2012 (12) TMI 492 - HC - Income Tax

Industrial company / undertaking - Additional tax u/s 104 - ITAT concluded that the assessee was not an Industrial Company and, therefore, liable for additional tax under Section 104 of the Income Tax Act, 1961? - held that - a Company engaged in any construction activities cannot be regarded as having undertaken any manufacturing or processing activity for production of any goods or articles. Though the issue was examined in relation to Section 32-A, 80-HH and 84 of the Act yet the same has full application to the facts of the case in hand. - Decision in the case of M/s. N.C. Budharaja (1993 (9) TMI 6 - SUPREME COURT) followed. Assessee was not engaged in any manufacturing or/and processing activity and hence was not eligible to claim the status of an industrial company and in consequence was not eligible to claim the benefits earmarked for industrial companies under the Act. - Decided against the assessee.

Summary

Issues Involved:
1. Whether the Tribunal was right in holding that the assessee was not an Industrial Company and, therefore, liable for additional tax under Section 104 of the Income Tax Act, 1961.
2. Whether the Tribunal was right in not admitting the additional ground of appeal preferred by the assessee.

Detailed Analysis:

Issue 1: Classification as an Industrial Company and Liability for Additional Tax
The Tribunal's decision that the assessee was not an Industrial Company and thus liable for additional tax under Section 104 of the Income Tax Act, 1961, was challenged. The assessee, a private limited company engaged in civil construction and structural works, argued that their activities involved manufacturing or processing of goods, thereby exempting them from additional tax under Section 104.

The court reviewed the nature of the assessee's contract with Bhilai Steel Plant, which involved laying heavy concrete foundations and other structural works. The assessee contended that these activities amounted to manufacturing or processing of goods. However, relying on the Supreme Court's decision in Commissioner of Income Tax, Orissa v. M/s. N.C. Budharaja and Company, the court held that construction activities do not amount to manufacturing or processing of goods. The Supreme Court had ruled that construction of structures like dams, canals, or buildings does not constitute manufacturing or processing, as these do not result in the production of goods or articles. Consequently, the court concluded that the assessee was not an Industrial Company and was rightly subjected to additional tax under Section 104.

Issue 2: Admission of Additional Ground of Appeal
The second issue concerned the Tribunal's refusal to admit an additional ground of appeal raised by the assessee. The assessee claimed that they had earned certain profits which should exempt them from additional tax under Section 104. However, the Tribunal did not allow this point to be raised, as it was not brought up at any earlier stage of the proceedings.

The court supported the Tribunal's decision, stating that the plea was a mixed question of fact and law and should have been raised before the Assessing Officer or the CIT (Appeals). The court emphasized that factual foundations need to be laid at the initial stages of proceedings for such claims to be considered. Since the assessee failed to do so, the Tribunal was justified in not permitting the additional ground of appeal.

Conclusion:
Both questions referred to the court were answered against the assessee and in favor of the Revenue. The court upheld the Tribunal's decision that the assessee was not an Industrial Company and was liable for additional tax under Section 104. Additionally, the court agreed that the Tribunal was correct in not admitting the additional ground of appeal, as it was not raised at the appropriate stages of the proceedings. The reference was finally answered with no costs.