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2017 (7) TMI 498 - MADRAS HIGH COURT

2017 (7) TMI 498 - MADRAS HIGH COURT - TMI - Deduction u/s 80IB - Held that:- The mere fact that nut blanks were purchased from Unit I cannot be a reason to deny deduction under Section 80IB, vis-a-vis Unit II. The deduction is made available to the Assessee, vis-a-vis Unit II, as it fits the attributes of an industrial undertaking and not to the Assessee per se. As long as the Assessee has invested a substantial amount in setting up an industrial undertaking, which is separate and distinct, it .....

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ined by the following illustration. Say for example, the Assessee had established Unit II, in another company or entity, would the Revenue, then, be able to deprive such an entity of exemption under Section 80IB of the 1961 Act. The distinction, separateness and independence of an industrial undertaking cannot be made dependent only on the attribute of ownership. - Therefore, for all these reasons, we are of the view that both CIT(A)s as well as the Tribunal were wrong in concluding that the .....

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against the profits of the Assessment Years in issue, by bringing them forward notionally, despite the fact that they had already been set off, as claimed by the Assessee in the earlier years. - Tax Case (Appeal) Nos.533 to 538 of 2010, 1217 to 1220 of 2010 and 787 and 788 of 2014 - Dated:- 10-7-2017 - Rajiv Shakdher And R. Suresh Kumar, JJ. For Appellant/Revenue : Mr. J. Narayanasamy For Respondents/Assessee : Mr. K. Ravi for M/s. Rugan & Arya JUDGMENT ( Judgment of the Court was delivered .....

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ining two (2) assail the order of the Tribunal dated 12.11.2010. Likewise, four (4) appeals, filed by the Assessee, assail the order of the Tribunal dated 12.11.2010. 2. The record shows that six (6) appeals have been disposed of by the one bench of the Tribunal, by a common order, while the other six (6) appeals have been disposed of by another bench of the Tribunal via another common order. As a matter of fact, one member of the Tribunal is common to both orders. 2.1. Counsel for parties are a .....

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000-01 29.12.2006 31.7.2008 28.08.2009 534/2010 Revenue 2001-02 29.12.2006 31.7.2008 28.08.2009 535/2010 Revenue 2002-03 31.12.2007 31.7.2008 28.08.2009 536/2010 Revenue 2003-04 31.12.2007 31.7.2008 28.08.2009 537/2010 Revenue 2004-05 29.12.2006 31.7.2008 28.08.2009 538/2010 Revenue 2005-06 31.12.2007 31.7.2008 28.08.2009 787/2014 Revenue 2006-07 29.12.2008 29.4.2010 12.11.2010 788/2014 Revenue 2007-08 18.12.2009 29.4.2010 12.11.2010 1217/2010 Assessee 2004-05 29.12.2006 31.7.2008 12.11.2010 121 .....

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oncerns the claim of deduction made by the Assessee under Section 80IB of the Income Tax Act, 1961 (in short, 'the 1961 Act'). The Assessee, evidently, has two units, which were set up at two different points in time and, are ubiquitously referred to by the Authorities below as Unit-I and Unit-II. The Assessee claims separate deduction under Section 80IB of the 1961 Act at the prescribed rates qua both Unit-I and Unit-II, on the ground that each unit, by itself, is separate industrial un .....

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e appeals. The order dated 31.07.2008, passed by, one CIT(A) has been followed in substance by the other CIT(A), which passed the order dated 29.04.2010. In doing so, the CIT(A)s have allowed the Assessee to claim deduction, as was sought for, at the rate of 25%, vis-a-vis profits generated qua Unit-I and, in so far as Unit-II is concerned, deduction claimed has been scaled down from 100% to 25%, based on the broad reasoning that it is not an independent unit, which can exist on its own. 4.3. Th .....

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ss incurred by, one, Unit, albeit, for earlier years. This, according to the Assessee, is contrary to the judgment of the Tribunal rendered in : Rangamma Steels and Malleables V. Assistant Commissioner of Income Tax. 6. Before we proceed further, it may be relevant to cull out the questions of law, which have been framed qua the captioned appeals: T.C.(A)Nos. 533 to 538 of 2010: (i). Whether on the facts and in the circumstances of the case, the Income Tax Appellate Tribunal was right in law in .....

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0IA(13) and give suitable direction to the Assessing Officer to reconsider the issue on the basis of the materials available on record ? T.C.(A)Nos.1217 and 1218/2010: (i). Whether on the facts and in the circumstances of the case, the Appellate Tribunal was right in upholding the denial of the benefit under Section 80 IB to Unit 2, when under identical circumstances deduction has been allowed to Unit 1, as well as other entities similarly placed ? and (ii). Whether on the facts and circumstance .....

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Whether on the facts and in the circumstances of the case, the Appellate Tribunal was right in upholding the denial of the benefit under Section 80IB to Unit 2, when under identical circumstances deduction has been allowed to Unit 1, as well as other entities similarly placed? and (ii). Whether on the facts and circumstances of the case, the Tribunal was right in upholding denial of deduction under Section 80 IB when all the conditions laid down in the section have been met by the assessee, on t .....

