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2016 (4) TMI 562 - ITAT DELHI

2016 (4) TMI 562 - ITAT DELHI - TMI - Deduction u/s 80IC - DR in course of her arguments submitted that there was no substantial investment in fixed assets at the premises so as to enable one to conclude that assessee was carrying out manufacturing activity - Held that:- We do not find any substance in this plea of ld. DR because the requirement of investment depends on the nature of activity being carried out by assessee. It is not the case of revenue that with the investment at site the activi .....

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on the decision in the case of Faith Biotech Pvt. Ltd. (2014 (9) TMI 724 - DELHI HIGH COURT), where even though assessee was carrying out assembling and manufacturing of air purifier by using sample tools and testing equipments. It was held that assessee would be entitled to deduction u/s 80IC.This decision clearly counters the claim of revenue that the value of fixed asset is one of the deciding criteria for arriving at a finding whether assessee was carrying out manufacturing or not. The asses .....

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objection is regarding employees, the details of which have been referred to by ld. counsel for the assessee, noted in his arguments. From those details it is evident that keeping in view the nature of activity carried out by assessee, the number of employees and their qualifications could not be disputed.

As far as the objection regarding ESI and PF is concerned, we do not find much substance in the same because that is no where the criteria for concluding whether assessee had actual .....

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for the activities carried out at Sitarganj unit. First issue stands answered in favour of assessee and on the alleged ground that no activity was carried out at Sitarganj unit, deduction u/s 80IC cannot be denied.- Decided in favour of assessee

Whether the activity carried out by assessee amounted to manufacture or production of any article or thing as contemplated u/s 80IC or not? - Held that:- Assessee was primarily carrying out the process of procurement, fabrication and installat .....

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in commercial sense. The fabricated item cannot be said to be the same as was the raw material for producing the same. The raw material may not be undergoing any chemical changes but nonetheless the same is fabricated in a manner so as to create an article which is of use to assessee’s customer as per their specifications. - Decided in favour of assessee

Whether in view of the provision of section 80AC, the assessee is entitled to deduction u/s 80IC on account of late filing of return .....

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TA no. 1853/Del/2015 - Dated:- 25-2-2016 - SHRI S.V. MEHROTRA : ACCOUNTANT MEMBER AND SHRI A.T. VARKEY: JUDICIAL MEMBER For The Appellant : Shri Gautam Jain Adv. P. Kamal Adv. For The Respondent : Smt. Rehka Vimal DR ORDER PER S.V. MEHROTRA, A.M: This is assessee s appeal against the order dated 14.01.2015 passed by the ld. CIT(A)-XX, New Delhi in appeal no. 166/2013-14, relating to A.Y. 2010-11. 2. Brief facts of the case are that the assessee firm, comprising of three partners viz. Rishabh Kis .....

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iling following details a. Details of article/things manufacture b. To produce documents in support of manufacture c. Whether separate books of accounts were maintained in respect of the same to arrive at the eligible profit of ₹ 1,06,47,239/-. d. Delay in filing return vis a vis the claim u/s 80IC. 3. The assessee, in its reply dated 26.2.2013 at sl. No. (ix) submitted as under: "(ix) Regarding your honour's query on deduction claimed under section 80lC of the Income Tax Act, 196 .....

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ttarakhand VAT Authorities intimating them about start of commercial production along with first Stock transfer invoice dated 06.10.2009 with copy of Form "F" of Central Sales Tax issued against this Stock transfer as evidence in support of commercial production having been commenced in the financial year ending 31.03.2010 (Annexure 16" to 21"). 3. That the assessee has maintained separate books of accounts in respect of its above mentioned manufacturing unit for arriving at .....

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n of sub-section (4) should be deemed to be due compliance of provision of sub-section (1). For this proposition, assessee relied on following decisions: a. CIT vs. Ms. Jagriti Aggarwal 339 ITR 610, wherein it was, inter alia, held that the provision of sub-section (4) to section 139 was not an independent provision, but relates to the time contemplated under sub-sec. (1) of section 139. b. CIT Vs. Rajesh Kumar Jalan 286 ITR 274, wherein it was, inter alia, held that the assessee could fulfill t .....

