{"id":105341,"date":"2011-09-27T00:00:00","date_gmt":"2011-09-26T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/the-vs-this-on-27-september-2011"},"modified":"2015-05-14T03:48:31","modified_gmt":"2015-05-13T22:18:31","slug":"the-vs-this-on-27-september-2011","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/the-vs-this-on-27-september-2011","title":{"rendered":"The vs This on 27 September, 2011"},"content":{"rendered":"
Gujarat High Court<\/div>\n
The vs This on 27 September, 2011<\/div>\n
Author: Akil Kureshi, Gokani,<\/div>\n
  \n Gujarat High Court Case Information System \n    \n  \n    \n\n \n \n    \t      \n         \n\t    \n\t\t   Print\n\t\t\t\t          \n\n  \n\n\n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t\n\n\n \n\n\n\t \n\nTAXAP\/1287\/2010\t 7\/ 7\tORDER \n \n \n\n\t\n\n \n\nIN\nTHE HIGH COURT OF GUJARAT AT AHMEDABAD\n \n\n \n\n\n \n\nTAX\nAPPEAL No. 1287 of 2010\n \n\n \n \n=========================================================\n\n \n\nTHE\nCOMMISSIONER OF INCOME TAX CENTRAL-II - Appellant(s)\n \n\nVersus\n \n\nSUNILBHAI\nS. KAKAD , - Opponent(s)\n \n\n=========================================================\n \nAppearance\n: \nMRS\nMAUNA M BHATT for\nAppellant(s) : 1, \nMR SN SOPARKAR, SR COUNSEL WITH MRS SWATI\nSOPARKAR for Opponent(s) :\n1, \n=========================================================\n\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\nCORAM\n\t\t\t: \n\t\t\t\n\t\t\n\t\t \n\t\t\t \n\nHONOURABLE\n\t\t\tMR.JUSTICE AKIL KURESHI\n\t\t\n\t\n\t \n\t\t \n\t\t \n\t\t\t \n\nand\n\t\t\n\t\n\t \n\t\t \n\t\t \n\t\t\t \n\nHONOURABLE\n\t\t\tMS JUSTICE SONIA GOKANI\n\t\t\n\t\n\n \n\n \n \n\n\n \n\nDate\n: 27\/09\/2011 \n\n \n\n \n \nORAL\nORDER<\/pre>\n
(Per
\n: HONOURABLE MS JUSTICE SONIA GOKANI)<\/p>\n
Issue
\n\tproposed for consideration of this Court in the present Tax Appeal
\n\tis as follows :\n<\/p>\n
“Whether the Appellate Tribunal
\n\tis right in law and on facts in deleting the disallowance of
\n\tdeduction of Rs.72,52,571\/- made u\/s.80IB of the I.T.Act?\n<\/p>\n
This
\n\tTax Appeal preferred under Section 260-A of the Income Tax
\n\tAct(here-in-after referred to as “the Act”) challenges
\n\torder of the Income Tax Appellate Tribunal dated 22.1.2010 for the
\n\tassessment year 2003-2004. The assessee who is in the business of
\n\tassembling of computer and servers and parts providing services etc.
