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2015 (4) TMI 630 - HC - Income TaxRevision u/s 263 - whether Assessee is entitled to a deduction under Section 80I? - Held that:- When two opinions or views are available and one of the possible view is reached by the Assessing Officer, recourse to Section 263 of the Income Tax Act is not open. In order to decide whether two view on Section 80I are possible, in so far as present facts are concerned, we have to look into the express language of Section 80I which is on the subject of deduction in respect of profit and gains derived from an industrial undertaking, after certain date etc. It's subsection [1] is about profits derived from an industrial undertaking. If the gross total income of assessee includes such profits, deduction therefrom of an amount equal to 20% thereof is permitted. The proviso in subsection [2] stipulate that Section 80I applies to any industrial undertaking which fulfills conditions which are stipulated in subsections (i) to (iv), subsection [i] does not permit benefit of deduction to be taken if the industrial undertaking is formed by splitting up or reconstruction of a business, already in existence. Clause (ii) does not allow benefit to be taken if such undertaking is formed by transfer to a new business, machinery or plant previously used for any purpose. Clause (iii) again creates a bar if the industrial undertaking manufactures any article or thing, which is not specified in the 11th Schedule. By Clause (iv), the ceiling on number of workers has been provided. Thus, none of these clauses prohibit the assessee from taking other industrial undertaking on hire and use it for the purpose of his manufacturing activity. Division Bench of this Court in a case reported at CIT .vrs. Penwalt India Ltd. (1991 (4) TMI 33 - BOMBAY High Court) has considered a finding by the Tribunal of absence of factory for manufacturing facility of its own, where assessee company utilizes facilities of others on payment, and found assessee entitled to relief as contemplated under Section 80I of the Income Tax Act, upholding those findings. Other judgment of this Court reported at Cit .vrs. Anglo French Drug Co. (Eastern) Ltd) [1991 (2) TMI 63 - BOMBAY High Court] again shows a finding that the manufacturing company need not manufacture the goods by its own plant and machinery, at its own factory. There while recording these findings in paragraph no.2, the Division Bench has also noted that CBDT had accepted the correctness of the judgment of Calcutta High Court in a case Addl. CIT .vrs. A. Mukherjee & Co. (P) Ltd. (1977 (9) TMI 26 - CALCUTTA High Court), in its Circular No. 347 dated 07.07.1982. Third judgment of this Court reported in CIT .vrs. Neo Pharma Pvt Ltd. (1982 (3) TMI 56 - BOMBAY High Court), finds the assessee engaged in the business of manufacture and processing of pharmaceuticals, entitled to benefit of deduction, though the activity was being done through machinery belonging to other company on hire, under direct supervision of own staff and under own quality control of assessee. - Decided in favour of assessee.
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