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Valley Transport Co. Ltd. 77 ITR 518 (SC), , wherein it was, inter alia, held that section 22(3), equivalent to section 139(4) is merely a proviso to section 22(1) equivalent to section 139(1). e. The assessee further referred to various decisions of the Tribunal on this count, noted in AO s order. (ii) The second reason given by assessee regarding late filing of return was that it was prevented by sufficient cause from filing its income-tax return before 15.10.2010 as the assessee was engaged i .....

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ps on the part of the assessee even post the completion of the games, which in turn consumed substantial time and efforts of the partners and employees. (iii) The third reason advanced by assessee on this count was that under similar circumstances, many courts including Hon ble Supreme Court, have held that the technical/ machinery provisions relating to sections which are intended to provide a benefit to the assessee, should be liberally construed. For this proposition assessee has relied on fo .....

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documents for claiming deduction u/s 80IC before due date of filing of return but the return was filed late. - Bajaj Tempo Ltd. vs. CIT 196 ITR 188 (SC), wherein it has been, inter alia, held that particular provision in a taxing statute granting incentives for prompting growth and development should be construed liberally. - Polyhose India Pvt. Ltd. Vs. Department of Income Tax 30.06.1911 in ITA no. 122/Mds/2011). - Rambagh Palace Hotel (P) Ltd. Vs. DCIT 2.9.2012 87 ITD 163 (Delo.). 5. On the .....

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commented in the tax audit report that the assessee had not maintained the stock records and in absence of such records it was not practically possible for the auditors to give the quantitative details. 6. The AO further pointed out that the closing stock in hand valued in total at ₹ 40214495/- related to the various sites and the head office at New Delhi and other branches and there was no closing stock of factory at Sitargunj. 7. Further, the AO referred to sale invoice/ stock transfer w .....

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im that it was manufacturing articles as contemplated u/s 80IC, as it did not bring into existence any new article or substance. 9. As regards the assessee s claim that the deduction u/s 80IC should be allowed as return was filed belatedly u/s 139(4), the AO referred to various case laws relied upon by assessee and pointed out that a bare perusal of section 80AC makes it very clear that the return of income should have been filed within time limit specified u/s 139(1). He relied on various case .....

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issible for the above two reasons viz. the assessee was not manufacturing any article or thing as contemplated u/s 80IC and the return of income was also belated, therefore, this aspect did not require any further investigation. AO, accordingly, disallowed the assessee s claim for deduction u/s 80IC of ₹ 1,06,47,239/-. 11. Before ld. CIT(A) the assessee, inter alia, submitted that none of the notices issued to the assessee by the AO required him to justify how the activities amounted to ma .....

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that is produced - Any intermediary product produced - Under which head as per the excise law is the final produce produced - Stock details as per excise provision - Copy of tender received by the appellant - Copy of return and audit report when the Unit was located at Grater Noida. - Details of labour employed, their skills and salary/wages - Copy of invoice of the final products. 12. The assessee replied vide letter dated 27.10.2014, which has been reproduced by ld. CIT(A) in his order. From .....

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party inspection at the vendor premises vi) Transportation vii) Erection at site viii) Post installation inspection by third party inspecting (TPI) at site installation ix) Inspection by the oil company engineer at site of installation Thus as per above the process under taken by the appellant is galvanizing, painting, cutting and bending. Even as per the CD and photographs provided by the appellant the work apparent from them is cutting of pipes to size, transfer of these pipes to the site, whe .....

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d by him . As per the details produced by the appellant most of the machines purchased by him related to cutting, welding, drilling and bending The appellant claimed that the production of signages, structure in MS/SS/aluminum, fabrication of ACP Panels for retail visual identity elements and allied components for Oil marketing companies were carried out at the factory premises. At this site the installation of supplied signages/RVI were done to the satisfaction of the end user. The perusal of t .....

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d out at the appellant's premises at Sitarganj - the purchases are in favour of the factory at Gurgaon. - Even if it is presumed that work is carried out at Sitarganj factory then the nature of the work is mainly cutting, welding and galvanizing . - The post after cutting to size are transported to the parties site where the final process is carried out. - The product being transported cannot be said to be a different product from the one purchased by the appellant. Thus a new and distinct c .....

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se of the appellant whether a new article or thing has been manufactured to enable it to merit the requisite deduction under section 80IC(2) of the act. The Assessing Officer has claimed that the process adopted by the applicant cannot be termed as manufacturing process as no new product has come into being. Reliance is placed on the decision of Rajasthan High Court in the case of CIT Vs. Lucky Minerals Pvt. Ltd. 226 ITR 245. Applying the above tests, if the present case is analyzed, it emerges .....

