Appellantthroughmr. N.p. Sahni With Mr. P.roychaudhariand Mr. Nitin Gulati,Advocates v. M/S Dixontechnologies(I) Pvt Ltdrespondentthroughms. Kavitajhawithms. Bhoomikachoudhary, Advocates

$-8 & 9 IN THE HIGH COURT OF DELHI AT NEW DELHI +ITA 550/2013 & ITA 554/2013 COMMISSIONER OF INCOME TAX-IV AppellantThroughMr. N.P. Sahni with Mr. P.Roychaudhariand Mr. Nitin Gulati,Advocates. versus M/S DIXONTECHNOLOGIES(I) PVT LTDRespondentThroughMs. KavitaJhawithMs. BhoomikaChoudhary, Advocates. CORAM:HON'BLE MR. JUSTICE SANJIV KHANNAHON'BLE MR. JUSTICE SANJEEV SACHDEVAORDER%09.12.2013 CM No.17660/2013(exemption)in ITA 550/2013CM No.17662/2013(exemption)in ITA 554/2013 Exemptionsallowedsubjectto alljust exceptions. ITA 550/2013 & ITA 554/2013 1.These two appeals by the Revenue which pertain to theAssessment Years 2008-09 & 2009-10 challenge the impugnedordergrantingdeductionunderSection80IC ofthe IncomeTaxAct, 1961 on two grounds.Assessment Years 2008-09 & 2009-10 challenge the impugnedordergrantingdeductionunderSection80IC ofthe IncomeTaxAct, 1961 on two grounds. that theassessee was notor(i) respondent manufacturingproducingarticlesor tilings.producingarticlesor tilings. (ii)The units in questionwere not locatedin[notified][ areas] 3, as the scheme framed the Central Governmentfor the per byState of Uttranchal. On the firstaspect,we are surprisedatthe standofthe Revenuebecausethe plea taken is that the manufactureor assemblyofair-conditionersand microwave oven, from different partssupplied or procured from third parties did not amount toproductionofarticlesor things or manufacturing. The factumis that the end product manufactured or produced by therespondentassesseewas entirelydifferentfrom the parts andwas distinctlyknownas a separatecommodityand marketedassuch. This positionis not disputed. Section80IC is applicableto both manufactureand productionof articlesor things. Thefinding of the Tribunal is clear and lucid in this regard andrequires no interference. On the secondaspect,we have examinedthe assessmentorderin respect of the AssessmentYear 2008-09. The AssessingOfficer has referred to the three units and the evidenceproduced. The three units, it is apparent, were located invillage Selaqui,SelakuiIndustrialArea, Dehradun,Uttranchaland Central Hope Town IndustrialArea, Selaqui, Dehradun,Uttranchal. The khasra numbers were also mentionedin theassessment orders as 262M, 992/2 and 263.Before theAssessingOfficer,the assesseehad filed notificationissuedbythe CentralExcisevideNo.50 of 2003. The AssessingOfficer,however,did not conductverificationbut recordedthat it was 4'. not clear, whether the notification was issued by the competentauthority. Thereafter the Assessing Officer referred to thekhasranumbersand expressedhis doubt statingthat he was notsure and clear whether the khasra numbers were mentioned inthe list available for deduction under Section 80IC of the Act.It was the obligation and duty of the Assessing Officer toexamine,checkand verifyand not deny relief withoutinquiry,on mere doubt or suspicion. It is clear from the assessmentorderthat documentsandpapers in supportwere filedbut werenot verified. The Commissioner (Appeals) accepted the stand of therespondentassesseeand on the questionof area orlocationhasrecorded:- "The appellant's Unit-I is located in KhasraN0.262M, Industrial Area, Selakui, Dehradun,Uttranchal(referpages102-109ofthepaperbook for Form lOCCB).The AO hasthat the said unit does notin thealleged appearlist of notifiedareas and thereforedisalloweddeduction for Unit-I At the outset, the appellantwishes to submit that the CIT(A)-XVIII inassessment year 2007-08, vide order dated15.10.2010 (refer pages 245 to 262 of thepaperbook), while allowing in favor of theappellant,held, that Unit - I of the appellant,locatedat KhasraNo.262Mi,CentralHopeTown, Selakui Industrial Area, Tehsil VikasNagar, District Dehradun, lies within areanotified by the CBDT and is therefore areaeligiblefor deductionundersection80-IC ofthe Act. It is further respectfiilly submitted that incomingto the erroneousconclusionas aforesaid,the AO has glossed over the following criticalfacts: Act. It is further respectfiilly submitted that incomingto the erroneousconclusionas aforesaid,the AO has glossed over the following criticalfacts: a) IntermsofNotification No.177dated28.06.2004, Selakui and Central Hope Townboth fallingunder Tehsil Vikas Nagar, District28.06.2004, Selakui and Central Hope Townboth fallingunder Tehsil Vikas Nagar, DistrictDehradun]have been defined at separate serialnos. Further, in terms of Notification No.283dated03.10.2006KhasraNo.262Mi,CentralHope Town,DistrictDehradunhas beennotifiedas an area eligible for deduction under thatsection.nos. Further, in terms of Notification