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he judicial member was common? TCA 787 and 788 of 2014: (i) Whether on the facts and in the circumstances of the case, the Tribunal was right in law in holding that deduction under Section 80IB is not proper? 7. Having regard to the above, and in order to adjudicate upon the captioned appeals, the following broad facts are required to be noticed. The facts, which we have been able to glean from the records placed before us, are as follows: 8. The Assessee, it appears, at the relevant point in ti .....

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. This was followed by the Assessee purchasing in May, 2002, one more Nut Former machine, though, via the import route. For the next five (5) years, relevant for A.Ys.1998-99 and 2002-03, the Assessee claimed deduction at the rate of 100% of the profits derived by it for conducting the business of manufacturing fasteners/nuts. 8.3. The Assessee claims that it set up a second Unit and, started commercial production qua the said Unit on 23.10.2003. Since, the second unit was set up, the Assessee c .....

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al undertakings. 8.5. In other words, their view was that the units were formed by splitting and/or reconstructing existing business. In coming to this conclusion, the Assessing Officers traced the business carried out by the father and son, i.e., Mr.L.M.Shah and Mr.A.L.Shah (collectively referred to as Messrs Shah & Shah) to 1984, when, an entity in the form of private limited company, by the name, Fastenex Private Limited (in short 'FX'), was incorporated and set up by them. 8.6. T .....

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ly, claimed deduction under Section 80IA of the 1961 Act between 1994-95 and 1999-2000, at the rate of 100%. 8.8. As alluded to above, in between the Assessee's first Unit, i.e., Unit-I was set up in March, 1998, whereby, deduction was claimed under Section 80IB of the 1961 Act, at the full rate of 100% for first five (5) years, i.e., periods relevant to A.Ys.1998-99 and 2002-2003. 9. Apart from the aforesaid entities, the Assessing Officers also noticed the incorporation and setting up of t .....

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luding to the manufacturing process, an attempt was made to link each process to an entity or entities, as the case may be. In this behalf, the record discloses the following: (i) Process of "wire rod pickling" and "phosphating" is carried on by BPL (ii) The next stage, which involves, "forging" is carried out by FX, FOX and the Assessee, by using Nut Former Machines. (iii) The third stage, which involves, "Nut Tapping" is also carried out by FX, FOX and t .....

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s, was culled out by the Revenue from documents including loose sheets seized in a survey carried out under Section 133A of the 1961 Act, in respect of the aforementioned entities, which included the Assessee. 11. The record shows that the survey was carried out on 18.11.2004 and 19.11.2004. The survey, inter alia, revealed that the Assessee had understated scrap sales and investments made in a certain immovable properties. 11.1. The record also shows that in respect of the A.Y.2004-05, the Asse .....

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it to transfer machinery and that the manipulation was done in a manner that the value of the transferred machines always remained below 20% of the total value of the plant and machinery installed in the recipient concern, i.e., in the instant case, the Assessee. In this behalf, the role of FX and FOX was also discussed by the Assessing Officer. 13. Based on these broad findings, the Assessing Officer rejected the claim of the Assessee for deduction under Section 80IB of the 1961 Act, both for U .....

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e calculating the total taxable income. 14.1. The observations made in this regard by the concerned Assessing Officer via two separate orders, pertaining to A.Y.s.2006-07 and 2007-08 are extracted hereunder: T.C.(A)No.1219 of 2010: (A.Y.2006-07) The provision of Sec.80IA (4)(iv) of the Income Tax Act clearly states that the undertaking which is engaged in generation of Powerand hence, the profits have to be arrived for windmill division together as an undertaking and not as a individual division .....

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against the earlier years loss of ₹ 2,59,37,516/-, there will be no profit left for deduction u/s 80IA of the Income Tax Act. T.C.(A)No.1220 of 2010 (A.Y.2007-08): On the other hand, on perusal of records revealed that the assessee-firm has computed the amount eligible u/s 80-IA at ₹ 1,44,07,087/- to Wind Power Division-I and ₹ 86,93,342/- in Power Division-II. The provision of 80IA(4)(iv) of the Income Tax Act clearly states that the undertaking which is engaged in generation .....

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IT(A), substantially follows the order dated 31.07.2008, both in its reasoning and conclusion. 15.1. The conclusion reached by CIT(A)s, is that, while the Assessee would be entitled to deduction under Section 80IB qua Unit-I, it would not be entitled deduction vis-a-vis Unit -II. 16. The Tribunal, in both the orders, which are dated 28.08.2009 and 12.11.2010, has accepted the view taken by CIT(A) in the orders referred to above in paragraph 2.2. Substantially, the Tribunal has approved the findi .....

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Officer's order, which relates to A.Y.2004-05 is dated 29.12.2006. The order of the CIT(A), for the very same A.Y. is dated 31.07.2008, while, the related order of the Tribunal is dated 12.11.2010. 19. In order to appreciate the issues raised in the present appeals, both by the Assessee and the Revenue, one would, therefore, have to set down, as to what is the scope of Section 80IB of the 1961 Act, when, deduction is claimed by any Assessee and not just the Assessee in the instant matter. I .....

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ertaking, which is required to demonstrate that it fulfils the following negative and positive attributes as set out in sub-section (2) of Section 80IB. (i) It is not formed by splitting up, or the reconstruction of a business already in existence; (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 Schedule or ope .....