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nufacturing activities at the Sitarganj factory. The nature of the employees, their qualification, the wages being paid to them, and work assigned to each also show that the manufacturing activity claimed 0 be carried out at Sitarganj Unit is a mere eye wash. ESI and PF in respect of Sitarganj factory separately has not produced. It is only in 2012 for the year 2011 that the appellant has filed nominal roll of emp10yees and employment in ESIP, Sitarganj. Thus there is no evidence of employees at .....

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be said to have manufactured or produced any article or a thing. The decision of the Assessing Officer is, therefore, confirmed. 5.7 Without prejudice to the above, the appellant has also failed to file the audit report within time and therefore deduction under section 80lC is not eligible to the appellant. Without prejudice to the above even if any higher judicial authority holds a process carried out by the appellant as manufacturing, then too the percentage of a process carried out at the Si .....

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,06,47,239/-. 3. That the Ld. CIT(A) has erred in concluding that end product being manufactured/produced at eligible unit at Sitarganj factory is not commercially different from the input materials. The consequent conclusion that no manufacturing activity is being carried out is also erroneous, factually incorrect and is liable to be struck down. 4. That the Ld. CIT (A) has grossly erred in not adjudicating all the grounds taken in first appeal. 5. That the conclusion of the Ld AO (not adjudica .....

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so as to entitle it for deduction u/s 80IC. He referred to pages 96 to 98 of PB wherein process carried out by assessee is contained, which is reproduced below: The process of procurement, fabrication and installation of all the Retail Visual Identity (RVI) features can be sub-divided as follows: i) Procurement of material, both imported and indigenous ii) Fabrication of structural as per drawings given in the tender for each item. iii) Galvanising, powder coating of painting of the structural m .....

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rted to the sites and erected/installed with the help of nuts, bolts and screws Fabrication work involving welding is not permitted at the site. The structures and A.CM for RVI features involving canopy and building fascia are brought to site in ready to erect condition from the manufacturing unit. The process of galvanizing, powder coating or painting of the structurals members take in the manufacturing unit. The inspection takes place In two stages. In the first stage the third party inspectio .....

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sentatives are deputed at each site to assess the exact quantities of work involved at each site. Engineers from the oil company also visit the site after TPI inspection. A brief description. of the process undertaken by M/s Fibrefill Engineers while performing the work contract and the relevant items is as under: Cladding: (i.e. covering of any surface such as walls, f1oors, building, column etc. by any foreign material on the preexisting structure), was carried 'out "mainly with alumi .....

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ispensers, power points and lighting fixtures etc., (e)ACM sheet was cut as per the Aluminum extrusion that was secured to the MS or building through bolts. Monoliths: Monolith is a complete sign which is manufactured at the manufacturing unit using steel, ACM, ploy carbonate sheets & aluminum tubes. Exact cut to steel pipes were received, and fabricated as per design of the oil company. The steel, was then directly dispatched from our manufacturing unit to the site. Other items like ACM and .....

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le/Extrusion length were also made and dispatched as per the requirement. They were cut to size as per requirements of that particular site/petrol pump. They were installed on the existing sites Building Top of the petrol pumps. The entire building fascia after taking the exact measurements of the site, were manufactured at the manufacturing unit and the completed elements after inspection, were transported to the sites and erected/installed with the help nuts, bolts and strews as the fabricatio .....

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I sheets are required. MS Pipes of 900 mm are to be installed on the canopy piece by piece, single by single on the desired line levels, as worked out earlier (vertically) Aluminum Extrusion was then put/installed on the MS Pipes horizontally again piece by piece i.e., as per the standard lengths available then the ACM sheet which measures 900 x 4000mm lmm required colours was cladded on the MS/Aluminum with the help of screws/rivets. GI sheet was fixed on the top of ACM sheet to avoid water see .....

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t assessee was not maintaining any stock records and on this count he referred to the tax audit report contained in the paper book at page 10 wherein tax auditors have qualified their report by observing as under: As the assessee has not maintained the stock records and in absence of such records it is not practically possible for us to give the quantitative details. 17. With reference to the above observation, ld. counsel pointed out that all the invoices are there which contained the quantitat .....

