Itxa/1100/2013 Of The Commissioner Of Income Tax -Ii Pune v. High Power Engg. Co Pvt. Ltd

IN THE HIGH COURT OF JUDICATURE AT BOMBAYORDINARY ORIGINAL CIVIL JURISDICTION INCOME TAX APPEAL (L) NO.1913 OF 2012WITHINCOME TAX APPEAL (L) NO.1914 OF 2012 The Commissioner of Income-Tax-III, Pune...Appellant.V/s.High Power Engg. Co. Pvt. Ltd...Respondent. Mr. Tejveer Singh, for the Appellant in both the matters.Mr. Mihir Naniwadekar, for the Respondent in both the matters. CORAM: J.P.DEVADHAR & M.S.SANKLECHA,JJ.DATE : 21[st] FEBRUARY, 2013. P.C:-Office objections waived. 2In these Appeals for the Assessment Years 2005-06 and 2006-07, several common questions have been raised by the Revenue. However, Mr. Singh appearing for the Appellant only presses common Question No.1 which reads as under:- Whether on the facts and in the circumstances of the case and in law, the Tribunal is correct in deciding that the assessee company is entitled to deduction under Section 80IB(3)(ii) of the Income-tax Act, ignoring the fact that the assessee has not fulfilled the conditions laid down under Section 80IB(3)(ii) read with Section 80IB(14)(g) of the Income-tax Act, 1961? 3By the impugned order, the Tribunal upheld the finding of the CIT(A) that the deduction under Section 80IB of the Income Tax Act, 1961 (the said Act) is available to the Respondent-Assessee. The Revenue objects to the grant of benefit of Section 80IB of the said Act on two grounds as under:- (i)Respondent-Assessee had made investment in plant and machinery in excess of more than Rs.1 Crore and; (ii)Respondent-Assessee has not taken any concrete steps for implementing its projects. 4The finding of fact arrived at by the Tribunal is that the Respondent-Assessee had prior to 24[th] December, 1999 invested in plant and machinery in excess of Rs. 1 Crore but less than Rs.3 Crores. At that time i. e. prior to December, 1999, the upper limit for Small Scale Units under the Industries (Development & Regulation) Act, 1951 was Rs. 3 Crores as investment in plant and machinery. On 24[th] December, 1999 the limit of investments of plant and machinery in Small Scale Industries was brought down to Rs.1 Crore. However, the Development Commissioner on 19[th] October, 2000 had issued a clarification that units which have been registered prior 24[th] December, 1999 and have also taken concrete steps for implementing the project would continue to enjoy status of the SSI so long as investment in plant and machinery does not exceed Rs.3 Crores. Thus the objection of the Revenue that for the Assessment Year under consideration, is not sustainable as even under the Industrial (Development & Regulation), Act, 1951 where investment is done in plant and machinery in excess of Rs.1 Crore, but less then Rs.3 Crores prior to 24[th] December, 1999, it would be considered to be as SSI Unit. Therefore, the benefit of Section 80IB of the said Act is available to the Respondent-Assessee. 5So far as second objection of the Revenue is concerned, the Tribunal records a finding of fact that the Respondent-Assessee had been continuously investing in the fixed assets of the Industrial undertaking. This fact is sufficient proof of the concrete steps being taken for implementing the project. Thus, the second objection of the Revenue is not sustainable on finding of fact. 6In view of the fact that the decision of the Tribunal is based on finding of fact, we see no reason to entertain proposed question of law. 7Accordingly, appeal is dismissed with no order as to costs. (M.S.SANKLECHA,J.) (J.P.DEVADHAR,J.)