2013 (10) TMI 513 - AT - Income Tax

Partial success in appeal: Section 80-IC deduction allowed, excluding DEPB receipts. Lack of evidence discredits AO's disallowance decision.

The Tribunal partially allowed the appeal, directing the AO to allow the deduction under Section 80-IC while excluding DEPB receipts. The Tribunal found ... Disallowance of Deduction u/s 80-IC - manufacturing activity - conversion of Jumbo Rolls of photographic films into small flats and rolls in desired sizes - when assessee came into existence and whether geographically it is located with the notified area contemplated in sub-clause (ii) of sec. 80-IC(2)(a) or (2) (b) – Held that:- assessee partnership firm came into existence on Ist of December 2003. It is situated at Plot No.11 Sector 4, Sidcul, integrated industrial estate, Haridwar. It had commenced the production on 18th October 2004. The A.O. himself admitted that deduction under sec. 80-IC was granted to the assessee continuously since assessment year 2005-06. Whether the activity is manufacturing activity or not - Held that:- the assessee has carried out the manufacturing activity. It has been granted deduction under sec. 80-IC of the Act from the last four assessment years. The department is unable to lay its hands on any concrete material which can force us to take a different view then the stand of the Assessing Officer in earlier four assessment years. Assessee is entitled for deduction under sec. 80-IC of the Act. Deduction on account of DEPB Credit - Held that:- the issue is covered against the assessee in Liberty India v. CIT [2009 (8) TMI 63 - SUPREME COURT] - DEPB receipts were not derived from an industrial undertaking rather their genesis was from the beneficiary scheme formulated under Central Excise Act etc. They were the ancillary profit - amendment suggests that on sale of DEPB receipts, if there was any profit, then it will be a revenue receipts - We find that this amendment was brought by Act of 2005, w.e.f. 01.04.1998 - the Assessing Officer was directed to allow the deduction under sec. 80-IC of the Act as per law excluded on the DEPB receipts. – Decided partly in favour of Asseessee. Issues Involved:1. Disallowance of deduction under Section 80-IC.2. Charging of interest under Section 234B of the Income-tax Act, 1961.Issue-wise Detailed Analysis:1. Disallowance of Deduction under Section 80-IC:The assessee filed a return declaring nil income after claiming a deduction under Section 80-IC. The case was selected for scrutiny, and the Assessing Officer (AO) issued notices under Sections 143(2) and 142(1). The AO observed a high turnover and suspected that the manufacturing activities were not conducted at the claimed location in Haridwar but were instead diverted from Meerut. The AO cited local inquiries indicating no manufacturing activity at the Haridwar location and issued a show-cause notice listing 27 reasons for doubting the assessee's claim.The AO's reasons included observations such as broken machinery, insufficient workers, and uniform electricity expenses inconsistent with manufacturing activities. The AO concluded that the assessee was not genuinely manufacturing at Haridwar and disallowed the deduction under Section 80-IC.The assessee appealed, and during the appeal, a survey was conducted on the new business premises of the erstwhile partners. The AO submitted a report based on this survey, which was confronted to the assessee. The assessee responded to each item in the report, arguing that the observations were related to a period after the business had ceased operations at Haridwar.The CIT(A) upheld the disallowance, summarizing that the control and command were located at Meerut, wages and salaries were inconsistent with the actual workforce, and most manufacturing activities were conducted outside Haridwar. The CIT(A) concluded that the activities at Haridwar were superficial and did not constitute manufacturing.The Tribunal noted that the assessee had been allowed the deduction under Section 80-IC in previous years and that the AO had not provided concrete evidence to support the disallowance. The Tribunal emphasized the importance of consistency and found that the AO's investigation was conducted long after the business had ceased, rendering the findings unreliable. The Tribunal concluded that the assessee had fulfilled the conditions for the deduction and directed the AO to allow the deduction under Section 80-IC, excluding DEPB receipts.2. Charging of Interest under Section 234B:The charging of interest under Section 234B was deemed consequential and dependent on the outcome of the main issue of the deduction under Section 80-IC. Since the Tribunal allowed the deduction, the interest under Section 234B would be adjusted accordingly.Conclusion:The Tribunal allowed the appeal partly, directing the AO to allow the deduction under Section 80-IC, excluding DEPB receipts, and adjusted the interest under Section 234B consequentially.