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20.3. Interestingly, in so far as the prohibition of forming an industrial undertaking by a transfer of machinery and plant, previously used, for any purpose to a new business is concerned, Explanation 2 contained in Section 80IB(2) provides some latitude. The Explanation indicates that the negative condition will not get kicked-in, if, the value of machinery, or plant, or a part thereof, so transferred, does not exceed 20% of the total value of the machinery, or plant, used in the recipient bus .....

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tion, which is that, both units had been formed by splitting and/or re-constructing the business. 21.1. The entire thrust of the Assessing Officers' finding has been that the business of manufacture of fasteners/nuts has been spread over various entities, only to derive a tax benefit under Section 80IB of the 1961 Act. 21.2. The CIT(A)s and the Tribunal, however, have not wholly subscribed to this view of the Assessing Officers. They have granted the relief to the Assessee, vis-a-vis Unit I. .....

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oning of the CIT(A), which has been approved by the Tribunal, in its orders, is reflected in the following observations, in the order dated 31.07.2008, passed qua A.Y.2004-05 (T.C.(A)No.1217 of 2010) 4.11.4.3. As held by the Supreme Court unless the undertaking, Unit-I in the present appellant's case, is established to have been formed as a result of transfer of buildings, plant and machinery, etc., the benefit of deduction u/s80-IB cannot be denied. The mere fact that certain items of plant .....

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he other two concerns, M/s.Fastenex Pvt. Ltd. or Formex, it is necessary to analyse the assets position as well as the manner of functioning and the net profit results of these concerns, year-wise. As already indicated, the capital of these concerns remained intact when the appellant firm was formed. It is only that certain second-hand machinery items Tapping machines that were transferred to the firm through M/s.Toolex Pvt. Ltd. a quick glance of the profits of these two concerns for the accoun .....

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receipts/income and the net profits thereon, of this concern are furnished as under : Accounting Period ended Income Expenditure 80-IB Claimed New Profit Sales (Rs.) Service Charges (Rs.) Tooling & Service (Rs.) (Rs.) (Rs.) 31.3.1999 4,16,02,933.61 - 32,97,564.00 - 1,92,36,640.62 31.3.2000 3,57,66,717.59 - 33,39,132.00 21,76,142.00 1,13,00,073.37 31.3.2001 2,82,14,437.42 - 33,92,096.00 8,00,766.00 64,00,998.67 31.3.2002 - 57,13,610.00 30,23,570.00 94,353.00 46,22,385.98 31.3.2003 - 125,91,2 .....

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subsequent accounting periods, that is, from the financial year 2001-02 to 2004-05, there had been no sale of nuts, but, this concern had been showing income by way of service charges only. 4.11.5.3.Which means that over a period of time, the appellant firm had taken over the entire manufacturing activities of nuts. But, that does not mean that the firm M/s.Leo Fasteners itself was formed by splitting up or reconstruction of the concern, Formex. And the mere fact that the appellant firm ultimate .....

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d been showing income from the activity of generating power from wind mills also. And it had been claiming deduction u/s 80-IA/80-IB. The break-up details of service charges, expenditure and net profit for this concern are furnished in the table given below: Financial Year Service charges (Rs.) Sales under sales Tax Act (Rs.) New Profit (Rs.) 2004-05 1,80,12,180.22 - 44,84,865.96 2003-04 1,45,85,324.99 - 8,33,617.16 2002-03 1,52,46,764.62 8,49,957.80 5,36,238.68 2001-02 164,72,781.23 - 63,93,211 .....

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s involved in the manufacture of nuts and it is only the appellant firm which had taken credit for the entire sale of nuts ultimately over a period of years. But, still, going by the principles laid down by the Supreme Court in the cases of Textile Machinery Corporation Ltd. Vs. CIT and Bajaj Tempo Ltd. Vs. CIT, there is nothing in the affairs of the firm M/s.Leo Fasteners to indicate that it had been formed by splitting up or reconstruction of an already existing business, either in the first a .....

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vailing in the formation and functioning of Unit-I of the appellant firm certainly conforms to the views expressed by the Apex Court and therefore, the Assessing Officer's views are not to be accepted as correct. 4.12.In view of the foregoing discussions, it is held that the Unit-I of the appellant firm cannot be said to have been formed by splitting up or reconstruction of an industrial undertaking that already existed and there had been no violation of any of the conditions as laid down in .....

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carrying out manufacturing activity; it was an aspect, which was also examined by the CIT(A) in the very same order. The CIT(A), after a detailed analysis, came to the conclusion that the Assessee was performing the most vital function, which was nut tapping. 21.5. In this regard, the following observations and findings of fact returned by the CIT(A), need to be noticed. "5. Now coming to the question as to whether the appellant firm had carried on any manufacturing activity at all in the l .....

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ng periods including the impugned year, the Assessing Officer was of the view that the appellant firm by itself had not carried on any manufacturing activities. He had observed as under in the impugned order : In addition, payments are also made to Toolex and Brightenex for Tools/Dies and pickling/phosphating & planting respectively. It is to be noted that M/.s.Toolex and M/s.Brightenex are also exclusively operating for the business of the group and do not have any transactions with outside .....

