{"id":227533,"date":"2010-06-18T00:00:00","date_gmt":"2010-06-17T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/ms-hindustan-petroleum-vs-income-tax-11-on-18-june-2010"},"modified":"2015-10-05T00:12:15","modified_gmt":"2015-10-04T18:42:15","slug":"ms-hindustan-petroleum-vs-income-tax-11-on-18-june-2010","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/ms-hindustan-petroleum-vs-income-tax-11-on-18-june-2010","title":{"rendered":"M\/S. Hindustan Petroleum … vs Income Tax-1(1 on 18 June, 2010"},"content":{"rendered":"
Bombay High Court<\/div>\n
M\/S. Hindustan Petroleum … vs Income Tax-1(1 on 18 June, 2010<\/div>\n
Bench: Dr. D.Y. Chandrachud, J.P. Devadhar<\/div>\n
                                         1\n\n             IN THE HIGH COURT OF JUDICATURE AT BOMBAY\n                               O. O. C. J.\n\n\n\n\n                                                                                 \n                    WRIT PETITION NO.2513  OF 2009\n\n\n\n\n                                                         \n    M\/s. Hindustan Petroleum Corporation \n    Limited, Mumbai                                   ..Petitioner.\n               Vs.\n    The Deputy Commissioner \n\n\n\n\n                                                        \n    Income Tax-1(1), Mumbai and another               ..Respondents.\n                                     .....\n    Mr. Percy J. Pardiwala, Senior Advocate with Mr. Atul K. Jasani for \n    the Petitioner.\n\n\n\n\n                                            \n    Mr. Vimal Gupta for the Respondents.\n                               ig     ....\n\n                                       CORAM : DR.D.Y.CHANDRACHUD &\n                                                      J.P.DEVADHAR, JJ.\n<\/pre>\n
                                                   18 June 2010.\n<\/p>\n
    ORAL JUDGMENT (Per DR.D.Y.CHANDRACHUD, J.) :\n<\/p>\n
    1.          Rule, by consent returnable forthwith.  With the consent of <\/p>\n
    Counsel and at their request the Petition is taken up for hearing and <\/p>\n
    final disposal.\n<\/p>\n
    2.         An   assessment   for   Assessment   Year   2002-03   has   been <\/p>\n
    sought to be reopened under Section 147 of the Income Tax Act, 1961 <\/p>\n
    beyond the period of four years of the end of the Assessment Year, by <\/p>\n
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\n                                             2<\/span><\/p>\n
    the issuance of a notice of 23 March 2009.  The issue which falls for <\/p>\n
    determination in these proceedings is as to whether there was, within <\/p>\n
    the meaning of the proviso to Section 147, a failure on the part of the <\/p>\n
    assessee to “disclose fully and truly all material facts necessary for his <\/p>\n
    assessment, for that assessment year”.\n<\/p>\n
    3.         For Assessment Year 2002-03 the Petitioner filed a return of <\/p>\n
    income on 30 October 2002 by which it returned a total income of Rs.\n<\/p>\n
    739.35   Crores.     An   assessment   order   was   passed   under   Section <\/p>\n
    143(3) on 21 March 2005 determining the total income at Rs.750.62 <\/p>\n
    Crores.  On 23 March 2009 a notice under Section 148 was issued to <\/p>\n
    the   Petitioner   proposing   to   reopen   the   assessment.     Reasons   have <\/p>\n
    been disclosed  in support of the notice for reopening the assessment <\/p>\n
    on 23 October 2009.   Objections to the issuance of the notice were <\/p>\n
    filed   on   4   November   2009.     The   Assessing   Officer   rejected   the <\/p>\n
    objections by an order dated 4 December 2009.\n<\/p>\n
    4.         The reasons which have been disclosed to the Petitioner for <\/p>\n
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\n                                               3<\/span><\/p>\n
    reopening   the   assessment   pertain   to   three   issues.     Firstly,   the <\/p>\n
    Petitioner   had   claimed   a   deduction   under   Section   80-IA   on   the <\/p>\n
    generation   of   electricity   by   a   Captive   Power   Plant   (‘CPP’)   in   the <\/p>\n
    amount of Rs.86.37 lacs.  The Assessing Officer notes that a scrutiny <\/p>\n
    of the Profit  and Loss  Account  shows that the Petitioner claimed a <\/p>\n
    saving in Low Sulphur Heavy Stock (‘LSHS’) due to the use of steam <\/p>\n
    generated as a byproduct in the generation of electricity which was <\/p>\n
    quantified at Rs.29.95  Crores.   On the basis of this, a profit of Rs.\n<\/p>\n
