THE ASSISTANT COMMR. OF INCOME TAX, CIRCLE-3,, JAMNAGAR vs. AKSHAR METALS,, JAMNAGAR

आदेश/O R D E R PER WASEEM AHMED, ACCOUNTANT MEMBER:

The captioned appeals have been filed at the instance of the Revenue against the separate orders of the Learned Commissioner of Income Tax (Appeals), Jamnagar, dated 24/03/2015 & 29/02/2016 arising in the matter of assessment order passed under s. 143(3) of the Income Tax Act, 1961 (here-in-after referred to as "the Act") relevant to the Assessment Years 2011-12 & 2012-13.

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ITA no.246 & 161/Rjt/2015-16 Asstt. Year 2011-12 & 2012-13

First we take ITA No. 246/RJT/2015, an appeal by the Revenue for A.Y. 2011-12

4.1 The AO found that the premises in SEZ from where assessee firm is working is owned by its sister concern namely M/s Akshar Metals Pvt Ltd. (hereafter AMPL) and working from same premises and same business of manufacturing and trading of Bars items. AMPL was incorporated as on 31st December 2003 which was claiming deduction under section 10AA of the Act from the AY 2006-07 onwards and it was

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eligible to claim 100% exemption up-to AY 2010-11 and thereafter @ 50% of total profit. Suddenly, in the year under consideration, the turnover of the sister concern being AMPL dropped but in case of assessee firm, the turnover, increased from nil to above 10 crores of Rupees. The AO also observed that the sister concern was having huge plant and machinery whereas assessee firm during the year acquired plant & machinery of Rs. 8.84 lakh only which indicate that the assessee firm was not having adequate infrastructure to generate such huge turnover.

4.2 Accordingly the AO was of the view that once the rate of exemption to sister concern i.e. AMPL was reduced from 100% to 50%, the business of the sister concern transferred to assessee firm by the promoters in order to claim 100% exemption in the name of the assessee. As per the AO, this practice of the assessee was not commensurate with the intention of the legislator while introducing this beneficial provision. The AO also observed that clause (ii) to sub-section (4) of section 10AA of the Act also provide that the exemption will not be available if undertaking is formed by splitting up or reconstruction of business of existing undertaking. Thus, the AO disallowed the deduction of Rs. 4,40,38,208/- and added to the total income of the assessee.

ITA no.246 & 161/Rjt/2015-16 Asstt. Year 2011-12 & 2012-13

which are engaged in similar business line and operating from common industrial plot. Though the industrial plot is same but factory premises are independent to each other. Likewise, the final product being Brass items are also different to each other on the parameters such as drawing of products, use of raw material, manufacturing process and use of machinery etc. Accordingly, the assessee contended that it is operating independently and separate to the sister concern i.e. AMPL. Accordingly, the assessee submitted that the eligibility of exemption can be decided based on the conditions prescribed under subsection 4 of section 10AA of the Act.

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presumption and Assessing Officer has not brought out any singe evidence which prove that appellant has used infrastructure of AMPL to earn such huge profit. It Is not the precondition that for earning huge profit, assessee should have large infrastructure facility or machinery arid as appellant has not made huge capital investment, deduction u/s 10AA should be denied to assessee. So far as third condition referred supra is concerned, the Assessing Officer in the last para of his order has observed that assessee firm is formed by the splitting up or reconstruction of business already Iri: existence but not given any cogent reasons to support his claim. It Is well-settled that in order to hold that a business was formed by splitting up of a business already in existence, there must be some material to hold that either :some assets of the existing business were diverted and another business was set-up from such splitting up of assets or that the two businesses are the same and the one formed was an integral part of the earlier .one. In the present case, appellant1 firm is separate legal entity than that off AMPL, both are having separate registration for carrying out business operations In SEZ hence question of splitting up or reconstruction does not arise. There is no bar for claiming deduction u/s 10AA that two entities claiming deduction u/s 10AA cannot have common management. The following facts also prove beyond doubt, that there is no reconstruction/splitting up of business already in existence as assumed by Assessing Officer but both AMPL and appellant firm operates-differently in their business and there is no diversion of business as alleged by Assessing Officer. (i) During the year under consideration, partners of appetiant firm has brought fresh capital in the firm to carry out business more efficiently and same is apparent from audited annual accounts of firm, (li) The appellant has made investments in new Plant & machineries for carrying out its business. (iii) The appellant firm has provided ledger account of “ labour salary expenses" from its books of account as well as of AMPL which prove that appellant has provided employment to new employees, Hon'bie Bombay High Court in the case of CTT v. Metropolitan Springs (P.) Ltd. [1991] 191 ITR 2881 has held In the context of provisions of section 8QJ that, even if some members of the staff were common to the old and new unit. It will not be a bar on the eligibility or deduction under section 80J. (iv) The appellant firm has submitted details of raw material used by it as well as AMPL which also proves that both the entitles are using separate raw material for production of finished goods. Even supplier details provided by appellant suggest that supplier in both the entities are different. The appellant has also proved that there are various technical differences in products manufacture by it and that of AMPL and manufacturing process carried out both the entitles are distinct and even plant and machineries used are of different from each other. Even Hon’ble Madras High Court decision in the case of CIT vs premier Cotton Mills Ltd. [1999] 240 ITR 434 has held that it was not required for deciding the question of splitting up or reconstruction of the existing business that the new undertaking should produce different article to that produced by the old unit. (v) It is pertinent to note that plant & machineries used by appellant firm have technical capabilities to produce the products as per customers specification to comply with ROHs directives and these directive restricts the use of six hazardous material in the manufacture of various electronic and electric equipment and such technical specification are not available with plant & machineries owned by other party being AMPL.

