TMI Blog2008 (11) TMI 696X X X X Extracts X X X X X X X X Extracts X X X X ..... as erred to hold that the appellant was not entitled to deduction u/s. 80IA(2)(iv)(c) of the Act as he was carrying on repair work and was not manufacturing or producing any article or thing as required by the said section. The CIT has totally failed to appreciate the submissions of the appellant in proper perspective and in an objective manner. 4. That without prejudice to the above and in the alternative, Ld.CIT. Gwalior has also failed to appreciate that the industrial activities of the appellant, while carrying out repair jobs consisted of manufacturing or producing article or things, which were also separately saleable items, for in-house use value of which did not form part of the repairing labour charges and as such profit or gain attributable to this activity at least was entitled to deduction u/s. 80IA(2)(iv)(c) of the Act. 5. That the order dated 29.12.2006 passed by the Ld. CIT Gwalior is bad in law and/acts and is liable to be set aside. 2. Briefly, the facts are that the assessee filed a return declaring nil income on 27.11.2000. This return was processed u/s. 143(1) of the Act on 11.05.01. The assessee has claimed deduction u/s. 80IA(2)(iv)(c) of the I. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssessee has disclosed the sale of products, which were manufactured at its own unit. Such list is available at assessee's paper book page 46. This was also available with the authorities below and was a part of record. The assessee's bill raised to the Electricity Board reveals that the items like HV Leg Coil and HV Bushings were manufactured by the assessee and charged from its customers alongwith labour charges on account of job work done by it. The assessee also has registration as manufacturing unit with Small-Scale Industries Deptt., wherein the date of commencing the production is stated to be 28.08.1998. The unit is located in backward area for carrying out aforesaid manufacturing activities. Reference is made to assessee's paper book page 4 in that regard. Sales Tax has also been paid on the sales of such goods. Furthermore, the assessee has made a declaration to the Excise Department copies placed at assessee's paper book page 27. The goods manufactured therein are stated to be HV Leg Coil and value of such goods cleared during the year under consideration are stated at ₹ 34,68,986/-. The finding reached by the ld. CIT is, thus, not correct nor they r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Commerce Department and other government agencies have treated the activities of assessee as manufacturing activities. Considering it a manufacturing unit, the exemption from commercial tax has also been granted to the assessee. The assessing authority after examining the issue recorded a finding as under:- (i) It is clear that the word manufactured include repairing work in the case of electrical transformers because a series of manufacturing activities are undertaken in this process and it carries warranty and guarantee also. Virtually when it electric transformer comes for repairing the inside material available in it is only waste wire and waste oil which is returned to the authorities concerned and sold in the open market. The only difference in repair and manufacture on transformers is that in repair the old cabinet of the transformers is used and in manufactured, new cabinet is purchased from the market/other manufacturer is used. Thus manufacture of transformer includes repairs of transformers as well. (ii) As regards allowability of deduction u/s. 80IA(2)(iv)(c), the case has been examined in length and it is found that the assessee company fulfils all the cond ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... med as erroneous. This view finds support from the decision rendered by jurisdictional High Court in the case of CIT vs. Govindram Seksaria Charity Trust (supra). The order of Assessing Authority is also not shown to be unsustainable in law. Such an order, therefore, cannot be termed as erroneous. The essential condition of an order being erroneous is, thus, absent. In that view of the matter and having regard to Apex Court judgment rendered in the case of Malabar Industrial Co. Ltd. vs. CIT (supra), the Ld. CIT, Gwalior can be said to have erred in canceling the assessment and directing to withdraw the deduction so allowed by the Assessing authority. We, therefore, set aside her order passed u/s. 263 of the Act and allow the appeal of the assessee. 10. In the result, the appeal stands allowed. Order pronounced in the court on July 2007. Diva Singh, Judicial Member 2nd January 2008 1. Having given my utmost consideration I find myself unable to agree with the findings arrived at in the proposed draft order. Accordingly, I propose humbly to set out the reasons for writing a dissenting order. 