TaxTMI 
TaxTMI 
2009 (7) TMI 1261
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....the Ld. A R. On his further request, it was posted for hearing on 14/7/08. However on the hearing date, none was present and the case was adjourned to 17/7/08 at the request of the Ld. D R. On the appointed date of hearing, i.e., on 17/7/08, there was no compliance from the assessee company. Considering the facts and in view of the provisions of Rule 19(2) of the Appellate Tribunal Rules and in conformity with the finding in the case of CIT vs. Multi Plan India Pvt. Ltd reported in 38 ITD 320, the appeal was dismissed on 25/7/08. 3.1. On 2/2/2009, the assessee company came up with a Misc. Petition [M.P.No.5/B/09 dated 2/2/2009 accompanied by an affidavit furnished by its A.R. with a prayer to recall the Tribunal's order dated 25/7/08 and restore the main petition for the reasons set out in the affidavit. 3.2. After hearing both the parties and the perusal of the submissions made by the Ld. A R., the Hon'ble Tribunal, had, in its order dated 20/3/2009, recalled its earlier order dt.25/7/08-dismissing the appeal - and directed the Registry to post the case for fresh hearing. Accordingly, this appeal is taken for adjudication. 4. The facts of the case, in brief, are t....
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.... activity, claimed to be in the nature of assembling of the equipments, as a matter of fact, is associated with installation, commissioning and servicing of the equipments; (iii) that the system integration, of communication-equipments, is essentially a process of installation and, therefore, is not in the nature of such assembling-activity which, in turn can be considered to treat it as a manufacture. 5.1. With regard to the reliance on various judicial pronouncements, he was of the view that they are distinguishable from the assessee company's case. In conclusion, he had observed that "in the light of the foregoing finding of the facts, of the case on hand, it becomes more than evident that the appellant's business activity is of trading/distribution, installation, commissioning and servicing of communication-equipments, in India which does not amount to assembling-activity, so as to consider the same for treating as a manufacture for qualifying profits derived therefrom for deduction u/s 80-IB... ... ... ... " 6. Agitated over the stand taken by the Ld. CIT(A), the assessee company has come up with the present appeal. The Ld. A R had forcefully argue....
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.... business of providing total wireless communication system to its customers and the final product is entirely different from its components; (vii) the terms 'manufacture' and 'produce' have not been defined in the Act, but, the judiciary has defined and interpreted in various decisions. (viii) Reliance was placed on the following case laws: (a) Empire Industries Ltd. vs. Union of India-AIR (1986) SC 662; (b) CIT vs J B Khawar and Sons 163 ITR 394 (Guj); (c) M/s Sonebhadra Fuel vs Commissioner of Trade Tax - AIR 2006 SCW 3884; (d) CIT vs Tata Locomotives and Engg Co Ltd 68 ITR 325 (Bom); (e) Ship Scrap Traders vs CIT 251 ITR 806 (Bom); (f) Aspinwall and Co. Ltd vs CIT 251 ITR 322 (SC); (g) CIT vs. Gogte Minerals (2) (1997) 225 ITR 60; (h) CIT vs. Oswal Data Processors (1997) 223 ITR 735 (Kar). 6.1. It was prayed that since various judicial pronouncements are in favour of the assessee company for deduction u/s 80IB of the Act which may be ordered to be allowed. During the course of hearing, the equipment itself was br....
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...., use and name whether it be the result of one or several processes." (b) In the case of CIT vs. Punjab Wireless System Limited reported in (2008) 296 ITR 489, the Hon'ble P and H High Court has held that"wireless sets are not office machines or apparatus and do not fall under item No. 22 of the Eleventh Schedule. The assessee which was manufacturing wireless sets was entitled to investment allowance." (c) The Hon'ble Rajasthan High Court in the case of Arihant Tiles and Marbles P.Ltd. vs. ITO reported in (2007) 295 ITR 148 was pleased to observe that:- "Under section 80-IB of the Income-tax Act, 1961, an industrial undertaking which manufactures or produces articles or things not being any article or thing specified in the list in the Eleventh Schedule would be entitled to special deduction under the provision. The expression "production" has a wider meaning than the word 'manufacture'. The word 'production' includes the activity of manufacturing by applying human endeavour on some existing raw material................" (d) The Hon'ble Authority for Advance Rulings reported in (2009) 309 ITR 344 (AIR....