TaxTMI 
TaxTMI 
2010 (3) TMI 897
X X X X Extracts X X X X
X X X X Extracts X X X X
....red and adjudicated by this Tribunal vide order dated 27-11-2009 in the assessee's own case in ITA Nos. 900, 901 and 902/Mds./2009 for the assessment years 2001-02, 2002-03 and 2006-07 in paragraphs 4 to 18 as under : "4. We have heard the rival submissions and have carefully perused the Tribunal order vis-a-vis the facts of the case. At first sight, we were of the opinion that the issue involved in all these appeals is squarely covered by the Tribunal order (supra) in the assessee's own case and so it is an open and shut case. But the learned authorised representative pleaded for our indulgence by polemically submitting that he too relies on the same Tribunal order and even by following the finding given by the Hon'ble Tribunal's the assessee is bound to succeed. It was argued that the Hon'ble Tribunal has held in its order dated December 7, 2007 on which the learned Commissioner of Income-tax (Appeals) has relied, that the activity carried on by the assessee is only of assembling;wind operated electricity generator and erection thereof in the place of customers and the same, cannot be construed as a manufacturing activity entitling the assessee-company for the relief under secti....
X X X X Extracts X X X X
X X X X Extracts X X X X
....more than 10 persons, the assessee has not placed any evidence to controvert the finding of the Assessing Officer. Further the basic condition that the assessee should manufacture or produce any article or thing not being any article or thing specified in the list in the Eleventh Schedule, or operate one or more cold storage plant or plants, in any part of India has not been complied with by the assessee. Hence the question of probing into number of workers is only academic and does not require any adjudication." (Emphasis Supplied) 7. Thus, it cannot be disputed that the assessee has been held to be carrying on the activity of "assembling" wind mills. This is also the admitted case of the revenue. The Hon'ble Punjab and Haryana High Court in the case of CIT v. Mahesh Chandra Sharma [2009] 308 ITR 222 has categorically held on 31-10-2008 that "assembling" of wheels using different components amounts to "manufacture". In that case the assessee was assembling wheels from rim, tyre, tube, bearing, drum, spoke, nipple and collar. This "assembling" has been held to be a "manufacturing" activity as under (headnote) : "In the absence of any definition in the Income-tax Act, 1961 the wo....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... is not used in the definition of the word 'produce'. The Tribunal in the present case was right in allowing the deduction under sections 80HH and 80-I to the assessee holding that the ship-breaking activity gave rise to the production of a distinct and different article - CIT v. Vijay Ship Breaking Corpn. [2003] 261 ITR 113; set aside, CIT v. N.C. Budharaja & Co. [1993] 204 ITR 412 (SC); and CIT v. Sesa Goa Ltd. [2004] 271 ITR 331 (SC) relied on; Ship Scrap Traders v. CIT [2001] 251 ITR 806 (Bom); approved." 10. Likewise, the Hon'ble Apex Court has held in the case of India Cine Agencies v. CIT [2009] 308 ITR 98 as under (headnote) : "The assessee converted jumbo rolls of photographic films into small flats and rolls in the desired sizes. It claimed that the same amounted to manufacture/production for the purpose of allowances under sections 32AB, 80HH and 80-I of the Income-tax Act, 1961. The High Court held that it did not. The assessee appealed to the Supreme Court : Held, reversing the decisions of the High Court, that the assessee was entitled to the allowance under sections 32AB, 80HH and 80-I. The word 'production' or 'produce' when used in juxtaposition with the word '....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ies, only then it is eligible for such a deduction. We are in agreement with the learned Departmental representative to that extent. Moreover, it is nobody's case otherwise. But if we apply the latest case law to the facts established by the Tribunal in the assessee's own case for the assessment year 2003-04, the assessee-company becomes eligible for this deduction. Therefore, by accepting the factual position as culled out by the Tribunal in its order dated 7-12-2007 and by applying the latest legal position, we are bound to hold that the activity of the assessee is a "manufacturing/production" activity. Hence, we hold accordingly. 14. The other important condition for claiming deduction under section 80-IB is as detailed in the earlier part of this order. As per the Assessing Officer, the assessee did not fulfil the conditions (iii) and (iv). Since now we have held that condition (iii) is also fulfilled by the assessee-company, now it remains to be examined whether condition (iv) is fulfilled or not. This condition says that "in a case where the industrial undertaking manufactures or produces articles or things, the undertaking employs ten or more workers in a manufacturing proc....