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In this context, it will be worthwhile to refer to Hon’ble Apex Court decision in the case of Textile Machinery Corpn. Ltd. CIT [‘1977] 107 ITR 195 wherein it was held that:- “A new activity launched by the assessee by establishing new plants and machinery by investing substantial funds may produce the same commodities of the old business or it may produce some other distinct marketable products, even commodities which may feed the old business. These products may be consumed by the assessee in his old business or may be sold in the open market. One thing is certain that the new undertaking must be an integrated unit by itself wherein articles are produced and at lease a minimum of ten persons with the aid of power and a minimum of twenty persons without ths aid of power have been employed. Such a new industrially recognizable unit of an assessee cannot be said to be reconstruction of his old business since there is no transfer of any assets of the old business to the new undertaking -which takes piace when there Is reconstruction of the old business. For the purpose of section 15C the industrial units set up must be new In the sense that new plants and machinery are erected for producing either the same commodities or some distinct commodities. In order to' deny the benefit of section 15C the new undertaking must be formed by reconstruction of the old business. If an undertaking is not formed by the reconstruction of the oid business that undertaking will not be denied the benefit of section 1SC merely because it goes to expand the general" business of the assessee in some directions. I1 Use by the assessee of the artides produced In its existing business or the concept of expansion are not decisive tests 401construin,g section 15C." Further, decision of Hon'ble Madras High court In the case of CIT V/s Deco De Trend 360 ITR 1 relied upon by appellant squarely applies to, present case wherein the Hon'ble High court dealing with the Issue of splitting up and reconstruction of existing business has' held as under: “21. As regards the splitting up under Section 10BC2)(|I) of the Income Tax Act, it is not denied fay the Revenue that the assessee firm is a different assessable entity from the 'company: It Is. not denied by the Revenue that- the" mere, fact of both the entities carrying on" the same business, perse, would not lead to a conclusion that there was a splitting up of a company to a new entity namely firm. The Commissioner of Income Tax (Appeals) as well as the Tribunal had looked into the facts of the case and ultimately came to the conclusion that the mere presence of three of the.-Directors, as partners, by itself, would not make the firm, as one split up from the company and both the entitles deal in different graded product and they were one and the same while the .company deal):"with low end I products, the assessee deals with high end products. The Tribunal, as a final fact finding authority, has also pointed out that the firm was constituted with .the capital contribution by the partners from' their personal funds. Thus, we do not find neither the presence of the partners not the products dealt with, would –be of .any guidance to decide the issue raised by the assessee. Soo to workmen working in the assessee's business and in the company In the absence of any material to, substantiate the contention of the Revenue-that the firm was constituted by splitting up of the company, we have no hesitation in rejecting the plea of the Revenue. Consequently, we have no hesitation in confirming the order of the Tribunal. Further, while making disallowance u/s IOAA, Assessing Officer proceeded to arbitrarily assume that AMPL was first claiming deduction u/s IOAA of the Act and when its holiday period of claiming deduction © 100% was over, appellant firm was established to claim deduction @ 100%. In the present case, both AMPL and appellant are separate legal entities and have satisfied all the conditions laid down u/s 1QAA of the Act hence Assessing Officer is not empowered to make disallowance of deduction claimed in Return of Income on the grounds what are contrary to provisions granting such deductions.