    86.37 lacs was claimed by the Petitioner in respect of its CPP and a <\/p>\n
    deduction was sought under Section 80-IA. According to the Assessing <\/p>\n
    Officer   there   has   been   an   escapement   of   income   as   a   result.\n<\/p>\n
    Secondly, the Petitioner claimed a deduction under Section 80-IB in <\/p>\n
    respect of the Vizag  Refinery Expansion Project (VREP-II).  According <\/p>\n
    to the Assessing Officer this project which was initiated to increase <\/p>\n
    the   capacity   of   the   refinery   did   not   constitute   an   independent <\/p>\n
    undertaking   but   was   a   reconstruction   of   a   business   already   in <\/p>\n
    existence   and   hence   the   conditions   prescribed   by   Section   80-IB(2) <\/p>\n
    were   not   fulfilled.     The   conditions   stipulate   that   an   industrial <\/p>\n
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\n                                               4<\/span><\/p>\n
    undertaking   should   not   be   formed   by   the   splitting   up   or   the <\/p>\n
    reconstruction   of   a   business   already   in   existence.     Thirdly,   the <\/p>\n
    Petitioner claimed a deduction under Section 80-IB(4) in respect of its <\/p>\n
    Lube Blending Plant at Silvassa.   According to the Assessing Officer <\/p>\n
    the plant at Silvassa does not manufacture or produce any article or <\/p>\n
    thing within the meaning of the statutory provision since it is engaged <\/p>\n
    only   in     processing,   involving   the   mixing   of   lube   based   stock   and <\/p>\n
    additives.   Not being engaged in manufacture, the Petitioner is held <\/p>\n
    not to be entitled to the deduction  under Section 80-IB(4).\n<\/p>\n
    5.          On behalf of the Petitioner learned counsel submitted that <\/p>\n
    (i)   The reopening of the assessment having taken place beyond the <\/p>\n
    period   of   four   years   of   the   end   of   Assessment   Year   2002-03   the <\/p>\n
    validity of the action would depend upon whether there was a failure <\/p>\n
    on the part of the Petitioner to disclose fully and truly all material <\/p>\n
    facts necessary for the assessment; (ii) The record before the Court <\/p>\n
    would show that on each of the three issues, the Petitioner had fully <\/p>\n
    and truly disclosed all the material facts necessary for the assessment;\n<\/p>\n
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\n                                                 5<\/span><\/p>\n
    (iii) During the course  of  the assessment  proceedings a notice   was <\/p>\n
    issued to the Petitioner under Section 142(1) on 19 February 2004 to <\/p>\n
    which a detailed reply was submitted on 24 June 2004 and it was <\/p>\n
    only thereafter that an assessment was framed under Section 143(3) <\/p>\n
    on 21 March 2005; (iv) On each of the three issues the Petitioner had <\/p>\n
    disclosed that a deduction was being claimed under Section 80-IA, or <\/p>\n
    as the case may be, under Section 80-IB; the computation of profits <\/p>\n
    was   disclosed,   the   basis   of   the   claim   was   set   forth.     There   was   a <\/p>\n
    disclosure of all the primary facts necessary for the assessment.   In <\/p>\n
    these   circumstances,   the   jurisdiction   under   Section   147   could   not <\/p>\n
    have   been   exercised   in   the   present   case   where   the   assessment   is <\/p>\n
    sought to be reopened beyond four years of the end of the relevant <\/p>\n
    Assessment Year.\n<\/p>\n
    6.           On behalf of the Revenue it has been submitted that where <\/p>\n
    the reopening of an assessment takes place after the expiry of   four <\/p>\n
    years from the end of the relevant Assessment Year, the validity of the <\/p>\n
    action   would   depend   upon   whether   there   was   a   full   and   true <\/p>\n
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\n                                               6<\/span><\/p>\n
    disclosure of the material facts.  In the present case, it was urged that <\/p>\n
    the issue relating to the entitlement of the claim of the Petitioner to a <\/p>\n
    deduction   under   Section   80-IA   in   respect   of   the   CPP   was   not <\/p>\n
    considered   by   the   Assessing   Officer.     The   Assessing   Officer   having <\/p>\n
    failed to consider the ground on which the assessment is sought to be <\/p>\n
    reopened, the action must be held to be lawful and proper.\n<\/p>\n
    7.<\/p>\n
