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Income Tax Appellate Tribunal, “H” BENCH, MUMBAI
स्थधमी रेखध सं./जीआइआय सं./PAN. :AAEFH0962N अऩीरधथी ओय से / Revenue by Shri.Ashok Jha प्रत्मथी की ओय से/Assessee by S/Shri P J Pardiwala and P P Bhandari सुनवधई की तधयीख / Date of Hearing : 6.10.2015 घोषणध की तधयीख /Date of Pronouncement: 4.11.2015 आदेश / O R D E R PER B.R. BASKARAN (AM) These three appeals filed by the revenue are directed against the three separate orders dated 19.4.2010, 15.3.2011 and 20.3.2012 passed by the respective CIT(A)-26, Mumbai and they relate to the assessment years from 2007-08 to 2009-10 respectively. Since the issues urged in all these appeals are common in nature, they were heard together and are being disposed of by this consolidated order, for the sake of convenience.
The revenue is assailing the decision of ld. CIT(A) in holding that the assessee is eligible for deduction u/s 10AA of the Income Tax Act, 1961 without considering following aspects:-
4058/ Mum/11 and 3213/Mum/2012 a) The ld. CIT(A) has ignored the fact that the undertaking has been formed by reconstruction of business already in existence; b) The ld. CIT(A) has accepted the plea that the earlier undertaking did not carry on any business without examining the said claim. c) The ld. CIT(A) has ignored the fact that the assessee has purchased old machinery, which is in violation of provision of section 10AA(4) of the Act.
The facts relating to the issue under consideration are stated in brief. The assessee is a partnership firm formed on 14.9.2005 with four partners.
There was another firm by name M/s H K Jewels (for the sake of convenience “M/s H.K.Jewels (old)”) which was formed on 26.8.2002 and the said firm applied for Letter of Permission (LOP) to the Development of Commissioner, SEEPZ, a Notified Special Economic Zone in order to set up a project for manufacturing of studded Jewellery. The Development Commissioner, SEEPZ granted LOP to M/s H.K. Jewels on 16.9.2004. It was stated that another partnership firm by very same name i.e. M/s H K Jewels (for the sake of convenience “M/s H.K.Jewels(new)”) was constituted on 11.2.2005 in order to implement the project of “M/s H K Jewels(old)”. According to the assessee, “M/s H K Jewels (new)” commenced implementation of project and thus incurred a sum of Rs.40.26 Lakhs up to 31.3.2006. We may mention that these facts are coming out of order passed by Ld CIT(A).
M/s H K Jewells decided to transfer the project with its assets and liabilities etc and accordingly, they were assigned to the assessee herein under Deed of Assignment dated 7.10.2005. But it is stated that the Deed of Assignment came into effect from 1.4.2006 only. Upon receipt of assets
4058/ Mum/11 and 3213/Mum/2012 and liabilities, the assessee applied for transfer of LOP to its name and the same was transferred by Development of Commissioner on 20.10.2006. Accordingly, the assessee claimed deduction u/s 10AA of the Act.
During the course of assessment proceedings, the AO noticed that the assessee had purchased all the materials in the name of M/s H K Jewels. Further the AO noticed that the plant and machinery worth Rs.40,26,308/- was purchased by the assessee from the old firm M/s H K Jewels. The AO also noticed from the Form 56F filed by the assessee that it has commenced production on 27.3.2006.
Under the provision of section 10AA of the Act, the assessee is required to commence production after 1.4.2006 in order to claim deduction under that section. Further, the deduction u/s 10AA will not be available if the undertaking is formed by splitting up or reconstruction of business already in existence, and also if any plant and machinery used for any purpose is transferred to the new business. For the sake of convenience, we extract below Sub-section (1) and Sub-section (4) of Section 10AA, wherein the above said conditions are specified: “10AA. (1) Subject to the provisions of this section, in computing the total income of an assessee, being an entrepreneur as referred to in clause (j) of section 2 of the Special Economic Zones Act, 2005, from his Unit, who begins to manufacture or produce articles or things or provide any services during the previous year relevant to any assessment year commencing on or after the 1st day of April, 2006, a deduction of—
(i) hundred per cent of profits and gains derived from the export, of such articles or things or from services for a period of five consecutive assessment years beginning with the assessment year relevant to the previous year in which the Unit begins to manufacture or produce such articles or things or provide services, as the case may be, and fifty per cent of such profits and gains for further five assessment years and thereafter; (ii) for the next five consecutive assessment years, so much of the amount not exceeding fifty per cent of the profit as is debited to the 4058/ Mum/11 and 3213/Mum/2012 profit and loss account of the previous year in respect of which the deduction is to be allowed and credited to a reserve account (to be called the “Special Economic Zone Re-investment Reserve Account” ) to be created and utilized for the purposes of the business of the assessee in the manner laid down in sub-section (2). …………..