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Thus, on holistic consideration of entire facts of appellant's, case, It is held that Assessing Officer was not justified in denying deduction u/s IQAA for Rs 4,40,38,208 as claimed In Return of Income hence disallowance made by Assessing Officer Is deleted and related grounds of appeal are allowed. 6 The fourth ground of appeal relates to appellant's alternate claim for allowing 50% deduction u/s I0AA if it is held that it is created by splitting of already existing business of AMPL, as said, entity is entitled for deduction @ 50%. As entire disallowance made by Assessing Officer is deleted in preceding paras, this issue has purely become academic hence same is not adjudicated. This ground of appeal is dismissed, 7 In the result appeal is partly allowed.

ITA no.246 & 161/Rjt/2015-16 Asstt. Year 2011-12 & 2012-13

11.1 In the present case, the 1st allegation of the Revenue was that the assessee firm has adopted colorable device. As such it was formed by splitting up of existing business of company i.e. AMPL. Furthermore, the assessee firm and the private limited company namely AMPL were owned and controlled by common person and were operating from the same premises. Undeniably, we note that the assessee firm was established in the premises owned by the company namely AMPL. However, the company namely AMPL was working from grounds floor whereas assessee firm was working/operating from first floor. The ground floor from where company AMPL operating was constructed during the year 2006 and 2007 and manufacturing process started from June 2007. This fact can be verified from application for permission of construction dated 15-11-2006 to the development commissioner of SEZ, application by structural engineer DGDC and fee paid for approval of building plan dated 17-11-2006, construction approval DGDC dated 15- 12-2006 and information for starting of business operation filed to DGDC dated 07- 06-2007. All these material are available on pages 24 to 46 of the paper book. Thereafter, the company AMPL has taken the building extension permission from the Development Commissioner of SEZ by constructing/extending the additional factory being first floor and received approval form DGDC vide letter dated 18-02- 2009. The copy of the letter and other relevant document are enclosed on pages 47 to 54 of the paper book. The company namely AMPL let out the first floor under construction to the assessee firm vide rent agreement dated 17th June 2009 for which construction was completed as on 12-08-2009 and subletting permission was received from DGDC vide letter dated 13-10-2009. All these document are available

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on pages 56 to 71 of the paper book. Thus, it becomes clear that there was a separate structure created by the company namely AMPL which was let out to the assessee on the rental basis, for monthly rent of Rs. 25,000/- only. There was no doubt raised by the AO with respect to the rent paid by the assessee to the company namely AMPL. In view of the above, there remains no ambiguity to the fact that the factory premises used by the assessee in the factory building of AMPL was separate and independent unit though the same was established within the 4 walls of the AMPL. There was no allegation raised by the Revenue that the assessee was using the factory premises of the company namely AMPL for the purpose of its manufacturing/ business activities. Accordingly we are of the view that no adverse inference cannot be drawn to deny the benefit available under section 10AA of the Act to the assessee on the reasoning that it was operating from the premises of sister concern which was also eligible for deduction under section 10AA of the Act. Furthermore, there is no prohibition under the provisions of law suggesting that the assessee cannot be given the benefit of section 10AA of the Act if it is found that it is operating from same building from where another unit which is eligible for deduction under section 10A of the Act is also operating. Thus to our understanding, the assessee cannot be the denied the benefit of exemption which is otherwise available under the provisions of the law.

11.2 The 2nd observation of the revenue is that the nature of the business of the assessee viz a viz the nature of the business of the company namely AMPL was same. Though the assessee before the learned CIT-A has contended that both the assessee firm and company AMPL are manufacturing Bar item but the drawing of final product are different from the drawing of the final product of the company namely AMPL. According to the assessee, it acquires different raw materials, carries out different manufacturing process and the final outcome of the product is also different with that of the company. The learned CIT-A found the explanation submitted by the assessee as genuine and accepted the same. The ld. DR at the time of hearing failed to controvert this fact finding of the ld. CIT-A. Thus it is established that business of the assessee firm and sister concern being company Page 9 of 13

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AMPL are different, separate and independent to each other. Therefore, the assessee cannot be denied the benefit of section 10-A of the Act.