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le incomes. Sri L.M.Shah and Sri A.L.Shah who are the persons behind the whole arrangement have thus shifted the profits from other concerns to LFA and then to LFA, Unit-II primarily to avail deduction u/s 80-IB. All the concerns are involved in the same business and are inter-related in the manufacturing process of nuts. As mentioned previously, M/s.Fastenex, M/s.FOX have been manufacturers of nuts and had already availed of the tax benefits u/s 80-IA. They are now being shown as job workers fo .....

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ing of the appeal, the appellant's representative has made efforts to explain the different processes involved in the manufacture of nuts and he has also explained in clear terms as to what are the processes carried on by the appellant firm after getting the raw materials processed by its connected concerns upto a certain stage. It is necessary to understand the different processes involved in the manufacturing of nuts to begin with. The different processes involved are Forging, Pickling, Ph .....

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as under : Leo Fasteners procures raw materials/ components and processes them for manufacture of nuts. The raw materials (wore rods) procured are pickled, phosphated and then wire drawn using the services of sister concerns. Then such wire drawn rods are converted into blanks either by themselves or through outsourcing. Later, the main and vital process (nut tapping) which adds utility value for the nuts and makes the products usable is being performed by M/s.Leo Fasteners. In case of certain s .....

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e rods. This process is being carried out by Leo Fasteners (Both units), Fastenex P. Ltd. and Formex. This process can be considered crucial only from the investment/capacity angle. Thus only when the blanks are processed (tapped) properly, duly meeting the requisite precision level do they result in NUTS which are readily marketable. Nut tapping is the process involving tapping machines to produce nuts from the blanks. This clearly brings out the vitality of the tapping process vis-a-vis all ot .....

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g the concerns involved in such non-core activities : Picklingis the treatment of metallic surfaces in order to remove stains, rust or scale with a solution containing strong mineral acids, before subsequent processing. This process can by no stretch of imagination be termed as core as there is no transformation in the materials as such and this is being performed by M/s.Brightenex P. Ltd. Phosphatingis the method of protecting a steel surface from corrosion through the application of chemical p .....

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e process. This process is also being carried out by M/s.Brightenex P. Ltd. 5.2. The explanation given as above will give a general idea of the various processes involved in bringing out the final product nut from the raw materials, wire rods. It is seen from a careful study of the submissions made that there are tow important stages in the various processes involved in the manufacture of nut Nut Forging, which produces blanks and Tapping/Threading. It has been explained above that it is only th .....

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ing which is crucial to produce a nut, is being done only by the appellant firm. It was also highlighted that after the stage of Nut tapping, the materials are subjected to further processes viz., crimping and welding which are carried out only by the appellant firm and further the process of plating the nuts are done by the connected concern, M/s.Brightenex Pvt. Ltd. But, however, all the nuts so manufactured are passed through quality control by the appellant firm only before they are brought .....

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oured to set up Unit II, with the object of enhancing the quality of the final product, i.e., fasteners and nuts and, in that behalf, had imported five (5) brand new nut former machines, declined to grant the relief to the Assessee vis-a-vis Unit II. 22.1. This was, after the Assessee had given details of investments in fixed assets, which, mainly, comprise of both imported and indigenous machinery, amounting to ₹ 3,23,18,377.14. Out of this amount, investment in imported machinery, i.e., .....

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II. A list of 78 customers, to whom sale had been made during the financial year 2003-04 and another 40 customers to whom new products, manufactured by Unit II, had been sold during the very same period, were also mentioned. The details of 60 employees engaged in Unit II, for the year ending 31.03.2004, along with their P.F. account numbers were also given. 22.3. The record shows that Unit No.II has separate electricity connection, licence and is located in separate and identifiable premises. 2 .....

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(c) The final plating of the nuts was done by M/s.Brightenex Pvt. Ltd. (d) Certain secondary operations like cap-cutting, curling and drilling were also done by the three concerns, M/s.Fastenex, Formex and M/s.Leo Fasteners. (e) The tools and dies required in the operation of nut forging and nut tapping were supplied by M/s.Toolex pvt. Ltd. and certain other services were also rendered by this concern. (f) The appellant firm had also shown certain payments having been made to other concerns in .....

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;....6.2.13.Thus, it is the contention of the appellant that it is mainly because certain improvisation of the already existing product had been made in Unit-II and new improved quality nuts were also being manufactured and additionally new items of plant and machinery had been installed, it has to be taken that the products turned out by Unit-II are commercially distinct from the products manufactured by Unit-I and for all these purposes, fresh capital had been inducted in Unit-II, this unit mu .....

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tion of the product it was already manufacturing and in order to improve the quality of the finished products it could have gone in for the improvisation of the plant and machinery by importing five new 'Nut Formers' with the latest technology, still the commercial product that is manufactured by both the units are one and the same. The fact that the nuts or fasteners turned out by Unit-II are qualitatively different from the nuts produced by Unit-I will not make any difference. The fact .....

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re items of machinery for making improvisation in the existing product. But, there is nothing brought on record to show that the new product is commercially different from the nuts or fasteners produced by Unit-I. No doubt, the appellant's representative had given certain information regarding the quality of the nuts that were turned out by the Unit-II and the additional processing to be done on the materials used to that there could be a better product qualitatively. It has been stated that .....

