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TMI Blog2020 (5) TMI 117X X X X Extracts X X X X X X X X Extracts X X X X ..... come Tax Act, 1961. The case was selected for scrutiny and assessment was completed u/s 143(3) vide order dated 30.12.2016 wherein the claim of deduction u/s 80-IC of Rs. 40,64,288/- was not allowed to the assessee. On appeal, the denial of claim has been sustained by the ld CIT(A) and hence, the assessee is in appeal before us. 3. During the course of hearing, the ld AR submitted that assessee has been claiming deduction under section 80-IC since A.Y. 2011-12 and the same has never been disallowed. Further, for A.Y. 2013-14, the assessment was completed u/s 143(3) vide order dated 27.03.2016 and the assessee's claim of 100% deduction of the profits under section 80-IC has been allowed. It was submitted that where deduction is allowed in continuation over a period, the eligibility has to be tested in the first year of claim. Thereafter, the eligibility cannot be questioned and the Revenue cannot be not allowed to breach the principles of consistency and in support, reliance was placed on the following judicial pronouncements: * Shasun Chemicals & Drugs Ltd vs CIT [2016] 388 ITR 1 (SC) * CIT vs Malborough Polychem (P.) Ltd [2009] 309 ITR 43 (Raj) * IT vs Western Outdoor Inter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... section 80- IC(2) can be claimed by an enterprise situated in Uttaranchal under two clauses subject to fulfillment of certain conditions. 1. Section 80-IC(2)(a): a. The undertaking is not engaged in manufacturing or producing any article/ thing as specified in Thirteenth Schedule. b. The undertaking begins manufacturing after 07.01.2003 but before 01.04.2012. c. The undertaking is situated in an area which is notified by the Board in accordance with the scheme. 2. Section 80-IC(2)(b): a. The undertaking is engaged in manufacturing or producing any article/ thing as specified in Fourteenth Schedule. b. The undertaking begins manufacturing after 07.01.2003 but before 01.04.2012. c. The undertaking is situated in the state of Uttaranchal. 6. It was submitted that both the clauses i.e. 80-IC(2)(a) and 80-IC(2)(b) are overlapping under certain circumstances and in those circumstances, therefore, both are not mutually exclusive. Any assessee whose undertaking is situated in notified area can claim deduction in either of the clauses or even in both clauses. Since the assessee's undertaking is situated in notified area, the assessee's case also falls in both the clauses. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 80-IC by holding that the case of assessee does not fall under section 80IC(2)(b) because assembling and manufacturing of Television/LED and blaster of CFL bulbs, in his opinion, were not covered under the entries mentioned in Fourteenth Schedule. It was submitted that the assessee's case falls under section 80-IC(2)(b) however, pre-dominantly it falls under section 80IC(2)(a) because:- a) The assessee is not producing any article or thing which is stated in Thirteenth Schedule. b) The undertaking of the assessee is situated in the Notified Industrial Area (CBDT Notification No. 177/2004 dated 28.06.2004) which can be proved with the following: i. CBDT Notification No. 177/2004 dated 28.06.2004 wherein the Khasra Nos. on which the undertaking of the assessee is situated is finding mentioned. ii. Communication from Tehsildar, Nainital, Superintendent Central Excise Range, Haldwani and Assisstant Comissioner Central Excise, Haldwani confirming the fact that the undertaking of assessee is situated at Khasra No. 687 and 689. iii. Communication from Chief Manager Industry Centre, Nainital wherein the list of areas notified for exemption from payment of Central Excise Duty as w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The state allotted different Khasra Nos. to different assessees, one of which is F-14 i.e. the undertaking of the assessee. It was not in dispute that the assessee is manufacturing any article or thing which is mentioned in Thirteenth Schedule. In view of above, it was submitted that since the undertaking of the assessee is situated in the notified area and is not engaged in the manufacturing of any article or thing which is mentioned in Thirteenth Schedule, the assessee is eligible for claiming deduction u/s 80-IC(2)(a). 13. Without prejudice to above, it was further submitted that there is no dispute with regard to the fact that the assessee's undertaking is situated in Uttaranchal and it commenced its production within the period as specified. Further, the assessee is manufacturing TV, DVD, LCD which falls under entry 13 of Fourteenth Schedule i.e., "Information and Communication Technology Industry, Computer hardware, Call Centers". Thus, the assessee is also, alternatively, eligible to deduction u/s 80-IC(2)(b). It was submitted that the ld. AO erred in inferring that the products in which the assessee is dealing does not fall under entry 13 of Fourteenth Schedule i.e., "In ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 80IC(2)(a)(ii) reads as under:- "(ii) on the 7th day of January, 2003 and ending before the 1st day of April, 2012, in any Export Proceeding Zone or Integrated Infra- structure Development Centre or Industrial Growth Centre or Industrial Estate or Industrial Park or Software Technology Park or Industrial Area or Theme Park, as notified by the Central Government in this regard, in the State of Himachal Pradesh or the State of Uttaranchal; or " Clause 80(i) of 80IC defines 'Industrial area" as under:- "(i) 'Industrial Area' means such areas, which the Board, may, by notification in the Official Gazette, specify in accordance with the scheme framed and notified by the Central government;" Assessee's claim that its unit is situated in notified industrial area in Uttaranchal and thus is eligible for deduction under section 80IC. On perusal of all facts I find that the unit of the assessee is situated in the industrial area developed by UPSIDC. As per Central Exercise notification no. 50/2003, the said unit is also eligible for exemption or a particular period from excise duty. But there is no notification on record issued by CBDT notifying such industrial area whereas unit is situa ..... X X X X Extracts X X X X X X X X Extracts X X X X
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