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TMI Blog2015 (9) TMI 331X X X X Extracts X X X X X X X X Extracts X X X X ..... 7 and 1994-95 respectively depriving the benefit of section 80 IA of the Income Tax Act. 2. Heard Mr.P.J.Rishikesh, learned counsel appearing for the appellant and Mr.M.Swaminathan, learned Standing Counsel appearing for the respondent. 3. The appellant filed its Return of Income for the assessment year 1994-95 on 28.11.1994 declaring NIL income after setting off its earlier year's loss. In the Return of income, the appellant claimed that it had established a new 650 TPD Kiln at their already existing R.R.Nagar factory premises making an investment of Rs. 24.96 crores. 4. The Return was processed under section 143(1)(a) and a notice was issued under sub-section (2) of section 143. An order of assessment was passed on 24.3.1997 disall ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... run on a stand alone basis without the support from the existing unit and that the very survival of the new Unit depended upon the running of the pre-existing unit successfully. These arguments weighed with the Commissioner of Income Tax (Appeals) as well as the Tribunal and both of them have confirmed the orders of assessment. Therefore, the assessee has come up with the above appeals. 9. On 29.9.2004, TC(A) No.570 of 2004 was admitted and four questions of law were framed. On 28.4.2005, TC(A) No.190 of 2005 was admitted and this Court framed only two questions of law. These two questions of law were exactly the same as the questions of law (1) and (2) framed in TC(A) No.570 of 2004. 10. However, when the appeals were taken up for dispo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s as is specified in sub-section (6). ... " 13. It is relevant to note from sub-section (1) that it merely uses the expression "any profits and gains derived from any business of an industrial undertaking". The word "new" is not prefixed to the expression "industrial undertaking". Sub-section (1) of section 80 IA does not even impose a condition that the industrial undertaking should have been set up or established on or after a particular date. 14. Sub-section (2) of Section 80 IA lists out 5 conditions which, if satisfied, would make an industrial undertaking, eligible for the benefit under Sub-section (2). Those five conditions are: (i) The industrial undertaking should not have been formed by splitting up or by reconstruction of a bu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ely for the Revenue, clause (i) of sub-section (2) of section 80 IA does not use the expression "expansion". To deny the benefit to the appellant, under clause (i) of sub-section (2), it should fall either under the category of "splitting up of existing unit" or under the category of "reconstruction of the existing unit". Both in the case of splitting up and in the case of reconstruction, there is no expansion. The expression "expansion", as such, is not used in clause (i). 19. It is not the case of the Revenue that the case of the appellant is covered either by clause (ii) or that the appellant does not satisfy the conditions prescribed in any of the three clauses viz., (iii), (iv) or (v). Therefore, the presumption on the part of the res ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e expression "industrial undertaking". Therefore, the said decision relied upon by the learned Standing Counsel cannot be called to their assistance. 23. In STATE OF GUJARAT & OTHERS v. SAURASHTRA CEMENT & CHEMICAL INDUSTRIES ((2003) 260 ITR 181 (SC)), what fell for consideration before the Supreme Court was a claim by a consumer for exemption from levy of electricity duty, under the Bombay Electricity Duty Act, 1958. The charging section viz., section 3(1) of the Bombay Electricity Duty Act, 1958 specifically used the expression "new industrial undertaking" under sub-clause (b) of clause (iii) of sub-section (2) of section 3. But, as we have pointed out earlier, the adjective "new" is not used in this case. Section 80 IA has been enacted ..... X X X X Extracts X X X X X X X X Extracts X X X X
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