(4) This section applies to any undertaking, being the Unit, which fulfils all the following conditions, namely:—
(i) it has begun or begins to manufacture or produce articles or things or provide services during the previous year relevant to the assessment year commencing on or after the 1st day of April, 2006 in any Special Economic Zone;
(ii) it is not formed by the splitting up, or the reconstruction, of a business already in existence:
Provided that this condition shall not apply in respect of any undertaking, being the Unit, 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;
(iii) 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 (iii) of this sub-section as they apply for the purposes of clause (ii) of that sub-section.”
The AO also noticed that the assessee has received labour charges of Rs.18,21,095/- in assessment year 2007-08 from another concern named M/s Vaibhav Gems Ltd located in SEEPZ. Though the assessee claimed that the labour charges have been received in Foreign currency, it did not substantiate the same with any material.
The Ld CIT(A), however, held that the assessee is entitled to claim deduction u/s 10AA of the Act on the following reasons:-
4058/ Mum/11 and 3213/Mum/2012 (a) M/s H.K. Jewels did not start any business activities in SEEPZ. The assessee only has started the business of manufacture of diamond studded jewellery. (b) M/s H.K.Jewels could not complete the project within the stipulated time and hence the uncompleted proejct was transferred to the assessee with all its assets, liabilities and rights. (c) Though the assessee purchased assets for a value of Rs.43.60 lakhs, the plant and machinery component therein was only Rs.4.63 lakhs. The assessee itself has purchased machineries worth Rs.1,32,08,209/-. (d) M/s H.K. Jewels has not started any business and hence the assessee’s business cannot be presumed to be reconstruction of erstwhile business. Since the assessee has purchased entire project, it was a case of sale and hence the same cannot be regarded as reconstruction of the business. (e) As per the terms and conditions of LOP issued by the Development Commissioner, SEEPZ, LOP cannot be transferred by such authorities in case of reconstruction of any business. (f) Though the purchases were made in the name of M/s H.K.Jewels, the payment for the purchases has been made by the assessee only. (g) The labour charges received from M/s Vaibhav Gems Ltd is also eligible for deduction u/s 10AA of the Act, since the manufacturing work has been done under the supervision of the concerned person. Aggrieved by the order of Ld CIT(A), the revenue has filed these appeals before us.
4058/ Mum/11 and 3213/Mum/2012 10. We have heard the parties and perused the record. The Ld D.R submitted that the Ld CIT(A) has given findings on many factual aspects without making reference to any of the documents and further the Ld CIT(A) has considered certain new facts also. Further, he submitted that the submissions made by the assessee before Ld CIT(A) also suffers from contradictions. He submitted that the assessee had claimed that M/s H.K. Jewels (old) and M/s H.K.Jewels (new) are one and the same firm. However, the above said firms carry different Permanent Account Numbers, viz., AADFH8907J and AACFH4846F respectively. Accordingly the ld D.R strongly supported the orders passed by the assessing officer and further submitted that the factual aspects require examination.
On the contrary, the ld A.R submitted that the assessee has purchased the entire project from M/s H.K. Jewels and hence it was a case of purchase and not reconstruction. He submitted that the machinery purchased from the old firm constitues less than 20% of the total value of machineries and hence the same falls within the exception given in sec. 10AA(4) r.w.s. Explanation given under 80IA(3) of the Act.
