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Income Tax Appellate Tribunal, “C” BENCH: KOLKATA
Before: Shri Mahavir Singh, JM & Shri Waseem Ahmed, AM]
ORDER Per Shri Mahavir Singh, JM: All these cross-appeals filed by revenue and assessee are arising out of orders of CIT(A)- XX, Kolkata vide Appeal Nos. 155 & 156/CIT(A)-XX/Circle-1/2011-12/Kol dated 04.12.2012. Assessments were framed by ACIT, Circle-1, Kolkata u/s. 143(3) of the Income-tax Act, 1961 (hereinafter referred to as “the Act”) for Assessment Years 2005-06 & 2006-07 vide his orders dated 29.11.2007 and 29.12.2008.
The first common issue in these two appeals of revenue i.e. & 701/Kol/2013 for AYs 2005-06 and 2006-07 is as regards to the order of CIT(A) deleting the disallowance of deduction made by AO u/s. 80IB of the Act by observing that the assessee is not a manufacturer.
Briefly stated facts are that the assessee company i.e. J. D. Marketing Pvt. Ltd. is a company engaged in manufacturing of spices in its Bangalore factory. The assessee claimed that it is engaged in the business of manufacturing of different kind of spices and readymade cooking ingredients. According to it, it manufacturers spices at its factory situated at KSSIDC Industrial Estate, Kombulgodu, Bangalore under the brand name of ‘Cookme’. The AO during the course of assessment proceedings noted that the assessee did not give any detailed
2 811-812/Kol/2013, J.D. Marketing Pvt. Ltd., AYs 2005-06 & 2006-07 explanation as to whether the spices claimed to have been manufactured were totally different things from the raw material used and whether such products were having entirely different properties from the properties of the raw materials. But the assessee claimed that by use of different raw materials, which are spices, like Cinnamon, Kashmiri Mirch, Coriander, Mace, Nutmeg, Onion, Cumin, Black Peeper, Small Cardamom, Allspice, Rose Petal, Caraway, Clove, Ginger, Garlic, big Cardamom Bay leaf, different types of spices are manufactured by it and such spices are entirely different from the raw materials used and they have different commercial name, value, identity and form. As regards the process of manufacturing, the assessee has stated in the Annexure to the letter dated 16.01.2007 that the raw materials were purchased, stored sent to quality control department, then mixed and blended and grinded, then sieved and then packed. Finally, the AO noted that it is very much apparent from the process used by the assessee that the raw materials undergo only physical change and the final things articles obtained by the assessee are nothing but blended form of the raw materials in different proportions having their own properties intact. The things, as obtained by the assessee from the raw material after the physical process used by it, are no new things or articles but these are the foodstuff, in which the original properties of all the raw materials do exist. Therefore, whatever may be the new names assigned by the assessee to the things/articles obtained by it from the raw materials by using different physical processes the character of the foodstuff never changes. Hence, the AO made a disallowance of deduction u/s. 80IB of the Act by holding that the assessee was not engaged in the activity of manufacturing for the purpose of deduction u/s. 80IB of the Act. Aggrieved, assessee preferred appeal before CIT(A), who allowed the claim of the assessee by observing in para 4.2 as under: “4.2 I have perused the assessment order and considered the submission of the appellant. The ratio of the judgment of Hon'ble Supreme Court in the case of M/s. Arihant Tiles And Marbles P. Ltd. reported in 320 TTR 79 in which the Hon'ble Supreme Court has held: "Manufacture or production of Article or thing" - Scope of - Sawing Marble Blocks Into Slabs and Tiles and polishing- Amount to "Manufacture or Production" is applicable in this case. Further, the appellant also relied on the judgment of ITAT, Pune Bench in which it is held: “The firm in which the assessee is a partner manufacturers pickles and spices. The product manufactured by the firm is something which is entirely different from the raw materials used and thus the manufacturing activities result into bringing into existence of something which is different from its components." In the case of CIT, Shimla Vs. M/s. Shiv Ram Veg. Food Industries ITA No. 21 of 2008, the Hon'ble Himachal Pradesh High Court has held: “Assessee converts limestone into limestone power - claims it to be a manufacturing activity and takes Sec. 80IB benefits - Revenue disallows - held, issue is no longer res integra as it is already settled by the Apex Court that such an activity does amount to manufacture and the assessee is entitled to benefits - Revenue's appeal dismissed." In this case, the Hon'ble High Court has also referred the judgment of Hon'ble Supreme Court in the case of Indian Hotels Co. Ltd. on which the A.O has relied upon. 2 3 811-812/Kol/2013, J.D. Marketing Pvt. Ltd., AYs 2005-06 & 2006-07 In view of the facts and circumstances of the case, I find from the argument of the appellant that the raw material used by them have to be passed through number of processes like mix blending, Grinding, Sieving, Packaging etc. before the final product is arrived at. Also each of the products requires number of raw materials. These have to be passed through different stages of processing. The product manufactured by the appellant is entirely different from the raw materials used. It has a different commercial name, value and identity. The entire process show that the activities of the appellant are of manufacturing in nature. Further, the facts of the case of the judgment on which the A.O. has relied upon i.e. India Hotels Co. Ltd. 112 Taxman 46 (SC), are distinguishable from the facts of the instant case. In view of these facts and circumstances and also the various judgments of the Hon'ble Courts (Supra), appeal on this ground is allowed.” The revenue also disallowed the claim of the assessee on one more premise that the audit report in Form No. 10CCB was not filed with the return of income. CIT(A) also considered this aspect and allowed the claim of the assessee. Aggrieved, now revenue is in appeals before us.