                The parameters of the enquiry of the Court in the present <\/p>\n
    case would be defined by the circumstance that the assessment for <\/p>\n
    Assessment Year 2002-03 is sought to be reopened beyond a period of <\/p>\n
    four years.  Consequently, the test to be applied is as to whether the <\/p>\n
    assessee   had   failed   to   disclose   fully   and   truly   all   material   facts <\/p>\n
    necessary for the assessment.  Under the proviso to Section 147 where <\/p>\n
    an assessment has been made under Section 143(3), no action can be <\/p>\n
    taken  under the Section after the expiry of four years from the end of <\/p>\n
    the relevant Assessment Year unless the income chargeable to tax has <\/p>\n
    escaped   assessment   by   reason   of   the   failure   on   the   part   of   the <\/p>\n
    assessee to disclose fully and truly all material facts necessary for his <\/p>\n
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\n                                              7<\/span><\/p>\n
    assessment for that Assessment Year.  Now it is in the background of <\/p>\n
    the legal position  as it emerges from section 147 that the facts of the <\/p>\n
    case would have to be scrutinized.\n<\/p>\n
    8.          In the computation of income, the Petitioner computed its <\/p>\n
    taxable income under the head of profits and gains of business at Rs.\n<\/p>\n
    899.48 Crores.  Deductions were claimed under Section 80-IA and 80-\n<\/p>\n
    IB in the amount of Rs.157.09 Crores.  In the notes appended to the <\/p>\n
    computation   the   Petitioner   disclosed   that   a   claim   for   relief   under <\/p>\n
    Section 80-IA\/IB has been made in respect of the newly established <\/p>\n
    industrial undertakings commissioned from financial year 1992-93 to <\/p>\n
    the   financial   year   2001-02.     During   the   year   1999-2000   a   major <\/p>\n
    expansion took place of the Vizag refinery by which the capacity of <\/p>\n
    the refinery was expanded.   The Petitioner claimed that the profits <\/p>\n
    made   by   the   expanded   unit   were   eligible   for   deduction   for   seven <\/p>\n
    consecutive years under Section 80-IB(a).     No claim was made for <\/p>\n
    Assessment  Years  1999-2000  and 2000-01  since  the  expanded   unit <\/p>\n
    did not generate profits.   During the year in question the expanded <\/p>\n
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\n                                                   8<\/span><\/p>\n
    unit had contributed to the profits to the extent of Rs.138.47 Crores <\/p>\n
    and   accordingly   a   deduction   was   claimed.     The   tax   audit   report <\/p>\n
    under Section 44-AB was annexed to the return as   is mandatorily <\/p>\n
    required by law.  The nature of the deductions claimed under Section <\/p>\n
    80-IA   and   80-IB   was   explained   in   the   annexures.     The   deduction <\/p>\n
    under Section 80-IA on the CPP was claimed at Rs.86.37 lacs, on the <\/p>\n
    Lube   Blending   Plant   at   Silvassa   under   Section   80-IB   at   Rs.   14.44 <\/p>\n
    Crores and under Section 80-IB on the VREP-II  project of Rs.138.47 <\/p>\n
    Crores.\n<\/p>\n
    9.           For facilitating exposition, it would now be appropriate to <\/p>\n
    deal  with  each  one  of  the  three  issues on  which  the  assessment  is <\/p>\n
    sought to be reopened, by considering the nature of the disclosures <\/p>\n
    made by the assessee :   The first issue on which the assessment is <\/p>\n
    sought   to   be   reopened   is   that   in   respect   of   its   CPP   at   Vizag,     the <\/p>\n
    assessee claimed a profit of Rs.86.37 lacs in respect of which a claim <\/p>\n
    for   deduction   was   made   under   Section   80-IA.     The   profit   and  loss <\/p>\n
    account of the Gas Turbine generators discloses an income from the <\/p>\n
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\n                                                9<\/span><\/p>\n
    generation of electricity of Rs.56.43  lacs.    In addition, the assessee <\/p>\n
    computed   a   saving   in   LSHS   of   Rs.29.95   Crores,   thus   reflecting   an <\/p>\n
    income of Rs.86.39 Crores.   The expenses being to the extent of Rs.\n<\/p>\n
    85.53 Crores    the assessee reported a profit of Rs.86.37 lacs.    The <\/p>\n
    bone of contention relates to the saving in LSHS of Rs.29.95 Crores.\n<\/p>\n
    According   to   the   Assessing   Officer,   but   for   the   aforesaid   item,   the <\/p>\n
