ITA No.1145 of 2009 Page 1 of 19

REPORTABLE

* IN THE HIGH COURT OF DELHI AT NEW DELHI

+ ITA No.1145 of 2009

% DECISION DELIVERED ON: MARCH 29, 2011

PRAVEEN SONI . . . APPELLANT

through : Mr. C.S Aggarwal, Sr.

Advocate with Mr. Prakash

Kumar, Advocate.

VERSUS

COMMISSIONER OF INCOME TAX . . .RESPONDENT

through: Ms. Suruchi Aggarwal, Sr.

Standing Counsel with Ms.

Shawana Bari, Advocate.

CORAM :-

HON’BLE MR. JUSTICE A.K. SIKRI

HON’BLE MR. JUSTICE M.L. MEHTA

1. Whether Reporters of Local newspapers may be allowed

to see the Judgment?

2. To be referred to the Reporter or not?

3. Whether the Judgment should be reported in the Digest?

A.K. SIKRI, J. (ORAL)

1. This appeal was admitted on the following substantial

questions of law:

“(i) Whether the Income Tax Appellate Tribunal

was justified in law in upholding the order of

Commissioner of Income Tax (Appeals) rejecting the

claim of deduction of `7,49,065/- under Section 80IB

of the Income Tax Act, 1961?

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(ii) Whether on true and correct interpretation of

the provisions of Section 80IB of the Income Tax

Act, 1961 the Income Tax Appellate Tribunal was

justified in law in holding that assessee since had not

claimed deduction under Section 80IB of the Income

Tax Act, 1961, in the initial assessment year, i.e.,

1998-99, became disentitled to claim such a

deduction in the instant assessment year 2004 -05,

despite the fact the assessee‟s undertaking fulfils the

stipulated conditions for claiming deduction under

Section 80IB of the Income Tax Act, 1961?”

2. These questions have arisen in the following factual

backdrop. The appellant (hereinafter referred to as „the

assessee‟) herein is an individual who is running his

proprietorship concern under the name and style of M/s

Ragnik Exports. This concern is engaged in business of

manufacturing and exports of readymade garments. To

manufacture these garments for the purpose of exports,

the assessee started to manufacture articles from

01.07.1997. The assessee could avail the benefit of

Section 80IB of the Income Tax Act (for brevity „I.T. Act‟)

from the date of manufacture of these articles, i.e.,

Assessment Year 1998-99, which was the first year of the

assessee‟s manufacture, the assessee did not claim the

deduction under the said provision in that asse ssment

year. Obviously, since this claim was not raised in that

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assessment year, it could not be examined as to whether

the assessee fulfilled the conditions prescribed in Section

80IB of the Act for claiming exemption under the said

provision. The assessee did not claim this benefit even in

few succeeding years. Section 80IB of the Act further

provides that once an industrial undertaking which fulfils

the condition stipulated therein gets the benefit, the same

is available for 10 successive assessment y ears. The

appellant claimed benefit under the aforesaid provision for

the first time in the assessment year in question, i.e.,

Assessment Year 2004-05. On course, at the same time,

the appellant pleaded that even if the appellant had not

claimed this benefit for the past years, it should be

allowed to him from 2004-05 till the remaining period of

10 years, i.e., upto 2007-08. This was on the premise

that had the claim been allowed and given in the

Assessment Year 1998-99, the assessee would have been

entitled to the same for a period of 10 years, i.e.,

Assessment Year 2007-08. While claiming the benefit of

the aforesaid provision, the assessee also filed requisite

documents including Form 10CCB to demonstrate that the

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assessee was investor undertaking wh ich could fulfil

conditions stipulated in the said provision.

3. The Assessing Officer (AO) took note of the report in Form

10CCB and also further details and funds provided by the

assessee in support of his claim vide letter dated

15.12.2006. However, the claim was denied on the

ground that the assessee had not availed the same in the

first year in question, i.e., Assessment Year 1998-99. The

AO also opined that the small scale industrial undertaking

has been denied the benefit under Section 80IB(14)(g) of

the I.T. Act and having regard to the said provisions, it

should have been registered as a small scale industrial

unit in order to claim the status of SSI Unit. Since it was

not so registered under the provision of Industri es

(Development and Regula tions) Act, 1951 (hereinafter

referred to as the „IDR Act‟), the assessee was not

entitled to claim the benefit under Section 80IB of the I.T.