2. The relevant facts of the case are that in the year under consideration th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... note of the fact that in the first round admittedly during the year the assessee company carried out only repair works. The distribution transformers were sent by MPSEB for repairs and after repairs they were sent back to MPSEB for use. From this activity the assessee company only derived charges for carrying out such repair work. 10. The CIT (Admn.) in the first round had observed that the word manufacture involves bringing into existence a new product. The new product should be such a product which is of a different chemical composition and whose integral structure is different. The said analogy as considered in ITO vs. Ahura Shipping and Engg. Co. Pvt. Ltd, 8 ITD 435 (Bombay) was relied upon by the CIT (Admn.) and thus on facts the CIT (Admn.) was of the view that manufacture or production of any article by a person implies that the item is for sale and not for some job work. 11. Thus, in these facts as per position of law appreciated by him the learned Commissioner was of the view that unless a new product, article or thing comes into existence there will not be any manufacture or production. As such, simply by carrying out certain process to make old articles or thing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (ii) Prejudicial to the interest of revenue. According to the assessee and the counsel, the notice u/s. 23 does not specify whether the assessment order sought to be revised is erroneous and prejudicial to the interest of revenue. In this regard, reliance has been placed on the case of Malabar Industrial Co. Ltd. vs. CIT (2000) 243 ITR 83 (S.C.). Reliance has also been placed on CIT vs. Govindram Seksariya Charity Trust (1987) 166 ITR 580 (M.P.). According to which the Commissioner of Income Tax setting aside assessment u/s. 263 on the ground that ITO allowed exemption without examining applicability of provisions of section 13(1)(c)(ii) - Tribunal finding that ITO was alive to relevant provisions of law and facts before passing order of assessment - Commissioner of Income Tax not justified in setting aside assessment. In view of the above it has been submitted that the re-assessment order passed by the ld. Assessing Officer is neither erroneous nor prejudicial to the interest of revenue, therefore, the proceedings u/s 263 have been requested to be dropped. 12. Considering these the CIT (Admn) was of the view that as far as the location of the assessee c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... raft order namely:- (i) That the A.O. has duly considered the issue and entertained a possible view that repairing of transformer amounted to manufacture of product by the assessee. (ii) Reliance was placed upon Amritsar Bench of the Tribunal in Saraf Electricals P. Ltd. vs. ACIT (2004) 89 TTJ (Asr.) 761, copy of which is placed at pages 15 to 21 of the Paper Book. (iii) It was also submitted that the assessee is manufacturing certain parts which have been used in the repairing of these transformers as such activity of repairs should come under the definition of manufacturing. The sale of these products which have been used in the repair work stand disclosed in assessee's Paper Book page 46. (iv) That the assessee has registration as manufacturing unit with the Small Scale Industries Department and date of commencing the production therein is 28.08.1998. (v) The unit is located in backward area for carrying out aforesaid manufacturing activities. (vi) Reference was made to page 4 of Paper Book so as to contend that the Sales Tax has been paid on the sales of such goods. (vii) Moreover that the assessee has made a declaration to the Excise Department, as suc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... work in the case of electrical transformers. The said finding it was submitted is based on no material as it is neither based on any report of any expert obtained by the A.O. nor has any authority been relied upon by the assessee either before the A.O. or before the CIT (Admn.). The finding of the A.O. based on no facts was contended to be carelessly given as no material or expert opinion was referred to therein to hold that the only difference in repairing and manufacturing of transformer is that in repair the old cabinet of the transformers is used and in manufactured new cabinet is purchased from the market/other manufacturer. Thus, manufacturing of transformer included repair of transformer as well . It was the submission of the ld. Sr. D.R. Shri Ambesh that it was this reasoning of the A.O. which is erroneous and contrary to the settled legal position as the A.O. himself was not convinced that any manufacturing has taken place and has tried to rely upon a long drawn erroneous reasoning that since these articles were within the warrantee and guarantee period as such their repair and not manufacture could be stated to have been a manufacturing activity. It was his submission th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... epairs identical process as was required for manufacture was required and undertaken. The said fact stood demonstrated in the facts of that case. In the facts of the present case admittedly the assessee in the year under consideration has not been involved in any manufacturing activity or sale of electrical transformers and has admittedlly only undertaken job repair. The nature and extent of repairing work has not been addressed either by the assessee before the Bench or before the A.O. or the CIT (Admn.) in the two rounds. In the absence of any discussion or reference there is no material or evidence to hold that the A.O. has examined the extent of damage and the resultant effort required to make it operational. As such, it cannot be said that the A.O. has given a finding on fact which is sustainable in law as no material or evidence has been lead by the assessee before the A.O. to agitate the extent of damage and as such