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सुनवाई क� तारीख / Date of Hearing: 07/04/2017 घोषणा क� तारीख / Date of Pronouncement: 19.05.2017 आयकर आयकर अिधिनयम अिधिनयम,1961 क� क� धारा धारा 254(1)केकेकेके अ�तग�त अ�तग�त आदेश आदेश आयकर आयकर अिधिनयम अिधिनयम क� क� धारा धारा अ�तग�त अ�तग�त आदेश आदेश Order u/s.254(1)of the Income-tax Act,1961(Act) लेखा सद�य सद�य राजे�� राजे�� केकेकेके अनुसार अनुसार PER RAJENDRA, AM- लेखा लेखा लेखा सद�य सद�य राजे�� राजे�� अनुसार अनुसार Challenging the order dated 11.02.2015 of the CIT(A)- 7,Mumbai,the assessee has filed appeals for the above-mentioned assessment years(AY.s).Assessee-company is engaged in the business of gold and silver refinery. As the issues involved in both the years, so, we are adjudicating the appeal filed a single order, for the sake of convenience.The details of filing of returns, dates of assessments and assessed incomes can be summarised as under: A.Y. ROI filed on Returned Income Assessment dt. Assessed Income 2008-09 14.10.2008 (-) Rs.64.57 crores 26.11.2010 (-) Rs.18.11 crores 2009-10 11.09.2009 (-) Rs.24.68 crores 09.12.2011 (-)13.74 lakhs ITA/7983/Mum/2011,AY.2008-09 : 2.Though the assessee has filed three grounds of appeal, but substantively they deal with one issue only-there is only one effective ground of appeal and it pertains to disallowance of depreci -ation(Rs. 27.72 lakhs)disallowance of Rs. 51.29 lakhs (expenses incurred for putting the manufacturing facilities in working condition)and disallowance of Rs. 18.42 lakhs (interest payment on borrowed funds).During the assessment proceedings,the AO examined the annual report of the assessee and observed that the auditors had given a finding that company was yet to 2917/Mum/12 +7983/11 Shirpur Gold commence sales on commercial basis mainly due to lack of working capital. He made further enquiries in that regard and the Authorised Representative(AR) of the assessee admitted before him the it was in the process of commencing the operations and had put systems and procedures in place. The AO found that the purchase of raw material, being work in progress, had remained same throughout the year, that expenses on power and fuel were being debited to the books of accounts.Finally he held that assessee had not carried out any business during the year,that it was not entitled to claim depreciation, manufacturing expenses (excluding expenditure on electricity, bank charges, commission, rent, rate and taxes and auditors remuneration) and interest expenses. He made a disallowance of Rs. 98.20 lakhs(Rs.27.72 lakhs + Rs. 51.29 lakhs and Rs. 18.2 lakhs). 3.Aggrieved by the order of the AO, the assessee preferred an appeal before the First Appellate Authority(FAA).Before him,it was argued that there was a forced closure of plant due to non- availability of working capital, that even a trial run of machinery would fall within the ambit of use for the purpose of business for claiming depreciation, that the fixed asset on which depreciation were claimed were owned by the assessee and what put to use from the AY.2005- 06,that business operations had come to standstill awaiting financial revival,that it was in the nature of temporary closure,that the commercial activities restarted from 15/0/2010 after putting necessary working facilities in place,that there was no intention of the management to permanently close of business,that forced idleness of machinery could not disentitled the assessee from getting the benefit of depreciation.The assessee relied upon the cases of National Peroxides (2003SOT 321) SRF Ltd (21SOT 122) and argued that the assessee kept the plant and machinery in operative conditions.It was further argued that the business operations closed temporarily,that there was no permanent closure, that the expenditure in the intervening period had to be allowed,that the term for the purpose of business was more exhaustive,that it was not restricted to expenditure incurred for the purpose of earning income, that the loans borrowed were utilised for creation of its assets, that assessee could not be denied the interest expenditure for not carrying out business. After considering the submission of the assessee and the assessment order, the FAA held that the business of the assessee was closed for more than 5 years, that as per the reports of the auditors the company was yet to commence sales,commercial basis on account of absence of working capital,that material remained constant, that as per the provisions of section 30-44D of the Act business should have been carried out during the year for claiming expenditures,that that 2917/Mum/12 +7983/11 Shirpur Gold considering the long period of non-business activities it was difficult to accept that business was being carried out in true sense, that it had claimed that business revival in July, 2010, that the claim was yet verified by the Department, that none of the deductions were permissible under section 30 to 44D of the Act. He referred to the case of LN Chhabra (65 ITR 638) and dismissed the appeal filed by the assessee. 