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Hyderabad Chemicals Ltd. Versus DCIT

Disallowance of deduction claimed under section 80IA in respect of profit derived from wind mills - notionally brought forward the losses relating to different wind mill units for set off against the profits of the wind mill units - Held that:- The Coordinate Bench of this Tribunal in assessee’s own case after considering the decision of Hon’ble Madras High Court in the case of Velayudha Swamy Spinning Mills P. Ltd., vs. ACIT (2010 (3) TMI 860 - Madras High Court) as well as the decision of ACIT .....

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uction under section 80IA is not maintainable - Decided against assessee.

Disallowance of weighted deduction claimed under section 35(2AB) - Held that:- Considering assessee’s claim that Form 3CL containing necessary details was furnished before the first appellate authority which has not been taken into consideration before disallowing assessee’s claim, we remit the matter back to the file of A.O. to verify assessee’s claim and decide it accordingly. - Decided in favour of assessee f .....

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assessee has made substantial investment in land, building, machinery, plant etc., while setting up the Jammu unit, it cannot be considered to have been set up by splitting up or reconstruction of existing business. Hence, assessee is eligible for deduction under section 80IB.

There is no reason to hold that the assessee is not eligible for deduction under section 80IB as the Jammu unit is formed by splitting up or reconstruction of business already in existence. After, going through .....

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te that in the grounds taken for A.Y. 2007-08 the department has alleged that assessee has transferred old machinery and plant for setting up the Jammu unit and is also engaged in manufacturing of oil. However, at the time of hearing, learned D.R. could not substantiate the aforesaid fact by bringing any material on record. Therefore, the aforesaid allegation of the department not being borne out from record deserves to be rejected. - Decided in favour of assessee. - ITA.No.344/Hyd/2012, ITA.N .....

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alone. As the issues involved in all these appeals are common and interlinked, they have been clubbed together and taken-up for disposal in this consolidated order for the sake of convenience. ITA.No.344/Hyd/2012 (A.Y. 2007-08 Assessee s Appeal) : 2. Assessee has raised the following three grounds. As can be seen ground Nos. 1 and 3 are on the common issue of disallowance of deduction claimed under section 80IA amounting to ₹ 1,21,91,833 in respect of profit derived from wind mills. 2.1. B .....

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B of the Act. During the assessment proceedings, the A.O. after verifying the information available on record noticed that the assessee has claimed deduction under section 80IA of ₹ 1,21,91,833 for its wind mill units. Assessing Officer noticed that in the return of income for A.Y. 2007-08 assessee has claimed deduction under section 80IA of the Act for different wind mill units as under : Date of Commission Wind Mill Unit Deduction u/s.80IA. 31.03.1999 Phase-I 36,93,729 30.09.2000 Phase-I .....

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99-2000 and 2000-2001 pertaining to the first wind mill unit. Second wind mill unit had unabsorbed loss of ₹ 1,06,86,686 in the A.Y. 2001-2002. The third wind mill unit had unabsorbed loss of ₹ 1,65,95,447 for A.Y. 2002-2003 and the 4th wind mill unit has unabsorbed loss of ₹ 1,65,95,447 for the A.Y. 2005-06 and the fifth wind mill unit has unabsorbed loss of ₹ 4,57,47,064 on stand alone basis. 2.3. The A.O. when found that the computation of deduction under section 80IA .....

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He observed that the provisions of section 80IA(5) is clear and unambiguous and states that quantum of deduction under section 80IA needs to be computed as if the eligible business were the only source of income of the assessee. For this reason, the provisions for carry forward and set off of the business/depreciation losses need to be applied while computing income eligible for deduction. The A.O. therefore, following the decision taken in assessee s case in the preceding assessment years as w .....

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h the view taken by the A.O. by observing as under : 10.2. Here the appellant argued that following High Court decisions CIT vs. Merwar Oil and General Mills Ltd., (271 ITR page 33); Velayudha Swamy Spinning Mills P. Ltd., vs. ACIT; Sudan Spinning Mills P. Ltd., vs. ACIT (23 CTR 368); M. Pallonji & Co. (P) Ltd., vs. CIT (2006) 6 SOT 287 (MUM) held as similar case and the deductions are allowable. But, in the same appellant case, the Hon ble ITAT, Hyderabad A Bench for several assessment year .....