Act.

4. Appeals filed by the assessee before the CIT (A) as well as

the Income Tax Appellate Tribunal („the Tribu nal‟ for

brevity) were dismissed, as these two authorities have

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also held that the assessee was not entitled to claim

benefit under Section 80IB of the I.T. Act.

5. It is, thus, clear that on two grounds, the benefit of

Section 80IB was denied to the assessee-appellant and for

these reasons, the aforesaid two substantial questions of

law in respect of these two grounds were framed while

admitting this appeal. As far as second question of law is

concerned, viz., whether the assessee can be denied the

benefit of Section 80IB of the I.T. Act simply because of

the reason that he did not avail this benefit in the initial

assessment year, i.e., 1998-99, it should not detain us for

long. Section 80IB is a special provision giving benefits to

certain class of industries. It provides for deduction in

respect of profits and gains to industrial undertakings

other than infrastructure development undertakings. The

conditions for claiming this benefit are stipulated in sub-

section (2) thereof. One of the conditions, with which we

are concerned, is that the assessee manufactures or

produces any article or thing, not being any article or

thing specified in the list in the Eleventh Schedule, or

operates one or more cold storage plant or plants, in any

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part of India. Special provision is made in respect of

those industrial undertakings which fulfil the conditions

prescribed in sub-section (2) of Section 80IB of the I.T.

Act, if such industrial undertaking happens to be small

scale industries. This is incorporated in sub-section (3) of

Section 80IB of the I.T. Act. In such a case, the amount

of deduction in the case of an industrial undertaking shall

be twenty-five per cent (or thirty per cent where the

assessee is a company), of the profits and gains derived

from such industrial undertaking for a period of ten

consecutive assessment years.

6. If the assessee fulfils the requirement of small scale

industrial undertaking (which aspect shall be dealt while

answering other question of law), it is not in dispute that

the assessee would have qualified for this deduction from

the Assessment Year 1998-99. Had the assessee claimed

this benefit in that year, he would have been allowed this

benefit for 10 consecutive years, i.e., till Assessment Year

2007-08. The assessee, thus, becomes entitled to claim

the benefit in the Assessment Year 1998 -99. However,

merely because of the reason that though the assessee

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was eligible to claim this benefit, but did not claim in that

year would not mean that he would be deprived from

claiming this benefit till the Assessment Year 2007-08,

which is the period for which his entitlement would accrue.

The provisions contained in Section 80IB of the I.T. Act,

nowhere stipulates any condition that such a claim has to

be made in the first year failing which there would be

forfeiture of such claim in the remaining years. It is not

the case of the assessee that he should be allowed to avail

this claim for 10 years from the Assessment Year 2004 -

05. The assessee has realized his mistake in not claiming

the benefit from the first Assessment Year 1998-99. At

the same time, the assessee foregoes the claim upto the

Assessment Year 2003-04 and is making the same only

for the remaining period. There is no reason not to give

the benefit of this claim to the assessee if the conditions

stipulated under Section 80IB of the I.T. Act are fulfilled.

7. This question of law is thus answered in favour of the

assessee and against the Revenue.

8. The other question as to whether it is incumbent upon the

assessee that it is registered under the IDR Act for

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claiming the benefit under sub-section (3) of Section 80IB

of the I.T. Act. The answer to this depends on the

interpretation which is to be given to Clause (g) of sub-

section (14) of Section 80IB of the I.T. Act, which reads as

under:

“(g) “small-scale industrial undertaking” means an industrial

undertaking which is, as on the last day of the previous year,

regarded as a small-scale industrial undertaking under section

11B of the Industries (Development and Regulation) Act,

1951.”

9. As pointed out above, as per sub -clause (3) of Section

80IB of the I.T. Act where industrial undertaking is small

industrial undertaking, it is entitled to deduction of 25% of

the profits and gains derived from such industrial

undertaking for a period of 10 consecutive years. Small

scale industrial undertaking for this purpose is defined in

Clause (g) sub-Section (14) of Section 80IB of the I.T. Act

reproduced above. As per this provision, small scale

industrial undertaking is regarded as “small -scale

industrial undertaking under Section 11B of the IDR Act”.