    operations   of   the   CPP   would   have   actually   reported   a   loss   for   the <\/p>\n
    Assessment Year and this was obviated by the savings in LSHS which <\/p>\n
    as   noted   above   is   reported   at   Rs.29.95   Crores.     Together   with   its <\/p>\n
    profit and loss account for the unit, the assessee in its working notes <\/p>\n
    disclosed (i) the computation of profits and (ii) the break up on the <\/p>\n
    basis of which the computation was arrived at.  The assessee disclosed <\/p>\n
    that the income was  broken up into two components – (1) the value <\/p>\n
    of   the   electricity   generated   was   computed   at   the   rate   at   which <\/p>\n
    electricity   could   be   purchased   from   the   Andhra   Pradesh   Electricity <\/p>\n
    Board and (2)   the value of the steam generated from the CPP was <\/p>\n
    computed   in   terms   of   the   value   of   LSHS   saved   while   generating <\/p>\n
    steam.   According to the assessee, the captive power unit generated <\/p>\n
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\n                                                10<\/span><\/p>\n
    electricity and, based on the co-generation of power steam generation <\/p>\n
    is also unavoidable.   Two options would have been available to the <\/p>\n
    assessee in the computation of the income arising out of the steam <\/p>\n
    generation.   These would be either by taking the price in the open <\/p>\n
    market   if   the   product   was   saleable   or   was   actually   sold   or   in   the <\/p>\n
    alternative by considering the savings in the cost of the alternative use <\/p>\n
    made   of   the   product.         In   the   case   of   the   steam   generated,   the <\/p>\n
    possibility of the use of the steam in the refinery process ruled out, <\/p>\n
    according to the assessee, the possibility of sale in the open market.\n<\/p>\n
    Since   the   consumption   of   LSHS   to   that   extent   as   fuel   would   have <\/p>\n
    increased the cost of fuel \/ raw material     in the refinery operations <\/p>\n
    and since the generation of steam in the co-generation of power and <\/p>\n
    steam   in   the   captive   power   unit   resulted   in   savings,   the   assessee <\/p>\n
    considered that to be its income in the profit and loss account of the <\/p>\n
    CPP at the Vizag  refinery.\n<\/p>\n
    10.         During the course of the assessment proceedings a notice <\/p>\n
    was issued to the assessee under Section 142(1) on 19 February 2004 <\/p>\n
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\n                                           11<\/span><\/p>\n
    in which a specific disclosure was sought inter alia in respect of the <\/p>\n
    following  :\n<\/p>\n
              “In Note no. 4 of the Notes to the return of income, you
\n              have  claimed relief u\/s. 80IA, 80IB on LPG Bottling Plants
\n              (Rs.297.70   lakh),   Captive   Power   Plant   (86.37   lakh),
\n              Propylene   Recovery   Unit   (Rs.330.43   lakh)   and   Lube <\/p>\n
              Blending   Plant   (Rs.144.87   lakh)   and   Visakh   Refinery
\n              Expansion   Phase   II   (Rs.13847.28).     You   are   caused   to
\n              justify the claim on LPG Bottling Plants and to how bottling
\n              plants are  manufacturing units.   Similarly,  to  justify your <\/p>\n
              claim   on   Captive   Power   Plant,   Propylene   Recovery   Unit,
\n              Lube Blending Plant and Visakh Refinery Expansion Phase <\/p>\n
              II.     In   this   regard   you   are   also   requested   to   furnish
\n              complete, working for deductions u\/s. 80IA\/80IB for each
\n              of   the   above   units   and   method   of   allocation   of   H.O.\n<\/p><\/blockquote>\n
              Expenses including interest, R&D, etc. to all these units.”\n<\/p><\/blockquote>\n
    11.       In response  thereto the assessee  submitted a reply  on 24 <\/p>\n
    June 2004   in which the claim to deduction under Section 80-IA on <\/p>\n
    the profit made by the CPP was discussed.   The assessee also noted <\/p>\n
    that the deduction under Section 80-IA had been allowed in its own <\/p>\n
    case during the course of the earlier Assessment Years.\n<\/p>\n
    12.       The material which has been placed on the record would <\/p>\n
    support the contention of the assessee that there was a full and true <\/p>\n
