2011 (3) TMI 1063 - AT - Income Tax

Deduction u/s 10B - unexpired period - Held that - According to the facts of instant case, the assessee company is only a lessee, having a right to enjoy the plant and machinery. Owning the plant and machinery and taking plant and machinery on lease are two different things - Ownership is a bundle of rights - Lease-hold rights are a part of bundle of rights in the ownership - in the present case the assessee company is not a successor to the lessor. In order to decide the eligibility of the assessee company to claim under section 10B it is required to be seen that whether the undertaking transferred to the assessee company, on lease basis, can be said to be a new undertaking - Exemption is applicable only to an absolutely new undertaking started for the first time - Unless the assessee who claims the benefit under section 10B for the unexpired period, establishes that it is a successor of a lessor, and it fulfils all other necessary conditions in each year, it cannot claim of benefit under section 10B of the Act for the balance unexpired period - Decided against the assessee.

Summary

Issues Involved:
1. Denial of deduction under section 10B of the Income-tax Act.
2. Whether the assessee qualifies as a successor to the undertaking.
3. Applicability of Board Circular No. F. No. 15/5/63-IT(A-1).
4. Interpretation of the term "formed by the transfer" in relation to section 10B and section 80-I of the Income-tax Act.
5. Validity of the lease arrangement for claiming tax holiday.

Detailed Analysis:

1. Denial of Deduction under Section 10B:
The primary issue is the denial of Rs. 1,00,06,615 deduction under section 10B of the Income-tax Act. The assessee argued that the undertaking claiming the deduction remained the same, and the unit was transferred on lease basis, thus qualifying for the deduction. However, the CIT(A) denied this deduction, and the Assessing Officer upheld this decision, leading to the assessee's appeal.

2. Successor to the Undertaking:
The assessee claimed to be a successor of the undertaking, supported by a letter from the Ministry of Commerce & Industry confirming the continuation of benefits. The CIT(A) and Assessing Officer, however, held that the assessee was merely a lessee and not a successor, as the ownership of the plant and machinery remained with the original owner, SDAL. The tribunal agreed with this view, stating that owning the plant and machinery and taking them on lease are distinctly different, and the assessee did not qualify as a successor.

3. Applicability of Board Circular No. F. No. 15/5/63-IT(A-1):
The assessee relied on the Board Circular, which states that the benefit of section 84 (now section 80J) attaches to the undertaking and not to the owner, and thus the successor is entitled to the benefit for the unexpired period. The tribunal noted that this circular was relevant for bonding and de-bonding of units and excise formalities, not for income tax exemptions. The tribunal concluded that the circular did not support the assessee's claim under section 10B.

4. Interpretation of "Formed by the Transfer":
The assessee argued that the unit was not newly formed by the transfer of used machinery, as it continued the same manufacturing activity. The tribunal examined the provisions of section 10B and section 80-I, which state that the undertaking should not be formed by the transfer of machinery previously used. The tribunal found that the assessee made a meager investment compared to the predecessor's substantial plant and machinery, indicating that the unit was effectively formed by transfer, thus not qualifying for the deduction under section 10B.

5. Validity of Lease Arrangement for Tax Holiday:
The tribunal addressed the argument that the lease arrangement should allow the assessee to claim the tax holiday. It referred to the decision in Techdrive India (P.) Ltd., where the tribunal held that owning plant and machinery was not necessary for claiming deduction under section 10B. However, the tribunal distinguished this case, noting that in Techdrive, the assessee had its own computers and laptops, whereas in the present case, the entire plant and machinery were leased. The tribunal concluded that the lease arrangement was a device to avoid the provisions of sub-section (2) of section 10B and upheld the CIT(A)'s decision.

Conclusion:
The tribunal dismissed the appeals, affirming the CIT(A)'s decision to deny the deduction under section 10B. The tribunal held that the assessee was not a successor to the undertaking but merely a lessee, and the lease arrangement did not qualify for the tax holiday. The tribunal also clarified that the Board Circular and the provisions of section 10B and section 80-I did not support the assessee's claim.