Friends Castings (P) Ltd. vs Commissioner of Income Tax

Adarsh Kumar Goel, J.—This order will dispose of IT Appeal Nos. 455 and 456 of 2010 as both involve common questions.

IT Appeal No. 456 of 2010 is an appeal by the Assessee u/s 260A of the IT Act, 1961 (in short "the Act") against the order of the Income Tax Appellate Tribunal, Amritsar Bench (hereinafter referred to as "the Tribunal) in ITA No. 68/Asr/2009, dt. 9th Oct., 2009, for the asst. yr. 2000-01, proposing following substantial questions of law:

(i) Whether the order of the Tribunal, apparently being non-specific and non-speaking, is liable to be set aside as such ?

(ii) Whether in the facts and in the circumstances of the case, the Tribunal was justified in upholding the findings of the learned CIT(A) that job work charges, derived from industrial activity, could be excluded from the eligible profits of the industrial undertaking, for computing the deduction u/s 80-IA/80-IB ?

(iii) Whether the job work charges, being part of the business profits, could be considered at par with brokerage, commission, interest, rent and other charges, under Clause (baa) of Section 80HHC(4C), so as to exclude 90 per cent of the same from business profits, for computing the deduction u/s 80HHC ?

(iv) Whether on the facts and circumstances of the case the Tribunal was justified in law in holding that in terms of Section 80-IA(9) of the Act where two deductions u/s 80HHC and 80-IB of the Act are available, then the deduction computed u/s 80-IB shall be reduced from the business profits to compute deduction u/s 80HHC on the resultant profits ?

(v) Whether the order of the Tribunal is legally unsustainable and bad in law and perverse ?

Learned Counsel for the Assessee fairly states that question (iii) could not be pressed in view of the judgment of this Court in Liberty India Vs. Commissioner of Income Tax, .

A reading of question Nos. (i) and (v) clearly shows that they are general in nature and, thus, cannot be held to be substantial questions of law.

Adverting to question No. (ii), the grievance of the Assessee is that job work charges which were derived from industrial activity could not be excluded from eligible profits for determining deduction u/s 80-IA/80-IB of the Act. Few facts essential for adjudicating this controversy may be noticed. The income of the Assessee as per computation had been shown at Rs. 36,42,280. The Assessee had claimed deduction @ 30 per cent thereon amounting to Rs. 10,92,684. However, the same was computed by reducing the non-business income of the Assessee in the shape of job work charges (Rs. 3,66,850); interest on fixed deposit (Rs. 8,96,859); sale of incentives (Rs. 10,00,328) and interest on Income Tax refund (Rs. 57,981) from the income of Rs. 36,42,280 by the AO. The CIT(A) upheld the aforesaid disallowances. The CIT(A) while concurring with the AO regarding exclusion of job work charges for calculating deduction u/s 80-IA/80-IB observed as under:

...The key ingredients for allowing deduction u/s 80-IA are that the income should be derived from industrial undertaking and the Assessee should manufacture or produce an article or thing. The Assessee has been found to be eligible for deduction u/s 80-IA in respect of its own production of goods. However, the Appellant has not led any evidence before the AO that the job work charges were received for manufacturing or producing articles or things. The only argument which has apparently been advanced before the AO was that expenditure in respect of job work charges should also be reduced if the same was not being considered for special deduction u/s 80-IA. During the appellate proceedings also no such plea has been taken. Since the Appellant has not been able to show that the job work charges were received for manufacturing or producing an article or thing from its industrial undertaking, deduction u/s 80-IA is not allowed in respect of these receipts. The case law relied upon by the Appellant are not relevant since in those cases there was a finding that the Assessee was manufacturing or producing articles or things. In this connection, it is worthwhile to note that deduction u/s 80-IA is not allowed on merely processing of raw material, unless the processes result in a new distinct commodity.

The Tribunal upheld the findings of the CIT(A). Learned Counsel for the Assessee was unable to advance any argument to dispel the findings recorded by the CIT(A) and upheld by the Tribunal that the receipt on account of job work was not a result of manufacturing or by producing article or thing and, therefore, the Assessee was not entitled to claim deduction thereon u/s 80-IA. Accordingly, question No. (ii) is not a substantial question of law.