The IDR Act is enacted to provide for development and

regulation of certain industries. For the purpose of

regulating those industries in the meaning prescribed

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under the Act, industrial undertaking is defined in Section

3(d) to mean any undertaking pertaining to a scheduled

industry carried on in one or more factories by any person

or authority including Government. The first schedule

attached to the said Act specifies those industries. In

order to regulate these scheduled industries, Section 10

mandates that all existing industrial undertaking have to

get registered under this Act. Section 11 of the I.D.R Act

deals with new industrial undertaking which would come

into existence after the passing of the Act and establish

any new industrial undertaking, except under and in

accordance with a licence issued in that behalf by the

Central Government. However, in case of small scale

industrial undertaking, exemption and favourable benefits

are provided which means those small scale industrial

undertakings which fulfil the conditions of being small

scale industrial are not to be regulated as per the

provisions of I.D.R. Act. It is in this context, Section 11B

is inserted in the statute which gives power to the Central

Government to specify the requirements which shall be

complied with by small scale industrial undertakings.

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Omitting those portions of Section 11B, which are not

relevant for our purposes, rest of the Section is extracted

below:

“11B. POWE R OF CENTRAL GOVERNMENT TO

SPECIFY THE REQUIREMENTS WHICH SHALL BE

COMPLIED WITH BY THE SMALL SCALE INDUSTRIAL

UNDERTAKINGS.

(1) The Central Government may, with a view to

ascertaining which ancillary and small scale industrial

undertakings need supportive measures, exemptions or

other favourable treatment under this Act to enable them

to maintain their viability and strength so as to be

effective in :-

(a) promoting in a harmonious manner the industrial

economy of the country and easing the problem of

unemployment, and

(b) securing that the ownership and control of the

material resources of the community are so distributed as

best to subserve the common goods,

specify, having regard to the factors mentioned in sub-

section (2), by notified order, the requirements which

shall be complied with by an industrial undertaking to

enable it to be regarded, for the purposes of this Act, as

an ancillary, or a small scale industrial undertaking and

different requirements may be so specified for different

purposes or with respect to industrial undertakings

engaged in the manufacture or production of different

articles :

Provided that no industrial undertaking shall be regarded

as an ancillary industrial undertaking unless it is, or is

proposed to be, engaged in :-

(i) the manufacture of parts, components, sub -

assemblies, tooling or intermediates; or

(ii) rendering of services, or supplying or rendering, not

more than fifty per cent of its production or its total

services, as the case may be, to other units f or

production of other articles.

(2) The factors referred to in sub-section (1) are the

following, namely :-

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(a) the investment by the industrial undertaking in :-

(i) plant and machinery, or

(ii) land, buildings, plant and machinery;

(b) the nature of ownership of the industrial undertaking;

(c) the smallness of the number of workers employed in

the industrial undertaking;

(d) the nature, cost and quality of the product of the

industrial undertaking;

(e) foreign exchange, if any, required for the import of

any plant or machinery by the industrial undertaking; and

(f) such other relevant factors as may be prescribed.”

10. Section 29B of the I.D.R. Act gives power to the Central

Government to exempt, inter alia, such small scale

industrial undertakings from the provisions of I.D.R. Act.

11. As is clear from the reading of Section 11B of the I.D.R.

Act, it is for the Central Government to specify the

requirements which shall be complied with by the

industrial undertaking to enable it to be regarded for the

purpose of the said Act as small scale industrial

undertaking. Appropriate exercise in this behalf has been

carried out by the Central Government by issuing

notification dated 10.12.1997. Operative portion of the

said notification lays down the following conditions to be

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fulfilled by the industrial undertakings before it could be

regarded as a small scale or ancillary industrial

undertakings:

“Now, therefore, in exercise of the powers conferred by

sub-section (1) of Section 11B and sub-section (1) of

section 29B of the said act, and in supersession of the

notification of the Government of India in the Ministry of

Industry (Department of Industrial Development) number

S.O.232(E), dated the 2

nd

April, 1991, the Central

Government hereby specifies the following factors on the

basis of which an industrial undertaking shall be regarded

as a small scale or as an ancillary industrial undertaking

for the purposes of the said Act:-

1. Small scale industrial undertaking: An industrial

undertaking in which the investment in fixed assets in

plant and machinery, whether held on ownership

terms of on lease or on hire purchase, does not

exceed rupees three crores;

2. Ancillary industrial undertaking: An industrial

undertaking which is engaged or is prop osed to be

engaged in the manufacturing or production of parts

components, sub-assemblies, tooling or intermediates,

or the rendering of services, and undertaking supplies

or proposes or supply or renders not more than fifty

per cent of its production or services, as the case may

be, to one or more other industrial undertakings and

whose investment in fixed assets in plant and

machinery, whether held on ownership terms or on

lease or on hire purchase, does not exceed rupees

three crores.”

12. At the end of this notification, it is provided that every

industrial undertaking which has been issued a certificate

of registration under Section 10 of the said Act or a

license under Sections, 11, 11A and 13 of the I.D.R. Act

by the Central government and are covered by the

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provisions of paragraphs (1) and (2) above relating to the

ancillary or small scale industrial undertaking, may be

registered at the discretion of the owner as such within a

period of 180 days from the date of publication of this

notification. Two things follow from the reading of the

aforesaid notification:

(a) To be regarded as a small scale industrial

undertaking - such an undertaking should be

given which has invested in fixed assets in

plant and machinery either on ownership terms

of on lease or on hire purchase.

(b) Worth of said asset does not exceed `3 Crores.

The prescription of `3 Crores was reduced to `1

Crore vide amendment notification dated

04.12.1995.

13. It is not in dispute that the appellant-assessee fulfils these

requirements. However, as mentioned above, benefit is

denied only on the ground that it is not registered under

the provisions of I.D.R. Act. We are of the considered

opinion that the registration under the I.D.R. Act will be of

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no consequence for availing the benefit under Sec tion

80IB of the I.T. Act. Clause (g) of sub -section (14) of

Section 80IB of the I.T. Act only mandates that such an

industrial undertaking should be regarded as small scale

industrial undertaking under Section 11B of the I.D.R. Act.

As per Section 11B of the I.D.R. Act, it is for the Central

Government to lay down the conditions which are required

to be fulfilled as regards small scale industries. In the

aforesaid notification, the conditions which are mentioned

for being regarded as small scale industr ies are the

ownership of plant and machinery and value thereof.

Registration of such an undertaking under the I.D.R. Act is

not a condition for treating the same as small scale

industrial undertaking. That registration is prescribed for

altogether different purpose, viz., to avail the benefit

under the I.D.R. Act either of Section 11B or Section 29B.

Thus, insofar as extending the provision of Section 80IB of

the I.T. Act is concerned, the only aspect which is relevant

and is to be considered is as to whether the conditions

stipulated in the notification issued under Section 11B of

the I.D.R. Act for regarding the same as small scale

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industrial Act are fulfilled or not. It would be of interest to

note that Section 80IB (14)(g) used the expression

„regarded as small scale industrial undertaking‟ under

Section 11B of the I.D.R. Act. Likewise, even the

notification dated 10.12.1997 while laying down the

conditions for claiming the benefit of small scale industrial

undertaking used the same expression when i t states

„following factors on the basis of which an industrial

undertaking is regarded as small scale industrial

undertaking‟.

14. When we look into the mandatory Form prescribed for

availing this benefit, viz., Form 10CCB, such a form has to

be filled and submitted by the assessee to the AO for

claiming the benefit. The details which are required to be

given as per this form include the information which is to

be supplied to ascertain , whether such indu strial

undertaking would be regarded as small scale industrial

undertaking for the purpose of Section 11B of the I.D.R.

Act inasmuch the assessee is called upon to give the value

of machinery or plant, number of workers employed in the

manufacturing process, total sales of the undertaking and

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also profits and gains derived by the undertaking from the

eligible business and deduction under Section 80IB of the

I.T.Act.