We have heard rival submissions and gone through facts and circumstances of the case. The facts are very clear from the above that the assessee is engaged in business of manufacturing of different kinds of spices and readymade cooking ingredients. We find that these spices are manufactured after long research for its formulation, durability, taste and other parameters. Each of the spices is made by using various raw materials after processing them and it is then again reprocessing the different mixtures. The production flow chart is enclosed as Annexure -1 in its paper book. From the production Flow Chart it is evident that the raw materials have to pass through number of processes like Mix blending, Grinding, Sieving, Packaging etc. before the final product is arrived at. Also each of the products requires number of raw materials. For example in Chicken Tandoori Ready Mix the ingredients are Cinnamom, Kashmiri Mirch, Coriander, Mace, Nutmeg, Onion, Cumin, Black Pepper, Small Cardamom, Allspice, Rose Petal, Caraway Clove, Ginger, Garlic. Big Cardamom, Bay Leaf. The list showing the ingredients for the different spices is enclosed as Annexure – 2 in its paper book. These have to be passed through different stages of processing. The product manufactured by the assessee is entirely different from the raw materials used. It has a different commercial name, value and Identity. This information was provided to AO in response to his requisition. Ld. Counsel for the assessee before us relied on the decision of Hon’ble H. P. High court in the case of CIT Vs. Indus Cosmeceuticals (2015) 229 Taxman 246 (HP), wherein the Hon’ble High court has held that the conversion of Heena leaves into herbal Heena powder by process of mixing and grinding amounts to manufacture and, therefore, according to Hon’ble High court, the assessee is eligible for deduction u/s. 80IB of the Act. Hon’ble High Court held as under (from head notes):
4 811-812/Kol/2013, J.D. Marketing Pvt. Ltd., AYs 2005-06 & 2006-07 “In order to manufacture heena powder, heena leaves only constitute about 40 per cent of the raw material which is dried with other raw-materials by using various acids and thereafter these raw materials are grinded by putting a definite quantity of mixture to get the resultant product, which is commercially known differently. The end product so manufactured has a different name and is identified by the buyer and seller as a different produce and distinct in its form from the original raw-material. Thus, the conversion of heena leaves into herbal heena powder by process of mixing and grinding amounts to manufacture and therefore the profits derived from such activity are liable for deduction under section 80IB, accordingly this question is answered against the revenue and in favour of the assessee. [Para 17] .”
Ld. Counsel for the assessee also stated that the AY 2004-05 being first year wherein deduction u/s. 80IB of the Act was claimed by the assessee and which was allowed by AO himself. But the disallowance was made only on the basis that form no. 10CCB was not filed but that was also allowed by Hon’ble ITAT in for AY 2004-05. It means, according to Ld. Counsel, the manufacture itself is allowable deduction u/s. 80IB of the Act in AY 2004-05 and Tribunal has confirmed the same. In view of the above facts and circumstances, we confirm the order of CIT(A) allowing deduction u/s. 80IB of the Act. This issue of revenue’s appeal is dismissed.