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cerns in the group on job-work basis for both the units of the appellant firm. It is all the same processes. 6.3.1. As rightly observed by the Assessing officer, Unit-II was able to make a turnover of ₹ 6.44 Crores by purchasing manufactured nut blanks from Unit-I to the extent of ₹ 3.16 Crores. Apart from these purchases, Unit-II might be involved in manufacturing nuts of different quality on its own and it could have been performing all the operations right from stage one. But, all .....

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aid to be a separate unit apart from Unit-I. Therefore, there is not enough merit in the plea of the appellant's representative that Unit-II must be treated as a 'new industrial undertaking'. 6.4. From the data furnished in the tables in paragraph No.6.2.9 and 6.2.9.3 above, the following points are clear : (i).In order to form Unit-II, the partners of the appellant firm had contributed funds in the form of capital as well as loans and the firm had also borrowed funds from State Bank .....

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hinery items-Tapping Machines - purchased from M/s.Toolex Pvt. Ltd. to the tune of ₹ 29,49,302/- and this constituted just 9.39% of the total value of Plant and Machinery as at 31.3.2004. (v).The total value of machinery further included ₹ 12,35,000/- representing the value of second-hand machinery transferred from Unit-I. Even if these items are considered, the percentage of the total value of second-hand machinery items purchased by the firm for Unit-II would work out to less than .....

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ussions to emerge in the following paragraphs, this view is incorrect, because, there are certain other vital facts viz., the transactions between Unit-I and Unit-II that are to be taken into consideration before forming any opinion. 6.5. The way in which the Unit-II had been formed is not similar to the way in which the firm itself was formed way-back in the year 1998. The subtle distinction that has to be made is that at that point of time, a new legal entity was formed as partnership between .....

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he tax holiday period had been extended for a further period of 4 years from 18.3.2003 to 17.3.2007, there is no mention of the existence of two units in the appellant firm or the manufactured product being different commercially in Unit-II. 6.7. Whatever investments that had been made by the appellant firm during the financial year 2003-04 from the funds brought in in the form of capital contributions as well as loans from partners and banks etc. no doubt, can be said to have been made for expa .....

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Unit-I, it is seen that the firm had scrapped machinery items to the value of ₹ 18,42,240/- which it had purchased from M/s.Toolex Pvt. Ltd. and these machinery items were nothing but tapping machines. So, though the value of the machinery items scrapped may be small when compared to the total value of machinery items newly purchased, still, the main activity of tapping that was carried on by the firm was split and was shared by the newly formed so-called Unit-II also. Apart from this, the .....

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counting period. there had been sale of nut blanks to the tune of ₹ 3,14,26,875/- during the financial year 2003-04 and for ₹ 8,98,39,763/- during the financial year 2004-05 to Unit-II. These transactions make it evident that the whole idea of forming Unit-II is to shift the activities of Unit-I to Unit-II in course of time so that the firm could keep claiming deduction u/s 80-IB continuously, that too, at a higher rate by shifting the profits of Unit- to Unit-II. 6.8. The facts brou .....

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ependent existence. What the partners of the appellant firm would have done under normal circumstances for expanding their business, had been done in the name of Unit-II and what the firm would have done to improve its already existing product had been done in the name of Unit-II. Above all, there had been transfer of stock- semi-furnished (nut blanks) from Unit-I to Unit-II, which is nothing but transfer of working capital. And by this process, the firm had tried to claim double advantage. The .....

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ussion, it is held that Unit-II which is not an integrated unit by itself cannot be considered as a 'new industrial undertaking' whose profits would qualify for deduction u/s 80-IB at 100%. 6.9 To sum up, the following are the inferences to be drawn from the discussions in the above paragraphs: (i).Having accepted the stand that the firm M/s.Leo Fasteners is a valid partnership formed in the year 1998 and it had gone into commercial production of nuts in that year, the Assessing Officer .....

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lant firm and to shift the profits in order to claim deduction u/s 80-IB. In so long as the law permits acquisition of second-hand machinery items up to 20% of the total value of plant and machinery each year what the appellant firm had done cannot be viewed as illegal or as amounting to violation of or circumventing any provision of law. (iii).A device or a methodology adopted by the appellant firm intelligently in the course of its tax planning without violating any legal provision cannot be q .....

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ill not be possible to bring out a nut. (v).As far as Unit-II is concerned, it cannot be considered to be a new undertaking both in its formation as well as in its activities. (vi).The formation of Unit-II by the appellant firm was with a view to divert its profits so that it could claim deduction u/s 80-IB not only at a higher rate but also for a longer period of time. That is, if Unit-II were to be accepted as a new industrial undertaking, then the appellant firm could have continued to claim .....

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nuts, it was not a commercially different product. (ii). That Unit II could be considered as an expansion of Unit I. This improvisation on the product could have been brought about in Unit I. The fact that fasteners/nuts manufactured in Unit No.II were qualitatively different from those manufactured in Unit I, will not make any difference. (iii). That Unit II, in the given period, was able to generate a turnover of ₹ 6.44 crores by purchasing nut blanks from Unit I, to the extent of ₹ .....