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.O. as well as Ld. CIT(A) were totally wrong in disallowing deduction under section 80IA of the Act by notionally bringing forward past year s losses and setting it off against the profit of the wind mills in the current year. Learned A.R. taking us through the provisions of section 80IA, as it stood before its amendment w.e.f. 01.04.2000 by Finance Act 1999, submitted, assessee is entitled for deduction of an amount of 100% of the profits and gains derived from wind mill business for the initia .....

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er sub-section (1), the quantum of deduction shall be computed as if such eligible business is the only source of income of the assessee during the previous year relevant to the initial assessment year and to every subsequent assessment year up to and including the assessment year for which the determination is to be made. Sub-section (12) of section 80IA defined initial assessment year as the year the unit starts its operation. Learned A.R. submitted that the aforesaid provision was amended by .....

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e industrial undertaking is started, as the assessee at its own option can choose the initial assessment year and subsequent 9 assessment years within block of 15 years for claiming deduction under section 80IA. Therefore, the fiction created under section 80IA(5) operates only when the assessee exercises option of initial assessment year. The learned A.R. submitted only in case of first unit which was commissioned on 30.03.1999. The year of coming into operation could be considered to be the in .....

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the eligible industrial undertaking. 3.1. Learned A.R. further submitted, if at all any loss can be brought forward and set off against the profits of eligible undertaking it is the loss relating to the first unit as the un-amended provisions will apply to that unit and the initial assessment year would be 1999-2000. Thus learned A.R. submitted that no notional carry forward and set off of loss can be made against the profit of wind mill units irrespective of the initial assessment year under t .....

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ars which were already set off against the income of the assessee cannot be notionally brought forward. Learned A.R. submitted, ITAT, Mumbai Bench in case of M/s. Sherie Exports vs. JCIT ITA.No.321/Mum/2012 dated 10.04.2013 also followed the aforesaid decision of the Hon ble Madras High Court and expressed similar view. Learned A.R. also referred to the decision of ACIT vs. Gold Mine Shares and Finance P. Ltd., 113 ITD 209 (Ahd.) (S.B.) and contended that it will not apply even to the first wind .....

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d law, the same cannot be a binding precedence. More so, in the face of Madras High Court Judgment. Learned A.R. also relied upon the decision of ITAT, Bangalore Bench in the case of Shri Anil H. 4. Learned D.R. on the other hand submitted that all these arguments of the assessee have been considered by the Tribunal in the preceding assessment years and issue has been decided against the assessee. Therefore, as the issue relating to deduction under section 80IA is squarely covered in assessee s .....

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e brought forward to subsequent assessment years and set off against the profits of the eligible business undertaking by applying the provisions of sub-section (5) of section 80IA. In this context, it is necessary to look at the relevant statutory provisions as existed prior to and post amendment effected by Finance Act, 1999 w.e.f. 01.04.2000. As can be noticed from conjoint reading of both the provisions, the most striking feature is with regard to the initial assessment year. While in the un- .....

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ection (1) of section 80IA is to be computed with reference to income of eligible business as if such eligible business was the only source of income of the assessee during the previous year relevant to the initial assessment year and to every subsequent assessment year up to and including assessment year for which the determination is to be made. It is the case of the assessee that except the first unit which commenced its operation on 30.03.1999 the amended provisions of section 80IA would app .....

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340 ITR 477 while dealing with this specific issue, referred to one of its unreported judgment and held as under : 18. From reading of the above, it is clear that the eligible business were the only source of income, during the previous year relevant to initial assessment year and every subsequent assessment years. When the assessee exercises the option, the only losses of the years beginning from initial assessment year alone are to be brought forward and no losses of earlier years which were a .....

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venue cannot rework the set off amount and bring it notionally. Fiction created in sub-section does not contemplates to bring set off amount notionally. Fiction is created only for the limited purpose and the same cannot be extended beyond the purpose for which it is created . 5.1. However, it is a fact on record the very same issue arising in preceding assessment years in assessee s own case came up for consideration before the ITAT, Hyderabad Bench in ITA.No.352/Hyd/2005 and others dated 21.01 .....

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ion of 80IA deduction that it has to be computed after deduction of the notional brought forward losses and depreciation of business even though they have been allowed set off against other income in earlier years has been dealt by the Special Bench in the case of ACIT Vs. Gold Mine Shares & Finance (P) Ltd. (113 ITD 209) (SB) (Ahemadabad) and decide the issue against the assessee. While delivering this order, the Special Bench considered all the arguments what the assessee has placed before .....

