2014 (7) TMI 1277 - AT - Income Tax

Eligible for grant of deduction u/s 10B - whether the unit was actually in existence in the previous year relevant to AY and whether it started manufacture and process of herbal extracts? - Held that - AO erred in considering only manufacturing expenses for the purpose of arriving at ratio of outsourcing by way of job work of manufacturing activity. This is illogical. CIT(A), in our view, has correctly considered raw material cost, cost of chemicals, packing materials, fuel and power manufacturing expenses as well as manufacturing establishment expenses as total cost of manufacturing and the amount paid towards job works as a percentage of this expenditure and thereafter arriving at 21.27% as the percentage of job work that was out sourced from the total manufacturing cost. This demonstrates that the conclusion of the AO that major portion of manufacturing activity is not conducted in the assessee premises, is factually incorrect. In fact Laila Impex is also an EOU. Thus, we uphold these findings of the first appellate authority and dismiss the grounds raised in this regard. Appeal of the revenue is dismissed. In the issue of directions of the CIT(A) to the AO to compute the profit of 21.27% of the turnover, as the same is attributable to the outsourcing of manufacture through job works and, then to exclude such profits from the profits eligible for deduction u/s 10B, we hold that the same is contrary to law. No such exclusion is contemplated in the Act. We are supported by the propositions laid down by the Mumbai Bench of Tribunal in the case of Gebbs Infotech Ltd. (2010 (10) TMI 1083 - ITAT MUMBAI). Thus uphold the directions of the learned CIT(A) as in this case also, what was outsourced was a part of the job of manufacturing i.e. step 1 out of the 6 steps or stages of manufacturing activity.

Summary

Issues Involved:

1. Whether the assessee was in possession of the machinery to carry on manufacturing activities during the FY 2005-06 relevant to AY 2006-07.
2. Whether the assessee is eligible for deduction u/s 10B of the Act.
3. Validity of the notice issued u/s 148 for reopening the assessment.
4. Determination of the percentage of job work outsourced and its impact on the claim of deduction u/s 10B.
5. Whether the job work carried out under the supervision of the assessee qualifies for deduction u/s 10B.

Issue-wise Detailed Analysis:

1. Possession of Machinery:
The CIT(A) relied on certificates issued by the Assistant Commissioner of Customs and Central Excise and other governmental authorities, confirming that the assessee was in possession of machinery and carried out manufacturing activity in FY 2005-06. The CIT(A) noted that the machinery was purchased through banking channels and confirmed by various governmental inspections and certificates. The Tribunal upheld these factual findings, noting the absence of contrary evidence from the Revenue.

2. Eligibility for Deduction u/s 10B:
The CIT(A) held that the assessee was eligible for deduction u/s 10B, considering the entire manufacturing process, including stages outsourced to Laila Impex. The CIT(A) found that only 21.27% of the manufacturing expenses were outsourced, contrary to the AO's claim of 90.4%. The Tribunal agreed with the CIT(A), emphasizing that outsourcing part of the manufacturing process does not disqualify the assessee from claiming deduction u/s 10B, as supported by various judicial precedents.

3. Validity of Notice u/s 148:
The assessee contended that the notice issued u/s 148 was invalid, arguing it was based on a mere change of opinion since the exemption u/s 10B was allowed in the original assessment after necessary inquiries. The CIT(A) did not quash the reassessment proceedings, and the Tribunal did not specifically address this issue, focusing instead on the substantive issues of machinery possession and eligibility for deduction.

4. Percentage of Job Work Outsourced:
The CIT(A) calculated that only 21.27% of the manufacturing expenses were outsourced, including raw materials, chemicals, fuel, and other manufacturing expenditures. The Tribunal upheld this calculation, dismissing the AO's conclusion that 90.4% of the manufacturing activity was outsourced. The Tribunal agreed that all stages of the manufacturing process, including those outsourced, are part of the manufacturing activity eligible for deduction u/s 10B.

5. Supervision of Job Work:
The CIT(A) held that the assessee did not completely prove that its employees supervised the job work, leading to the exclusion of profits attributable to job work from the deduction claim. The Tribunal disagreed with this exclusion, citing the decision in Gebbs Infotech Ltd., which held that outsourcing part of the manufacturing process does not disqualify the entire profit from being eligible for deduction u/s 10B. The Tribunal ruled that no such exclusion is contemplated in the Act, thus allowing the assessee's appeal on this ground.

Conclusion:
The Tribunal dismissed the Revenue's appeals, upheld the CIT(A)'s findings on the possession of machinery and eligibility for deduction u/s 10B, and allowed the assessee's appeals regarding the exclusion of profits attributable to job work. The Tribunal also dismissed the cross-objections filed by the assessee as infructuous.