2018 (7) TMI 1733 - HC - Income Tax

Claim for deduction made by the assessee u/s 80IB - petitioner/appellant is not engaged in any manufacturing activity and instead, it was only doing trading of mushroom powders in capsules - Held that - Tribunal came to the conclusion that the activity does not bring any new article or product and the mushroom powder even after capsulation remains the same and if it is removed from the capsule, the mushroom powder emerges out of it. It is not known as to how the Tribunal rendered such a finding as there was no material available before the Tribunal that there is no change in the composition of the drug on capsulation. As already pointed out, the Tribunal gave a finding wholly unsubstantiated by any material that the bulk form of the drug can be nakedly consume without putting them in an enclosure such as gelatine capsule. It is relevant to note that the agreement between the assessee and the International parent company dated 26. 4. 2004 states that the Indian Company (assessee) has set up a factory at Pondicherry with an intent to manufacture similar products and has requested the foreign company to make available the know-how to the Indian Company and after negotiations, the foreign company has agreed to make available the know how on the terms and conditions set out in the agreement. The agreement specifically states that the foreign company shall supply to the Indian company all materials such as know how of materials, such as process sheets, calculation sheets, standards and other information as is necessary to understand the utilisation of the said know how and to implement the same in the manufacture of the said product. The factual matrix clearly demonstrates that what has been done by the assessee is manufacture. In the assessee s case, the product which emerges after the process of manufacture is commercially a distinct commodity, can be of consumption as such containing a requisite amount of ingredients in the appropriate percentage, preserved in proper form as contained in the licence issued under the authorised enactments as well as the technical logo shared by the foreign company. - decided in favour of assessee Denying the claim under Section 43B - Held that - ITAT proceeded on a slightly different angle, not on the ground that the petitioner had not filed the revised return that being entitled to the claim of the benefit under Section 43B, i. e. , to say, on the ground that while the assessee is not in a position to spell out the nature of the liability, and it was making only verbal argument without stating the nature of expenditure and that the assessee has not produced any order of the Excise Department, through which the liability stated to have emerged and it also opined that, to avail deduction, the payments are required to be actually paid within the time stipulated to the proviso to Section 43B of the Act. In the previous paragraphs, we have noted the admitted facts recorded by the Assessing Officer, which clearly shows the assessee has availed the CENVAT credit and paid the excise duty. That apart, the assessee won the case for the subsequent year 2009-2010 - Decided in favour of assessee Violation of principles of the natural justice by the lower authority - Held that - In the absence of any proof produced to show that the statement obtained from the employee has caused prejudice to the assessee, the Tribunal has to only justify the decision taken by the Assessing Officer and CIT(A). We further hold at best that the statement given by the former employee of the assessee is not conclusive and it would not bind the assessee. Furthermore, the statement is stated to have been recorded at the time of inspection and one can easily perceive the mood in which the employee would have been. - Decided in favour of the Revenue

Issues Involved:
1. Entitlement to deduction under Section 80IB of the Income Tax Act.
2. Entitlement to deduction under Section 43B of the Income Tax Act.
3. Violation of principles of natural justice.

Issue-wise Detailed Analysis:

1. Entitlement to Deduction under Section 80IB:

The primary issue was whether the assessee was entitled to claim deduction under Section 80IB. The Tribunal held that the activities of the assessee did not amount to manufacturing as there was no new article produced; the mushroom powder remained unchanged even after being encapsulated. The Tribunal referred to the dictionary meaning of "manufacture" and "production" as these terms were not defined under the Income Tax Act at that time. The Tribunal concluded that filling mushroom powder into gelatin capsules was merely a process for marketability and did not constitute manufacturing or production.

The assessee argued that the process involved in encapsulating mushroom powder amounted to manufacturing, citing licenses obtained from various statutory authorities, which authorized them to manufacture Ayurvedic drugs. The assessee also pointed out that the process involved multiple steps and quality control measures, indicating a manufacturing activity.

The court noted that the Tribunal's finding was based on personal opinion without material evidence. The court referenced the Supreme Court's decision in Aspinwall & Co. Ltd. vs. Commissioner of Income-tax, which defined "manufacture" as a process that results in a new and different article. The court found that the assessee's activities met this definition and thus qualified as manufacturing.

2. Entitlement to Deduction under Section 43B:

The second issue was whether the assessee was entitled to a deduction under Section 43B for the payment of Central Excise Duty. The Assessing Officer and CIT(A) denied the deduction on the grounds that the payment was not claimed in the books of accounts but shown as an advance in the balance sheet. The Tribunal upheld this view, stating that the assessee had not provided sufficient evidence of the liability.

The court referred to a previous decision in TCA No. 730 of 2015, where it was held that actual payment of excise duty, even if under protest, satisfied the conditions of Section 43B. The court found that the assessee had indeed paid the excise duty and was entitled to the deduction. The court also noted that for subsequent years, the assessee's claim had been accepted, reinforcing their entitlement for the relevant assessment years.

3. Violation of Principles of Natural Justice:

The third issue was whether the Tribunal was correct in holding that the violation of principles of natural justice did not result in injury to the assessee. The assessee contended that the statement of an employee, which was used against them, was taken without cross-examination, thus violating natural justice principles.

The court held that not every lack of opportunity constitutes a violation of natural justice unless it results in prejudice. The court found that the assessee had substantiated their case with sufficient evidence, and the statement of the employee was not conclusive. The court concluded that the Tribunal's decision did not cause prejudice to the assessee.

Conclusion:

The court allowed the appeals in part. It held in favor of the assessee on the issues of entitlement to deductions under Sections 80IB and 43B, but against the assessee on the issue of violation of natural justice principles. The court emphasized that the assessee's activities constituted manufacturing and that they were entitled to the claimed deductions.

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