No.283dated03.10.2006KhasraNo.262Mi,CentralHope Town,DistrictDehradunhas beennotifiedas an area eligible for deduction under thatsection. b) That Selakui Industrial Area is an IndustrialArea falling under the Central Hope Town,Tehsil Vikas Nagar, District Dehradun and,therefore, if Khasra No.262Mi, Central HopeTown is notifiedby CBDT, then automatically,KhasraNo.262Mi,SelakuiIndustrialAreabecomes a notified area. The complete addressof the appellant'sunit being KhasraNo.262Mi,Central Hope Town, Selakui Industrial Area,TehsilVikasNagar,DistrictDehradun.This factis evidenced from the auditor's report in FormlOCCB in respectof the aforesaidunit, whereintheaddresshas beenmentionedas "KhasraNo.262Mi CentralHope Town, Industrial Area,Selaqui,District Dehradun."Area falling under the Central Hope Town,Tehsil Vikas Nagar, District Dehradun and,therefore, if Khasra No.262Mi, Central HopeTown is notifiedby CBDT, then automatically,KhasraNo.262Mi,SelakuiIndustrialAreabecomes a notified area. The complete addressof the appellant'sunit being KhasraNo.262Mi,Central Hope Town, Selakui Industrial Area,TehsilVikasNagar,DistrictDehradun.This factis evidenced from the auditor's report in FormlOCCB in respectof the aforesaidunit, whereintheaddresshas beenmentionedas "KhasraNo.262Mi CentralHope Town, Industrial Area,Selaqui,District Dehradun." c) The Patwari has, also, certified that theappellant'sunit is locatedin KhasraNo.262MiCentral Hope Town, Selaqui Industrial Area,Tehsil Vikas Nagar, District Dehradun which,admittedly, is notified by the CBDT as abackward area, eligible for deduction undersection 80-IC of the Act.A copy of theappellant'sunit is locatedin KhasraNo.262MiCentral Hope Town, Selaqui Industrial Area,Tehsil Vikas Nagar, District Dehradun which,admittedly, is notified by the CBDT as abackward area, eligible for deduction undersection 80-IC of the Act.A copy of the Patwari'scertificateisattachedherewithatpages 135-140 of the paperbook c) The Patwari has, also, certified that theappellant'sunit is locatedin KhasraNo.262MiCentral Hope Town, Selaqui Industrial Area,Tehsil Vikas Nagar, District Dehradun which,admittedly, is notified by the CBDT as abackward area, eligible for deduction undersection 80-IC of the Act.A copy of theappellant'sunit is locatedin KhasraNo.262MiCentral Hope Town, Selaqui Industrial Area,Tehsil Vikas Nagar, District Dehradun which,admittedly, is notified by the CBDT as abackward area, eligible for deduction undersection 80-IC of the Act.A copy of the Patwari'scertificateisattachedherewithatpages 135-140 of the paperbook d) That apart, vide Notification No.115, dated26.04.2006, the CBDT had revised entry no.11in Notification No.177 (supra) and instead ofonly Selakul, even Central Hope Town andCamp Road were included under the same entryapart firom Village Selakui.As a corollary,Khasra No.262Mi falling under Central HopeTown, Selakui Industria Area, Tehsil VikasNagar, District Dehradun has been notified asarea eligibleunder section 80-IC of the Act.26.04.2006, the CBDT had revised entry no.11in Notification No.177 (supra) and instead ofonly Selakul, even Central Hope Town andCamp Road were included under the same entryapart firom Village Selakui.As a corollary,Khasra No.262Mi falling under Central HopeTown, Selakui Industria Area, Tehsil VikasNagar, District Dehradun has been notified asarea eligibleunder section 80-IC of the Act.e) That the appellant's units were subject toinspection by the Addl. Commissioner ofIncome-taxandtheLd.ADIT,duringtheassessmentfor AY 2004-05.However,in itsreport dated 29.12.2006, the Ld. ADIT, afterphysical verificationof the premises did notrecordanysuchfinding. The claimof deductionunder section 80-IB/IC in this regard havingbeen acceptedin the year in formation,it is notpossible to deny deduction in the succeeding without to revise the initialinspection by the Addl. Commissioner ofIncome-taxandtheLd.ADIT,duringtheassessmentfor AY 2004-05.However,in itsreport dated 29.12.2006, the Ld. ADIT, afterphysical verificationof the premises did notrecordanysuchfinding. The claimof deductionunder section 80-IB/IC in this regard havingbeen acceptedin the year in formation,it is notpossible to deny deduction in the succeeding without to revise the initialyears, seekingorder."order." 