TaxTMI 
TaxTMI 
2010 (4) TMI 827
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....d that the issue in dispute is covered in favour of the assessee by the various decisions rendered by the hon'ble High Courts including the decision of hon'ble Allahabad High Court in the case of CIT v. Haji Mohd. Ali Mohd. Ishaq [2007] 295 ITR 109 and the decision of the jurisdictional Income-tax Appellate Tribunal, Delhi Bench-G, New Delhi dated September 30, 2009 in the case of Asstt. CIT v. Prisma Electronics [IT Appeal No. 3378/Delhi/2009]. Learned counsel stated that the Revenue had taken a similar ground of appeal in the aforesaid case and the Income-tax Appellate Tribunal dismissed the same vide order dated September 30, 2009. Accordingly, he pleaded that the present appeal filed by the Revenue may be dismissed. 3. The learned Departmental representative relied on the order passed by the Assessing Officer. 4. We have heard both the parties and perused the relevant records. We have also gone through the decision of the jurisdictional Income-tax Appellate Tribunal, Delhi Bench-G, New Delhi dated September 30, 2009 in the case of Prisma Electronics (supra), relied upon by learned counsel for the assessee. For the sake of convenience, the relevant portion from paragraph 4....
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....ther than company would not be entitled to deduction under section 80-IB, the contention of the assessee appears to be logically correct. Similarly, the inference of the Assessing Officer that section 10A(7A) was brought into the statute to grant benefit on the demerger/amalgamation to the amalgamating or the resulting company, requires deeper examination. The learned authorised representative has argued that the objective of section 10A(7A) is to regulate the deduction in the event of transfer of undertaking of a company. It nowhere refers to transfer of undertaking of the assessee other than company. Hence taking a cue in respect of assessee other than company from the provision under section 10A(7A) is erroneous. On perusal of section 10A(7A), it is noted that the provision commences as under : 'Where any undertaking of an Indian company which is entitled to the deduction under this section is transferred . . .' The initial operative text of the statute under section 10A(7A) and under section 80-IB(12) is identical to the extent that both envisage undertaking of an Indian company. There is no direct or indirect explicit or even implicit reference to the assessee other t....
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....r interpreting section 10A(7A) and no meaning from section 10A(9) could be imported/adduced to interpret section 10A(7A). Another observation of the Assessing Officer that as the eligible undertaking acquired by the assessee is an old undertaking and most of the machinery is old machinery it is not entitled to deduction under section 80-IB requires consideration. The provision under section 80-IB(2)(i) and 80-IB(2)(ii) may be relevant to examine the issue. The relevant provision under section 80-IB(2) envisages as under : '(2) This section applies to any industrial undertaking which fulfils all the following conditions namely:- (i) It is not formed by splitting up, or the reconstruction of a business already in existence: Provided . . . (ii) It is not formed by the transfer to a new business of machinery or plant previously used for any purpose.' From the perusal of the aforesaid condition it is seen that the key word in the section is 'industrial undertaking' and 'form/formed'. The learned authorised representative has pointed out that what is to be scrutinised is the formation of the undertaking. The word 'splitting up' and the word 'reconstruction' is attach....
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....rned authorised representative has further brought to the notice that the CBDT in respect of similar relief under section 84 of the Act had taken a view that the relief would be available for successor in F. No. 15/5/630-IT(A-I), dated December 13, 1963. 'The Board agree that benefit of section 84 attaches to undertaking and not to the owner thereof. The successor will be entitled to the benefit for the unexplained period of five years provided the undertaking is taken over as a running concern.' It has also been argued that the aforesaid instruction has been followed for the purpose of section 80J of the Act in the following cases : (i) CIT v. P. K. Engineering and Forging P. Ltd. [1996] (Cal) ; (ii) A. G. S. Tiber and Chemical Industries P. Ltd. v. CIT [1998] 233 ITR 207 (Mad). Finally, the learned authorised representative has relied upon the decision in the case of CIT v. Haji Mohd. Ali Mohd Ishaq [2007] 295 ITR 109 wherein in the context of section 80J, the hon'ble court has laid down that there should hardly be any doubt that mere change in Constitution should not lose the continued benefit of relief. It has been pronounced that mere change of Constitution of t....