TaxTMI 
TaxTMI 
2019 (2) TMI 1464
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....03.1996 & 01.04.1996 to 30.01.1997. 2.1 Having relied on the decision of Hon'ble Bombay High Court in the case of CIT Vs Jyothi Prakash Dutta (ITA No. 540/2012) to hold that the assessee is entitled to deduction u/s. 80lA of the IT Act, the ld. CIT(A) ought to have appreciated that the said decision was in the context of deduction u/s. 80lB of the IT Act and the film production unit of the case discussed therein was not formed by the transfer to a new business of machinery or plant previously used for any purpose, whereas in the present case it is denial of deduction u/s. 80lA on the ground that the camera, lenses etc. are hired from the outdoor unit and that the assessee has accepted that they are re-using the old machinery for various separate projects, and as such is distinguishable to the facts of the present case. 2.2. The ld. CIT(A) ought to have appreciated the findings of the AO in the assessment order under consideration that the assessee has not fulfilled any of the conditions laid down in clause (i) to (iii) subsection (2) to section 80lA of the IT Act and since the assessee has not brought out any new evidence even during the appeal proceedings to counter the ....
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....pra. When this appeal was called for hearing the learned counsel for the assessee submitted that the Revenue carried the matter in appeal against the order of the Tribunal in the case of Francis Joseph in ITA No. 183/Mds/1997 dated 17-08- 2004. The Hon'ble jurisdictional High Court in Tax Case (Appeal) No. 1318 of 2005 dated 22- 06-2012 held that on the second question framed, viz. "Where, in the facts and circumstances of the case, the Tribunal was right in holding that the producer of a feature film is an 'industrial undertaking' engaged in the manufacture of production of goods for the purpose of section 80- IA, it has been held in favour of the assessee. 3. Insofar as first question framed is concerned, the Hon'ble jurisdictional High Court has held as under : "10. As far as the first question of law as to whether the assessee is eligible for the benefit under Section 80IA of the Income Tax Act is concerned, except for the question as to whether the assessee's activity is manufacture or production, we do not find any discussion as to whether the assessee had satisfied other criteria in the section, particularly Sub-clause (ii) to sub-section (2) to section 80-IA of the In....
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....t in the case of Francis Joseph in Tax Case (Appeal) No. 1318 of 2005 dated 22-06-2012. In the circumstances, the appeal filed by the Revenue in ITA No. 23/Mds/2012 stands allowed for statistical purposes''. Pursuant to the above order, ld. Assessing Officer made a reexamination of the claim of assesseee for deduction u/s.80IA of the Income Tax Act, 1961 (in short ''the Act''), and verified whether it satisfied the conditions laid down subsection (2) of Section 80IA of the Act. Ld. AO came to a conclusion that assessee had not satisfied three of the sub clauses namely clauses (i), (ii) and (v) of the said Sub Section. According to the ld. AO, assessee was producing movies sine Nineteen Eighties and production of a new movie, though it could be construed as a new project was nothing but splitting up or reconstruction of a business already in existence. Further, as per the ld. AO, assessee also could not show that it was not formed by the transfer to a new business of a machinery or plant previously used for any purpose. Ld. AO noted that assessee through its letter dated 27.02.2015 had admitted using machinery owned by it, other than items like camera and lenses which were hired f....
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.... Prakash Dutta (supra) that an assessee which was a film production unit, and which was not founded by transfer to a new business any machinery or plant previously used for any purpose, was entitled for deduction u/s.80IB of the Act. No doubt, the judgment was rendered by the Hon'ble Bombay High Court in the context of Section 80IA of the Act. Section 80IA of the Act as it stood before its substitution by Finance Act, 1999 is reproduced hereunder:- ''80-IADeduction in respect of profits and gains from industrial undertakings, etc., in certain cases.-(1) Where the gross total income of an assessee includes any profits and gains derived from any business of an industrial undertaking or a hotel or operation of a ship or developing, maintaining and operating any infrastructure facility or scientific and industrial research and development or providing telecommunication services whether basic or cellular including radio paging, domestic satellite service or network of trunking and electronic data interchange services or construction and development of housing projects or operating an industrial park or commercial production or refining of mineral oil in the North- Eastern Region or in....
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....chedule or set up in any part of India for the generation, or generation and distribution, of power, it begins to manufacture or produce articles or things or to operate its cold storage plant or plants or to generate power at any time during the period beginning on the 1st day of April, 1993 and ending on the 31st day of March, 2000: Provided that in the case of an industrial undertaking set up in any part of India for the generation, or generation and distribution, of power, the period ending shall have effect as if for the figures "1998", the figures "2003" had been substituted; (c) in the case of an industrial undertaking located in such industrially backward district as the Central Government may, having regard to the prescribed guidelines, by notification in the Official Gazette, specify in this behalf, as an industrially backward district of Category A or an industrially backward district of Category B, and, it begins to manufacture or produce articles or things or to operate its cold storage plant or plants at any time during the period beginning on the 1st day of October, 1994, and ending on the 31st day of March, 2000; (d) in the case of an industrial undertaking....
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....f the words "not being any article or thing specified in the list in the Eleventh Schedule" had been omitted. Explanation 1.- For the purposes of clause (ii), any machinery or plant which was used outside India by any person other than the assessee shall not be regarded as machinery or plant previously used for any purpose, if the following conditions are fulfilled, namely :- (a) such machinery or plant was not, at any time previous to the date of the installation by the assessee, used in India ; (b) such machinery or plant is imported into India from any country outside India ; and (c) no deduction on account of depreciation in respect of such machinery or plant has been allowed or is allowable under the provisions of this Act in computing the total income of any person for any period prior to the date of the installation of the machinery or plant by the assessee. Explanation 2.- Where in the case of an industrial undertaking, any machinery or plant or any part thereof previously used for any purpose is transferred to a new business and the total value of the machinery or plant or part so transferred does not exceed twenty per cent. of the total value of the machine....