9911796707
TMI Blog2010 (4) TMI 746X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 complete relief has been granted to the assessee raising the following substantial questions of law : "1. Whether the Tribunal was correct in proceeding to exercise jurisdiction under section 254(2) of the Act in proceeding to hold that the earlier order dated April 28, 2003, requires rectification proceeded to reappreciate the various controversies raised by the assessee and granted relief which had not been granted earlier which will amount to review of its earlier order ? 2. Whether the Tribunal was correct in holding that the relief declined by the Tribunal in its order dated April 28, 2003 under sections 80HH and 80-I of the Act on the ground that the industrial undertaking and the machinery and plant had been installed in the earlier assessment year and not a new unit in the current assessment year for claiming deduction can be reversed by holding that these were new units by relying on certain judgments of various courts ? 3. Whether ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion 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). Aggrieved by the concurrent findings of the Assessing Officer and the Commissioner of Income-tax (Appeals), an appeal was preferred before the Income-tax Appellate Tribunal, Bangalore. The Tribunal at the first instance dismissed the claim of the assessee under section 80HH by its order dated April 28, 2003, thereafter on an application filed by the assessee under section 254 of the Act came to the conclusion that the assessee has established a new industrial unit and it has used only a few old machines. Therefore, the Tribunal came to the conclusion that the assessee is entitled to claim the deduction under sections 80HH and 80-I. It also came to the conclusion that the value of the old machinery used was less than 20 per cent. of the value of the new machinery. There-fore, the relief was granted. Being aggrieved by the order of the Tribunal the present appeal is filed. 9. The main contention of the learned counsel for the Re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... her 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 total value of the machinery in the plant. Therefore, he contends that the order of the Tribunal is perverse and liable to be set aside. 11. Per contra, Smt. Anuradha contends that even if the Assessing Officer had considered the unit as only a modernization of the existing unit since new machinery are added to the existing plant considering the value of the new machinery and using of the old machinery, the assessee is entitled to claim deduction under sections 80HH and 80-I since the value of the old machinery was less than 20 per cent. According to her the assessee has fulfilled all the terms and conditions of the provisions of sections 80HH and 80-I. She further contends that by using the new machinery the assessee has commenced the production of a new product known as industrial Vanaspathi. Therefore, she contends that the Tribunal was justified in reversing the finding of the Commissioner of Income-tax (Appeals) as well a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 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 the machinery was installed in the earlier assessment year whether it is possible for this court to hold that the machinery installed is new one when the machinery is erected in the earlier assessment year and when it had commenced its business activities. Though the assessee claimed that it was a trial, the finding of the Assessing Officer is other way. The Assessing Officer has also come to the conclusion that the new machinery purchased are only SCD plants and Haize Boiler and the remaining is old one. On facts the Assessing Officer has also come to the conclusion either the SCD plants or Haize Boiler cannot be considered as the machinery manufacturing industrial vanaspathi. According to him these plants are used only for deodorizing which is the last stage in the manufacturing of vanaspathi. Considering the value of the old machinery and the SCD plant and Haize Boiler installed on June 25, 1983 still the Assessing Officer h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hi 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 plant and machinery so installed in the previous years relevant to the assessment year 1984-85 and 1985-86. 18. By reading of paragraph 5 of the order it is clear that the Tribunal has not given details about the new plant and machinery installed during the relevant assessment year. On the contrary it has accepted that the plant and machinery purchased were erected in the earlier year of assessment. If such plant and machinery were erected earlier to the present assessment year, that machinery cannot be considered as new machinery in order to claim deduction under sections 80HH and 80-I. If really the assessee was interested to claim depreciation under sections 80HH and 80-I it should have made out claim during the assessment year when new plant and machinery were erected. It has also not given the value of the plant and machinery purchased during the relevant assessment year. When the assessee had purchased ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