\n\tand having business unit at Silvasa and Ahmedabad, filed return of
\n\tincome declaring its total income at Rs.4,25,882\/-.\n<\/p>\n
This
\n\twas assessed by the Assessing Officer determining the income of the
\n\tassessee respondent at Rs.93,17,200\/- after disallowing claims of
\n\tdeduction under Section 80IB of the Act. Various additions were made
\n\tby the Assessing Officer while computing the income of the assessee.\n<\/p>\n
The
\n\tassessee respondent challenged this order before the CIT(Appeals)
\n\twhich partly allowed the appeal of the assessee.\n<\/p>\n
Revenue
\n\tfurther carried the issue in appeal before the Tribunal. Tribunal
\n\tdismissed the appeal on the issue of disallowance of deduction under
\n\tSection 80IB of the Act and the impugned order of the Tribunal is at
\n\tlarge before this Court by way of proposing afore-mentioned question
\n\tof law.\n<\/p>\n
This
\n\tCourt has heard learned advocate Mrs. Mauna Bhatt for the Revenue
\n\tand in response to the notice issued by this Court, learned senior
\n\tcounsel Shri S.N. Soparkar made his submission for and on behalf of
\n\tthe assessee respondent.\n<\/p>\n
It
\n\twas vehemently submitted by the learned Counsel Mrs. Mauna Bhatt
\n\tthat the Tribunal has erred in deleting the addition by holding that
\n\tthe assessee respondent was in the business of manufacturing. It is
\n\tfurther submitted that as rightly observed by the Assessing Officer,
\n\tthe assessee was merely buying basic items of computer system such
\n\tas Monitor, Key board, Mouse, etc. and after adding protection
\n\tcover, operating manual and software, it was selling them as
\n\tcomputer system to BSNL and other such companies and also to sister
\n\tconcerns. Therefore, it cannot be said that new product came into
\n\texistence, nor was it emerging that it employed minimum 10 workers
\n\tin the manufacturing process so as to fulfill conditions under
\n\tSection 80IB(2)(iv).\n<\/p>\n
Learned
\n\tsenior counsel Shri S.N. Soparkar urged before this Court that in
\n\tcase of  this very assessee for the earlier years, no challenge is
\n\tmade to the allowance of deduction under Section 80IB by the
\n\tRevenue. Moreover, the issue according to the learned counsel is
\n\tsquarely covered by decision of Apex Court in case of Income-tax
\n\tofficer, Udaipur v. Arihant Tiles & Marbles<\/a>(P.) Ltd.
\n\treported in (2010) 186 Taxman 439(SC). It has been urged that the
\n\tactivity undertaken by the assessee respondent is construed as
\n\tactivity of ‘manufacture’ or ‘production’ in terms of Section 80IA
\n\tand therefore, the Tribunal has correctly upheld the version of the
\n\tassessee setting aside the order of the Assessing Officer.\n<\/p>\n
Having
\n\tregard to the submissions made by both the sides and having
\n\tconsidered the orders of the adjudicating authorities below, this
\n\tTax Appeal requires no meritorious consideration for the reasons to
\n\tbe followed here-in-after.\n<\/p>\n
As
\n\tcan be noted from the order of the Tribunal, the Assessing Officer
\n\twas of the opinion that activity of assessee did not fall within the
\n\tambit of manufacture or production. However, CIT(Appeals) allowed
\n\tthe claim by relying on various judgements on the issue. One of them
\n\tis the case of  Arihant Tiles & Marbles(P.) Ltd.(supra).
\n\tThe Tribunal noted that claim for deduction under the provision of
\n\t80IB was allowed in case of this very assessee undisputedly in the
\n\tyear 2001-2002 and the assessee carried
\n\tthe manufacturing activity and there had been no change in the
\n\tmanufacturing process nor has any contrary material produced in the
\n\tyear under consideration. Tribunal noted thus :\n<\/p>\n
\t“3.3\tWe
\n\thave heard both the parties and gone through the facts of the case.
\n\tUndisputedly, claim for deduction u\/s.80IB has been allowed in the
\n\tA.Y.2001-02, on the ground that the assessee has carried on
\n\tmanufacturing activity while there has been no change in the
\n\tmanufacturing process or the articles produced in the year under
\n\tconsideration. The ld. CIT(A) concluded in the impugned order that
\n\tassembling various components by carrying on ‘quality control
\n\tthrough testing equipments. The  assessee manufactured computers and
\n\tservers which are entirely new and distinct products from the
\n\tvarious components utilized. The same number of workers rendered
\n\ttheir services in earlier year while the assessee is also subject to
\n\tExcise duty which shows that the activity carried on by the assessee
\n\tis manufacturing. The ld. CIT(A) further opined in the light of
\n\tvarious judicial precedents that the average number of employees
\n\tshould not be less than ten, and it would suffice if, on an average,
\n\tthere are at least ten workers employed in the undertaking, even
\n\tthough the number of workers employed during some part of the
\n\tprevious year is less than ten. The Revenue have not placed before
\n\tus any material controverting the aforesaid findings of of the ld.