11.3 Without prejudice to the above, assuming final product, raw material and manufacturing process are similar of the assessee and the company, still the relief to the assessee under section 10AA cannot be denied merely on the reasoning that the raw material, processing activities resulted to the final output which is the same. It is for the reason that an assessee can have different eligible units for claiming the deduction under section 10AA of the Act subject to the compliances provided therein. Under the provisions of the Act, there is no necessity to manufacture the different product for claiming the deduction under section 10AA of the Act. In holding so we draw support and guidance from the order of Hon’ble Madras High Court in case of CIT vs. Deco De Trend reported in 37 taxamann.com 33 where it was held as under: It is not denied by the revenue that the assessee-firm is a different assessable entity from the company. It is not denied by the Revenue that the mere fact of both the entities carrying on the same business, per se, would not lead to a conclusion that there was a splitting up of a company to a new entity, namely, firm. The Commissioner (Appeals) as well as the Tribunal had looked into the facts of the case and ultimately came to the conclusion that the mere presence of three of the directors as partners, by itself, would not make the firm as one, split up from the company and both the entities deal in different graded products and they were one and the same while the company dealt with low end products, the assessee deals with high end products. The Tribunal, as a final fact finding authority, has also pointed out that the firm was constituted with the capital contribution by the partners from their personal funds. Thus, neither the presence of the partners not the products dealt with would be of any guidance to decide the issue raised by the assessee. So too the workmen working in the assessee's business and in the company. In the absence of any material to substantiate the contention of the Revenue that the firm was constituted by splitting up of the company, the order of the Tribunal is to be confirmed. [Para 21]

11.4 The next allegation of the Revenue is that the turnover of the assessee has increased manifolds whereas the turnover of the company namely AMPL has declined manifolds. The reason for decline in the sales of the other companies namely AMPL and increase in the assessee company may be on account of various reasons. But the mere presumption that the turnover of the assessee company has

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increased and the turnover of the other company has declined cannot hold the water so as to reach to the conclusion that the turnover of the company namely AMPL was diverted until and unless some cogent materials brought on record. There is no allegation of the revenue suggesting that the assessee firm had made sales of its products to the same parties to whom the company was making the sales in the earlier years. Thus, in the absence of such finding, we are not inclined to draw any adverse inference against the assessee.

11.5 It is also important to note that the suspicion howsoever it is strong but cannot partake the character of the evidences until and unless it is brought on record based on cogent materials. In holding so we draw support and guidance from the judgment of Hon’ble supreme court in case of CIT vs. Daulatram Rawatmull reported in 53 ITR 574 where it was held that “The circumstances relied upon did raise suspicion, but suspicion could not take the place of evidence.”

11.6 Without prejudice to the above, let us assume that the partnership firm and the company are one and the same person. As such, the assessee in order to claim higher amount of deduction has created a partnership firm and diverted its business. If that be so, even then the assessee is eligible for deduction under section 10AA of the Act to the tune of 50% in pursuance to the provisions of the Act. However we note that the Revenue has not considered this aspect while framing the assessment under section 143(3) of the Act. What is appealing in the given facts and circumstances is that the Revenue was adamant to deny the benefit provided under section 10AA of the Act on its own presumption of wrong facts. Likewise, the assessee has claimed rent expense in the year under consideration which was paid to M/s AMPL and there was no doubt raised by the revenue with respect to such expenses.

11.7 In view of the above and after considering the facts in totality, we do not find any reason to deviate from the finding of the learned CIT-A in the given facts and circumstances. Hence, we uphold the same with the direction to allow the Page 11 of 13

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benefit of deduction to the assessee under the provisions of section 10AA of the Act in accordance with the provisions of law. Hence the ground of appeal of the revenue is hereby dismissed.

11.8 In the result appeal of the Revenue is hereby dismissed.

Coming to ITA No. 161/Rjt/2016, an appeal by the Revenue for the A.Y. 2012-13

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14.1 In the result, the appeal of the Revenue is hereby dismissed.

Order pronounced in the Court on 31/05/2022 at Ahmedabad.

Sd/- Sd/- (MAHAVIR PRASAD) (WASEEM AHMED) JUDICIAL MEMBER ACCOUNTANT MEMBER

(True Copy) Ahmedabad; Dated 31/05/2022 Manish

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