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Income Tax Appellate Tribunal, DELHI BENCH ‘C’, NEW DELHI
Before: Smt. Diva Singh, JM & Sh. N. K. Saini, AM
ORDER
Per N. K. Saini, AM:
This is an appeal by the assessee against the order dated 18.03.2013 passed by the ld. CIT, Delhi-X, New Delhi.
The only grievance of the assessee in this appeal relates to the action u/s 263 of the Income Tax Act, 1961 (hereinafter referred to as the Act) taken by the ld. CIT and considering the assessment order passed by the AO as erroneous and prejudicial to the interest of revenue.
Facts of the case in brief are that the assessee filed the return of income declaring an income of Rs. 1,54,215/- on 30.09.2008, which was processed u/s 143(1) of the Act. Later on, the case was selected for 2 Harish Kumar Malhotra scrutiny. The AO framed the assessment at an income of Rs. 1,79,180/- after making various additions and allowing deduction u/s 80IC and 80C of the Act vide order dated 23.12.2010. Thereafter the ld. CIT exercised his powers u/s 263 of the Act and observed that the assessment record revealed that the report in Form No. 10CCB was incomplete in as much as the certification of accountant as prescribed in Form No. 10CCB was conspicuously missing in the said report, which was a vital deficiency for deciding the admissibility of the assessee’s claim u/s 80IC of the Act. He further observed that the accountant in the audit report in Form No. 10CCB had stated the relevant area of Kasawati, Mehatpur was notified but as per letter submitted before AO on 29.04.2010, it was shown that the undertaking was located at 122, Industrial Area Mehatpur. He further observed that in the notification, Khasra No. 1 to 3101of Kasawati Mehatpur and Khasra No. 1 to 1153 of Jarai Mehatpur had been notified. However, Khasra No. 122 Mehatpur had not been notified and that the copy of the registration certificate dated 31.05.2004 of the GM, District Industries Centre, Una, Himachal Pradesh, shows the location of the unit at 122, Industrial Area, Mehatpur (which is neither Kasawati Mehatpur nor Jarai Mehatpur), which means that the above said undertaking was located not on the notified Khasra. The ld. CIT also observed that the auditor in clauses 28b, 28b(A) and 28b(B) of Form No. 3CD (which demand qualitative details of principles items of raw materials, finished products and by products) had written “not applicable” which raised 3 Harish Kumar Malhotra serious doubts about the veracity of the manufactures/production of the assessee. The ld. CIT also referred the inquiry made by the AO on this point and the reply dated 22.10.2010 of the assessee which stated as under:
All the parts of these items are available in market. The assessee has purchased raw material from the open market and re-assembles the same as per market demand. The assessee has no heavy machinery. Most of business activities are done by the labour.
On the basis of above said reply the ld. CIT noted that it was an admission by the assessee that the activity of the so called eligible undertaking was of reassembling and there was no heavy machinery, which was confirmed by the fact that in the report in Form No. 10CCB, the accountant had also reported the value of machinery to be Rs. 35,138/- (after depreciation since 2004) and the claim of manufacturing, yielding a sale of Rs. 1,71,98,955/- with expenditure on wages of Rs. 3,77,868/-, electricity charges of Rs. 11,940/- and salary of Rs. 2,46,000/- ought to have been enquired into by the AO in order to ascertain whether the assessee really undertook manufacture or production which is quite essential for becoming eligible for deduction u/s 80IC of the Act as the electricity and wages are essential part of the production. According to him the present case was a clear case of lack of enquiry and that the assessment order passed by the AO was erroneous in law so far as it was prejudicial to the interests of the revenue. The ld.
4 Harish Kumar Malhotra CIT invited the comments of the assessee on the aforesaid facts. The ld. CIT in para 7 of the impugned order discussed the submissions of the assessee and observed as under: “7. In para 2 of the reply the assessee has given its comments on the observation that Khasra No. 122 Mehatpur has not been notified for the purposes of section 80IC of the IT Act, 1961. It may be mentioned that in the audit report in Form No. 10CCB the accountant has stated the relevant area of Kasawati, Mehatpur, Distt. Una as notified but as per letter dated 06.04.2010 submitted before the AO it is shown that the under taking is located 122, Industrial Area, Mehatpur. In view of these facts the contention of the assessee on this point cannot be accepted. The counsel for the assessee further stated that the assessee has made total investment of Rs. 13,25,762/- upto 31.03.2008 while the WDV of the properties as on 31.03.2008 is Rs. 35,138/-. This fact will clearly go to show that the machineries are quite old one and, therefore, cannot be said to be capable of production to the extent shown by the assessee.”
The ld. CIT after considering the submissions of the assessee observed that the verification of form 10CC was not there nor the letter dated 06.04.2010 issued by G. M. District, Industrial Centre was furnished during the assessment proceedings and this fact was noted vide order sheet entry dated 06.03.2013 during the proceeding u/s 263 of the Act. Accordingly, the ld. CIT set aside the assessment framed by the AO with a direction to him to re-examine the issues and pass a suitable order after giving a reasonable opportunity of being heard to the assessee.