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\n                                              12<\/span><\/p>\n
    disclosure of all material facts relating to the claim of the assessee for <\/p>\n
    a deduction under Section 80-IA in respect of the profits made by the <\/p>\n
    CPP at Vizag.   In computing those profits, the assessee disclosed the <\/p>\n
    two components which form a constituent element of the income of <\/p>\n
    the unit.   The assessee  furnished a break up of the value  which  it <\/p>\n
    placed on the generation of electricity and on the steam which had <\/p>\n
    been generated as a byproduct.  There was a disclosure that the basis <\/p>\n
    for valuing the generation of electricity was the rate prescribed by the <\/p>\n
    Andhra   Pradesh   State   Electricity   Board   and   that   the   basis   for   the <\/p>\n
    valuation   of   the   steam   generated   was   the   saving   in   LSHS   which <\/p>\n
    would otherwise be the raw material for the generation of the steam.\n<\/p>\n
    Whether   the   assessee   was   correct   or   otherwise   in   adopting   a <\/p>\n
    particular  method   for    valuation  does  not   fall  for  determination  in <\/p>\n
    these   proceedings   since   the   question   to   which   the   Court   has   to <\/p>\n
    address itself is as to whether there was a full and true disclosure  by <\/p>\n
    the   assessee.       The   assessee   disclosed   that   it   claimed   a   deduction <\/p>\n
    under Section 80-IA.  The computation of profits was disclosed.  The <\/p>\n
    break   up   was   explained.     The   assessee   disclosed   that   its   revenues <\/p>\n
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\n                                                13<\/span><\/p>\n
    were   determined   by   taking   two   components   viz.   (i)   the   revenues <\/p>\n
    relating to the generation of electricity and (ii) the saving on the cost <\/p>\n
    of LSHS that was utilized in valuing the steam generation.   In these <\/p>\n
    circumstances, the Revenue is not correct in its submission that there <\/p>\n
    was a failure on the part of the assessee to fully and truly disclose all <\/p>\n
    the material facts necessary for the assessment.   As a matter of fact <\/p>\n
    we   must   also   note   that   the   submission   which   has   been   urged   on <\/p>\n
    behalf   of   the   Revenue   is   that   the   issue   was   not   considered   by   the <\/p>\n
    Assessing   Officer   when   the   order   of   assessment   was   passed.     The <\/p>\n
    question before the Court, however, is whether that in itself would <\/p>\n
    justify the inference that a full and true disclosure   was not made.\n<\/p>\n
    Such an inference cannot be drawn since the record before the Court <\/p>\n
    would   show   that   as   a   matter   of   fact   there   was   a   full   and   true <\/p>\n
    disclosure.     Besides   this,   the   attention   of   the   Court   has   also   been <\/p>\n
    drawn  to the circumstance  that a similar claim of deduction  under <\/p>\n
    Section 80-IA has been consistently made and allowed in the case of <\/p>\n
    the assessee since 1990-91.       The record before the Court inter alia <\/p>\n
    contains an application for rectification made by the assessee on 31st <\/p>\n
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\n                                              14<\/span><\/p>\n
    March, 1999 in respect of a deduction inter alia under Section 80-IA <\/p>\n
    on the CPP units of the Mumbai and Vizag refineries, the profit and <\/p>\n
    loss   account   for   the   Vizag   refinery   for   1995-96   which   contains   a <\/p>\n
    similar computation of income including the saving in LSHS and an <\/p>\n
    order   dated   6   April   1999   passed   under   Section   154   by   the   Joint <\/p>\n
    Commissioner   of   Income   Tax,   Special   Range   -56   Mumbai.     For   all <\/p>\n
    these reasons were are of the view that the first issue on which the <\/p>\n
    assessment   is   sought   to   be   reopened,   the   Revenue   has   failed   to <\/p>\n
    establish   a   case   for   the     reopening   of   the   assessment   beyond   four <\/p>\n
    years.\n<\/p>\n
    13.         The second issue on which the assessment is sought to be <\/p>\n
    reopened is that a claim under Section 80-IB was made in respect of <\/p>\n
    the VREP-II project.  This according to the Assessing Officer  did not <\/p>\n
    constitute   the   establishment   of   a   new   unit   but   would   constitute   a <\/p>\n