Referring to question No. (iv), the claim of the Assessee is that the Assessee was entitled to deduction u/s 80-IA as well as u/s 80HHC on the same amount. Necessary facts may be referred to. The Assessee had claimed deduction u/s 80HHC amounting to Rs. 14,65,802 in the return of income filed on 2nd Nov., 2000. The AO held that the Assessee was entitled to deduction u/s 80HHC on the balance amount which remained after allowing deduction u/s 80-IA. According to the AO such relief was in excess by Rs. 1,73,903. This was upheld by the CIT(A). The Tribunal while affirming the aforesaid view had recorded as follows:

As regards the issue involved in ground Nos. 7(i) to 7(iii) and 8(i) to 8(ii), in which the Assessee has raised the issue regarding calculation of profit u/s 80HHC after reducing the profit u/s 80-IA of the Act, as stated by the learned Counsel for the Assessee that the learned CIT(A) has wrongly calculated the profit u/s 80HHC at Rs. 9,32,480 against the claim as per audit report and ignoring the mode of calculation of profit u/s 80HHC, that it is independent and nothing to do with Section 80-IA. The plea of the Assessee regarding the provisions of law is that Section 80AB is clarificatory in nature and supersedes all the provisions of Chapter VI-A including Section 80-IA(9) of the Act.

8.1 After going through the impugned orders, we are of the considered opinion that the learned first appellate authority has decided the issue in dispute against the Assessee by following the order of the Tribunal (Special Bench), Chennai, in the case of (2007) 108 ITD 49 , which is on the same issue. In the case of Rogini Garments (supra), the Special Bench held that the restrictive provisions of Section 80-IA(9) had to be given effect to, and the definition of business profit as contained in Clause (baa) below Section 80HHC(4C) has to be construed in light of these restrictions. The Special Bench held that relief u/s 80-IA should be deducted from the profits and gains of the business before computing the relief u/s 80HHC. The learned first appellate authority had decided the issue against the Assessee by discussing the issue in dispute with the support of various judgments mentioned in the impugned orders at paras 3.6 and 3.7 on pp. 12 and 13. The case law cited by the learned Counsel for the Assessee has also been discussed by the learned first appellate authority. We have also gone through the same and are of the considered opinion that recently this issue has been decided by the Tribunal, Special Bench ''C'' New Delhi, in the case of Asstt. CIT v. Hindustan Mint & Agro Products (P) Ltd. consisting of five Members, wherein they have discussed various case laws in details and held that deduction is to be allowed under any other provision of Chapter VI-A with the heading ''C'' is to be reduced by amount of deduction allowed u/s 80-IB/80-IA of the Act and decided the issue in dispute in favour of the Revenue vide order dt. 23rd June, 2009. Keeping in view the facts and circumstances of the present case, we are of the view that the issue in dispute is squarely covered by the decision of the Tribunal, Special Bench ''C'' New Delhi (supra), in favour of the Revenue and against the Assessee. Thus, respectfully following the decision rendered by the Tribunal, Special Bench ''C'', New Delhi, in the case of Asstt CIT v. Hindustan Mint & Agro Products (P) Ltd. passed in ITA Nos. 1537, 1538 and 1539/Del/2007 [reported at (2009) 123 TTJ (Del)(SB) 577: (2009) 25 DTR (Del)(SB) 73--Ed.] for the asst. yrs. 2001-02, 2003-04, 2004-05, dt. 23rd June, 2009, we dismiss ground Nos. 7(i) to 7(iii) and 8(i) to 8(ii) of the appeals of the Assessee.

Learned Counsel for the Assessee was unable to point out that the approach of the authorities below was contrary to any statutory provision except to urge that the view taken by the Tribunal is erroneous as u/s 80-IA(9) which is also applicable in view of Section 80-IB(13), the only restriction is that deduction should not exceed the total profits and gains, and the restriction that deduction claimed and allowed u/s 80-IA or Section 80-IB could not be allowed under any other provision should be read in the light of condition of deduction not exceeding total profits and gains.

We are unable to accept the submission.

The restriction u/s 80-IA(9) is not only that the total deduction should not exceed profits and gains, there is a further restriction that deduction allowed u/s 80-IA or Section 80-IB will be a bar to claim deduction under any other provision of the chapter.

In view of above, we hold that no substantial question of law arises in these appeals.

The appeals are accordingly dismissed.