TaxTMI 
TaxTMI 
2014 (9) TMI 362
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.... the above provisions. 3. In this Appeal, which impugns the order of the Tribunal dated 2nd November 2011 for assessment year 2007-08 , all that the Tribunal has done is to maintain and uphold the view of the Commissioner of Income Tax (Appeals). The Commissioner followed the order passed by the Tribunal in relation to the very Assessee for the assessment years 1998-99, 2001-02. In upholding the claim of the Assessee, the Commissioner also applies the law laid down by this Court in the case of CIT v/s D.K. Kondke, reported in (1991) 192 ITR 128. 4. Mr Chhotaray, learned counsel appearing in support of this Appeal, submits that this Appeal raises substantial questions of law. He reads out the two questions framed and submitted that the condition for the deduction has not been fulfilled. He referred to condition No.(ii) in subsection (2) of section 80IB of the Act. It is submitted by him that there is no machinery or plant of the appellant and the business affairs are carried out with hired equipments and machinery. In such circumstances, the Assessee is disentitled to the deduction. Mr Chhotaray submits that it is not the case of the Revenue that the Assessee will be disentitl....
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....ross total income of an assessee includes any profits and gains derived from any business referred to in subsections (3) to (11), (11A) and (11B) (such business being hereinafter referred to as the eligible business), there shall, in accordance with and subject to the provisions of this section, be allowed, in computing the total income of the assessee, deduction from such profits and gains of an amount equal to such such percentage and for such number of assessment years as specified in this section. (2) This section applies to any industrial undertaking which fulfills all the following conditions, namely : (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 operates one or more cold storage plant or plants, in any part of India; (iv) in a case where the industrial undertaking manufactures or produces articles or things, the undertaking employs ten or more workers in a manufact....
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....rial undertaking' the unit or company must possess plant and machinery of its own and it cannot be functioning on hired equipments. In the present case, Assessee has not demonstrated any such ownership. 9. We find that such contentions in the case of the same Assessee are entirely misconceived. This very attempt was made by the Revenue and the Tribunal did not accept it in the case of this Assessee as is apparent from the order passed for the Assessment Year 199899 by the Tribunal. A copy of this order is at pages 53 to 56 of the paperbook. In this order dated 16th March 2005 in paragraph 3, same argument was canvassed. The argument was that the Assessee hired plant and machinery which amounted to transfer and employed less than 10 persons in the production of the film 'Border'. The Assessee argued that film 'Border' is a first own production by JP Films and other five films have been produced by other producers and the Assessee had only rendered professional services, namely as Director. Then it was pointed out that the word in the section is 'transfer'. It means acquisition by a 'transfer' and not 'hire'. In the present case, if came....
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....1958-59 and 1959-60 and in respect of the profits from the jute mill division for the A.Y. 1959-60. The Income Tax Authorities held that the two units were formed by reconstruction of the business already existing within the meaning of section 15C(i) but the Appellate Tribunal, on appeal, held that the Appellant was entitled to the relief under section 15C because the two divisions were new industrial undertakings and that they were not formed by reconstruction of the existing business. The Tribunal found that the machinery in the two divisions were new, they were housed in a separate building and that industrial licences had to be obtained for manufacturing the parts. Noting all these facts, the Tribunal was of the view that the deduction can be claimed but made a reference to the High Court. The High Court gave an answer to that question and which led to Appeal to the Supreme Court. The Hon'ble Supreme Court held that a steel foundry division and the jute mill division were not formed as reconstruction units. Therefore this decision and which essentially deals with the question arising under section 15C(2)(i) and which is identical to section 80IB(1) cannot therefore be said ....