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TMI Blog2014 (2) TMI 1378X X X X Extracts X X X X X X X X Extracts X X X X ..... d dated 08.02.2006. 2. Ground nos. 1 and 6 of the appeal are general in nature and hence require no separate adjudication by us. 3. Ground no. 2 reads as under: In law and in facts and circumstances of the Appellant's case, the Id. CIT(A) has grossly erred in confirming the order of AO u/s. 147 for re-opening the completed assessment without meeting with the conditions precedent for reopening the assessment and complying to objections raised by the appellant. As there has not been any escapement of income chargeable to tax, which has occurred by the reason of either omission or failure on the part of appellant to disclose fully and truly all material facts necessary for the assessment, proceedings initiated being void ab initio and deserve to be quashed. Ground no. 3 reads as under: In law and in facts and circumstances of the appellant's case, the Id. CIT(A) has erred in confirming the assessment u/s. 143(3) r.w.s. sec. 147of the IT Act which is based on based on the same facts which the appellant had furnished during the original assessment, and the re-assessment made based on the same facts amounts to change of opinion. Ground no. 5 reads as under: In law and in the fact ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed reveal the following facts: i) The employees of Nirma Ltd. go to the premises of Nisarg Enterprise mainly for checking the quality of the detergent. While checking the quality of the detergent, mainly the moisture of the detergent is checked. ii) The manufacturing is done in two processes: a) There is machine for manufacturing the acid slurry which is manufactured by mixing the LAB (Linear Alkyle Benzene) and sulphuric acid in a fixed ratio by the laborers of the Nisarg Enterprise. b) The soda ash of about 50 kg is mixed with acid slurry water aid filler manually with the help of stick by the labour of Nisarg Enterprises and the detergent is formed within 10 minutes of manual process. This powder is then sieved manually by the labours. The sieved powder is packed manually in bags and is sealed manually. iii) The affidavits of the employees of Nirma Ltd clearly show that their job is mainly of checking the quality of the detergent. The formula of minimum ratio of raw material for making the acid slurry is well known to the labours of Nisarg Enterprise. The quality of soda ash, water, acid slurry and filler is also well known to the labours of Nisarg Enterprise while mixing these ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... recorded on oath by Id. Asst. CIT, C.C. 1(1), Ahmedabad of employees of Nirma Limited (NL) they are working at the premises of Nisarg Enterprise Pvt. Ltd., Trikampura. It is evident from the statements recorded that such employee of Nirma Ltd, working at Nisarg Enterprise Pvt. Ltd., Trikampura carries out the following. (a) Verifies and analyses the raw material purchased and supplied by NL to that plant. (b) Verifies that (the material taken for mixing is in the right proportion as instructed by the said Supervisor of NL, who in turn gets formulation (mixing proportion) from senior management of Nirma Ltd. (c) At the time of first mixing make sure that there are no lumps and material is properly/ evenly mixed. (d) Also makes sure that material is properly sieved. (e) Verifies that if is properly weighed as per each pack size i.e. 1 Kg. or 500Gm. Bags. (f) It is also supervised that each bag is properly sealed otherwise there will be loss to the consumer when it reaches to ultimate consumer. (g) It is properly packed in outer bag which is HDPE bags each weighing 25 Kg. or 50 Kg. (h) Thereafter on random selection base, samples are taken and are analyzed for moisture content and co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... asthan High Curt relied on by Ld. AO reported in 270 ITR 72, we state that the facts of the case are totally different and therefore the ratio laid down by Hon'ble Rajasthan High Court in that case cannot be made applicable here. As per the facts of the case in case of Rajasthan High Court the Company has stopped the manufacturing activity. The Assessee has not carried on any manufacturing activity and therefore, Hon'ble Court look a view that deduction u/s.80f is not available which is not the case so far as your Assessee is concerned. We have carried out manufacturing activities, which is an undisputed fact. (IX) Before Ld. AO, the entire fact of the case has been explained including what has been affirmed by the employees whose affidavits have been filed before your Honour. The said evidences are well within the Rule 46(A) of IT Rules and we request your Honour to kindly admit the same in the interest of justice. More over your Honour has given all opportunity to Ld AO for rebuttal and verification, which further supports our prayer for admission of the said as additional evidence. (X) The Affidavits only substantiate the fact, which has already been brought on record by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... upport the stand of the AO rather than the appellant. (v) If the interpretation of the appellant is accepted, it would lead to absurd and unintended consequences, defeating the very purpose of S.80-IAAB. The Supreme Court in the case of CIT Vs. IPCA Laboratories in 266 ITR held that even though the provisions of Chapter VI-A of the I.T. Act have been incorporated to give benefit and incentives to the assessee, the liberal interpretation to those provisions that would defeat the very purpose of that section is to be avoided. (vi) The Hon'ble Delhi High Court ruling in the case of CIT Vs. Northern India Iron and Steel Company Ltd. in 226 ITR 342 is squarely applicable to the facts of the present case. In that case also, the machinery was let out to the lessee. The Delhi High Court held that the assessee was not entitled to section 80-J (identical to Section 80-lA). (vii) In the case of CIT Vs. Sterling Foods in 237 ITR 589, the Supreme Court held that there must be, for the application of the words derived from, a direct nexus between the profits and gains. In the present case, the appellant has not proved the direct nexus. (viii) In the latest decision of the Allahabad High Cour ..... X X X X Extracts X X X X X X X X Extracts X X X X
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