\n\tCIT(A).\n<\/p>\n
\t3.31\t\tIn
\n\ta recent decision in the case of Arihant Tiles and Marbles P
\n\tLtd.(supra), Hon’ble Apex Court while adjudicating an issue as to
\n\twhether conversion of marble blocks by sawing into slabs and tiles
\n\tand polishing amounts to ‘manufacture or production’ within the
\n\tmeaning of provisions of sec.80IA of the Act, concluded as under :\n<\/p>\n
“In the case of Commissioner of
\n\tIncome Tax vs. Sesa Goa Ltd.,<\/a> reported in 271 ITR 331 (SC), the
\n\tmeaning of the word “production” came up for
\n\tconsideration. The question which came before this Court was whether
\n\tthe ITAT was justified in holding that the assessee was entitled to
\n\tdeduction under Section 32A of the Income Tax Act, 1961, in respect
\n\tof machinery used in mining activity ignoring the fact that the
\n\tassessee was engaged in extraction and processing of iron ore, not
\n\tamounting to manufacture or production of any article or thing. The
\n\tHigh Court in that case, while dismissing the appeal preferred by
\n\tthe Revenue, held that extraction and processing of iron ore did not
\n\tamount to “manufacture”. However, it came to the
\n\tconclusion that extraction of iron ore and the various processes
\n\twould involve “production” within the meaning of Section
\n\t32A(2)(b)(iii) of the Income Tax Act, 1961 and consequently, the
\n\tassessee was entitled to the benefit of investment allowance under
\n\tSection 32A of the Income Tax Act. In that matter, it was argued on
\n\tbehalf of the Revenue that extraction and processing of iron ore did
\n\tnot produce any new product whereas it was argued on behalf of the
\n\tassessee that it did produce a distinct new product. The view
\n\texpressed by the High Court that the activity in question
\n\tconstituted “production” has been affirmed by this Court
\n\tin Sesa Goa’s case saying that the High Court’s opinion was
\n\tunimpeachable. It was held by this Court that the word “production”
\n\tis wider in ambit and it has a wider connotation than the word
\n\t“manufacture”. It was held that while every manufacture
\n\tcan constitute production, every production did not amount to
\n\tmanufacture.”\n<\/p>\n
\tOn
\n\tthe basis of these observations, the Tribunal has held that while
\n\tassembling various components by carrying on quality control through
\n\ttesting equipments, the assessee manufactured computers and servers
\n\twhich is a new and distinct product other than the components of
\n\twhich it is made. Both on the grounds of principle of consistency as
\n\talso requirement to follow the ratio laid down by the Apex court,
\n\tthe Tribunal concurred with the findings  of CIT(Appeals) to hold
\n\tthat it was a new and distinct product which was coming out,
\n\tentitling the assessee deduction under Section 80IB of the Act for
\n\tthe year under consideration.\n<\/p>\n
\tAs
\n\tcan be noted from the elaborate discussion of both the authorities
\n\twho have concurrently held in favour of the assessee that they have
\n\tfollowed the ratio laid down by the Apex which is of-course in
\n\trespect of manufacturing of polished slabs and tiles from marble
\n\tblocks but, the principles laid down is aptly grasped by  both the
\n\tauthorities who have rightly held that entirely new and distinct
\n\tproduct comes into being which is different from the components
\n\tutilised for preparing the new product and when the said process is
\n\tcarried on employing more than ten workers, there does not appear to
\n\tbe any error in such conclusion.\n<\/p>\n
\tIt
\n\twould be pertinent to note at this stage that this Court in Tax
\n\tAppeal No. 12\/2010 in case of Commissioner of Income Tax v. Natasha
\n\tIndustries<\/a> has taken a similar view when identical question had
\n\tarisen for consideration. The issue raised and answered was thus :\n<\/p>\n
“1.\n<\/p>\n
\tRevenue is in appeal against judgement of the tribunal dated
\n\t5.6.2009 raising following questions for our consideration :\n<\/p>\n
“Whether
\nthe Appellate Tribunal is right in law and on facts in holding that
\nactivity carried on by the assessee was manufacturing\/production, and
\nassessee is eligible for benefit u\/s.80IB of the Act, though it has
\nbeen categorically held by the Assessing Officer in the assessment
\norder that activity carried on by the assessee was ‘simply
\nassembling?”\n<\/p>\n
2.
