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2018 (12) TMI 640 - HC - Income TaxEligible deduction u/s 10B - Ownership of the firm is 100% EOU Unit - Held that - In view of the CBDT Circular dated 17.01.2013, wherein it clearly held that the vital factor in determining the issue would be facts such as how a slump sale is made and what is its nature. It will also be important to ensure that the slump sale would not result into any splitting or reconstruction of existing business. These are factual issues requiring verification of facts. It is, however, clarified that on the sole ground of change in ownership of an undertaking, the claim of exemption cannot be denied to an otherwise eligible undertaking an the tax holiday can be availed of for the unexpired period at the rates as applicable for the remaining years, subject to fulfillment of prescribed conditions. In the present case, the ownership of the firm is 100% EOU Unit is not disputed. It is undisputed fact that the claim made by the assessee for deduction under Section 10B of the Act for the assessment year 2009-2010 after the merger of two firms with effect from 26.12.2011. It is also undisputed that in view of the deletion of the provision of sub-section 9 of Section 10B was omitted from the statute with effect from 01.04.2004 and in view of the dictum in MKU (ARMOURS) PVT. LTD. 2015 (4) TMI 638 - ALLAHABAD HIGH COURT and Renuga Textiles Mills Ltd.(2012 (7) TMI 589 - MADRAS HIGH COURT) the appellant has not made out any substantial questions of law as raised at para 5 of the appeal memorandum. The appeal upholding the deduction u/s 10B of the Act by the Income Tax Appellate Tribunal is just and proper. The revenue has not made out any ground to interfere with the impugned order passed by the Income Tax Appellate Tribunal exercising powers under Section 260A
Issues Involved:
1. Eligibility of the assessee for deduction under Section 10B of the Income Tax Act, 1961. 2. Compliance with Section 10B(2)(iii) regarding the transfer of machinery or plant. 3. Impact of the merger of two partnership firms on the eligibility for deduction under Section 10B. 4. Validity of the CBDT Circular No.1/2013 and its applicability. 5. Relevance of judicial precedents from Allahabad and Madras High Courts. Detailed Analysis: 1. Eligibility of the Assessee for Deduction under Section 10B: The case revolves around the eligibility of the assessee, a 100% Export Oriented Unit (EOU), for deduction under Section 10B of the Income Tax Act, 1961. The assessee's claim for deduction was initially denied by the Assessing Officer on the grounds that the merger of two partnership firms (M/s. KMMI Exports and M/s. Trident Minerals) disqualified the firm from availing the deduction. However, the Commissioner of Income Tax (Appeals) allowed the deduction, which was upheld by the Income Tax Appellate Tribunal (ITAT). 2. Compliance with Section 10B(2)(iii) Regarding Transfer of Machinery or Plant: The Revenue contended that the assessee did not fulfill the conditions specified in Section 10B(2)(iii) of the Act, which prohibits the formation of an undertaking by the transfer of previously used machinery or plant exceeding 20% of the total value. The Tribunal noted that the total plant and machinery transferred by KMMI Exports amounted to ?1,57,75,341, which constituted 184% of the plant and machinery held by the assessee unit. However, the Tribunal found that the merger did not violate the conditions of Section 10B(2)(iii) as the provisions of sub-sections 9 and 9A, which restricted such transfers, were omitted with effect from 01.04.2004. 3. Impact of the Merger on Eligibility for Deduction: The Tribunal held that the merger of the two firms did not affect the eligibility for deduction under Section 10B. The Tribunal emphasized that the deduction is granted to the undertaking, not the entity, and as long as the undertakings remain eligible, the deduction cannot be denied. The Tribunal further noted that both the units of the assessee firm and KMMI Exports were eligible for deduction under Section 10B, and the merger did not result in the formation of a new business. 4. Validity of the CBDT Circular No.1/2013: The Tribunal relied on CBDT Circular No.1/2013, which clarifies that the claim of exemption cannot be denied solely on the ground of a change in ownership of an undertaking. The Circular states that the tax holiday can be availed for the unexpired period, subject to the fulfillment of prescribed conditions. The Tribunal found that the Circular was relevant and applicable in the present case, supporting the assessee's claim for deduction. 5. Judicial Precedents from Allahabad and Madras High Courts: The Tribunal referred to judicial precedents from the Allahabad High Court in the case of MKU (Armours) Pvt. Ltd. and the Madras High Court in the case of Renuga Textiles Mills Ltd. Both cases supported the view that the benefit of deduction under Section 10B is attached to the undertaking and not to the owner. The precedents established that the merger of firms does not disqualify the claim for deduction, provided the undertakings continue to operate as EOUs. Conclusion: The Tribunal upheld the deduction under Section 10B of the Income Tax Act, 1961, for the assessee, dismissing the Revenue's appeal. The Tribunal found that the merger of the two firms did not violate the conditions of Section 10B, and the deduction was rightly allowed by the Commissioner of Income Tax (Appeals). The Tribunal also noted that the CBDT Circular No.1/2013 and judicial precedents supported the assessee's claim. The appeal was dismissed, and the deduction under Section 10B was upheld.
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