2010 (12) TMI 683 - HC - Income Tax

Deduction u/s 10B - Income escaping assessment - 100% EOU - Initial year versus substantial extension in subsequent years - Whether eligible for exemption u/s 10B to be determined each year - Held that - an exception or an exempting provision in a taxing statute should be construed strictly and it is not open to the court to ignore the conditions prescribed in the Industrial Policy and the exemption notifications. - section 10B stands on a separate and distinct footing whereunder the special provision is extended to newly established 100 per cent. EOUs which would necessarily mean that they would be earning foreign exchange which would be the yardstick for measuring national economy. - prayer made by the learned counsel for the assessee that the provisions of section 80J(4)(ii) and Explanation provided there under have to be read in conjunction with section 10B rejected The starting point of limitation for claiming the benefit flowing from section 10B would commence from the year of manufacture or production of the undertaking and if such condition is not satisfied in the year of commencement of production it would not be able to claim such deduction in the subsequent years unless the said initial test on the date of the starting point of limitation had been satisfied. - Appellants not entitled for relief u/s 10B.

Summary

Issues Involved:
1. Entitlement to relief under section 10B of the Income-tax Act, 1961, for the assessment year 2002-03.

Detailed Analysis:

1. Entitlement to Relief under Section 10B:
Facts:
The assessee, engaged in manufacturing and exporting fine chemicals and herbal medicines with units at Kunigal and Nelamangala, claimed a deduction under section 10B for the Kunigal unit for the assessment year 2002-03. The return filed showed a loss after claiming a deduction of Rs. 9,35,80,445 under section 10B. The Assessing Officer disallowed this deduction, issuing a notice under section 148 and concluding that the plant and machinery acquired were previously used, thus not qualifying for the deduction. The Commissioner of Income-tax (Appeals) and the Income-tax Appellate Tribunal upheld this decision.

Contentions:
- Assessee's Argument: The assessee argued that the plant and machinery acquired from M/s. Kanfa Chemo Organic Ltd. constituted only 14.22% of the total plant and machinery's written down value, thus qualifying for the deduction under section 10B. They contended that a liberal interpretation should be adopted for beneficial provisions like section 10B, and the exemption should be available if the conditions are satisfied in any of the 10 consecutive years.
- Revenue's Argument: The Revenue argued that the exemption provision must be strictly construed, and the conditions under section 10B must be satisfied in the initial year of commencement of production. They contended that since the plant and machinery were previously used, the assessee did not meet the initial eligibility criteria.

Legal Provisions and Precedents:
- Section 10B provides a deduction for 100% export-oriented units for 10 consecutive years from the year of commencement of manufacture or production.
- The court examined provisions of section 10B, section 80J, and related explanations, emphasizing that the eligibility criteria must be met in the initial year of manufacture.
- The court referred to the Supreme Court's rulings in cases like Bajaj Tempo Ltd. v. CIT and State of Jharkhand v. Ambay Cements, which underscore strict interpretation of exemption provisions in taxing statutes.

Findings:
- The court found that the assessee did not meet the eligibility criteria in the initial year of manufacture as the plant and machinery were previously used.
- The court held that the eligibility for the deduction must be determined in the initial assessment year, and subsequent compliance does not rectify the initial non-compliance.
- The court also noted that the assessee's unit was purchased as a whole from M/s. Kanfa Chemo Organic Ltd., which included previously used plant and machinery, disqualifying it from the exemption under section 10B.

Conclusion:
The court concluded that the assessee was not entitled to the deduction under section 10B for the assessment year 2002-03. The substantial question of law was answered in the negative, in favor of the Revenue and against the assessee. The order of the Income-tax Appellate Tribunal was affirmed, and the appeal was dismissed.