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xpanding their business, would not help the cause of the Assessee as "investment had been split and had been diverted (sic as) towards Unit No.II". The whole investment made in Unit II "can be considered only as splitting up or reconstruction of already existing unit of the firm". The deployment of imported nut formers in a separate unit, i.e., Unit II, would amount to splitting up of the activities by the Assessee. Hence, Unit II could not be considered as an integrated unit .....

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ce of fact that the Assessee has, if, nothing else, expanded its business by taking the following steps: (i). Had made investment in Unit II in the form of capital and loan given by the partners of the Assessee as well as amount accessed in the form of loan from Banks, such as, SBI and HDFC. (ii) Had imported from Taiwan four (4) nut former machines. (iii) There is no denial of the fact that it has engaged separate labour force. (iv) It has operations in a separate and identifiable premises. (v) .....

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cision, which was rendered under Section 15 C of the Income Tax Act, 1922. The provisions of Section 15C was somewhat similar to Section 80IB of the 1961 Act. 24.2. In that case, the Supreme Court was called upon to rule, whether the Assessee would be entitled to deduction in the background of the following facts. 24.3. The facts, broadly, which obtain in the said case, are as follows: The Assessee was in the business of manufacture of boilers, machinery parts, wagons etc. The Assessee had estab .....

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n of the old business. 24.4. The Supreme Court, while dealing with the issue of, whether or not in the given facts, the Assessee was disentitled to deduction, made the following apposite observations : Again, the new undertaking must not be substantially the same old existing business. The third excluded category mentioned above significant. Even if a new business is carried on but by piercing the veil of the new business it is found that there is employment of the assets of the old business, th .....

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r the purpose of assessment. It has its existing business already liable to tax. It produced in the two concerned undertakings commodities different from those which it has been manufacturing or producing in its existing business. Manufacture of 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 section 15C. Sub-section (6) of the section .....

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assessee by establishment of a new industrial undertaking expands his existing business, which he certainly does, would not, on that score, deprive him of the benefit under section 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 p .....

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the two undertakings which are separate and distinct. It is clear that the principal business of the assessee is heavy engineering in the course of which it manufactures boilers, wagons, etc. If an industrial undertaking produce certain machines or parts which are, by themselves, identifiable units being marketable commodities and the undertaking can exist even after the cessation of the principal business of the assessee, it cannot be anything but a new and separate industrial undertaking to qu .....

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ad been sold in the open market to others is a circumstance in favour of the assessee that the new industrial units can function on their own. Use of the articles by the assessee is not decisive to deny the benefit of section 15C. Section 15C partially exempts from tax a new industrial unit which is separate physically from the old one, the capital of which and the profits thereon are ascertainable. There is no difficulty to hold that section 15C is applicable to an absolutely new undertaking fo .....

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usiness or may be sold in the open market. One thing is certain that the new undertaking must be an integrated unit by itself wherein articles are produced and at least a minimum of ten persons with the aid of power and a minimum of twenty persons without the aid of power have been employed. Such a new industrially 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 take .....

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lace only when the assets of the old business are transferred substantially to the new undertaking. There is no such transfer of assets in the two cases with which we are concerned. We will now deal with the question whether the two undertakings the assessee are formed by reconstruction of the existing business. The word 'reconstruction' is not defined in the Act but has received judicial interpretation. In re South African Supply and Cold Storage Company, Wild v. Same Company(1), Buckle .....

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form to continue the undertaking in Such a manner as that the persons now carrying it on will substantially continue to carry it on. It involves, I think, that substantially the same business shall be carried on and substantially the same persons shall carry it on. But it does not involve that all the assets shall pass to the new company or resuscitated company, or that all the shareholders of the old company shall be shareholders in the new company or resuscitated company. Substantially the bu .....

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ship of the assets. The transfer, however, need not be of all the assets. It is none the less imperative that there should be continuity and preservation of the old undertaking though in an altered form. (1) [1904] 2 Ch. 268. 35 I.T.R. 662. (3) 92 I.T.R. 173. The concept of reconstruction of business would not be attracted when a company which is already running one industrial unit sets up another industrial unit. The new industrial unit would not lose its separate and independent identity even .....

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components to completion of the end- product are now manufactured in the business itself. The fact that the assessee is carrying on the general business of heavy engineering will not prevent him from setting up new industrial undertakings and from claiming benefit under section-15C if that section is otherwise applicable. However, in order to be entitled to the benefit under' section 15C, the following facts have to be established by the assessee. subject always to the time-schedule in the s .....

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xemption of tax under section 15C may be claimed. The legislature has advisedly refrained from inserting a definition of the word 'reconstruction' in the Act. Indeed, in the infinite variety of instances of restructuring of industry in the course of strides in technology and of other developments, the question has to be left for decision on the peculiar facts of each case. If any undertaking is not formed by reconstruction of the old business that undertaking will not be denied the benef .....

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ruction of the old business." 25. Therefore, having regard to the principles of law laid down by the Supreme Court, which, to summarize, are that, the fact that an existing unit has been substantially expanded, would not disentitle an Assessee for claiming deduction under Section 80IB of the 1961 Act. 26. In the instant case also, to examine whether there is an substantial expansion, one would have to look at the following indices: (i) Is there an investment to substantiate fresh capital in .....

