2002 (3) TMI 235 - AT - Income Tax

Summary

Issues Involved:
1. Legitimacy of the CIT's revision of the AO's order under Section 263 of the IT Act.
2. Examination of the AO's process in allowing the investment allowance.
3. Impact of the Supreme Court's SLP admission on the CIT's authority.
4. Applicability of Section 32A(5) for withdrawing investment allowance.
5. Determination of whether the assessee's activities constitute manufacturing or production.
6. Validity of the AO's withdrawal of brought forward investment allowance under Section 154.

Detailed Analysis:

1. Legitimacy of the CIT's Revision under Section 263:
The CIT revised the AO's order dated 27th September 1991, under Section 263, on the grounds that the AO allowed an investment allowance of Rs. 4,88,238 without proper enquiry. The CIT deemed the order erroneous and prejudicial to the interest of the Revenue because the assessee's business of open cast gypsum mining did not qualify as manufacturing or producing an article or thing. The CIT directed the AO to withdraw the investment allowance.

2. Examination of the AO's Process:
The appellant argued that the AO had thoroughly examined the details before allowing the investment allowance. However, the tribunal found that the AO's order was silent on this aspect, indicating a lack of enquiry. Therefore, the CIT was justified in revising the order under Section 263, as the AO's failure to conduct an enquiry rendered the order erroneous and prejudicial to the Revenue.

3. Impact of the Supreme Court's SLP Admission:
The appellant contended that the CIT wrongly relied on the Karnataka High Court's decision in CIT vs. Mysore Minerals Ltd. because an SLP against it was admitted by the Supreme Court. However, the tribunal noted that the Supreme Court had decided the case, reversing the Karnataka High Court's decision, thereby validating the CIT's reliance on it.

4. Applicability of Section 32A(5):
The appellant argued that the CIT's action was erroneous as the conditions of Section 32A(5) were not met. The tribunal clarified that the CIT did not invoke Section 32A(5) but acted under Section 263, which was within his legal competence.

5. Determination of Manufacturing or Production:
The appellant claimed that their activities constituted manufacturing, citing various judgments. However, the tribunal referred to the Supreme Court's definition of "manufacture" and "production," concluding that the appellant's activities did not transform gypsum into a new commodity with a distinct identity. The tribunal found the facts similar to the case of Lucky Mineral (P) Ltd., where the Supreme Court held that mere excavation and cutting do not qualify as manufacturing. Thus, the appellant was not entitled to the investment allowance under Section 32A.

6. Validity of the AO's Withdrawal of Brought Forward Investment Allowance:
The appellant challenged the AO's withdrawal of the brought forward investment allowance from the previous year under Section 154. The tribunal noted that the CIT's revision under Section 263 did not include directions to withdraw the allowance from the previous year. The tribunal cited the Madras High Court's judgment in CIT vs. Century Flour Mills Ltd., stating that an order stands unless set aside by due process. Therefore, the AO's action under Section 154 was invalid, and the appellant was entitled to carry forward the unabsorbed investment allowance from the previous year.

Conclusion:
- ITA No. 1158(Jp)/94 was dismissed, upholding the CIT's revision under Section 263.
- ITA No. 1304/Jp/96 was allowed, directing the AO to allow the carry forward of the unabsorbed investment allowance from the previous year.