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what it decided in that case is that the deduction is allowed u/s 80IA for 10 out of 15 years at the option of the assessee which means any ten years not necessarily the beginning of 10 years. Finally it was observed that this case has no relevance in deciding the issue in this case of the assessee because the assessee itself had claimed deduction in the return starting from 1st year. The same is applicable in the case of Rangamma Steels & Malleables Vs. ACIT (132 TTJ 365) (Chennai) and Vel .....

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our opinion, judgment of Special Bench in the case of Gold Mine Shares & Finance (P) Ltd. (113 ITD 209) (SB) (Ahemadabad) squarely applicable to the facts of the present case and applying the ratio laid down by this order of the Special Bench of this Tribunal, we inclined to decide the issue against the assessee relating to allowability of deduction u/s 80IA that in terms of provisions of u/s 80IA(5) of the IT Act, the profit from the eligible business for the purpose of determination of th .....

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ed to 80IB, wherein it is specifically provided that the year of commencement of business will be the initial year for the purpose of claiming the deduction. However, as initial year is not defined in section 80IA, the year of option has to be treated as initial assessment year for the purpose of section 80IA. The above analysis is excellent, but there is no conclusion drawn. In our opinion, what has been held by Madras High Court is that if the loss of eligible unit is pertaining to the assessm .....

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ras High Court is not applicable and Special Bench decision is applicable, and in consonance with the essence of the said decision, profits are first to be set off with brought forward losses and then the quantum of deduction u/s.80IA is to be computed. 5.3. It is to be further noted, in course of hearing of the present appeal when the assessee moved an application for referring the issue to Special Bench, a Division Bench of this Tribunal opined that there is no need to make a reference to the .....

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allowing deduction under section 80IA has not been differed but only the initial assessment year in that case was considered. Therefore, assessee s contention that Mumbai Bench in M/s. Shevie Exports has differed with interpretation is not correct. Hon ble Madras High Court Judgment in the case of Velayudhanswamy Spinning Mills (supra) which was also same principles of setting off the losses of only eligible units, was also followed in M/s. Shevie Exports on facts. We are of the opinion that the .....

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issue to Special Bench. 5.4. The Division Bench also took note of the fact that assessee s case on the relevant legal issue has already been admitted by the Hon ble A.P. high Court. As can be seen from the aforesaid facts, the Coordinate Bench of this Tribunal in assessee s own case after considering the decision of Hon ble Madras High Court in the case of Velayudha Swamy Spinning Mills P. Ltd., vs. ACIT (supra) as well as the decision of ITAT, Ahmedabad, Special Bench in the case of ACIT vs. G .....

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. and assessee s appeal against such decision is still pending before the Hon ble jurisdictional High Court, until the decision of the Tribunal is reversed, judicial propriety and discipline require us to follow the decision taken by the Coordinate Bench. Following the same, we hold that assessee s claim of deduction under section 80IA is not maintainable. Accordingly, we uphold the order of the Ld. CIT(A) on this issue. 6. The next issue raised in ground No.2 is with regard to the disallowance .....

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n. Being aggrieved, assessee challenged the same before the first appellate authority. The First Appellate Authority has also confirmed the disallowance. 6.2. Learned A.R. submitted before us that assessee has submitted the Form 3CL before the first appellate authority. However, the same has been totally ignored. 7. We have heard both the parties and perused the materials on record. Considering assessee s claim that Form 3CL containing necessary details was furnished before the first appellate a .....

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issue, common in both the appeals of the assessee and interlinked with the only issue in the appeal of the department, is in relation to deduction claimed under section 80IB of the Act. Since the decision to be taken on this issue will have a bearing on all these appeals. It is decided as under. 10. Briefly the facts are, assessee apart from generating power through wind mill is also engaged in business of manufacture and sale of chemical and pesticides. For the purpose of its manufacturing act .....

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the Act. The A.O., in the course of assessment proceedings held that the Jammu unit having been set-up by splitting up or reconstruction of the existing unit at Balanagar and as well as transferring the machinery and plant of the existing unit is not eligible for deduction. Similarly, the claim of deduction for A.Ys. 2008-09 and 2009-2010 were also rejected by the A.O. 10.1. Assessee challenged the disallowance of deduction claimed under section 80IB by preferring appeals before Ld. CIT(A) for t .....

