TMI Blog2010 (2) TMI 1199X X X X Extracts X X X X X X X X Extracts X X X X ..... at all, and also in ratio of decision in the case of Lucky Minmat Pvt. Ltd. vs. CIT 116 Taxman 1 (SC) and other case laws on the subject. 3. In this case the assessee company claimed exemption under section 80IB of the IT Act. AO referred to the provisions of section 80IB(2)(iii) and held as under:- In the business of the assessee firm, boulders are broken into small pieces i.e. grits. What was broken is stone and the result of this breaking is again stone. There is only a change in shape of stone. It was changed from bigger size to smaller size. Grits or stone chips do not loose the basic character of stone which was in boulders even after crushing them to small sizes. The composition of boulders and the stone grits is the sa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cted. 4. Upon assessee s appeal ld. CIT(A) accepted the contention that it is only after the blocks of the stone have been cut to sizes that they become marketable. It was the process of crushing / breaking the stone boulders into small pieces that the same became marketable. The stone boulders cannot be used for the same purpose as the stone grits and after the stone boulder have been cut into different sizes, the end products simultaneously cannot be used as a block. Accordingly, CIT(A) has allowed the assessee s appeal by inter-alia placing reliance upon ITAT decision in the case of Mallikarjun Georesources Associates. 5. Against this order the revenue is in appeal before us. It has been inter-alia urged that the decision of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 31.3.2008. In this case the assessee s acitivites of mining and crushing of boulders and sale of excavated materials and stone grits was held to be manufacturing and processing of articles and things as to entitle deduction under section 80IB. v) ITO, Udaipur vs. M/s Arihant Tiles and Marbles (P) Ltd. in Civil Appeal no. 8036 of 2009 order dated 2.12.2009. In this case the Larger Bench of the Hon ble Apex Court comprising three of their Lordships have taken into account the judgement of the Hon ble Apex court in the case of Lucky Minmat Pvt. Ltd. vs. CIT (2001) 9 SCC 669. The Hon ble Court elaborately considered the issue and the Hon ble Apex Court earlier decision on the subject and held as under:- Applying the above tests l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... etc. because the activity did not constitute manufacture. Keeping in mind the above factors, we are of the view that in the present cases, the activity undertaken by each of the respondents constitutes manufacture or production and, therefore, they would be entitled to the benefit of Section 80IA of the Income Tax Act, 1961. 5.2 From the above case laws, it is evident that the issue involved is covered in favour of the assessee. We may quote the observations of the tribunal s decision in ITA No. 5000/Del/04 DCIT vs. Mallikarjun Georesources Associates cited above in identical case as under on which the ld. CIT(A) has also relied. 12. We, after having going through the chart of process of production placed at page 5/PB are of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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