no material or evidence has been discussed to that extent. Moreover, no finding also has been given that the transformers were damaged to such an extent that the entire step by step process as would have taken place for manufacture was taken alongwith the manufac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the payment of items utilised in the repair work having been manufactured by the assessee does not lead to the proposition that the assessee has manufactured Electric transformer as admittedly the assessee has only repaired the same after having used certain item which may have been manufactured by it. Accordingly the assessee having charged for these items which are not purchased from the market but utilised in-house products the fact remain that the assessee did claim labour charges done by it for repair and did not receive payment for manufacturing transformers. 22. Similarly the factum of registration with Small Scale Industries Department commencing the production from a specific date is also of no help as the admitted facts on record in the year under consideration is that the assessee has not manufactured any electrical transformer at all and has only carried out repairing work. The Registration Certificate of Small Scale Industries Development per se does not entitle the assessee to claim the deduction as admittedly no manufacturing of transformers took place in the year under consideration. 23. The location of the assessee's activity in backward area also per se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sessment Order has been passed after making thorough enquiries as the reasoning that repairing can be held to be equated with manufacturing would be a view which would be a travesty of the provisions of the Act. 26. Accordingly, for the above mentioned facts and reasons, I find myself unable to agree with the finding that the A.O. was alive to the issue as in the facts of the present case the A.O. though conscious of the fact that the deduction is entitled only to industrial undertaking manufacturing a new and independent product has come to very erroneous and gravely prejudicial finding to the interests of the Revenue as no material fact or reason or discussion as to how manufacturing can be equated with repairing work. Accordingly, the grounds raised by the assessee in this peculiar facts are dismissed and the impugned order as such for reasoning given herein above is upheld by me. 27. In the result, appeal of the assessee is dismissed. Reference Under S. 255(4) of the IT Act, 1961 2 January 2008 There being difference in opinion, the following questions are being forwarded to the Hon'ble President, I.T.A.T. u/s. 255(4) of the I.T. Act for referring the same to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ansformers insulation, manufacture of core coal assembly etc. This involve manufacture of various articles. It has been further stated by the Ld. Council of the assessee that in the statement of income enclosed with return of income, the manufacturing activity has been clearly stated and the State Govt., State Commercial Department and other technical agencies have after thorough examination considered these activities as manufacturing activities and exception from commercial tax was allowed. In view of above discussion it is clear that the word manufactured include repairing work in the case of electrical transformers because a series of manufacturing activities are under taken in this process and it carries warranty and guarantee also. Virtually when it electric transformer comes for repairing the inside material available in it is only waste wire and west oil which is returned to the authorities concerned or sold in the open market. The only difference in repair and manufacture on transformers is that in repair the old cabinet of the transformers is used and in manufactured new cabinet is purchased from the market/other manufacturer is used. Thus manufacture of transforme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arned Accountant Member that proceedings were reopened by the A.O to examine the question whether assessee was carrying on any manufacturing activity. In that light, various documents and orders of State Government, State Commerce Department and other government agencies were examined and specific finding on the issues was recorded by the A.O. The aforesaid finding of the A.O has already been reproduced in earlier part of this order. 8. After examining sale bills which are placed at pages 57 to 58 of the paper book, for supply of material manufactured by the assessee and the credit of above sale proceeds in the profit and loss account, the A.O had held in re-assessment proceedings that assessee carried on manufacturing activities and was entitled to deduction u/s 80IA of the Income-tax Act. Above view of the A.O was in line with the view taken by ITAT Amritsar Bench in the case of Saraf Electricals Pvt. Ltd. vs. ACIT 89 TTJ (Asr.) 761. The learned Accountant Member further observed that CIT in the impugned order reached the finding without considering material on record, particularly the sale bills under which products used by the assessee in repair were specifically sold and su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of electrical transformers and had also undertaken some repair of old damaged transformers wherein also on account of the extent of damage for carrying out the repairs identical