TMI Blog2014 (9) TMI 362X X X X Extracts X X X X X X X X Extracts X X X X ..... fortunate that the Revenue files Appeals year after year pertaining to the same Assessee and raising the same issues and questions which have been raised earlier duly considered and have not been answered in favour of the Revenue by this Court. 2. This is one more instance of the Revenue urging before this Court that firstly a film production unit or a Company is not an industrial undertaking within the meaning of section 80IB of the Income Tax Act 1961 (for short the said Act). Assuming it is so and conceding that position, in so far as the present Assessee is concerned, now it is urged that the Assessee does not fulfill the condition which would make it eligible or qualified for deduction in terms of the above provisions. 3. In this Appeal, which impugns the order of the Tribunal dated 2nd November 2011 for assessment year 2007-08 , all that the Tribunal has done is to maintain and uphold the view of the Commissioner of Income Tax (Appeals). The Commissioner followed the order passed by the Tribunal in relation to the very Assessee for the assessment years 1998-99, 2001-02. In upholding the claim of the Assessee, the Commissioner also applies the law laid down by this Court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... benefit and allowed the deduction. That view was followed by the Tribunal for A.Y. 2001-02. It is that very order which has been followed for the current Assessment Year. The Commissioner therefore committed no error of law, much less, any perversity in allowing the deduction. The Revenue's Appeal therefore must be dismissed. 7. Having heard the learned counsel at some length and perusing with their assistance the legal provisions and the order impugned in this appeal, we are of the view that the appeal deserves to be dismissed. In the present case, the deduction is claimed under section 80IB, subsections (1), (2) and (3) of the Income Tax Act 1961, which reads as under : 80IB. (1) Where the gross total income of an assessee includes any profits and gains derived from any business referred to in subsections (3) to (11), (11A) and (11B) (such business being hereinafter referred to as the eligible business), there shall, in accordance with and subject to the provisions of this section, be allowed, in computing the total income of the assessee, deduction from such profits and gains of an amount equal to such such percentage and for such number of assessment years as specif ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ncome of the Assessee a deduction from such profits and gains of an amount equal to such percentage and for such number of assessment years as specified in this section. For the deduction to be claimed under subsection (3) what is being urged before us is that the conditions which are specified and set out in subsection (2) would have to be fulfilled. The Assessee before us fulfilled this condition meaning thereby it is not formed by the transfer to a new business of machinery or plant previously used for any purpose. The argument is rather extreme and that there is no plant and machinery. The argument has, also for some time, gone to another extreme that in film production unit, to qualify as 'industrial undertaking' the unit or company must possess plant and machinery of its own and it cannot be functioning on hired equipments. In the present case, Assessee has not demonstrated any such ownership. 9. We find that such contentions in the case of the same Assessee are entirely misconceived. This very attempt was made by the Revenue and the Tribunal did not accept it in the case of this Assessee as is apparent from the order passed for the Assessment Year 199899 by the Tr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o be manufacturing boilers, machinery parts, wagons etc. They set up two new units, a steel foundry division and jute mill division. The steel foundry division started manufacturing some castings, which the Appellant was previously buying from the market, but the castings were mostly used by the other existing divisions of the appellant itself. Raw materials were supplied to the jute mill division by the boiler division of the appellant and after machining and forging, the parts were given back by the jute mill division to the boiler division. The Appellant claimed exemption from tax under section 15C of the Indian Income Tax Act 1922 in respect of the profits from the steel foundry division for the A.Y. 1958-59 and 1959-60 and in respect of the profits from the jute mill division for the A.Y. 1959-60. The Income Tax Authorities held that the two units were formed by reconstruction of the business already existing within the meaning of section 15C(i) but the Appellate Tribunal, on appeal, held that the Appellant was entitled to the relief under section 15C because the two divisions were new industrial undertakings and that they were not formed by reconstruction of the existing busi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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