5.Aggrieved,the Revenuepreferredan appealbeforethe Tribunalon the said aspect. The Tribunal in the impugnedorder hasobserved:- "The next objection of the Assessing Officer isabout the geographicallocation of the assessee'sunit. We haveperusedtherecordcarefullyand findthat learnedAssessingOffice failedto construetherevenue record in right perspective.He hascompared the khasra number with a restricted It has been demonstratedbefore us thatapproach.the Board has extended the scope of industrialestatesbythe lastnotificationbearingNo.l15 dated26.4.2006 which is applicablefrom earlier periodalso.The Board has simplicitor removed theconfusion. In the latest notification, larger,area hasbeen shown as a industrial estates which includeskhasra number 262 MI Selokni. The area accordingto the new notification includes the areas whichwere alreadynotifiedplus CentralHope down. Thelearned counsel for the assessee has placed, onrecord report of the Patwari, wherein he hassubmitted that khasra No.262 MI is part of khasraNo.262.LearnedAssessingOfficerwasconsidering khasra No.262 and262MI asindependentkhasra number. The copy of the siteplan availablein the revenuerecord,exhibitingthegeographical location of each killa number andkhasra number was also filed before the LearnedCIT (Appeals)along with patwari'sreportand thisdocument has been placed before usalso.Therefore, we are convinced that there is noconfusion about the location of the assessee's units.are situatedwithinthenotifiedarea.They 15. Learned Assessing Officer has not raised anyother objection.Thebasis conditions forallowabilityof deductionunder sec. 80IB are alsosimilar. LearnedAssessingOfficerexceptpointingout that these two objectionshas not pointed outany other objection in assessment year 2004-05also. Therefore,after taking into considerationtheorders of the Learned CIT (Appeals) in all theassessment we do not find error inthemyears, anyon the issue sec. of granting deduction under80IB/80IC of the Income-tax Act, 1961. We rejectall thesegroundsofappealin all the years." 6.The aforesaidfindingsrecordedby the Tribunalare factual innature.nature. 7.Learned Standing Counsel for the Revenue submits that theCommissioner(Appeals)has relied upon certificateissued bythe Patwari but it is not clear whether the said certificate wasfiled before the Assessing Officer. Uncertaintycannot be aground. It is also not averredin the presentgroundsofappeali.e. the groundsofappeal filed beforeus that the assesseehadfiled a fresh or new certificate before the Commissioner(Appeals) and the said certificate should not have beenadmittedinevidence. Aperusalofthe assessmentorderrevealsthat the assesseehad filed a certificateof the Tehsildargivingdetailsincludingthe khasranumbers.Moreoverfrom the orderpassedby the Tribunalit is apparentthat the entire industrialtownshipin questionwas locatedin villageSelaquii.e. SelaquiIndustrial Area and Central Hope Town Industrial Area werenotified. No suchpleawas takenbeforethe Tribunal. 8. Before us, the learned Standing Counsel for Revenue hasproduced two notificationsdated 26.04.2006 but the earliernotificationhas not been produced.It is not possible todecipherfrom the said notificationsany fact which contradictsthe factual findingsrecordedby the Tribunal. At item No.(e)against colunm No.11, it is mentioned that village Selaqui,Central Hope Town and Camp Road shall be substituted. Incase, the Tribunalhad recorded wrong factual finding, theproduced two notificationsdated 26.04.2006 but the earliernotificationhas not been produced.It is not possible todecipherfrom the said notificationsany fact which contradictsthe factual findingsrecordedby the Tribunal. At item No.(e)against colunm No.11, it is mentioned that village Selaqui,Central Hope Town and Camp Road shall be substituted. Incase, the Tribunalhad recorded wrong factual finding, the Revenue should have ascertained true and correct facts andexamined the exact notification which was issued in 2003 andsubstituted by notificationdated 26.04.2006. It cannot beassumed that the finding of the Tribunal is perverse withoutspecific evidence or material being produced on record andspecificallyadvertedto and relied. The Commissioner,i.e. theappellanthas not examinedthe 2003 notificationandthe factualposition,buthas averredthatthe factualfindingrecordedby theTribunalis Evenreferredto inthe perverse. papers/documentsorder of the AssessingOfficer, Commissioner(Appeals) andTribunal have not been filed or referred to in the grounds ofappeals. In the absence of any material and evidence, wecannot state or hold that the findings of the Tribunal areperverse. 9.For the Assessment Year 2009-10, the factual position remainsthe same.the same. 10.In view of the aforesaidposition,we are not inclinedto issuenotice on these appeals and the same are dismissed. At therequestofthe counselfor the appellant,we clarifythatwe havenot examined the position prior to the issue of notificationdated 26.04.2006.^..-7,notice on these appeals and the same are dismissed. At therequestofthe counselfor the appellant,we clarifythatwe havenot examined the position prior to the issue of notificationdated 26.04.2006.^..-7, SANJIVKHANNA,J DECEMBER 09,2013/st SANJEEV SACHDEVA, J