process as was required for manufacture was required and undertaken............. In the facts of the present case admittedly the assessee in the year under consideration has not been involved in any manufacturing activity or sale of electrical transformers and has admittedly only undertaken job repairs. The nature and extent of repairing work has not been addressed either by the assessee before the Bench or before the Assessing Officer or before CIT (Administration) in the two rounds. (iii) No finding also has been given that the transformers were damaged to such an extent that the entire step by step process as would have taken place for manufacture was taken alongwith the manufactured items for these damaged items. The A.O. has missed the basic crucial distinctive feature that the damaged transformers also required the identical process as required for manufacturing of new transformers. (iv) It was not necessary for the Commissioner to place material on record to show that repair work was not a ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ve difference between Hon'ble Members, the matter was referred to me u/s 255(4) of the I.T.Act. In order to resolve the difference, the case was fixed for hearing at Agra. Shri Mahesh Agarwal, CA on behalf of the assessee and Smt. Shefali Juneja, the ld. DR on behalf of the revenue, have been heard. I have also seen the relevant record with the help of the ld. Representative of the parties. Shri Mahesh Agarwal, ld. Representative of the assessee, submitted that assessee, in the relevant period, had carried manufacturing activities as it has manufactured parts used in the transformer. The assessee even sold fully manufactured transformers for which a sum of ₹ 50,605/- stood credited to the Profit and loss account of the last year. The assessee had further manufactured and sold several parts used in transformers like coil etc, and this was clearly stated in the books of account, copy of few sales have been filed at pages 57/58 of the paper book. Item 1 to 18 showed parts manufactured by the assessee. The ld. Counsel for the assessee also drew my attention to page 24 where a copy of license granted to the assessee is available which clearly showed that the assessee was autho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . No change of ownership of any produced article was shown. The assessee merely carried on repair work on transformers belonging to M.P.S.E.B. The assessee also did not pay any excise duty as held by the ld. Judicial Member in her proposed order. No sale of coil claimed to be a separate manufactured item was shown in the account. Thus, there was no clear material to show that assessee carried any manufacturing activity. The above arguments were again rebutted by the ld. Counsel for the assessee and position under the excise law as well as sale of coils manufactured by the assessee and other parts, which were independent commercial products was duly shown in the record. In this connection, my attention was again drawn to pages 32/33 of the paper book where the sale of spare parts was shown. It was clarified that sale list of other manufacturers selling coil was placed on record to show that coil was an item which was commercially sold. 13. I have given careful thought to the rival submissions of the parties. It is not in dispute that except for the controversy that assessee did not manufacture any article or thing, other conditions of the Section 80-IA(2) are admittedly satisfied ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assessee reiterated its stand as under:- The applicant company has started the activities i.e. production with effect from 20.3.1998 as mentioned in the certificate of registration. The applicant company is an industrial undertaking for manufacture of transformers, manufacture of Electromechanical part, accessories component of distribution transformers i.e. winding coils, connection metal parts, cork sheet washer, insulation material etc. and repair of transformer which includes replacement of various parts i.e. winding coils connection metal parts, cork sheet washer, insulation material, material manufactured by the company at its own. The business of the company is primarily manufacturing of electromechanical parts of transformers and virtually sale of electromechanical parts and components to the customers as per their requirements and replacement where transformers get burned and damaged and the transformers are replaced during warranty/guarantee period. It is worthwhile to note that the company is not purchasing the said parts and accessories of transformers from market for further sale and replacement but manufacturing at its own. ......It was submitted before the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ils given by them and to show that coil was an independent marketable product (Annexure P-3-4). It also attached a copy of declaration furnished before the Central Excise Department mentioning product in which coils are specifically mentioned as item manufactured by the assessee. Copy of declaration was annexed as P-5-12. 18. It is evident from assessee's replies that the assessee is not claiming to be a manufacturer merely because it was carrying on repair of the transformers for MPSEB. Its claim was that the assessee company is running an industrial undertaking for manufacture of Transformers and manufacture of electromechanical parts, accessories, components of distribution transformers from raw and fresh material. The main parts manufactured by the assessee were claimed to be as under: i) Winding Coils, ii) Connection metal parts, and iii) Cork sheet washer. 