4.Before us,the AR argued that the refinery was settled during the AY.2001-02,that plant and machinery were installed till AY.2004-05, that during that period trial production was on as per the audited financial statements, that commercial production and sales commenced during the AY.2005 -06,that the refinery business was capital incentive and faced competition from imports, that due to lack of finance and working capital the production was temporarily suspended between assessment years 2006-07 to 2010-11, that the production facilities were kept ready to go on stream at any time on the availability of the working capital, that the founder director expire during the intervening period, that it affected the operation and management of the company, that during the AY.2008-09 the new management took over 49% of the equity shares, that after such takeover the commercial production restarted, that the AO had disallowed the appreciation manufacturing and other expenses along with interest cost without any valid reasons,that the revenue authorities had ignored the fact that all the assets including plant and machinery were ready for use, that the commercial production and sales had already commenced during the AY.2005-06,that while completing the assessment under section 143 (3), the AO had accepted that trial production had taken place, that production was suspended during the lull period, that the situation was beyond the control of the assessee, that business restarted after the funds were injected, that the plant and machinery and all other assets were in passive use,that while deciding the penalty appeal,that the tribunal (ITA/2231/Mum/2011) had held that the admissibility of depreciation claimed by the assessee could not be denied, that appeal filed by the Department against the said ITAT order was dismissed by the honorable Bombay High Court by its order dated 13/03/2013, that the facts of the case of LN Chhabra (supra) were distinguishable. He referred to the cases of Integrated Technologies Ltd. (ITA 530 of 2011, dated 16/12/2011 of the honorable Delhi High Court),Capital Bus Services (P.) Ltd. (123 ITR 404), Gujarat Mini Steel Ltd. (23 ITD 74) and Dredging India (P) Ltd. (23 taxmann.com 4). He referred to pages 1,2,9-14,23-25,28,43 and 86-194of the paper book.The Departmental Representative (DR) contended that the assessee had not carried out any business activity during the year under 2917/Mum/12 +7983/11 Shirpur Gold appeal,that there was no consumption of raw material, that the opening and closing stocks remained same,that expenditure claimed by it were rightly disallowed by the AO and the FAA,that it was not entitled to claim depreciation as no machinery was used for manufacturing activities. 5.we have heard the rival submissions and perused the material before us. We find the AO and the FAA had rejected the claim made by the assessee under the heads depreciation,business expenses and interest expenditure,that they have held assessee had not carried out any business during the year under consideration and hence was not entitled to claim depreciation/expenses, that assessee had claimed because of lack of working capital could not continue manufacturing activities during the year under appeal,that the month of July, 2010 assessee re-started its regular business. Here,it would be useful to consider the concept of temporary termination of business activities. The Hon’ble Bombay High Court in Hindustan Chemicals works Ltd.(124 ITR561)has dealt with the concept of lull in business and going out of business in a very lucid manner.The relevant portion of the judgment reads as under: There is a marked distinction between "lull in business" and "going out of business".A temporary discontinuance of business may, in certain circumstances, give rise to an inference that a business is going through a lean period of transition and it could be revived if proper circumstances arise. But where an assessee decides to dispose of its property, the plant and machinery are dismantled and taken away from the factory premises, there is not even the slightest chance of the assessee re-starting production, and there is no finance available, and even the licences ceased to be effective, it cannot be held that there was a lull in business which was of a temporary nature.” Whether there is a lull/temporary cessation of business or