AI OCR 
TaxTMI 
TaxTMI 
TaxTMI 
2015 (1) TMI 652
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....e to the incorrect conclusion on facts that the above two units fulfilled the conditions required for claiming exemption u/s 10B. It was further stated that it is essential now to consider the material facts suppressed by the Assessee before the Income Tax authorities and Hon'ble Tribunal for arriving at the correct decision regarding setting up of the above units for the purpose of claiming deduction u/s 10B. It was also stated that there is mistake apparent from the record which needs rectification in the case of the Assessee company and for this, detailed submissions were made running into 14 pages of single space. Ultimately, it was requested to consider the material facts suppressed by the Assessee company before the Income Tax authorities and the Tribunal and also the apparent mistakes on the issue of manufacturing for the purpose of Sec. 10B in the Tribunal‟s order and modify the order suitably. 2. The ld. DR vehemently contended on the basis of the Miscellaneous application that mistake had crept into the order of this Tribunal. This Tribunal has not considered the material which has been found by the Revenue during the course of the survey u/s 133A carried out s....
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....OU when there was only addition/replacement and depreciation has been claimed on the plant and machinery of the existing unit. For this, our attention was drawn towards pg. 132-133 and it was pointed out that ultimately the Hon'ble High Court admitted the appeal being T.A No. 13/2013 vide its order dt. 23.9.2013 on the following three questions : "i. Whether ITAT is correct in applying the definition of „manufacture‟ given in SEZ Act 2005 which is applicable for the purpose of only section 10AA of the IT Act which imposes various conditions for the utilization of profits? ii. Whether ITAT is correct in directing the AO to restrict the open market rate of the iron ore to average purchase value to the assessee when there are differences in grade/quality by applying the provisions of section 10B(7) r.w.s. 80IA(8) of the I.T. Act being the average purchase value not at the arms length price ? Whether ITAT is also correct in not considering pro rata overhead costs in determining profits from EOUs ? iii. Whether ITAT is correct in deleting the disallowance of Rs. 12.29 crores made u/s 14A of the IT Act in accordance with Rule 8D of IT Rules as provided by the decision ....
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.... after a span of 17 years. The Assessee therefore undertook a major revamping of this production facility and in the process ended up setting up an altogether new unit during F.Y 2002-03. This fact has been noted by the Tribunal at para 45.14 of the impugned order. The Assessee has made huge investment in this unit. This fact has also been considered by the Tribunal at para 45.11 of its order dt. 8.3.2013. It was also noticed by the Tribunal under para 45.11 that the production capacity of Amona unit has increased and got doubled from 1 MTPA to 2 MTPA. This fact has further been recognised by the Tribunal in para 45.14 of its order. It was further pointed out that the Tribunal has also considered the permissible limit of 20% of the old machinery under para 45.11 & 45.14 of its order and the Tribunal has duly laid down the various guiding principles for reckoning of new unit under para 45.16 and 45.17 of its order. The AO has not controverted any of the findings of the Tribunal but has come up with the theory of new discovery during the course of survey u/s 133A conducted on 20.3.2014. In the survey one book was impounded and marked as BB-28. The book is titled M/s. Sesa Goa Ltd. Ca....
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....ismantling/discarding the operations of the said three plants and replacement of same by a new plant had been loosely referred to in the said " capital expenditure proposal" under reference as "Amalgamation of Amona plants" for the purpose of internal reference of the project, and it cannot be considered as the legal definition of the project for tax purpose let alone the definition of amalgamation as understood in company law parlance. 8. The ld. AR also explained that because of the innovative technology & concurrent action vis-a-vis the different facilities there, as duly explained in foregoing paras, it was only a name that was given to the project. The Assessee further submitted that, since the alterations and changes of New Unit are substantial in nature and did culminate into bringing an altogether new undertaking in place of the old one, there was little scope for describing the New Unit as "reconstruction of the business" for the purpose of the condition mentioned under clause (ii) of section 10-B (2) of the Act. As the book is titled M/s Sesa Goa Limited, Capital Expenditure Proposal for 2002-03, it suggests that the said document refers to the capital proposals and not ....
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....iciation as envisaged by the Department and the Assessee has not supressed any contrary facts before Assessing Authority nor the Appellate Authorities. 10. We heard the rival submissions and carefully considered the same. We noted that in this case the Revenue has gone in appeal before the Hon'ble High Court against the order of this Tribunal in ITA Nos. 72 & 85/PNJ/2012 dt. 8.3.2013 by way of TA No. 13 of 2013. Before the Hon'ble High Court the Revenue has taken the following grounds of appeal : A. Whether ITAT is correct in holding that the processing plant (EOU) in itself was "manufacturing" iron ore erroneously presuming that the processing plant was blending iron ore that the processed ore was a distinct commodity than the input of ROM ignoring the decision of the Apex Court in the case of Chowgule & Co. Pvt. Vs. Union of India 1981 AIR 1014 and Bombay High Court in the assessee‟s own case (2004) (ITR 266 ITR 126) where it has been held that mining is an integral process of various activities starting from extraction of iron ore to blending and loading to the ship and that the process of producing ore of contractual specifications cannot be said to involve the ....
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....chase value to the assessee when there are differences in grade/quality by applying the provisions of section 10B(7) r.w.s. 80IA(8) of the I.T. Act being the average purchase value not at the arms length price ? Whether ITAT is also correct in not considering pro rata overhead costs in determining profits from EOUs? I. Whether the ITAT is correct in deleting the disallowance of Rs. 12.29 crores made u/s.14A of the IT Act in accordance with Rule 8D of IT Rules as provided by the decision given by the Mumbai Special Bench of ITAT in the case of ITO vs. Daga Capital Management Pvt. Ltd. (2009) 117 ITD 169? J. Whether ITAT is correct in deleting the addition of Rs. 9.88 crores towards payment of commission to foreign agents where TDS was not deducted ignoring the decision of AAR in the case of Rajiv Malhotra INRE (AAR) 284 ITR 564 and SKF Boilers and Driers Pvt. Ltd. ? K. Whether ITAT is correct in deleting the addition made by the AO on account of non deduction of TDS on demurrage as held by the Bombay High Court in the case of CIT vs. Orient Goa Co. Pvt. Ltd. (325 ITR 554) ? L. Whether the ITAT is correct in holding loss on foreign exchange forward contracts is not speculative lo....
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....ction does not amount to manufacturing has also not been admitted. Even question no. (E) put up by the Revenue before the Hon'ble High Court which relates to whether the renovated units are new EOUs has also been dismissed by the Hon'ble High Court. We noted that Rule 18(6) of the Appellate Tribunal Rules states that documents that are referred to and relied upon by the parties during the course of arguments shall alone be treated as part of the record of the Tribunal. The Revenue has put up an application before us mentioning therein that due to certain information found during the course of survey and post inquiries conducted/statement recorded from various fabricators it was noticed that the Assessee company suppressed certain vital material facts regarding setting up of EOUs at Amona and Chitradurga and these facts were necessary to decide whether the Assessee is eligible for deduction u/s 10B. From the submission of the Revenue it is apparent that the material and information on which the Revenue relied by putting up the miscellaneous application has been procured subsequent to the passing of the order not only by the Hon'ble Tribunal but also after dismissing the ....