15. The purpose for industrial undertaking to be regarded as

small scale industrial undertaking as per Section 11B of

the I.D.R. Act is not far to seek. It was to maintain parity

in prescribing the conditions which are required to be

fulfilled by the industrial undertaking to qualify itself as

small scale industrial undertaking. Since the Central

Government has to prescribe such conditions by

notification in view of provisions of Section 11B of the

I.D.R. Act, the Legislature in its wisdom deemed it fit to

incorporate those conditions for the purpose of I.T. Act as

well. This issue came up for consideration before the

Gujarat High Court, albeit, in the context of depreciation

which is to be allowed to an assessee under Section 32 of

the I.T. Act. We may point out that explanation (3) of

Section 32(1) of the I.T. Act also gives special benefit to

the small scale industrial undertaking and reads as under:

“(3) an industrial undertaking shall be deemed to be a

small-scale industrial undertaking, if the aggregate value

of the machinery and plant installed, as on the last day of

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the previous year, for the purpose of the business of the

undertaking does not exceed seven hundred and fifty

thousand rupees; and for this purpose the value of any

machinery or plant shall be, -

(a) in the case of any machinery or plant owned by the

assessee, the actual post thereof to the assessee; and

(b) in the case of any machinery or plant hired by the

assessee, the actual cost thereof as in the case of the

owner of such machinery or plant.”

16. The question which was posed for consideration before the

Gujarat High Court in the case of Commissioner of

Income-tax Vs. J.H. Kharawala 208 ITR 691 was as

to whether it was incumbent upon a small scale industrial

undertaking to have registration under the I.D.R. Act to

claim the benefit of depreciation under Section 32 of the

I.T. Act. Replying in the negative and holding that there

was no such requirement of such registration to avail the

said benefit, the Gujarat High Court held as under:

“Section 32 provides for depreciation. Sub-section (1)

provides for depreciation in respect of building,

machinery, plant or furniture owned by the assessee and

used for the purposes of his business or profession.

Clause (vi) of sub-section (1) provided for one time

depreciation of 20 per cent. on the actual cost of ship,

aircraft, machinery or plant. It gave an option to assessee

to claim depreciation either in the year in which the

machinery or plant was installed or the year in which the

assessee had put it to use. But this special depreciation

was confined to small scale industrial undertakings. Thus,

it was a special provision made for the benefit of small-

scale industrial undertakings. By the Explanation, "new

ship" and "new machinery or plant" were defined. The

Legislature also provided by that Explanation as to which

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undertaking was to be regarded as a small -scale

industrial undertaking. By the said Explanation, it also

provided how the value of the machinery or plant was to

be determined. Thus, it cannot be gainsaid that the

Legislature thought it fit to make a special provision in

this behalf. If registration of an industrial undertaking

with the respective State department was to be regarded

as sufficient for making such undertaking a small-scale

industrial undertaking, then the Legislature would not

have made this special provision. Moreover, that would

have resulted in discrimination inasmuch as the test laid

down for treating an industrial undertaking as a small-

scale industrial undertaking might have varied from State

to State. Thus, the Legislature, in order to see that there

was uniformity, made this special provision and for that

reason, it will have to be held that for the purpose of

determining whether an industrial undertaking is a small-

scale undertaking or not, resort had to be taken to the

Explanation to section 32(1)(vi) and not to any other

provision of law whereby an industrial undertaking was to

be regarded as a small-scale industrial undertaking for

other purposes. The Tribunal was, therefore, in error in

proceeding on the basis that since the assessee was

registered as a small-scale industrial undertaking with the

Small-Scale Industries Department, the benefit of section

32(1)(vi) was available to it irrespective of different

provision made by that Explanation in that behalf.”

17. The upshot of the aforesaid discussion is to answer this

question of law in favour of the assessee, as otherwise,

there is no dispute that the assessee fulfils eligibility

conditions prescribed under Section 80IB of the I.T. Act

and is to be regarded as small scale industrial

undertaking. We direct the AO to give the benefit of

deduction claimed by the assessee under Section 80IB of

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the I.T. Act for the Assessment Year in question, i.e.,

2004-05.

18. This appeal is allowed in the aforesaid terms.

(A.K. SIKRI)

JUDGE

(M.L. MEHTA)

JUDGE

MARCH 29, 2011

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