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ction 80IB. As far as A.Y. 2008-09 is concerned, when the appeal came up for hearing before the Ld. CIT(A), assessee also took similar plea that as the Jammu unit is an independent unit, assessee is eligible for deduction under section 80IB. Assessee also brought to the notice of the Ld. CIT(A) the order passed for A.Y. 2007-08 allowing assessee s claim of deduction. Ld. CIT(A) after considering the submissions of the assessee, however, did not find any merit in the same. Ld. CIT(A) on interpret .....

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y and plant and has also set up a new building at Jammu unit, however, there is no escaping from the fact that production has been split up between Balanagar unit and Jammu unit. Ld. CIT(A) observed, products having high profit margins which were being produced at Balanagar are now being produced at Jammu unit and production of such products at Balanagar unit is completely stopped. In this context, he referred to the turnover of certain products as mentioned by the Assessing Officer. Ld. CIT(A) .....

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s entirely independent and self-sustaining is to be judged keeping in view of the fact, whether in the event of closing down of the unit of Balnaagar, the unit at Jammu will continue to survive and prosper and grow as an independent industrial undertaking? Ld. CIT(A) making a passing reference to CIT(A) s order for A.Y. 2007-08 observed that mere presence of a functioning unit with separate machinery does not satisfy the rigor of section 80IB. Ld. CIT(A) further observed that deduction is not av .....

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redient of the business and in case, the unit at Balanagar is shut down, the unit at Jammu would also be forced to shut down due to almost zero research and development activity in that unit. In otherwords, a very vital portion of the business is being carried out at Balanagar unit without which the unit at Jammu cannot sustain. Therefore, in the aforesaid context the Jammu unit cannot be considered as an independent and selfsustaining industrial undertaking which can survive without the backing .....

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ors clearly indicate that the production at Balnaagar unit has been split up between the old unit and the new unit at Jammu. He observed there has been no significant jump in sales turnover. Only high margin products has been shifted in terms of entire production to Jammu, while the rest of the products continue to be produced at Balanagar. Accordingly, the Ld. CIT(A) agreed with the view expressed by the A.O. that the Jammu unit has been set up through splitting-up or re-construction of the exi .....

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ssment year for claiming deduction under section 80IB is A.Y. 2007-08. It was submitted, Ld. CIT(A) while examining the issue has taken into consideration all facts and materials including the enquiry conducted by the A.O. departmentally at Jammu and has given a categorical finding that the Jammu unit having been set up by making huge investment in land, building, machinery and plant etc., and being a functioning unit having its independent existence is eligible for deduction under section 80IB .....

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in the case of CIT vs. Bhilai Engineering Corporation P. Ltd., 133 ITR 687 (MP). Learned A.R. submitted even otherwise also the finding of the Ld. CIT(A) in A.Y. 2008-09 is factually incorrect and not borne out from record. The learned A.R. submitted, the Ld. CIT(A) has not denied the fact that the assessee has made substantial investment in land, building, machinery, plant etc., in setting up Jammu unit. He has also not disputed that the Jammu unit is an independent functioning unit and the man .....

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.e., Balanagar unit and Jammu units are producing up to their installed capacity. Learned A.R. referring to the workings containing installed capacity, production undertaken by both the units submitted that the figures from A.Y. 2004-05 to 2008-09 would clearly indicate that neither there is lower production in Balanagar unit nor decrease in sales. Learned A.R. submitted the CIT(A) while deciding the issue against the assessee for A.Y. 2008-09 has also not controverted the fact that assessee has .....

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on ble Supreme Court has clearly held that by establishing the new industrial undertaking assessee expands his existing business but the question is whether it is a new and identifiable undertaking separate and distinct from the existing business. Therefore, once, there is emergence of physically separate industrial unit which can exist on its own as a viable unit, then it cannot be considered to be a unit set up by splitting up or re-construction of existing business even if it is producing the .....

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Court in the case of Chemra Peak Esates Ltd., vs. CIT 84 ITR 401 cannot be considered to be good law. The learned A.R. submitted that out of the total 70 products manufactured by assessee, 20 products are manufactured at Jammu unit whereas rest of the products are manufactured at Balanagar unit. Learned A.R. submitted, in the case of splitting up there should be reduction in production, man power etc., whereas the evidences produced as well as accounts would clearly indicate that neither the pr .....

