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TMI Blog2012 (12) TMI 722X X X X Extracts X X X X X X X X Extracts X X X X ..... DIA] unequivocally held that provision providing exemption, concession or exceptions in a fiscal statute has to be interpreted strictly. A person who claims exemption or concession, is required to establish clearly, therefore set aside the orders of CIT(Appeals) and hold that assessee was not eligible to claim deduction under Section 80HH - against assessee. - IT Appeal Nos. 2029 to 2031 (Mad.) of 2002 and 1427 to 1429 (Mds.) of 2011 - - - Dated:- 19-7-2012 - Abraham P. George And Vikas Awasthy, JJ. K.E.B. Rengarajan for the Appellant. Saroj Kumar Parida for the Respondent. ORDER Abraham P. George, Accountant Member - These are appeals of the Revenue and assessee respectively for the impugned assessment year. While appeals of the Revenue are directed against orders dated 17.9.2002 of Commissioner of Income Tax (Appeals)-III, Chennai, for the impugned assessment year, appeals of the assessee are directed against a revisionary order dated 20.12.2002 for assessment year 1992-93 and similar orders dated 23.12.2002 for assessment years 1993-94 and 1994-95 of Commissioner of Income Tax (Appeals)-III, Chennai. 2. Main issue arising in these appeals is regardin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ee moved in appeal before CIT(Appeals) against refusal of A.O. to consider its claim under Section 80HH of the Act. Argument of the assessee was that it had taken irrevocable steps for locating an industrial undertaking in Cuddalore, which was a backward area as per Industrial policy. As per the assessee, the amendment introduced by Taxation Laws (Amendment) Act, 1986 retrospectively from first April, 1984, by which the Eighth Schedule to the Act which listed out backward districts was deleted, did not affect its claim since it had already taken steps for establishing the industrial undertaking. As per the assessee, though the Board by a notification No.165, dated 19.12.1986 had listed out the backward areas to which Section 80HH applied and though such list did not exclude South Arcot District in which Cuddalore fell, it would not be concerned or affected by such notification since its intention was to take advantage of the deduction available under Section 80HH and it had made substantial investment towards this end already. As per the assessee, the object of Section 80HH was to attract industrial investments in backward areas. Up to 9.9.1986, the backward areas were mentioned in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uction was started by the concerned industrial undertaking before 10.9.1986. The President of India had given his assent to the Taxation Laws (Amendment and Miscellaneous Provisions) Act, 1986 on 10.9.1986 and hence this date became relevant. As per the CIT(Appeals), assessee having started its manufacture only in December, 1986, it could not be given benefit of Section 80HH of the Act. For subsequent assessment years 1993-94 and 1994-95 also, CIT(Appeals) passed revisionary orders on 23.12.2002 denying assessee's claim under Section 80HH and thus modifying his appellate orders for respective years. 10. Revenue has now moved in appeals against original orders of the CIT(Appeals) allowing the claim of deduction under Section 80HH before this Tribunal, whereas, assessee has moved in appeals against the revision orders of the CIT(Appeals) denying the claim for respective years, earlier allowed by him. 11. When the matter came up before us, learned A.R. submitted that assessee had moved writ petitions before Hon'ble jurisdictional High Court against the revision orders of the CIT(Appeals) for the respective assessment years and there was a grant of stay by the Hon'ble jurisdictiona ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on of having the advantages available to it on starting an industrial undertaking in a backward area, could not be denied the benefits, simply based on a subsequent amendment to the Act. If such a position was allowed, then the State would be going back on its commitment already given and assessee, an industrial undertaking, who relied on the commitment given by the State, would be put in great peril. The principle of estoppel applied to the State also. Reliance was placed on the decision of Hon'ble Apex Court in the case of Moti Lal Padampat Sugar Mills Co. (P.) Ltd. v. State of U.P. [1979] 118 ITR 326. For his claim that liberal interpretation had to be given to beneficial provisions, reliance was once again placed on the decision of Hon'ble Apex Court in the case of Bajaj Tempo Limited (supra). Further, as per learned A.R., though CIT(Appeals) had taken correct view of the matter, later on he had resorted to an unjustified rectification. Nevertheless, such a rectification order was no more there, according to him, since the matter stood remitted back to the CIT(Appeals) by the jurisdictional High Court. 14. We have perused the orders and heard the rival submissions. Facts undi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... backward area; (iv) it employs ten or more workers in a manufacturing process carried on with the aid of power, or employs twenty or more workers in a manufacturing process carried on without the aid of power. Explanation - Where any machinery or plant or any part thereof previously used for any purpose in any backward area is transferred to a new business in that area or in any other backward area and the total value of the machinery or plant or part so transferred does not exceed twenty per cent of the total value of the machinery or plant used in the business, then for the purposes of clause (iii) of this sub-section, the condition specified therein shall be deemed to have been fulfilled. (3) to 10** ** ** Explanation - In this section, "backward area" means an area specified in the list in the Eighth Schedule. The amendment made through Taxation Laws (Amendment and Miscellaneous Provisions) Act, 1986 did not make any change in the Section as contained in sub-section (1) to (10) mentioned above, but, replaced the Explanation thereunder, with sub-section (11), which reads as under:- (11) For the purposes of this section, "backward a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ld be in a backward area till such date. But, nevertheless, when a specific power has been given by the Act for making a retrospective notification specifying backward areas, unless and until assessee questions the validity of the proviso to sub-section (11) which gave such a retrospective power, before the appropriate judicial forums, for arbitrariness and gets a ruling in its favour, it will have to be given effect to. As long as the said Section appears in the Act, it will apply on all four squares to the assessee. This Tribunal, being a creature of a statute, has no powers to go into validity of a statutory provision. Nothing has been brought on record by the learned A.R. to show that proviso to sub-section (11) of Section 80HH was held invalid by any competent court of law. Unless and until it is so done, we have to go by the proviso giving a power to Government to issue retrospective notification. By virtue of retrospective notification, Cuddalore was placed out of backward area. No doubt, assessee might have had every intention to take advantage of Section 80HH of the Act by locating its industry in Cuddalore. But, nevertheless, in our opinion, this will not pre-empt the Gov ..... X X X X Extracts X X X X X X X X Extracts X X X X
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