TaxTMI 
TaxTMI 
TaxTMI 
2013 (9) TMI 1084
X X X X Extracts X X X X
X X X X Extracts X X X X
....nly on the expression processing. Based on this judgment, definition of manufacture under Section 2(29B) and other decisions the ITAT concluded that the assessee is entitled for 10(B) deduction. The ITAT made a mistake in holding that processing by the EOUs resulted into a new article or thing which is contrary to the findings of the Hon'ble Supreme Court judgment in the case of Chowgule & Company. The Supreme Court in the case of Chowgule & Company clearly held that "blending of different qualities of ore possessing different chemical and physical composition so as to produce ore of the contractual specifications cannot be said to involve the process of manufacture, since the ore that is produced cannot be regarded as a commercially new and distinct commodity from the ore of different specifications blended together. What is produced as a result of blending is commercially the same article, namely, ore, though with different specifications than the ore which is blended and hence it cannot be said that any process of manufacture is involved in blending of ore (279G, 280B-D)". Therefore, since the findings of the Hon'ble ITAT are against the findings of Hon'ble Supreme C....
X X X X Extracts X X X X
X X X X Extracts X X X X
....heard. 2. The ld. DR vehemently contended on the basis of the Miscellaneous Application that mistake has crept into the order of this Tribunal. This Tribunal has mis-interpreted the decision of the Hon'ble Supreme Court in the case of Chowgule & Co. (P) Ltd. vs. UOI (1981) 1 SCC 653. There the issue was blending of different qualities of ore possessing different chemical and physical composition while in the case of the Assessee, the Assessee was processing the crude ore and therefore, there was no manufacturing in the case of the Assessee. It was also pointed out that the Hon'ble Bombay High Court in the Assessee‟s own case in CIT vs. Sesa Goa Ltd., 266 ITR 126 held that the operation of mining cannot be termed as manufacturing. It was pointed out even after the amendment in Sec. 10(AA), the finding of the Hon'ble High Court remains valid and no new article came into existence after processing of the iron ore. Even after insertion of Sec. 2(29BA) about manufacture, processing of iron ore does not amount to manufacture as the Tribunal has laid down law against the law laid down by the Hon'ble Bombay High Court and therefore, the finding of the Tribunal requir....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... it was held therein that even the blending of ore for the purpose of exports involved change in the mechanical and physical composition of the iron ore. The activities of the units at Amona and Chitradurga involved converting input (ROM) into output (lumps and fines) by crushing, screening, washing, stacking, loading in barges, river transport to boat and export in ships. Finished product after processing technically had different name i.e. lumps and fines. From the physical samples it was concluded that lumps and fines are entirely different from the crude ore in physical appearance. Further, use and chemical compositions were also different. The members in the said judgement noted that during the conversion of the crude ore into lumps and fines, waste is generated which is called „tailings‟ which are in liquid form but converted into fines in the Codli unit. The ITAT concluded at pg. 135 in its order that in view of the above decision of the Hon'ble Supreme Court in the case of Chowgule & Co. (P) Ltd. vs. UOI (1981) 1 SCC 653 (supra) it can be held that the Assessee is engaged in these units in manufacturing. It was contended that this Tribunal has given a findin....
X X X X Extracts X X X X
X X X X Extracts X X X X
...., MA 746/Mum/2009 ACIT vs Safe Enterprises, 9 ITR (Trib) 533 137 TTJ 573 4. We have carefully considered the rival submissions, perused the matter on record. We have also gone through the various case laws. It is a fact that in this case the Revenue has gone in appeal before the Hon'ble High Court and the same very question which has been taken in the Miscellaneous Application are before the Hon'ble High Court. This has not been denied by the ld. DR, but rather the ld. DR was fair enough to concede the said position. Under these facts, the decision of the Special Bench, ITAT, Mumbai in the case of Tata Communications Ltd. vs. JCIT, 317 ITR 1 (supra) is clearly applicable. In this case, the Hon'ble Special Bench has held as under: "20. We are of the opinion that when question is pending before the Hon'ble Bombay High Court, it is not right for the assessee to agitate some or part of the question before the Tribunal. The assessee has now to show the Hon'ble High Court that the conditions of section 80IA are satisfied on the facts and in the circumstances of the case and that he is entitled to relief under the above section. As far as Tribunal is concerne....
X X X X Extracts X X X X
X X X X Extracts X X X X
....the face of the record" came up for consideration before the courts while exercising certiorari jurisdiction under article 32 and 226 of the Constitution. In T.S. Balaram, ITO vs. Volkart Brothers, 2 SCC 526 it was held that "any mistake apparent from record" is undoubtedly not more than that of the High Court to entertain a writ petition on the basis of „an error apparent on the face of the record‟. It was, however, conceded in all leading cases that it is very difficult to define an "error apparent on the face of the record" precisely, scientifically and with certainty. In the case of Hari Vishnu Kamat vs. Syed Ahmad Ishaque, 1 SCR 1104, the Constitution Bench of the Hon'ble Supreme Court quoted the observation of Chagla, C.J in Batuk K. Vyas vs Surat Borough Municipality, ILR 1953 Bom 191; AIR 1953 Bom 133 that no error can be said to be apparent on the face of the record if it is not manifest or self-evident and requires an examination or argument to establish it. The court in the said judgement admitted that though the said test might apply in a majority of the case satisfactorily, it proceeded to comment that there might be case in which it might not work inas....
X X X X Extracts X X X X
X X X X Extracts X X X X
....nsisting of not only grounds of appeal and the case laws relied on and referred to before the Tribunal, but also the contentions, pleas and arguments raised by the parties before the Tribunal. The word „record‟ has not been defined u/s 254(2) or u/s 2 of the Income Tax Act so as to restrict its meaning only to the grounds of appeal decided in the order of the Tribunal. The provisions of Sec. 254(2) could not be constituted in a manner that produces an anomaly or otherwise produces irrational or illogical result. The ld. DR even though vehemently argued, but could not bring to our knowledge that this Tribunal failed to consider the case law as cited before the Tribunal or the Tribunal has not considered the contentions, pleas and arguments raised before the Tribunal by both the sides. Even though the revenue stated in its application filed before us that there are mistakes of fact but could not point out during the course of hearing that there are incorrect facts being taken into account by the Tribunal. The grounds taken in the application, as is apparent, require this Tribunal to re-consider its decision. In this case, we feel that the Revenue, in the garb of applicati....