TMI Blog2010 (4) TMI 746X X X X Extracts X X X X X X X X Extracts X X X X ..... GARATHNA B. V. MRS., JJ. JUDGMENT K. L. Manjunath J.- 1. There is a delay of 1232 days in filing the appeal. According to the learned counsel for the appellant the appeal filed by the appellant is well in time. Since the Tribunal had passed an order earlier on the merits on April 28, 2003 granting relief to the assessee in part. Later on a miscellaneous petition filed under section 254 of the Income-tax Act, 1961, the earlier judgment has been modified by its order dated June 15, 2006. If the order of the Tribunal passed in the miscellaneous petition is taken into account, the appeal is in time. 2. We have heard the learned counsel for the respondent also. 3. On a perusal of the papers we are of the opinion there is no delay, since the appeal is filed being aggrieved by the order passed in the miscellaneous petition filed under section 254 of the Act. 4. The Revenue has come up in this appeal being aggrieved by the order passed by the Income-tax Appellate Tribunal in M. P. No. 238/Mum/03 and confirm the order dated April 28, 2003 in I. T. A. No. 7849/Bom/1989 dated June 15, 2006 wherein the order passed by the Tribunal on April 28, 2003 has been modified and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts. Amongst other units, the assessee was manufacturing domestic vanaspathi which is an old unit. 8. The assessee claimed deduction under sections 80HH and 80-I on the ground that it has established a new factory for manufacturing industrial vanaspathi. The deduction claimed by the assessee under section 80HH has been denied to the assessee by the Assessing Officer on the ground that the assessee had not established any new industrial unit and it is only improvising the existing vanaspathi unit by adding few machines. In other words, the Assessing Officer held that the assessee has only modernized the existing unit by utilizing the same machinery by adding some more new machinery and such establishment does not amount to establishment of a new industry and did not considered the claim of the assessee under section 80HH. Accordingly, the Assessing Officer passed an order of assessment rejecting the claim of the assessee claiming deduction under sections 80HH and 80-I. Being aggrieved by the order of the Assessing Officer, the assessee filed an appeal before the Commissioner of Income tax (Appeals), which appeal also came to be dismissed by the Commissioner of Income-tax (Appeals ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... said machinery cannot be considered as new machinery in order to consider the claim under sections 80HH and 80-I. He further contends based on the statement made by the respondent, the Assessing Officer came to the conclusion that the SCD plant was installed on June 25, 1983 and the Haize Boiler was installed on May 29, 1983 and if these two plants were installed on June 25, 1983, the same cannot be treated as new machinery for the relevant assessment year. He further contends that the remaining assets were shown as addition to the old vanaspathi unit. 10. It is the case of the Revenue that the Assessing Officer considering that in regard to the old machinery, the assessee had claimed deduction and depreciation, and that the assessee is not entitled to claim deduction under sections 80HH and 80-I as this machinery cannot be considered as new machinery installed in a new industrial unit or while modernizing the existing unit. He further contends that the Tribunal without considering the actual facts has granted relief as if the industrial unit had commenced its activities only in the relevant assessment year and that the value of the old machinery is less than 20 per cent. of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n of income for the assessment year 1984-85 as there was only a trial run in the previous year of assessment. Relying upon the letter dated January 20, 1988, the Assessing Officer has come to the conclusion that no new machinery was erected in the relevant assessment year and no new industrial vanaspathi unit was installed in the present assessment year and did not consider the case of the assessee under sections 80HH and 80-I. According to the Assessing Officer as per the statement made by the assessee, machinery was installed not in the relevant assessment year but it was installed in the earlier assessment year and in addition to that the remaining machinery other than SCDs and Haize Boiler were used machinery of the old vanaspathi unit, therefore, he came to the conclusion that the assessee is not entitled to claim deduction under sections 80HH and 80-I. The purchase of machinery in the earlier year of assessment and erection is not in dispute. As a matter of fact in the return the assessee has not claimed that it has installed the new machinery during the relevant assessment year. If the Assessing Officer relying upon the letter of the assessee has come to the conclusion that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... resent case. Therefore, on the facts we cannot grant relief to the assessee relying upon the aforesaid judgment. 16. Similarly, the judgment of the Textile Machinery Corporation Ltd. [1977] 107 ITR 195 of the apex court is also not applicable to the facts of this case as facts involved in the present case are different. In the circumstances, we are of the view that the decisions relied upon by the learned counsel for the assessee have no application to the facts of the said case. 17. In the present case the Tribunal has come to the conclusion that the Assessing Officer has not inspected the unit of the assessee. According to us, there was no necessity for the Assessing Officer to inspect the industrial unit as he has decided the case relying upon the documents made available to him by the assessee. In paragraph 5 of its order, the Tribunal has come to the conclusion that the manufacturing of industrial vanaspathi is a different product than the domestic vanaspathi. According to the Tribunal the assessee had engaged more than requisite labour force in the industrial vanaspathi unit and the assessee had purchased the installed new plant and machinery in the new unit except the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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