5 Harish Kumar Malhotra 6. Being aggrieved the assessee is in appeal. The ld. Counsel for the assessee reiterated the submissions made before the authorities below and further submitted that the AO during the course of assessment proceedings made the proper enquiries and asked the assessee to furnish the quantitative details. A reference was made to page nos. 68 to 72 which are month wise details of the purchase, quantitative details of the opening stock & closing stock of finished items. It was further stated that the year under consideration was the fourth year of claim by the assessee and not the first year. It was also stated that neither in the earlier year nor in the subsequent year, the deduction u/s 80IC of the Act was denied by the AO. It was contended that in the audit report, there was only a technical omission, however, the report u/s 10CCB of the Act was considered by the AO while allowing the deduction u/s 80IC of the Act. It was further contended that if any defect was noted by the ld. CIT, an opportunity ought to have been given to explain the same. The ld. Counsel for the assessee further submitted that the salary and wages paid by the assessee were sufficient for the purpose of assembling work undertaken by the assessee and this issue was examined by the AO. A reference was made to page nos. 73 & 12 of the assessee’s paper book which are the copies of letter dated 18.02.2010 issued by the AO to the assessee about the details of opening & closing stock, month wise purchase & sales, quality, quantity & quantum wise and electricity charges, freight inward & wages in the form of comparative chart with 6 Harish Kumar Malhotra last two years and the assessee vide letter dated 22.10.2010 furnished all those details. It was accordingly submitted that the AO made the proper enquiry while allowing the deduction u/s 80IC of the Act. Therefore, the assessment order passed by the AO was neither erroneous nor prejudicial to the interest of the revenue. The reliance was placed on the following case laws: � ACIT Vs Asam Dyeing Plants (P.) Ltd. 142 ITD 532(Guawathi) � Zenith Processing Mills Vs CIT 219 ITR 721 (Guj) � India Cine Agencies Vs CIT (2009) 308 ITR 98 (SC) 7. In her rival submissions the ld. CIT DR reiterated the observations made by the ld. CIT in the impugned order and further submitted that there was mistake in the audit report which was overlooked by the AO. It was further stated that the Industrial undertaking was not located in the notified area which is mandatory to claim the deduction u/s 80IC of the Act. It was further stated that the AO has not inquired as to whether there was a notification issued by the district Industry Centre, Una, Himachal Pradesh for the area wherein the Industrial undertaking of the assessee was located. Therefore, it was a case of no enquiry and not a case of lack of proper enquiry. It was accordingly submitted that the ld. CIT was fully justified in setting aside the assessment order dated 23.12.2010 passed by the AO and directing him to re-examine the issues by giving an opportunity of being heard to the assessee. The Reliance was placed on the following case laws:
7 Harish Kumar Malhotra � Gee Vee Enterprises Vs ACIT (1975) 99 ITR 375 (Del) � Duggal & Co. Vs CIT (1994) 77 Taxman 331 (Del) � Malabar Industrial Co. Ltd. Vs CIT (2000) 109 Taxman 66 (SC) 8. We have considered the submissions of both the parties and carefully gone through the material available on the record. In the present case, it is not in dispute that the assessee claimed the deduction u/s 80IC of the Act which is allowable to certain undertaking or enterprises in certain special categories. The provisions contained in the said section read as under: “80-IC (1) Where the gross total income of an assessee includes any profits and gains derived by an undertaking or an enterprise from any business referred to in sub-section (2), there shall, in accordance with and subject to the provisions of this section, be allowed, in computing the total income of the assessee, a deduction from such profits and gains, as specified in sub-section (3). (2) This section applies to any undertaking or enterprise,— (a) which has begun or begins to manufacture or produce any article or thing, not being any article or thing specified in the Thirteenth Schedule, or which manufactures or produces any article or thing, not being any article or thing specified in the Thirteenth Schedule and undertakes substantial expansion during the period beginning— (i) on the 23rd day of December, 2002 and ending before the 1st day of April, [2007], in any Export 8 Harish Kumar Malhotra Processing Zone or Integrated Infrastructure Development Centre or Industrial Growth Centre or Industrial Estate or Industrial Park or Software Technology Park or Industrial Area or Theme Park, as notified by the Board in accordance with the scheme framed and notified by the Central Government in this regard, in the State of Sikkim; or (ii) on the 7th day of January, 2003 and ending before the 1st day of April, 2012, in any Export Processing Zone or Integrated Infrastructure Development Centre or Industrial Growth Centre or Industrial Estate or Industrial Park or Software Technology Park or Industrial Area or Theme Park, as notified by the Board in accordance with the scheme framed and notified by the Central Government in this regard, in the State of Himachal Pradesh or the State of Uttaranchal; or (iii) on the 24th day of December, 1997 and ending before the 1st day of April, 2007, in any Export Processing Zone or Integrated Infrastructure Development Centre or Industrial Growth Centre or Industrial Estate or Industrial Park or Software Technology Park or Industrial Area or Theme Park, as notified by the Board in accordance with the scheme framed and notified by the Central Government in this regard, in any of the North-Eastern States; (b) which has begun or begins to manufacture or produce any article or thing, specified in the Fourteenth Schedule or commences any operation specified in that Schedule, or which manufactures or produces any