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is concerned, the Assessee has employed a substantial amount of fresh capital. 26.2. In this behalf, the CIT(A)s have held that the investment made by the partners by way of capital contribution and loan has been split and/or diverted from Unit I. 26.3. To our minds, this objection loses sight of the fact that what is required to be examined is that separate and distinct investment has been made to expand or set up a new industrial undertaking. The fact that the source of investment, i.e., are c .....

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the article produced and/or manufactured by the Assessee is commercially no different from what Unit I manufactured, according to us, is not a ground on which deduction claimed under Section 80 IB can be denied to the Assessee. 26.7. The only condition that the Assessee, in this behalf, is required to fulfill is that, they should manufacture and produce an article or thing. Sub-clause (iii) of sub-section (2) of Section 80IB of the 1961 Act does not require that, in order to claim deduction, the .....

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if transferred is below the permissible limit of 20% of the total value of plant and machinery, it cannot be viewed as violation of the conditions prescribed under Section 80IB of the 1961 Act for claiming deduction. However, when it came to putting to test the said proposition, vis-a-vis Unit II, the Authorities below construed such transfer as manipulation, only to claim deduction under Section 80IB of the 1961 Act, by keeping the value of the transferred machinery below the permissible limit .....

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the deduction claimed by the Assessee. 27.2. In raising this objection, the Authorities below have ignored the fact that the condition stipulated in sub-clause (ii) of sub-section (2) of Section 80IB disentitle the Assessee from claiming a deduction, only, if, the formation of the new business takes place via transfer of machinery and/or plant, previously used for any purpose. Therefore, it is not a mere transfer of plant and machinery, which is used previously for some purpose, but the fact tha .....

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e Assessee under Section 80IB on the ground that it had manipulated the transfer of machinery in such a manner that its value was kept below 20% of the total value of the plant and machinery installed in Unit II. 28. This issue came up for consideration before the Supreme Court in the matter of: Bajaj Tempo Ltd. V. Commissoner of Income Tax (1992) 196 ITR 188. 28.1. This case was again decided under the provisions of Section 15C of the 1922 Act. Notably, Section 15C of the 1922 Act did not have .....

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f building or machinery. The restriction or denial of benefit arises not by transfer of building or material to the new company but that it should not be formed by such transfer. This is the key to the interpretation. The formation should not be by such transfer. The emphasis is on formation not on use. Therefore it is not every transfer of building or material but the one which can be held to have resulted in formation of the undertaking. " 28.2. In this case, the Supreme Court was called .....

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laiming deduction, if, transfer enables the formation of new business qua which deduction is claimed. The Court held that the provisions of the like nature, which are incorporated in the Statute by the Legislature to give a fillip to industrialization, should, in case of doubt and/or ambiguity, be interpreted in a manner, which favours the Assessee. In other words, such provisions should liberally construed. 29. The second objection, which the Authorities below have taken qua Assessee vis-a-vis .....

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I had not purchased the nut blanks for a true value from Unit I. 29.1. Once again, in our opinion, the mere fact that nut blanks were purchased from Unit I cannot be a reason to deny deduction under Section 80IB, vis-a-vis Unit II. The deduction is made available to the Assessee, vis-a-vis Unit II, as it fits the attributes of an industrial undertaking and not to the Assessee per se. As long as the Assessee has invested a substantial amount in setting up an industrial undertaking, which is separ .....

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nit. This proposition can be better explained by the following illustration. Say for example, the Assessee had established Unit II, in another company or entity, would the Revenue, then, be able to deprive such an entity of exemption under Section 80IB of the 1961 Act. The distinction, separateness and independence of an industrial undertaking cannot be made dependent only on the attribute of ownership. 29.3. Therefore, for all these reasons, we are of the view that both CIT(A)s as well as the T .....

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) read with Section 80 IA(10) were relied upon by the Revenue. According to us, this course is not commended, as the material on record has been thoroughly appraised at each level, i.e., by the Assessing Officer, followed by CIT(A)s and the Tribunal, via its orders dated 28.08.2009 and 12.11.2010. 30.2. Therefore, no reconsideration of material was required, as suggested by the Revenue. Consequently, this contention of the Revenue is rejected based on the facts and circumstances emerging in this .....

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31.3. For this purpose, our attention has been drawn to that part of the Assessment Order dated 29.12.2008, which has been passed in respect of A.Y.2006-07, and Assessment Order dated 18.12.2009, which has been passed in respect of A.Y.2007-08. We have already extracted the relevant parts of the two Assessment Orders. 31.4. A careful perusal of the extracts, which are contained in Paragraph 14.1. would show that the Assessing Officer has done two things: firstly, it has treated two separate powe .....

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ethodology of computing deduction under Section 80IA of the 1961 Act has been proscribed by a Division Bench of this Court in the matter of : Velayudhaswamy Spinning Mills Pvt. Ltd. V. Assistant Commissioner of Income Tax (2012) 340 ITR 477 (Madras). 31.7. The Division Bench in this case held that the provision does not allow the Revenue to look backwards and, then, adjust the losses of earlier years against income of the eligible industrial undertaking by notionally bringing them forward and se .....

