TMI Blog2012 (8) TMI 32X X X X Extracts X X X X X X X X Extracts X X X X ..... s assessee has successfully demonstrated that the new unit was set up with the substantial investment in plant & machinery no force in the grounds of the Revenue for denial claim of deduction - in favour of assessee. - I.T.A. No.621/Ahd/2010 - - - Dated:- 6-7-2012 - SHRI MUKUL Kr.SHRAWAT, AND SHRI ANIL CHATURVEDI, JJ. Appellant by : Shri M.K. Patel, A.R. Respondent by : Shri B.L. Yadav, Sr. D.R. O R D E R PER SHRI MUKUL Kr. SHRAWAT, JUDICIAL MEMBER : This is an appeal filed by the Assessee arising from the order of Learned CIT(Appeals)-Valsad dated 26.02.2009. Grounds raised are as under:- 01. The order of assessment is contrary to the facts and prejudicial to the appellant. 02. On appreciation of the fac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hnan Vs. M Krishnamurthy 85 AIR 3222 (SC) and Collector, Land Acquisition vs. Mst.Katiji Ors. 62 CTR 23(SC), it was observed that a litigant does not stand to benefit by lodging an appeal late. Hence, it was directed that a meritorious matter should not be thrown-out at the very threshold because by refusing the opportunity may cause defeat of justice. Considering the totality of the facts and circumstances of the case as well as by following the cited precedents, we hereby condone the delay and proceed to decide this appeal on merits as under. 3. At the outset, ld.AR Mr.M.K.Patel has expressed not to press Ground Nos.1 2, hence dismissed being not pressed. 4. Ground Nos.3 4 are connected with each other and we have been informe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hether assessee carries out the same business or different business is not an essential ingredient to hold it is a reconstruction or not. The Revenue authorities were not justified in treating it as a case of reconstruction merely because continued to carry on the same business in the new unit also. On the basis that- old unit did not function or it has stopped activities may give rise to an impression that the new unit is the reconstruction of business already in existence. But carrying on the same business in the new unit is not sufficient at its own to hold that the new unit is a reconstruction of business already in existence unless location is the same and there is no installation of new plant and machinery. The old unit may stop funct ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case, u is a clear cut case of a new business undertaking which was set up during the year under consideration. But before appreciating those factual matrix we have to deal with the reasons of the AO which appears to be innovative and in our humble understanding of Statute cannot be sustained in the eyes of law. Words and Expressions used in the Statute have legal meaning. Words which expressed a legal concept must have attributed to their legal meaning. Meaning thereby a technical word used in a Statute must have a technical sense precisely ascribed to them and those technical words should not be given a meaning in popular sense. We lake support of maxim "uti loquitor vulgus (source 35 1TR 662). So, the principle of cogency, logic, coher ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... barrel from one concern to another concern. Contrary to that at present the facts are altogether different because admittedly a new place was allocated at Kachigam Daman on which a new technology was deployed for manufacturing new instruments, namely "telephone call monitors" and "coin pay phones" under the roof of a newly constructed business premises. Pacts have undisputedly demonstrated that business as a whole was not transferred from old unit to new unit. Assets and liabilities of the old unit remained undisputed as found from the position of the depreciation Chart. Even the allegation of transfer of business activity ill founded because of the reason that the business activity, i.e. manufacturing of telephone instruments was based u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cision of Hon. Kerala High Court in the case of Kerala State Cashew Development Corporation vs. CIT reported as 205 ITR 19 (Ker) however, in that case the impugned company was formed to take over a sick cashew factory. In that case, the company had acquired the assets and if was found that no new "industrial undertaking " had been formed. 10. On the other hand, there are several decisions in favour of the assessee where these terminologies, namely "re-construction of business" or "splitting up of business" or even "transfer of business" have duly been deliberated upon which needs no detailed discussion, however, the list of those decisions are already mentioned hereinabove in paragraph No.7 of this order. On facts in addition to whateve ..... X X X X Extracts X X X X X X X X Extracts X X X X
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