dated 20 August, 2018 in the case of CIT vs. Classic Binding Industries, 2018(8) TMI 1209 (SC), wherein it has been laid down as under :
The essence of Section 3 as well as Section 6 have already been reproduced above. Whereas the exemption is provided @ 100% of such profits and gains for five assessment years commencing with the initial assessment years and, thereafter, 25% (or 30% where the assessee is a company) of the profits and gains for next five years. The deduction is limited to a period of 10 years.
In this backdrop, the question is as to whether these assessees, who had availed deductions @ 100% for first five years on the ground that they had set up a manufacturing unit as prescribed under sub-section (2) of the Act, can start claiming deductions @ 100% again for next five years as they had undertaking “substantial expansion” during the period mentioned in subsection (2)? The answer has to be in the negative for the following the reasons: 18. We are dealing with the deductions in respect of profits and gains under Section 80-IC of the Act. No other provision is involved. This section makes special provisions in respect of certain undertakings or enterprises in certain special category States. Section 80-IC was inserted by the Finance Act, 2003 w.e.f. April 1, 2004. As per this provision, certain undertakings or enterprises in certain special category States are allowed deduction from such profits and gains, as specified in sub-section (3) of Section 80-IC. The provisions of Section 80-IC provided deduction to manufacturing units situated in the State of Sikkim, Himachal Pradesh and Uttaranchal and North-Eastern States. The deduction was provided to new units established in the aforesaid States, and also to existing units in those States if substantial expansion was carried out. The deduction was available @ 100% for ten Assessment Years for the units located in North-Eastern and in the State of Sikkim and for the units located in Himachal Pradesh, the deduction was available @ 100% for five years and @ 25% for next five years. 19. In the instant case, we are concerned with the assessees who had established their undertakings in the State of Himachal Pradesh. Sub- section (3), as noted above, mentions the period of 10 years commencing with the initial Assessment Year. Subsection (6) puts a cap of 10 years, which is the maximum period for which the deduction can be allowed to any undertaking or enterprise under this section, starting from the initial Assessment Year. Another significant feature under sub-section (3) is that the deduction allowable is 100% of such profits and gains from an undertaking or an enterprise for five Assessment Years commencing with the initial Assessment Year and thereafter the deduction is allowable at 25% (or 30% where the assessee is a company) of the profits and gains. Cumulative reading of these provisions brings out the following aspects: (a) Those undertakings or enterprises fulfilling the conditions mentioned in sub-section (2) of Section 80-IC become entitled to deduction under this provision. (b) This deduction is allowable from the initial Assessment Year. “Initial Assessment Year’’ is defined in Section 80-IB(14)(c) of the Act. (c) The deduction is @ 100% of such profits and gains for first 5 Assessment Years and thereafter a deduction is permissible @ 25% (or 30% where the assessee is a company). (d) Total period of deduction is 10 years, which means 100% deduction for first 5 years from the initial Assessment Year and 25% (or 30% where the assessee is a company) for the next 5 years, 20. When we keep in mind the aforesaid scheme and spirit behind this provision, such a situation cannot be countenanced where an assessee is able to secure deduction @ 100% for the entire period of 10 years. If that is allowed it will amount to doing violence to the provisions of sub-section (3) read with sub-section (6) of Section 80-IC. A pragmatic and reasonable interpretation of Section 80-IC would be to hold that once the initial Assessment Year commences and an assessee, by virtue of fulfilling the conditions laid down in sub-section (2) of Section 80-IC, starts enjoying deduction, there cannot be another “Initial Assessment Year” for the purposes of Section 80-IC within the aforesaid period of 10 years, on the basis that it had carried substantial expansion in its unit.