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the sake of convenience. Heading C is relevant for considering the issue in these appeals. The relevant provisions that are to be considered are sections 80-1, 80-IA and 80-IB. In the case of Liberty India v. CIT, [2009] 317 ITR 218 (SC); [2009] 225 CTR (SC) 233; [2009] 28 DTR (SC) 73, the apex court considered the scope of sections 80-1, 80-IA and also section 80-IB of the Act, wherein, it has been held that Chapter VI-A provides for incentives in the form of tax deductions essentially belong .....

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ble business. Accordingly such profits are to be computed as if such eligible business is the only source of income of the assessee. 15.Section 80-IA reads as follows: 80-IA. (1) Where the gross total income of an assessee includes any profits and gains derived by an undertaking or an enterprise from any business referred to in sub-section (4) (such business being hereinafter referred to as the eligible business) there shall, in accordance with and subject to the provisions of this section, be a .....

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ding telecommunication service or develops an industrial park or develops a special economic zone referred to in clause (iii) of sub-section (4) or generates power or commences transmission or distribution or power or undertakes substantial renovation and modernisation of the existing transmission or distribution lines. (4) This section applies to (i) any enterprise carrying on the business of (i) developing, or (ii) operating and maintaining, or (iii) developing, operating and maintaining any i .....

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perating and maintaining a new infrastructure facility; (c) it has started or starts operating and maintaining the infrastructure facility on or after the 1st April, 1995. (5) Notwithstanding anything contained in any other provision of this Act, the profits and gains of an eligible business to which the provisions of sub-section (1) apply shall, for the purposes of determining the quantum of deduction under that sub-section for the assessment year immediately succeeding the initial assessment y .....

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rise from any business referred to in subsection (4), i.e., referred to as the eligible business, there shall, in accordance with and subject to the provisions of the section, be allowed, in computing the total income of the assessee, a deduction of an amount equal to 100 per cent, of the profits and gains derived from such business for ten consecutive assessment years. Deduction is given to eligible business and the same is defined in sub-section (4). Sub-section (2) provides option to the asse .....

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ed under the provisions. It is to be noted that initial assessment year employed in sub-section (5) is different from the words beginning from the yearreferred to in sub-section (2). The important factors are to be noted in sub-section (5) and they are as under: (1) It starts with a non obstante clause which means it overrides all the provisions of the Act and other provisions are to be ignored; (2) It is for the purpose of determining the quantum of deduction; (3) For the assessment year immedi .....

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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 already set off against the income of the assessee. Looking forward to a period of ten years from the initial assessment is contemplated. It does not allow the Revenue to look backward and find out if there is any loss of earlier years and bring forward notionally even though the same were set off against other income of the assessee and the s .....

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has been followed by Madras High Court in a decision rendered on 12.01.2015 in a batch of Tax Case Appeals, the lead Appeal being: T.C.(A)No.408 of 2014, titled: Commissioner of Income Tax V. Eastman Exports Global Clothing Private Limited. 32. Therefore, following the the ratio of the judgments of the Division Bench of this Court, referred to above, it is quite clear, that if, once the Assessee has exercised the option of choosing the initial Assessment year, only losses of the years beginning .....

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ner of Income Tax (2012) 340 ITR 477 (Madras), wherein, quite clearly, after analysing the provisions of Section 80IA(5), it has come to the conclusion that a fiction has been created to the effect that, the eligible business is required to be considered as the only source of income. 32.2. Therefore, the approach adopted by the Assessing Officer in the two Assessment Orders of treating two separate power generating divisions as a single undertaking is, according to us, not the right approach. 33 .....

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ate of Uttar Pradesh. The Assessee claimed deduction under Section 80IA of the 1961 Act vis-a-vis Kalamb unit. In the case of Unit situated at Delhi, since, there was a loss, no deduction was claimed. The Assessing Officer, while examining the extent of deduction to be given under Section 80IA of the 1961 Act, vis-a-vis the Kalamb unit, adjusted the loss returned by the Assessee vis-a-vis the Delhi Unit. 33.2. This issue travelled to the Division Bench of the High Court. The Division Bench noted .....

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, which is in line with the observations made by the Division Bench of this Court in the matter of : Velayudhaswamy Spinning Mills Pvt. Ltd. V. Assistant Commissioner of Income Tax (2012) 340 ITR 477 (Madras). 34. As a matter of fact, as correctly submitted by the counsel for the Assessee, the Tribunal in : Rangamma Steels & Malleables V. Assistant Commissioner of Income Tax [2010] 132 TTJ 365 has adopted the same approach. 34.1. Therefore, according to us, in computing the deduction claimed .....

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are dismissed. The questions of law raised therein are answered against the Revenue and in favour of the Assessee. 36. Similarly, T.C.(A)Nos.787 and 788 of 2014, preferred by the Revenue, are also dismissed. 36.1. We must, however, indicate that the question of law was not, appropriately, framed, as indicated in our narration above. 36.2. The Tribunal vide its order dated 12.11.2010 has allowed the Assessee's claim for deduction under Section 80IB vis-a-vis Unit I, while disallowing the sam .....

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