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eding year. Therefore, there is no violation of any of the conditions mentioned in sub-section (2) of section 80IB of the Act. Learned A.R. submitted that if for business expediency the management took a decision to manufacture some of the products only at Jammu unit keeping in view the incentives declared by the State Government such decision taken by the management keeping in view the business expediency cannot be questioned by the department by stepping into the shoes of the businessman. Lear .....

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same line of business and is manufacturing the same products, it is not eligible for deduction under section 80IB as it has been set up by splitting up/re-construction of existing business. Learned D.R. submitted, assessee has adopted a colourable device by shifting the production of certain high profit margin products from Balanagar unit to Jammu unit for the purpose of shifting the profit base from taxable unit to exemped unit. Learned D.R. submitted view taken by the A.O. and Ld. CIT(A) in A. .....

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08 to 2009-2010, basically on the ground that Jammu unit has been set up by splitting up or reconstruction of a business already in existence. Ld. CIT(A) while deciding the issue in A.Y. 2007-08 had gone through the enquiry report of the Inspector of Income Tax and has concluded, as the assessee has made substantial investment in land, building, machinery, plant etc., while setting up the Jammu unit, it cannot be considered to have been set up by splitting up or reconstruction of existing busine .....

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een formed by splitting-up or reconstruction of existing business. Ld. CIT(A) has held that assessee for reducing its tax burden has shifted manufacturing of certain high profit earning products from its taxable unit to exempt unit. Ld. CIT(A) has observed that mere presence of functioning unit at Jammu does not satisfy the rigor of section 80IB. According to Ld. CIT(A) for availing deduction under section 80IB the unit must be absolutely independent and self sustaining. Whereas, in assessee s c .....

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it is necessary to look into section 80IB. Sub-Sections (1) and (2) of section 80IB which are relevant for the purpose of deciding the present issue are extracted hereunder for ready reference. 80-IB. (1) Where the gross total income of an assessee includes any profits and gains derived from any business referred to in sub-sections (3) to [(11) [and (11A)]] (such business being hereinafter referred to as the eligible business), there shall, in accordance with and subject to the provisions of th .....

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ndertaking which is formed as a result of the re-establishment, reconstruction or revival by the assessee of the business of any such industrial undertaking as is referred to in section 33B, in the circumstances and within the period specified in that section; (ii) it is not formed by the transfer to a new business of machinery or plant previously used for any purpose; (iii) it manufactures or produces any article or thing, not being any article or thing specified in the list in the Eleventh Sch .....

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r than the assessee shall not be regarded as machinery or plant previously used for any purpose, if the following conditions are fulfilled, namely:- (a) such machinery or plant was not, at any time previous to the date of the installation by the assessee, used in India; (b) such machinery or plant is imported into India from any country outside India; and; (c) no deduction on account of depreciation in respect of such machinery or plant has been allowed or is allowable under the provisions of th .....

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purposes of clause (ii) of this sub-section, the condition specified therein shall be deemed to have been complied with; (iv) in a case where the industrial undertaking manufactures or produces articles or things, the undertaking employs ten or more workers in a manufacturing process carried on with the aid of power, or employs twenty or more workers in a manufacturing process carried on without the aid of power. 13.1. A plain reading of the aforesaid extracted portion of section 80IB would make .....

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posed under clause (i) is concerned, while the A.O. as well as the Ld. CIT(A) have held that the Jammu unit has been formed by splitting up or re-construction of a business already in existence, the assessee is contesting such view of the department. Therefore, in the aforesaid factual matrix, it is to be decided whether the Jammu unit has been set up by splitting up or reconstruction of a business already in existence. In this context, it is relevant to refer to decision of the Hon ble Supreme .....

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ties different from those which it has been manufacturing or producing in its existing business. Manufacture or production of articles yielding additional profit attributable to the new outlay of capital in a separate and distinct unit is the heart of the matter, to earn benefit from the exemption of tax liability under s. 15C. Sub-s. (6) of the section also points to the same effect, namely, production of articles. The answer, in every particular case, depends upon the peculiar facts and condit .....

