2021 (3) TMI 809 - AT - Income Tax

Deduction u/s 80IB - assessee has claimed deduction claiming to have two units - AO found that there was only one unit - HELD THAT - The assessing officer found that there was only one unit. The same was already enjoying deduction under section 80IB(4). This was the last year of the claim of deduction under section 80IB for that unit. In the current year assessee claimed that it has established another unit named unit-II, and claimed deduction under section 80IB(4) for both the units. AO found that assessee had only done substantial increase in the capacity of its existing unit and was trying to pass it off as establishment of a second unit. In this regard assessing officer also obtained report from the additional director investigation. The said report duly provided that there was only one unit which was also corroborated by the examination of ADI from the assessee s work s manager. Simply increase in capacity and production figure cannot fructify the assessee s claim of deduction under section 80IB for the assessment for establishment of a new unit when all other factors show that there is no establishment of a separate undertaking. The decisions referred by learned CIT(A) are not at all applicable on the facts of the present case. Here it is a clear finding that this is the last year of eligibility of claim u/s. 80IB(4) deduction of the eligible unit and the assessee has tried to pass off an increase in production capacity as establishment of new unit. The Assessing Officer has duly found that there is no establishment of a new unit. Only an increase in production is being passed off as establishment of new unit. Not a single ingredient for establishment of new unit has been noted by the Assessing Officer or ADIT on his physical visit to the unit. In this regard we note that a Constitution bench of the honourable Supreme Court in the case of Commissioner of Customs (Import) Vs M/s. Dilip Kumar Company 2018 (7) TMI 1826 - SUPREME COURT has expounded that in case of exemption provisions if two views are possible the one in favour of the Revenue has to be adopted. Moreover we find that learned CIT(A) has not adjudicated the alternative plea of the assessee. Assessee is aggrieved by this. Assessee has also filed cross objection in this regard. In our considered opinion interest of justice will be served if the issue is remitted to the file of learned CIT(A). Learned CIT(A) is directed to consider the issue afresh and decide on all the aspects of the grounds raised by the assessee including alternative plea. Appeal by the revenue stands allowed for statistical purposes

Summary

Issues Involved:
1. Justification of deduction under Section 80IB(4) for a new unit.
2. Separate identity and existence of the new unit.
3. Verification of the new unit by ADIT (Investigation).
4. Comparison of Section 80IB with Section 80IC.
5. Application of the Supreme Court's ratio in Textile Machinery Corporation Ltd. v/s Commissioner of Income Tax.
6. Alternative plea of the assessee regarding deduction eligibility.

Detailed Analysis:

1. Justification of Deduction under Section 80IB(4) for a New Unit:
The primary issue was whether the assessee was justified in claiming a deduction under Section 80IB(4) for a new unit. The Assessing Officer (AO) argued that no new unit was established; rather, there was an expansion of the existing unit. The AO referred to the report of the Assistant Director of Income Tax (Investigation) [ADIT], which concluded that only one unit was functioning and no separate accounts or workforce existed for the alleged new unit. The CIT(A) allowed the deduction, emphasizing the increase in production capacity and additional power connection, but did not address the AO's objections.

2. Separate Identity and Existence of the New Unit:
The AO found that the so-called new unit lacked an independent identity, as it did not have its own PAN, registrations, separate employees, or management. The ADIT’s report and the Works Manager's statement confirmed that only one unit was operational. The CIT(A) dismissed these findings, focusing instead on the increase in production and capacity, which the tribunal found insufficient to justify the establishment of a new unit.

3. Verification of the New Unit by ADIT (Investigation):
The ADIT’s investigation revealed that only one unit existed, and no separate accounts or workforce were maintained for the alleged new unit. This was corroborated by the Works Manager's statement. The AO relied on this report to disallow the deduction. The CIT(A) did not adequately address these findings, leading the tribunal to remand the matter for a fresh examination.

4. Comparison of Section 80IB with Section 80IC:
The AO noted that Section 80IB allows deductions for new units, while Section 80IC permits deductions for the expansion of existing units. The AO argued that the assessee was trying to claim a deduction under Section 80IB for an expansion, which is not permissible. The CIT(A) did not address this distinction in its order.

5. Application of the Supreme Court's Ratio in Textile Machinery Corporation Ltd. v/s Commissioner of Income Tax:
The AO cited the Supreme Court's decision in Textile Machinery Corporation Ltd., which outlines the criteria for an independent unit. The AO concluded that the assessee's new unit did not meet these criteria. The CIT(A) did not consider this precedent in its decision.

6. Alternative Plea of the Assessee Regarding Deduction Eligibility:
The assessee argued that if the new unit was not eligible for deduction, the existing unit should still qualify under Section 80IB. The AO rejected this plea, stating that the assessee had consistently claimed the new unit as an independent industrial undertaking. The CIT(A) did not adjudicate this alternative plea, leading the tribunal to remand the matter for fresh consideration.

Conclusion:
The tribunal found that the CIT(A)'s order was laconic and did not address the AO's and ADIT's findings. The matter was remanded to the CIT(A) for a fresh examination, including the alternative plea of the assessee. The tribunal emphasized that merely increasing production capacity does not constitute the establishment of a new unit eligible for deduction under Section 80IB. The CIT(A) was directed to consider all aspects and relevant Supreme Court decisions in the fresh examination.