    splitting up or reconstruction of an existing business and therefore no <\/p>\n
    deduction was allowable.  The record before the Court shows  that in <\/p>\n
    response to the notice that was issued by the Assessing Officer under <\/p>\n
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\n                                               15<\/span><\/p>\n
    Section   142(1)   on   19   February   2004   the   assessee   by   its   response <\/p>\n
    dated   24   June   2004   clarified   that   the   Ministry   of     Petroleum   and <\/p>\n
    Natural   Gas   had   granted   its   approval   for   treating   the   additional <\/p>\n
    capacity of the expanded project at par with that of new refineries for <\/p>\n
    the purpose of the payment of import parity price.  A copy of a letter <\/p>\n
    dated 17 June 2002 of the Petroleum Planning and Analysis Cell set <\/p>\n
    up   by   the   Government   of   India     in   the   Ministry   of   Petroleum   and <\/p>\n
    Natural   Gas   was   annexed.     The   assessee   also   made   a   further <\/p>\n
    disclosure in the following terms :\n<\/p>\n
                “Further,   we   submit   that   the   eligibility   of   the   expansion
\n                unit for deduction u\/s. 80I was considered by the Assessing
\n                Officer for the Asst. Year 1990-91 when the first  phase of <\/p>\n
                expansion   had   eligible   profits   for   deduction   under   the <\/p>\n
                Section.     Copy   of   the     relevant   paras   of   the   assessment
\n                order   for   the   Asst.   Year   1990-91   accepting   the     claim   of
\n                deduction u\/s. 80I for Visakh Refinery expansion as well as
\n                Mumbai     Refinery   expansion   is   attached   (Attachment   7).\n<\/p><\/blockquote>\n
                For   the  same  Asst.  Year  the   deduction  under  the  Section
\n                including   the   marketing   margin   was   adjudicated   by   the
\n                CIT(A) vide his order dated 15.9.93.   The learned CIT(A)
\n                after examining the working  of profit for the expanded unit
\n                in detail, has held that the profits made by the expanded <\/p>\n
                unit   should   also   include   the   marketing   profits   for
\n                computation   of   eligible   profits   of   the   Visakh   Refinery
\n                Expansion unit and Mumbai Refinery Expansion unit.\n<\/p><\/blockquote>\n
                The Dept. has accepted the learned CIT(A)’s order and no <\/p>\n
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\n                                               16<\/span><\/p>\n
                appeal has been preferred against the CIT(A)’s order.  The
\n                issue   of   inclusion   of   marketing   profit   for   computing   the <\/p>\n
                eligible   profits   for   deduction   under   Section   80I   therefore
\n                has reached finality.”\n<\/p><\/blockquote>\n
    14.         The assessee therefore clearly disclosed the basis on which <\/p>\n
    it   was   claiming   a   deduction   under   Section   80-IB   in   respect   of   the <\/p>\n
    VREP-II   project.     The   attention   of   the   Assessing   Officer   was <\/p>\n
    specifically drawn to the basis of the claim.\n<\/p>\n
    15.         As   regards   the   third   ground   on   which   the   assessment   is <\/p>\n
    sought   to   be   reopened,   the   Assessing   Officer   has   in   his   notice   of <\/p>\n
    reopening stated that the Lupe Unit at Silvassa does not manufacture <\/p>\n
    any article or thing, but merely carries out the activity of processing.\n<\/p>\n
    Here   as   well,   the   assessee   by   its   letter   dated   24   June   2004   had <\/p>\n
    explained before the Assessing Officer, the basis on which a deduction <\/p>\n
    under Section 80-IB was claimed.  The relevant disclosure in the letter <\/p>\n
    dated 24 June 2004 was to the following effect :\n<\/p>\n
                “We wish to submit that the activity of blending lubricating
\n                oils   is   an   activity   amounting   to   manufacture   since   the
\n                activity results in producing a new product different from
\n                the Base Oils used in the process.  As per Central Excise Act <\/p>\n
                                                                ::: Downloaded on – 09\/06\/2013 16:01:41 :::<\/span>
\n                                              17<\/span><\/p>\n