Though the assessee has strongly contended on legal aspects, we notice that there are apparent contradictions with regard to the facts prevailing in the instant case:- (a) The assessee has claimed that M/s H.K. Jewels (new) was formed to implement the project of M/s H.K. Jewels (old), even though the LOP was in the name of the later. This explanation was offered before Ld CIT(A) only and the effect of this explanation could not be examined by the AO. Further, it is not clear as to whether the person who is not holding LOP, i.e., H.K. Jewels (new)
4058/ Mum/11 and 3213/Mum/2012 could implement a project in SEEPZ without letter of permission from Development Commissioner, SEEPZ. (b) It is stated that the deed of assignment took effect from 1.4.2006 only even though the agreement was reached on 7.10.2005. It was further stated that the M/s H.K.Jewels (new) has incurred expenses to the tune of Rs.40,26,308/-. We notice the details of these expenses have not been examined by Ld CIT(A) or the assessing officer. It is also not clear as to what happened to the project between 7.102005 to 1.4.2006, i.e., who implemented the project, what was the details of expenses, who met the expenses etc.
(c) If the deed of assignment came into effect only from 1.4.2006, how the auditors of the assessee noted the date of commencement of production as 27.3.2006. It is not clear as to whether the date of commencement is required to be reported to the Development Commissioner, SEEPZ or to be certified by him or not. There should not be any doubt that the statutory auditor’s certificate carries lot of recognition, since they certify on verification of relevant facts and documents. There is no dispute that the of “Date of Commencement” is crucial to determine the eligibility of the assessee to claim deduction u/s 10AA of the Act.
(d) The assessee has stated that the trial runs took place on 27.3.2006. However, the fact remains that the assessee got the assets, liabilities and rights only on 1.4.2006. In that scenario, how and when the remaining machineries were purchased and installed by the assessee and how trial run could take place on 27.3.2006. Apparently, these factual aspects have not been examined by Ld CIT(A). These factual aspects would also help to examine the 4058/ Mum/11 and 3213/Mum/2012 question as to whether it was a case of reconstruction of business or not. (e) The ld D.R has pointed out that the observations of the Ld CIT(A) that the LOP cannot be transferred in case of reconstruction of business are not supported by any document. Hence the said observations of the Ld CIT(A) require examination.
(f) The Ld CIT(A) has also observed that M/s H.K. Jewels (it is not clear whether it was old firm or new firm) did not use the machineries purchased by it. The Ld D.R contended that the said observations have been made without carrying out any examination.
(g) Unless the details and value of machineries purchased from M/s H.K. Jewels and the details and value of machineries available with the assessee were examined, one cannot come to the finding that the machineries purchased constitutes less than the prescribed limit of 20%.
The foregoing discussions would show that it is required to examine many factual aspects relating to the claim of the assessee by duly considering the submissions of the assessee, books of accounts of old and new M/s H.K.Jewels, the books of accounts of the assessee, the terms and conditions relating to Letter of Permission etc. With regard to the labour charges also, we notice that the Ld CIT(A) has not examined the crucial aspect, i.e., whether the claim of the assessee that the labour charges were received in foreign exchange is correct or not. Further, we notice that the various case laws referred to by Ld CIT(A) relate to the goods manufactured by the assessee by outsourcing, where as, in the instant case, M/s Vaibhav Gems Ltd has outsourced the production activities to the assessee. Hence those case laws would apply to M/s Vaibhav Gems
4058/ Mum/11 and 3213/Mum/2012 Ltd and not to the assessee. To this extent, in our view, Ld CIT(A) has misdirected himself. Hence, this issue also requires fresh examination. There should not be any dispute that the law can be applied correctly only, if the relevant facts are very much clear. The foregoing discussions show that there is no clarity on facts of the present case and hence they need to be brought on record correctly.
In view of the above, we set aside the orders passed by Ld CIT(A) in all the three years under consideration and restore all the issues to the file of the assessing officer with the direction to examine the issue afresh from all the angles that may be required. After affording necessary opportunity of being heard, the assessing officer may take appropriate decision in accordance with the law. The assessee is also directed to extend full co- operation to the assessing officer by furnishing all the details that may be called for by him for expeditious completion of the assessments.
In the result, all the appeals filed by the revenue are treated as allowed for statistical purposes. Pronounced accordingly on 4th Nov, 2015. घोषणध खुरे न्मधमधरम भें ददनधंकः 4th Nov, 2015 को की गई । Sd sd (PAWAN SINGH) ( B.R. BASKARAN) JUDICIAL MEMBER ACCOUNTANT MEMBER भुंफई Mumbai:4th November, 2015. व.नन.स./ SRL , Sr. PS