We are conscious of our recent judgment rendered by this very Bench in Mahabir Industries v. Principal Commissioner of Income Tax (Civil Appeal Nos. 4765-4766 of 2018 decided on May 18, 2018). However, a fine distinction needs to be noted between the two sets of cases. In Mahabir Industries, the assessees had availed the initial deduction under a different provision, namely, Section 80-IA of the Act, i.e. by fulfilling the conditions mentioned in sub-section (4) of Section 80-IA. Those conditions are altogether different. Deduction in respect of profits and gains under the said provision is admissible when these profits and gains are from industrial undertakings or enterprises engaged in infrastructure development etc. Even this availment started at a time when Section 80-IC was not even on the statute book. As mentioned above, Section 80-IC was inserted by the Finance Act, 2003 with effect from April 01, 2004. The assessees in those cases had started claiming and were allowed deductions from the Assessment Years 1998-99 and 1999-2000 under Section 80-IA and from the Assessment Year 2000-01 to Assessment Year 2005-06 under Section 80-IB of the Act. The deduction was, thus, claimed by the assessees in those appeals under the new provision i.e. Section 80-IC on fulfilling conditions contained in sub-section (2) of Section 80-IC for the first time for the Assessment Year 2006-07. Thus, insofar as those cases are concerned, the initial Assessment Year under Section 80-IC started only from the Assessment Year 2006-07. In contrast, position here is altogether different. These assessees have availed deduction under Section 80-IC alone. Initially, they claimed the deduction on the ground that they had set up their units in the State of Himachal Pradesh and after availing the deduction @ 100% they want continuation of this rate of 100% for the next 5 years also under the same provision on the ground that they have made substantial expansion. As pointed out above, once the assessees had started claiming deduction under Section 80-IC and the initial Assessment Year has commenced within the aforesaid period of 10 years, there cannot be another initial Assessment Year thereby allowing 100% deduction for the next 5 years also when sub-section (3), in no uncertain terms, provides for deduction @ 25% only for the next 5 years. It may be asserted again that the assessees accept the legal position that they cannot claim deduction of more than 10 years in all under Section 80- IC.
In view of the aforesaid discussion, we hold that after availing deduction for a period of 5 years @ 100% of such profits and gains from the ‘units’, the assessees would be entitled to deduction for remaining 5 Assessment Years @ 25% (or 30% where the assessee is a company), as the case may be, and not @ 100%. The question of law is, thus, answered in favour of the Revenue thereby allowing all these appeals.”
The aforesaid decision of Hon’ble Supreme Court unequivocally supports the findings reached by the ld. Pr. CIT that the assessee was not entitled to get 100% deduction treating the year under considering as initial assessment year on the premise of substantial expansion of business.
The ld. counsel for the assessee, however, submitted that the aforesaid decision of Hon’ble Supreme Court was not available at the time of revision of assessment u/s. 263 of the Act and therefore, the above decision of Hon’ble Supreme Court having been not available at the time of revision of assessment, the Pr. CIT had no jurisdiction to exercise its powers u/s. 263. Reliance is placed on the decision of Hon’ble Supreme Court in the case of CIT vs. G.M. Mittal Stainless Steel (P) Ltd. (2003) 130 Taxman 67 (SC). We have gone through this decision of Hon’ble Apex Court and find that in that case, the case of Revenue was that the order of High court relied by the Assessing Officer was later reversed by Hon’ble Supreme Court and in these circumstances, the Hon’ble Supreme Court held that power of Commissioner u/s. 263 must be exercised on the basis of material that is available to him and by the time the powers u/s. 263 were exercised, the decision of jurisdictional High Court had not been set aside by the Supreme Court. Such a situation nowhere exists in the instant case. A perusal of the impugned assessment order nowhere reveals that the Assessing Officer, not to speak of reliance on any decision of jurisdictional High Court, has not even addressed or examined or verified the claim of the assessee in terms of provisions of section 80IC of the Act. The ld. Pr. CIT, on correct appreciation of section 80IC, which is supported by various decisions relied in the impugned order as well by the decision of Hon’ble Supreme Court in the case of CIT vs. Classic Binding Industries (supra), being the law of land, was therefore justified to in revising the assessment being erroneous in so far as prejudicial to the interest of Revenue. We, therefore, do not find any infirmity in the impugned order u/s. 263 of the Act. Accordingly, the appeal of the assessee deserves to be dismissed.