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TMI Blog2013 (10) TMI 468X X X X Extracts X X X X X X X X Extracts X X X X ..... the Hon'ble Apex Court and the jurisdictional High Court and further dissected the activities involved in the processing/manufacturing/ filling of argon gas in cylinders and with the relevant materials on record came to a thoughtful conclusion that the applicant does not deserve the benefit u/s. section 80 IA of Act since it was not carrying on any activity of manufacturing as envisaged under the Act – Decided against the Assessee. - ITA Nos.345 & 346 /Ahd/2013 - - - Dated:- 27-9-2013 - Sri D. K Tyagi And Shri Anil Chaturvedi,JJ. For the Petitioner : Sri Sunil Talati, A.R. For the Respondent : Sri O. P. Batheja, Sr. D. R. ORDER Per : D. K. Tyagi, Judicial Member:- These are the assessee's appeals against the separate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed back to the file of A.O. with a direction to decide the matter afresh after considering the definition of the word 'manufacture' as contained in section 2(29BA) and also the ratio laid down by the Hon'ble Supreme Court in the case of Arihant Tiles Marbles Pvt, Ltd. Accordingly, a fresh notice was issued to the asssessee by the AO requiring to furnish the justification for the deduction claimed u/s. 80IB of the I.T. Act 1961, in response to which, assessee vide letter dated 20.10.2011 simply furnished a copy of the decision of the Hon'ble Supreme Court in the case of Arihant Tiles Marbles Pvt, Ltd. and also the definition of the word Manufacturing' as contained in section 2(29BA) of the Act. The A.O. considered the submission furnishe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , in the process of refilling of argon in cylinders from cryogenic tank, neither manufacture nor production is involved nor does a new product emerge ever' though the argon is handled under controlled pressure and temperature. It is further important to mention here that this section was inserted by the Finance (No.2) Act, 2009 w.r.e.f. 1.4.2009. Therefore, the section 2(29BA) of the Income Tax Act inserted by the Finance Act 2009 does not applicable for this assessment year. 3. Further, the Hon'bte ITAT vide ITA No.1519 1520/Ahd/2008 dated 8.8.2008 for A.Y. 2003-04 2005-06 as well as ITA No.299/Ahd.2003 dated 11.7.2008 for A.Y. 1998-99 has very elaborately discussed the issue at length and decided in favour of the department. The Obs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... anufacturing process involved in each case. The intention of the Legislature has to be gathered from the language used in the statute which means that attention should be paid to what has been said as also to what has not been said. The definitions in other enactments and the Interpretation of the words have to be seen in the light of relevant provisions of law. 7.1 In the fight of aforesaid meaning of manufacture and production and as already stated, in the case under consideration in view of the nature of argon, the taxpayer is storing the same in cryogenic storage tank and is refilling in cylinders for sale in the retail market. There is nothing to suggest that the taxpayer is performing any process on the liquid argon so as to change ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the taxpayer. In any case, in view of aforesaid discussion, the taxpayer is not entitled to any deduction under the provisions of Section 80IA of the Act. Thus, ground no. 4 in the appeal is dismissed. " 5. We find from the above, the facts being similar in these present years, what were in assessment year 1998-99. The Tribunal has already decided this issue by holding that the assessee is not entitled to deduction u/s. 80IA of the act. Respectfully following the Tribunal's view the assessee own case (supra), we uphold the order of CIT(A) on this issue. According, this issue of the assessee's appeal is dismissed." Lastly, A.O. concluded that in the process of refilling of argon in cylinders from cryogenic tank, neither manufacture nor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ure Income Tax Sales Tax v. Palampadam Plantations Ltd. AIR 1969 SC 930, Gramophone Co. of India Ltd. v. Collector of Customs [2000] 1 SCC 549, Collector of Central Excise v. Rajasthan State Chemical Works [1991] 4 SCC 473 while arriving at this conclusion. Further, the Tribunal in its decision had distinguished the case Arihant Tiles Marbles (P.) Ltd. (supra) with that of the relevant case by considering the facts of both the cases not to be identical. The subsequent decision of the Tribunal arriving at a contrary view cannot render the earlier decision of the Tribunal suffer from mistake apparent on record particularly when the earlier decision of the Tribunal was delivered after sensibly considering the materials available before it. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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