2011 (10) TMI 657 - HC - Income Tax

Entitled to additional depreciation under Section 32(1)(iia) - Held that - Tribunal has not dealt with and examined the question whether or not the RMC was sold by the assessee to third party buyers or was used by the assessee themselves at their construction sites. Without deciding this primary issue/aspect the tribunal could not have decided the controversy and the issue raised. Accordingly the impugned findings in paragraph 7 are set aside with the direction to the tribunal to re-examine the matter on merits after deciding the question whether the RMC was sold to third parties or was captively used/utilized. The respondent assessee will be entitled to additional depreciation on the machinery/equipment used for the said activity/purpose only if the RMC was sold to third parties. In case RMC was partly sold and partly self utilized and the effect thereof on the question of additional depreciation will be also examined by the tribunal.

Summary

Issues Involved:
1. Appellant's challenge to the order of the Income Tax Appellate Tribunal regarding the purchase of sand from two suppliers.
2. Appellant's contention regarding the respondent's engagement in civil construction contracts and the manufacturing of Ready Mix Cement (RMC).

Issue 1:
The appellant contested the Income Tax Appellate Tribunal's decision on the purchase of sand from two suppliers, emphasizing that payments were made through bank transactions and not in cash. The tribunal found in favor of the respondent, noting the substantial turnover and net profit of the assessee, along with the production of bank certificates for the transactions. The tribunal deemed the assessing officer's focus on the unserved notice to one supplier as insufficient to discredit the transactions. The High Court upheld the tribunal's findings, stating that they were factual and not unreasonable, warranting no intervention under Section 260A of the Income Tax Act, 1961.

Issue 2:
The second contention raised by the appellant concerned the respondent's involvement in civil construction contracts and the manufacturing of RMC. The appellant argued that the respondent's activities qualified as manufacturing, citing the assessment order and a reference to a previous court decision. However, the tribunal, in its order, analyzed the concept of "manufacture" and concluded that the preparation of RMC involved organized processes with heavy machinery and computer systems, constituting a manufacturing activity. The respondent had supplied RMC to buyers, and the tribunal directed the Assessing Officer to allow additional depreciation on machinery used for RMC production. The High Court framed a substantial question of law regarding the tribunal's decision on the manufacturing activity. The High Court noted that the tribunal had not determined whether the RMC was used for the respondent's construction activities or sold to third parties, a crucial factor in deciding the eligibility for additional depreciation under Section 32(1)(iia) of the Income Tax Act, 1961.

In conclusion, the High Court set aside the tribunal's findings and directed a re-examination of the matter to determine if the RMC was sold to third parties or used for the respondent's construction projects. The eligibility for additional depreciation would depend on this determination, and the tribunal was instructed to consider the impact if the RMC was both sold and self-utilized. The High Court partially favored the Revenue's position, emphasizing the need for a thorough examination of the primary issue before deciding on the claim for additional depreciation.