\nCentral issue is whether respondent assessee was carrying on
\nmanufacturing activity so as to enable to take benefit under Section
\n80IB of the Income Tax Act. CIT(Appeals) as well as tribunal both
\nconcurrently held in favour of assessee after examining evidence on
\nrecord. Tribunal in particular, observed that claim of assessee is
\nbased on documentary evidence, fully supported by licenses and
\nregistrations obtained under  different statutes such as Central
\nExcise Act, Sales Tax Act, Directorate of Industries, etc. Copies of
\nsuch documents were furnished on record and available with the
\nAssessing Officer. Tribunal further observed that a perusal of the
\nprocess described by the assessee giving details of the component
\nprescribed and process of manufacture carried out, would reveal that
\nmanufacturing process involves various steps i.e. of assembling and
\nfixing of CPU, of memory and hard drive, of Optical Disk Drive,
\nWireless, Card. etc. Tribunal further found that end result is
\ncumulative process carried out by an assessee and not the
\nindividualseparate process. Tribunal was of the opinion that entire
\nprocess of manufacture is to be considered as a whole in its totality
\nand not any individual process or steps taken.\n<\/p>\n
3.
\nWe further find that CIT(Appeals) also had on basis of evidence on
\nrecord held that activities carried out by the assessee was one of
\nmanufacturing. We are unable to disagree with the view of the
\ntribunal. Assessee after prescribing several different components and
\ncarrying out detailed process, manufactured computer and thereby
\nbrought into existence the whole new project. Assessee had to obtain
\nvarious licenses from different statutory authorities for carrying on
\nsuch manufacturing activities. Such licenses and registrations were
\nalso produced on record. We see no infirmity in the view of the
\ntribunal, confirmed by CIT(Appeals).\n<\/p>\n
4.
\nWe have also perused the definition of term “manufacture”
\ncontained in Section 2(29BA) of the IncomeTax Act which reads as
\nunder <\/p>\n
:”manufacture”,
\nwith its grammatical variations, means a change in a nonliving
\nphysical object or article or thing,<\/p>\n
(a)
\nresulting in transformation of the object or article or thing into a
\nnew and distinct object or article or thing having a different name,
\ncharacter and use; or<\/p>\n
(b)
\nbringing into existence of a new and distinct object or article or
\nthing  with a different chemical composition or integral structure.”\n<\/p>\n
5.