complete closure of business in a particular case depends on many factors.Period of inactivity,whether long or short,cannot in itself be a decisive factor,though it is one of the important factors to decide the issue.Factors like position of stock,continuation of services of employees-even at a lower level,use of business/ manufacturing premises etc.also play a vital role to hold as to whether the business was going through a lean period temporarily or there was no hope of any survival.It is an admitted fact that business is a complex commercial activity-it is not like a simple arithmetic equation which has only one straight answer.Business has its own rules and they are not static.Principles governing commercial world are very dynamic and they change with time,geographical locations and trends of a particular business.Business cannot be termed a combination of capital and labour only.It is much more than that.It does not involve only one party-always there has to be other partie/(s). ‘Nobody can do business with itself ’,is the basic and fundamental principle of commercial
2917/Mum/12 +7983/11 Shirpur Gold world.Interface with others will have its resultant effect.Economic policies of the State, competi- tion offered by other parties at local and international level,changing technologies at a very fast pace are some of the challenges that businessmen face. Naturally,it cannot have a smooth sailing always-sometimes it will face rough waters.In such adverse circumstances, businessmen may prefer to lie low for the time being so that the storm blows away and he can continue his voyage again.Inaction or action at very low level,for some time,cannot and should not be taken as intention of quitting the journey in the middle. If we consider the facts of the case in above background one thing becomes clear that there was no intention of putting a full stop to business in the intervening period.If we compare the business of the assessee with a ship stuck in storm we can easily say that it was not moving forward -rather was in very bad shape.But,the people in the ship were putting their best efforts to come out of the adverse conditions and finally they succeeded.In the case under consideration the assessee never gave up-it tried on and on and finally got the finances to start the business again at full capacity.It was phase of global slowdown and being a capital intensive activity it required huge fund.It took some time before the required resources could be mobilised again.But, it is a fact that it had not sold its plant and machinery.Business premises was also not sold/ leased/let out by it.Besides,all the employees were also not removed from service. It was not closure with an intention to close the business once for all, rather it was a temporary cessation of manufacturing operations.Because of the circumstances beyond its control,the assessee could not continue its activities at peak level,but,it went on doing some or other business related activities. Page 4 of the paper book gives details of manufacturing and other expenses.In Schedule-9 detail of expenditure under the head consumable stores( Pg.5 of PB)is available and the assessee has claimed to have incurred expenses Rs. Rs.90,163/- for the year under appeal under that head. Notes on account(Pg.6 of PB)talks of ‘proposed financial revival package’.In the year ending on 31.03.2011 the assessee had shown sales of Rs.1,98,00,03,777/-.The sales proves that after rival package was implemented normal business activities resumed.Thus,the intervening period has to be treated as temporary lull. We hold that the assessee was entitled for depreciation claimed by it for the year under appeal. The plant and machinery was kept ready.So,it had rightly claimed depreciation and expenses under the head interest expenditure and miscellaneous expenses.A company has to incur expenditure even for keeping the corporate entity intact.All such expenses have to be allowed,as
2917/Mum/12 +7983/11 Shirpur Gold the corporate entity cannot be wound up abruptly.In short claim made by the assessee under all the three heads are allowable. Considering the peculiar facts and circumstances of the case,we are of the opinion that it is a case of lull or temporary halt of business for a short period and not closure of business for good.So,we hold that the decision taken by the revenue authorities cannot be endorsed.Reversing the order of the FAA,effective ground of appeal is decided in favour of the assessee. ITA/2917/Mum/2012-AY-2009-10. Facts of the case for the year under consideration are similar to the facts for the earlier AY.So, following our order for that year we decide effective ground of appeal in favour of the assessee.