18.1 The assessee further emphasised, this business is primarily manufacture of electromechanical parts of transformers and virtually sale of electromechanical parts and components to MPSEB etc. . It is not in dispute that in the damaged and burnt transformers, the assessee was replacing parts and compon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wing information as per Column 4 and 5: 4) Full description of goods (heading-wise) manufactured by the factory. HV Leg Coils (tarrif-8504.00) 5) Value/quantity of the goods cleared during the preceding financial year. ₹ 34,68,986.75 20. In the Excise documents, it is further stated that assessee as a small scale unit was entitled to claim exemption of goods manufactured upto the value of ₹ 50 lacs in a financial year. In Column No.10, titled Process of manufacture , the assessee explained that main raw material was PPC Aluminium wire. Through the coil winding machine, HV leg coils are prepared with the help of insulating paper, cotton, tape, Empire sleeve and adhesive. 21. In order to show that parts and accessories manufactured by the assessee were commercial items, and saleable as such, the assessee placed on record price list of LT Switchgear an independent company. The said list contains the sale price of various items. The aforesaid evidence was placed on record to substantiate the claim that assessee was a manufacturer of electromechanical p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s parts were sold by the assessee to MPEB. On such parts, manufactured by the assessee, the assessee has paid sales-tax and this fact is not in dispute at all. Thus sale of items manufactured by the assessee is fully established. No sales tax is payable on repairs and this material fact has been disregarded. It is clear that neither the case of the assessee nor material available on record was examined and on general observations without reference to any specific material action u/s 263 was taken by holding that no manufacture but repair of transformer was carried. The ld. Judicial Member has repeatedly used the word admittedly with reference to the controversy which was the main dispute between the parties. 25. On the basis of above material, it is not possible to hold that assessee was carrying on mere repair of transformers and not any manufacturing activity. Assessee's claim that it is manufacturing electromechanical parts and accessories like winding coils, insulation material etc. from different material is clearly established on record. No dispute had been raised that above items manufactured by the assessee were different in shape and in commercial value from the r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ns: (i) In the case of CIT vs Gabriel India Ltd., 203 ITR 108 (Bom), their Lordships held as under:- An order cannot be termed as erroneous unless it is not in accordance with law. If an ITO acting in accordance with law makes certain assessment, the same cannot be branded as erroneous by the Commissioner simply because according to him the order should have been written more elaborately. This section does not visualise a case of substitution of judgment of the Commissioner for that of the ITO, who passed the order, unless the decision is held to be erroneous. Cases may be visualised where ITO while making an assessment examines the accounts, makes enquiries, applies his mind to the facts and circumstances of the case and determines the income either by accepting the accounts or by making some estimates himself. The Commissioner, on perusal of the records, may be of the opinion that the estimate made by the officer concerned was on the lower side and, left to the Commissioner, he would have estimated the income at a higher figure than the one determined by the ITO. That would not vest the Commissioner with power to re-examine the accounts and determine the income himself at ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ect of s. 10A is to give fillip to a new industrial undertaking in the initial stage, the benefit cannot be taken away by imposing any restrictions which do not mention in the Act. This would be in consonance with the recognised principles of interpretation. The administrative authority or the court should not whittle down the plenitude of the exemption or relief granted by the legislation by laying stress on something which is not considered in that provision. 27. In the case of Saraf Electricals (P) Ltd. vs Asstt. Commissioner of Income Tax 89 TTJ 761, the Amritsar Bench as per head note observed as under:- Deduction under ss. 80HH and 80-I - Manufacture or production - Repair of old transformers - Process involved in manufacture of new transformers and repairing the old transformers undisputedly being the same involving use of same machinery, benefit of deduction under s. 80HH/80-I could not be denied to the assessee for repairing old transformers. 26. On the facts of the case, the A.O after enquiry had taken a possible view of the matter. It was, therefore, obligatory on the part of the Commissioner to show for the purposes of provision of Sec.263 that assessment ..... X X X X Extracts X X X X X X X X Extracts X X X X
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