Similar is the issue in AY 2006-07. Hence, taking consistent view, we dismiss this issue of revenue’s appeal also in AY 2006-07. 7. The next common issue in these appeals of revenue and that the assessee is as regards to the order of CIT(A) in increasing processing loss to 6% as against estimated by AO at 4%. The facts and circumstances are exactly identical in both the years and hence, we will take the facts in AY 2005-06 and will decide the issue. 8. Briefly stated facts are that the assessee claimed shortage in yield of raw material consumption i.e. process loss during different months at different percentages. The assessee claimed lowest at 2.43% in the month of December, 2004 and highest being 9.239% in the month of March, 2005. According to AO, the average processed loss or shortage claimed by assessee worked out at 6.306%. The AO wanted to examine the processed loss and accordingly, he requested to furnish the periodic statement of production and consumption of raw material in respect of some of the items processed during FY 2004-05 relevant AY 2005-06. Finally, the AO after examination determined the processed loss at 4% in place of average loss claimed by assessee at 6.306%. Aggrieved, assessee preferred appeal before CIT(A), who restricted the loss at 6% as against 6.306% as claimed by assessee by observing in para 5.2 as under:
5 811-812/Kol/2013, J.D. Marketing Pvt. Ltd., AYs 2005-06 & 2006-07 “5.2. I have perused the assessment order and considered the submission of the appellant. I find that the submission in this regard of the appellant are general in nature, which are not supported by any specific quantification or details. Further, no details or documents in support of production register were produced either before the AO or before me. However, I find that even AO has not given any scientific method before disallowing the process loss. In view of the facts and circumstances of the case that neither the AO nor the appellant have given any specific reason/method for disallowing/claiming respectively the loss. In such situation, I find that it would be reasonable in the interest of natural justice if the loss is restricted to 6% as against 6.306% as estimated by the AO. Therefore, the AO is directed to calculate the loss accordingly. Thereby, this ground is partly allowed.” Aggrieved, assessee as well as revenue both is in appeal before us.
We have heard rival submissions and gone through facts and circumstances of the case. We find that the assessee has given a comparative data for last 4/5 years and stated the percentage of loss which varies from 2.346% to 9.239%. The assessee furnished statement of production of turmeric powder i.e. major item for the month of April, 2004. We find that during the year when monthly stock is taken sometimes it is not practically possible to consider the physical stock lying in the machines i.e. machine chambers etc. due to the fact that production is to be kept uninterrupted for executing the orders. Further, certain quantity which may be lying in shop floor awaiting mixing, is also not considered for computing the month end stock. Hence, the profit/loss cannot be examined in any aspect unless and until every bill is matched. Accordingly, only estimate is possible. Hence, CIT(A) has rightly estimated the loss and we confirm the same. This common issue of assessee’s appeal as well as revenue’s appeal is dismissed.
One more issue in ITA No.812/K/2013 for AY 2006-07 of assessee’s appeal is as regards to process loss in production of red chili powder at 8% as against the claim of the assessee at 9.13%. We find that the AO estimated the processed loss in red chili powder at 6.13% as against the claim of the assessee at 9.13%. Aggrieved, assessee preferred appeal before CIT(A), who restricted the loss at 8% by observing in para 5.2 as under: “I have perused the assessment order and considered the submission of the appellant. I find that the submission in this regard of the appellant are general in nature, which are not supported by any specific quantification or details. Further, no details or documents in support of production register were produced either before the A.O. or before me. However, I find that even A.O. has not given any scientific method before disallowing the process loss. In view of the facts and circumstances of the case that neither the A.O nor the appellant have given any specific reason/method for disallowing/claiming respectively the loss. In such situation, I find that it would be reasonable in the interest of natural justice if the loss is restricted to 8% as against 9.13% as estimated by the A.O. Therefore, the A.O is directed to calculate the loss accordingly. Thereby, this ground is partly allowed.”
6 811-812/Kol/2013, J.D. Marketing Pvt. Ltd., AYs 2005-06 & 2006-07 Since Ld. Sr. DR could not controvert the aforesaid finding of CIT(A), hence, we find no infirmity in his order. Accordingly, the same is hereby confirmed. This issue of assessee’s appeal is also dismissed. 11. In the result, all the appeals of revenue as well as assessee are dismissed. Order pronounced in the open court on 10.02.2016 Sd/- Sd/- (Waseem Ahmed) (Mahavir Singh) Accountant Member Judicial Member