\nNo substantial question of law therefore, arises. Tax Appeal is
\ntherefore,dismissed.”\n<\/p>\n
\tThere
\n\tis no reason for this Court to take any other view than already
\n\ttaken as far as question raised in the present Tax Appeal is
\n\tconcerned. In light of the discussion held here-in-above, this Tax
\n\tAppeal as raises no question of law for determination, the same is
\n\tdismissed.\n<\/p>\n
(Akil
\nKureshi,J.)<\/p>\n
(Ms.\n<\/p>\n
Sonia Gokani,J.)<\/p>\n
(raghu)<\/p>\n
\t\t   \u00a0\u00a0\u00a0<\/p>\n
\t\t   Top<\/p>\n","protected":false},"excerpt":{"rendered":"
Gujarat High Court The vs This on 27 September, 2011 Author: Akil Kureshi, Gokani, Gujarat High Court Case Information System Print TAXAP\/1287\/2010 7\/ 7 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD TAX APPEAL No. 1287 of 2010 ========================================================= THE COMMISSIONER OF INCOME TAX CENTRAL-II – Appellant(s) Versus SUNILBHAI S. KAKAD , – Opponent(s) […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[16,8],"tags":[],"class_list":["post-105341","post","type-post","status-publish","format-standard","hentry","category-gujarat-high-court","category-high-court"],"yoast_head":"\nThe vs This on 27 September, 2011 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/the-vs-this-on-27-september-2011\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"The vs This on 27 September, 2011 - Free Judgements of Supreme Court & High Court | Legal India\" \/>\n<meta property=\"og:url\" content=\"https:\/\/www.legalindia.com\/judgments\/the-vs-this-on-27-september-2011\" \/>\n<meta property=\"og:site_name\" content=\"Free Judgements of Supreme Court & High Court | Legal India\" \/>\n<meta property=\"article:publisher\" content=\"https:\/\/www.facebook.com\/LegalindiaCom\/\" \/>\n<meta property=\"article:published_time\" content=\"2011-09-26T18:30:00+00:00\" \/>\n<meta property=\"article:modified_time\" content=\"2015-05-13T22:18:31+00:00\" \/>\n<meta property=\"og:image\" content=\"https:\/\/i0.wp.com\/www.legalindia.com\/judgments\/wp-content\/uploads\/sites\/5\/2025\/09\/legal-india-icon.jpg?fit=512%2C512&ssl=1\" \/>\n\t<meta property=\"og:image:width\" content=\"512\" \/>\n\t<meta property=\"og:image:height\" content=\"512\" \/>\n\t<meta property=\"og:image:type\" content=\"image\/jpeg\" \/>\n<meta name=\"author\" content=\"Legal India Admin\" \/>\n<meta name=\"twitter:card\" content=\"summary_large_image\" \/>\n<meta name=\"twitter:creator\" content=\"@legaliadmin\" \/>\n<meta name=\"twitter:site\" content=\"@Legal_india\" \/>\n<meta name=\"twitter:label1\" content=\"Written by\" \/>\n\t<meta name=\"twitter:data1\" content=\"Legal India Admin\" \/>\n\t<meta name=\"twitter:label2\" content=\"Est. reading time\" \/>\n\t<meta name=\"twitter:data2\" content=\"10 minutes\" \/>\n<script type=\"application\/ld+json\" class=\"yoast-schema-graph\">{\"@context\":\"https:\\\/\\\/schema.org\",\"@graph\":[{\"@type\":\"Article\",\"@id\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/the-vs-this-on-27-september-2011#article\",\"isPartOf\":{\"@id\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/the-vs-this-on-27-september-2011\"},\"author\":{\"name\":\"Legal India Admin\",\"@id\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/#\\\/schema\\\/person\\\/0bfdffe9059fb8bb24a86d094609c5ea\"},\"headline\":\"The vs This on 27 September, 2011\",\"datePublished\":\"2011-09-26T18:30:00+00:00\",\"dateModified\":\"2015-05-13T22:18:31+00:00\",\"mainEntityOfPage\":{\"@id\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/the-vs-this-on-27-september-2011\"},\"wordCount\":2003,\"commentCount\":0,\"publisher\":{\"@id\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/#organization\"},\"articleSection\":[\"Gujarat High Court\",\"High Court\"],\"inLanguage\":\"en-US\",\"potentialAction\":[{\"@type\":\"CommentAction\",\"name\":\"Comment\",\"target\":[\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/the-vs-this-on-27-september-2011#respond\"]}]},{\"@type\":\"WebPage\",\"@id\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/the-vs-this-on-27-september-2011\",\"url\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/the-vs-this-on-27-september-2011\",\"name\":\"The vs This on 27 September, 2011 - 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