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him of the benefit under s. 15C. Every new creation in business is some kind of expansion and advancement. The true test is not whether the new industrial undertaking connotes expansion of the existing business of the assessee but whether it is all the same a new and identifiable undertaking separate and distinct from the existing business. No particular decision in one case can lay down an inexorable test to determine whether a given case comes under s. 15C or not. In order that the new undert .....

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arate physically from the old one, the capital of which and the profits thereon are ascertainable. There is no difficulty to hold that s. 15C is applicable to an absolutely new undertaking for the first time started by an assessee. The cases which give rise to controversy are those where the old business is being carried on by the assessee and a new activity is launched by him by establishing new plants and machinery by investing substantial funds. The new activity may produce the same commoditi .....

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trially recognisable unit of an assessee cannot be said to be reconstruction of his old business since there is no transfer of any assets of the old business to the new undertaking which takes place when there is reconstruction of the old business. For the purpose of s. 15C the industrial units set up must be new in the sense that new plants and machinery are erected for producing either the same commodities or some distinct commodities. In order to deny the benefit of s. 15C the new undertaking .....

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litting up or reconstruction of business already in existence as lucidly explained by the Hon ble Bombay High Court in the case of CIT-V, Pune vs. Finolex Cables Ltd., (2012) 47-I-ITCL-0637 is as under : (i) There must be a new undertaking where substantial investment of fresh capital is made in order to enable earning of profit attributable to that new capital; (ii) The manufacturing or production of articles yielding additional profit attributable to a new outlay of capital in a separate and d .....

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itself. (vi) A new unit must be set up with new plant and machinery; and (vii) The fact that a unit produces the same commodity does not disentitle the assessee to the benefit of the deduction. 13.3. Therefore, applying the aforesaid tests as laid down in the judicial precedents, we are to examine whether the Jammu unit has been set up by splitting up or reconstruction of a business already in existence. In this context, it is to be noted that the A.O. in the initial year of claim of deduction i .....

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enquiry physically, it was categorically stated that the Jammu unit is a functioning unit and has been set up by making huge investment in land, building, plant and machinery etc., He further stated that the manufacturing activity in Jammu unit started in March, 2006 and he also found that besides regular employees a large number of contract labourers are also employed. He further stated that manufacturing process was being carried out in the premises and huge automatic plant was found installe .....

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land, building, plant and machinery but it is an unit having its independent existence distinct and separate from Balanagar unit. Further, it is also evident from the facts and materials on record that the Jammu unit is a self-sustaining unit having no dependence on Balanagar unit. Books of accounts have been separately maintained for Jammu unit, employees are separate, though, management may be common. In these circumstances, only because the products manufactured by both the units are same, i .....

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the denial of deduction to assessee has considered irrelevant materials which, in our view, has no bearing while deciding the issue whether assessee is eligible for deduction under section 80IB of the Act. On going through the assessment order as well as finding of the Ld. CIT(A) for the A.Y. 2008-09, it is clear that both the authorities were obsessed with the fact that Jammu unit is also manufacturing the same product as the Balanagar unit. Further, it is alleged by the A.O. and Ld. CIT(A) th .....

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record by assessee clearly demonstrate that not only production but sales of Balanagar unit over the years have progressively increased. Therefore, the apprehension of the Ld. CIT(A) and A.O. that the turnover of Jammu unit is at the cost of Balanagar unit or assessee has shifted the business of Balanagar unit to Jammu unit, in our view, is without any basis. Further, the allegationof the A.O. that after setting up of the Jammu unit, the profit of Balanagar unit has decreased with corresponding .....

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view that such business decision taken by the assessee cannot be questioned by the department. If the assessee being attracted with the incentives declared wants to set up a unit for manufacturing the same product it cannot be said that it is a devise adopted by the assessee to shift its profit base from taxable unit to the exemption unit. It is totally in the domain of the assessee to take a decision as a prudent businessman how to arrange his affairs within the frame work of Law. In the prese .....

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g Construction Pvt. Ltd., vs. CBDT 175 ITR 523 has observed that exemption provisions have to be liberally construed. In the present case, no adverse material has been brought on record either by the A.O. or Ld. CIT(A) to establish the fact that the Jammu unit was formed by splitting up or reconstruction of existing business. On the contrary, the material on record clearly indicate that the Jammu unit is an independent unit, separate and distinct from the Balanagar unit. Hence, there is no reaso .....

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