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the judgment in Tata Consultancy Services', it becomes clear that the intelligence/logic (contents) of a programme do not change. They remain the same, be it in the original or in the copy. The Department- needs to take into account the ground realities of the business and sometimes oversimplified tests create confusion, particularly, in modem times when technology grows each day. To say, that contents of the original and the copy are the same and, therefore, there is (sic no) manufacture wo .....

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d spirit of manufacture. (See United States v. International Paint Co. ) 18. Ld. counsel pointed out that the relevant test is whether article produced has separate commercial use as compared to sourced material or not. Ld. counsel further submitted that in the case of CIT Vs. Ms. Megha Dadoo 232 Taxmann 419 (HP), it has been held that manufacturing of Route Markers by undertaking process of cutting stainless steel pipes of larger sizes with electric cutter including pointing and welding of pipe .....

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u/s 139(4). He relied on various case laws, noted by us in the submissions advanced before AO, wherein it has been, inter alia, held that provision of section 139(4) is a proviso to section 139(1). 21. Ld. counsel submitted that the third aspect to be considered is regarding ld. CIT(A) s observations that no manufacturing activity was carried out at Sitarganj site during the year under consideration. In this regard ld. counsel referred to the index to paper book no. 1, wherein the assessee s re .....

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from 31.8.2009 iii) Central excise challan for the quarter ending December 2009. iv) Letter from the Fire Department dated 7.9.2009 v) Registration under Central capital Investment Subsidy Scheme, 2003 dated 20.8.2009. vi) Letters from Uttarakhand Power Corporation Ltd. vii) Letter to the Central Excise Division dated 17.8.2009 regarding start of the production in August 2009. viii) Documents from the Pollution Control Board dated 23.4.2009. 22. Ld. counsel further referred to page 163 of PB, w .....

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forthwith and the earnest money deposit/ initial security deposit shall be forfeited. 23. Ld. counsel further referred to page 196 of the PB, wherein the report of third party inspection is contained. He pointed out that assessee is manufacturing signages etc. for IOC which nominates third party for inspection. He pointed out that third party has certified that the process of manufacture was carried out in terms of specification. 24. Ld. counsel further referred to pages 23 & 25 of the PB, w .....

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given. He pointed out that the observations of ld. CIT(A) to the contrary on this count are not correct in the light of enormous evidence being on record. 26. Ld. counsel further referred to page 486 wherein the invoices evidencing the stock transferred from Sitarganj to New Delhi on 11.10.2009 is contained. Ld. counsel further referred to page 631 of PB, wherein list of employees along with designation at Sitarganj unit is contained. He pointed out that merely because PF and ESI register was gr .....

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further submitted that assessee has also not filed audit report on time which was filed during the course of assessment. She relied on following decisions in support of her contention that incentive provisions have to be given strict interpretation. - Smt. Tarulata Shyam & others Vs. CIT 108 ITR 345 (SC) - CIT Vs. Anjum M.H. Ghaswala & others (SC)252 ITR 1 - State of Punjab & others Vs. Surinder Kumar & others 194 ITR 434 (SC). 28. Ld. DR further submitted that no proper reason h .....

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ote on the process being undertaken by assessee is contained and pointed out that assessee itself mentioned that it is only process of cutting , welding, bolting and jointing which is only a fabrication work done by assessee. 30. Ld. DR referred to page 215 onwards wherein copy of invoices of the machinery purchased for setting up industrial undertaking at Sitarganj unit is contained to submit that the investment is not subst4antial as claimed by assessee. She further submitted that no stock rec .....

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bmitted that the third issue is whether any activity carried out was not at Sitarganj. She referred to page 21 of AO s order wherein he has observed that assessee has not filed any balance-sheet and P&L A/c before the AO. She further referred to the notice issued by AO u/s 142(1) contained at pages 32 to 144 of PB and assessee s reply to various aspects. In this connection she referred to page 65 of PB, wherein form no. 3 under Rule 7(1) for registration and license to work a factory is cont .....

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te from RITES Ltd. is contained and submitted that inspection has been carried out at Delhi though the contractor had been referred as assessee with Sitarganj, Uttrakhand. She submitted that this does not lead to any inference that the activities were carried out at Sitarganj. 34. Ld. DR further submitted that since the entire stock was transferred to New Delhi, then how the income part is explained at Sitarganj. 35. Ld. counsel in the rejoinder submitted that existence of undertaking at Sitarga .....