article or thing, specified in the Fourteenth Schedule or commences any 9 Harish Kumar Malhotra operation specified in that Schedule and undertakes substantial expansion during the period beginning— (i) on the 23rd day of December, 2002 and ending before the 1st day of April, [2007], in the State of Sikkim; or (ii) on the 7th day of January, 2003 and ending before the 1st day of April, 2012, in the State of Himachal Pradesh or the State of Uttaranchal; or (iii) on the 24th day of December, 1997 and ending before the 1st day of April, 2007, in any of the North-Eastern States. (3) The deduction referred to in sub-section (1) shall be— (i) in the case of any undertaking or enterprise referred to in sub-clauses (i) and (iii) of clause (a) or sub-clauses (i) and (iii) of clause (b), of sub-section (2), one hundred per cent of such profits and gains for ten assessment years commencing with the initial assessment year; (ii) in the case of any undertaking or enterprise referred to in sub-clause (ii) of clause (a) or sub-clause (ii) of clause (b), of sub-section (2), one hundred per cent of such profits and gains for five assessment years commencing with the initial assessment year and thereafter, twenty- five per cent (or thirty per cent where the assessee is a company) of the profits and gains. (4) This section applies to any undertaking or enterprise which fulfils all the following conditions, namely:— (i) it is not formed by splitting up, or the reconstruction, of a business already in existence :
Provided that this condition shall not apply in respect of an undertaking which is formed as a result of the re- establishment, reconstruction or revival by the assessee of the business of any such undertaking as is referred to in section 33B, in the circumstances and within the period specified in that section; (ii) it is not formed by the transfer to a new business of machinery or plant previously used for any purpose. Explanation.—The provisions of Explanations 1 and 2 to sub-section (3) of section 80-IA shall apply for the purposes of clause (ii) of this sub-section as they apply for the purposes of clause (ii) of that sub-section. (5) Notwithstanding anything contained in any other provision of this Act, in computing the total income of the assessee, no deduction shall be allowed under any other section contained in Chapter VIA or in section 10A or section 10B, in relation to the profits and gains of the undertaking or enterprise. (6) Notwithstanding anything contained in this Act, no deduction shall be allowed to any undertaking or enterprise under this section, where the total period of deduction inclusive of the period of deduction under this section, or under the second proviso to sub-section (4) of Section 80-IB or under section 10C, as the case may be, exceeds ten assessment years. (7) The provisions contained in sub-section (5) and sub- sections (7) to (12) of section 80-IA shall, so far as may be, apply to the eligible undertaking or enterprise under this section.
11 Harish Kumar Malhotra (8) For the purposes of this section,— (i) “Industrial Area” means such areas, which the Board, may, by notification in the Official Gazette, specify in accordance with the scheme framed and notified by the Central Government; (ii) “Industrial Estate” means such estates, which the Board, may, by notification in the Official Gazette, specify in accordance with the scheme framed and notified by the Central Government; (iii) “Industrial Growth Centre” means such centres, which the Board, may, by notification in the Official Gazette, specify in accordance with the scheme framed and notified by the Central Government; (iv) “Industrial Park” means such parks, which the Board, may, by notification in the Official Gazette, specify in accordance with the scheme framed and notified by the Central Government; (v) “Initial assessment year” means the assessment year relevant to the previous year in which the undertaking or the enterprise begins to manufacture or produce articles or things, or commences operation or completes substantial expansion; (vi) “Integrated Infrastructure Development Centre” means such centres, which the Board, may, by notification in the Official Gazette, specify in accordance with the scheme framed and notified by the Central Government; 12 Harish Kumar Malhotra (vii) “North-Eastern States” means the States of Arunachal Pradesh, Assam, Manipur, Meghalaya, Mizoram, Nagaland and Tripura; (viii) “Software Technology Park” means any park set up in accordance with the Software Technology Park Scheme notified by the Government of India in the Ministry of Commerce and Industry; (ix) “Substantial expansion” means increase in the investment in the plant and machinery by at least fifty per cent of the book value of plant and machinery (before taking depreciation in any year), as on the first day of the previous year in which the substantial expansion is undertaken; (x) “Theme Park” means such parks, which the Board, may, by notification in the Official Gazette, specify in accordance with the scheme framed and notified by the Central Government.]”
From the provisions contained in Sub-Section 8 of Section 80IC, it is clear that the Industrial area means such areas which the Board may by notification in the Official Gazette, specify in accordance with the scheme framed and notified by the Central Government. However, in the present case, the AO did not examine as to whether the undertaking of the assessee was located in the notified area and the assessee had also not furnished relevant copy of the letter issued by G.M. District Industrial Centre before the AO. In the instant case, there were also certain defects in the report of the accountant in the Form No. 10CCB.
13 Harish Kumar Malhotra We, therefore, considering the totality of the facts are of the view that the ld. CIT was justified in setting aside this case to the file of the AO. We do not see any valid ground to interfere with the findings of the ld. CIT.
In the result, the appeal of the assessee is dismissed. (Order Pronounced in the Court on 23/09/2015)