                and   Rules   even   an   activity   of   labeling,   relabelling,
\n                repacking of lubricating preparations  have been defined to <\/p>\n
                amount to manufacture.   …   We submit that our claim of
\n                deduction for the profits made by the Lube Blending Plants <\/p>\n
                have been accepted by the Assessing Officer in the earlier
\n                Asst. Years.”\n<\/p><\/blockquote>\n
    16.         The Assessing Officer while framing the issue under Section <\/p>\n
    143 had observed thus :\n<\/p>\n
                “In respect of the Lube Blending Plant at Silvassa this is the <\/p>\n
                third year of the claim.  It is seen that deduction claimed on
\n                the   Captive   Power   Plants   product   recovery   units   at   the
\n                Mumbai and Vizag refineries and on the LPG Bottling Plants <\/p>\n
                have   been   analysed   in   great   detail   during   the   course   of
\n                assessment   proceedings   for   A.Y.   1995-96   where   it   has
\n                already   been   held   that   the   activity   carried   out   by   the
\n                company   at   its   LPG   bottling   unit   did   not   constitute <\/p>\n
                manufacturing activity, as intended by the legislature since <\/p>\n
                it did not bring into existence any new substance nor was
\n                the product, which was produced at the bottling plants is
\n                commercially different or distinct article, and the bottling
\n                activity   has   been   described   by   the   company   itself   as <\/p>\n
                ‘Marketing’ and not as ‘Manufacture’.   The above stand of
\n                the revenue has also been upheld by the CIT(A) from A.Y.
\n                1992-93 onwards including A.Y. 1997-98 by the CIT(A)-1,
\n                Mumbai in the order dated 1-1-2001.”\n<\/p><\/blockquote>\n
    17.         Following   his   discussion   the   Assessing   Officer   allowed   a <\/p>\n
    deduction   to   the   assessee   only   on   the   income   from   the   CPP   and <\/p>\n
                                                               ::: Downloaded on – 09\/06\/2013 16:01:41 :::<\/span>
\n                                               18<\/span><\/p>\n
    Propylene Recovery unit and the Lube Blending Plant at Silvassa and <\/p>\n
    on a revised profit of the VREP-II unit which is thereafter computed in <\/p>\n
    the order of assessment.   These facts would   show that there was a <\/p>\n
    due application of mind by the Assessing Officer upon a full and true <\/p>\n
    disclosure being made by the assessee of the relevant facts.\n<\/p>\n
    18.         In   these   circumstances,   we     have   arrived   at   a  conclusion <\/p>\n
    that     the   condition   precedent   to   a   valid   exercise   of   the   power   to <\/p>\n
    reopen an assessment beyond the period of four years from the end of <\/p>\n
    the   relevant   year,   Assessment   Year   2002-03   has   not   been <\/p>\n
    demonstrated to exist.  The Petition would have to be allowed and is <\/p>\n
    accordingly allowed by setting aside the notice issued by the Deputy <\/p>\n
    Commissioner of Income Tax on 23 March 2009 under   Section 148 <\/p>\n
    of   the   Act   seeking   to   reopen   the   assessment   for   Assessment   Year <\/p>\n
    2002-03.   Rule is made absolute in these terms.   There shall be no <\/p>\n
    order as to costs.\n<\/p>\n
                                                 (Dr. D.Y.Chandrachud, J.)<\/p>\n
                                                     (J.P. Devadhar, J.)<\/p>\n
                                                                 ::: Downloaded on – 09\/06\/2013 16:01:41 :::<\/span>\n <\/p>\n","protected":false},"excerpt":{"rendered":"
Bombay High Court M\/S. Hindustan Petroleum … vs Income Tax-1(1 on 18 June, 2010 Bench: Dr. D.Y. Chandrachud, J.P. Devadhar 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY O. O. C. J. WRIT PETITION NO.2513 OF 2009 M\/s. Hindustan Petroleum Corporation Limited, Mumbai ..Petitioner. Vs. The Deputy Commissioner Income Tax-1(1), Mumbai and another ..Respondents. […]<\/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":[11,8],"tags":[],"class_list":["post-227533","post","type-post","status-publish","format-standard","hentry","category-bombay-high-court","category-high-court"],"yoast_head":"\nM\/S. 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