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tion. 36. Ld. counsel further pointed out that assessee had undertaken contract for sale and not contract for job and, therefore, it cannot be said to be a job work being carried out by assessee. He further referred to the decision in the case of CIT Vs. Faith Biotech Pvt. Ltd. to submit that value of machinery is not a relevant factor for deciding whether the assessee was carrying out manufacturing activity and the acid test is user of the article. He pointed out that, in any case, the assessee .....

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der following three issues- (a) Whether any activity actually carried out by assessee at Sitarganj or not. (b) Whether such activity could be termed as manufacturing or producing of any article or thing as contemplated u/s 80IC. (c) Whether assessee was entitled to deduction even though it filed the return belatedly in view of the provisions contained u/s 80AC. 38. As far as the first issue is concerned, we find that AO has not questioned this aspect, but ld. CIT(A) has questioned this for the f .....

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had filed nominal role of employees and employment for ESI/ PF in Sitarganj. Thus, there was no evidence of employees at Sitarganj in the year under consideration. (iv) The purchase bill show that the assessee had purchased fabricated MS Grill from various parties in New Delhi and this fabricated bill was transported to Fiber Fill Engineers, Plot no. 2, Daulatabad Road, Industrial Area, Gurgaon. However, the sale bills show transportation of signages and vertical posts from Sitarganj to the asse .....

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far as ld. DR s objection with reference to the grant of license to the factory is concerned, we find that on the said license it is specifically written that the same is enforced from 31.8.2009. Further, in the said license in column of date of renewal the first date mentioned is 1.1.2010. It is further noted that in form no. 3 it is specifically mentioned that the license shall remain in force till 31.12.2009 unless further renewal. It clearly shows that the license was enforced from 31.8.200 .....

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at there was no substantial investment in fixed assets at the premises so as to enable one to conclude that assessee was carrying out manufacturing activity. We do not find any substance in this plea of ld. DR because the requirement of investment depends on the nature of activity being carried out by assessee. It is not the case of revenue that with the investment at site the activities could not be carried out by assessee. 44. The assessee has also referred to the tender documents and the thir .....

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nufacturing of air purifier by using sample tools and testing equipments. It was held that assessee would be entitled to deduction u/s 80IC.This decision clearly counters the claim of revenue that the value of fixed asset is one of the deciding criteria for arriving at a finding whether assessee was carrying out manufacturing or not. The assessee has filed copies of invoices in the paper book from which it is evident that the raw material was purchased at Sitarganj unit during the relevant year .....

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dent that keeping in view the nature of activity carried out by assessee, the number of employees and their qualifications could not be disputed. 47. As far as the objection regarding ESI and PF is concerned, we do not find much substance in the same because that is no where the criteria for concluding whether assessee had actually carried out activity or not. If there is any default on the part of assessee in regard to ESI and PF provision, then under the relevant Act it would be liable for act .....

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o activity was carried out at Sitarganj unit, deduction u/s 80IC cannot be denied. 50. The next issue for our consideration is whether the activity carried out by assessee amounted to manufacture or production of any article or thing as contemplated u/s 80IC or not. We have extensively produced the assessee s contention in regard to the activity being undertaken by it. From those submissions it is evident that assessee was primarily carrying out the process of procurement, fabrication and instal .....

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utility in commercial sense. The fabricated item cannot be said to be the same as was the raw material for producing the same. The raw material may not be undergoing any chemical changes but nonetheless the same is fabricated in a manner so as to create an article which is of use to assessee s customer as per their specifications. 52. Ld. counsel has referred to the decision of Hon ble Supreme Court in the case of Oracle Software India Ltd. (supra), which clearly holds that if a process renders .....

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by undertaking process of cutting stainless steel pipes of larger sizes with electric cutter including painting and welding of pipes amounts to manufacture or production. In our opinion both these decisions clearly support the assessee s claim that it was carrying on the manufacturing activity and, therefore, this objection of revenue authority stands rejected. 54. The third issue four our consideration is whether in view of the provision of section 80AC, the assessee is entitled to deduction u .....

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urnishes a return of his income for such assessment year on or before the due date specified under sub-section (1) of section 139. 55. While referring to the finding of assessment order, we have noted various decisions relied upon by ld. counsel for the assessee, which held that section 139(4) is to be read as proviso to section 139(1). It is true that the heading of section 80AC clearly shows that deduction is not to be allowed unless return is furnished on or before the due date specified unde .....

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