1
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 20854 OF 2017
(ARISING OUT OF SPECIAL LEAVE PETITION (CIVIL) NO.4565 OF 2015)
DEPUTY COMMISSIONER OF INCOME-TAX,
CIRCLE 11 (1), BANGALORE …APPELLANT
VERSUS
M/S. ACE MULTI AXES SYSTEMS LTD. ...RESPONDENTS
WITH
CIVIL APPEAL NO. 20856 OF 2017
(ARISING OUT OF SPECIAL LEAVE PETITION (CIVIL) NO.8331 OF 2016)
WITH
CIVIL APPEAL NO. 20857 OF 2017
(ARISING OUT OF SPECIAL LEAVE PETITION (CIVIL) NO.3323 OF 2016)
WITH
CIVIL APPEAL NO. 20855 OF 2017
(ARISING OUT OF SPECIAL LEAVE PETITION (CIVIL) NO.148 OF 2016)
J U D G M E N T
ADARSH KUMAR GOEL, J.
Civil Appeal No. 20854 of 2017
(@ Special Leave Petition(Civil) No.4565 of 2015)
1. Leave granted. This appeal has been preferred against the
judgment and order dated 28th July, 2014 of the High Court of
Karnataka at Bangalore in Income Tax Appeal No.477 of 2013. The
High Court framed the following question of law for consideration :
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“When once the eligible business of an assessee is
given the benefit of deduction under Section 80 IB on
the assessee satisfying the conditions mentioned in
sub-sec. (2) of Section 80 IB, can the assessee be
denied the benefit of the said deduction on the
ground that during the said 10 consecutive years, it
ceases to be a small scale industry?”
2. The High Court answered the question in the negative and in
favour of the assessee. The revenue has questioned the said view.
3. The respondent assessee is engaged in manufacture and sale
of components/parts of CNC lathes and similar machines. Its
income was assessed for the assessment year 2005-2006 at
Rs.1,79,82,653/-. However, the Commissioner of Income Tax,
interfered with the assessment under Section 263 to the extent it
allowed deduction under Section 80 IB(3) of the Income Tax Act,
1961 (the Act) and directed fresh decision on the said issue vide
order dated 16th January, 2009. Thereafter, the Assessing
authority on 14th December, 2009 disallowed the claim of
Rs.75,81,910/- towards deduction under Section 80 (B(3). The
same was upheld by the Commissioner in appeal and the Income
Tax Appellate Tribunal in second appeal. However, the High Court
has reversed the said orders and upheld the claim.
4. The relevant Section is as follows :
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“80-IB. Deduction in respect of profits and
gains from certain industrial undertakings
other than infrastructure development
undertakings - (1) Where the gross total income of
an assessee includes any profits and gains derived
from any business referred to in sub-sections (3) to
(11), (11A) and (11B) (such business being
hereinafter referred to as the eligible business),
there shall, in accordance with and subject to the
provisions of this section, be allowed, in computing
the total income of the assessee, a deduction from
such profits and gains of an amount equal to such
percentage and for such number of assessment
years as specified in this section.
(2) This section applies to any industrial undertaking
which fulfils all the following conditions, namely :—
(i) it is not formed by splitting up, or the
reconstruction, of a business already in
existence:
Provided that this condition shall not apply in
respect of an industrial undertaking which is
formed as a result of the re-establishment,
reconstruction or revival by the assessee of the
business of any such industrial undertaking as
is referred to in section 33B, in the
circumstances and within the period specified
in that section;
(ii) it is not formed by the transfer to a new
business of machinery or plant previously used
for any purpose;
(iii) it 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 part of India :
Provided that the condition in this clause
shall, in relation to a small scale industrial
undertaking or an industrial undertaking
referred to in sub-section (4) shall apply as if
the words "not being any article or thing
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specified in the list in the Eleventh Schedule"
had been omitted.
Explanation 1.—For the purposes of clause (ii),
any machinery or plant which was used outside
India by any person other than the assessee
shall not be regarded as machinery or plant
previously used for any purpose, if the
following conditions are fulfilled, namely :—
(a) such machinery or plant was not, at any
time previous to the date of the installation by
the assessee, used in India;
(b) such machinery or plant is imported into
India from any country outside India; and
(c) no deduction on account of depreciation in
respect of such machinery or plant has been
allowed or is allowable under the provisions of
this Act in computing the total income of any
person for any period prior to the date of the
installation of the machinery or plant by the
assessee.
Explanation 2.—Where in the case of an
industrial undertaking, any machinery or plant
or any part thereof previously used for any
purpose is transferred to a new business and
the total value of the machinery or plant or
part so transferred does not exceed twenty per
cent of the total value of the machinery or
plant used in the business, then, for the
purposes of clause (ii) of this sub-section, the
condition specified therein shall be deemed to
have been complied with;
(iv) in a case where the industrial undertaking
manufactures or produces articles or things,
the undertaking employs ten or more workers
in a manufacturing process carried on with the
aid of power, or employs twenty or more
workers in a manufacturing process carried on
without the aid of power.
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(3) 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 (or twelve consecutive
assessment years where the assessee is a
co-operative society) beginning with the initial
assessment year subject to the fulfilment of the
following conditions, namely :—
(i) it begins to manufacture or produce,
articles or things or to operate such plant or
plants at any time during the period beginning
from the 1st day of April, 1991 and ending on
the 31st day of March, 1995 or such further
period as the Central Government may, by
notification in the Official Gazette, specify with
reference to any particular undertaking;
(ii) where it is an industrial undertaking being
a small scale industrial undertaking, it begins
to manufacture or produce articles or things or
to operate its cold storage plant [not specified
in sub-section (4) or sub-section (5)] at any
time during the period beginning on the 1st
day of April, 1995 and ending on the 31st day
of March, 2002.
(4) to (13) xxx xxx xxx
(14) For the purposes of this section,—
(a) "built-up area" means the inner
measurements of the residential unit at the
floor level, including the projections and
balconies, as increased by the thickness of the
walls but does not include the common areas
shared with other residential units;
(aa) "cold chain facility" means a chain of facilities
for storage or transportation of agricultural
produce under scientifically controlled
conditions including refrigeration and other
facilities necessary for the preservation of such
produce;
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(ab) "convention centre" means a building of a
prescribed area comprising of convention halls
to be used for the purpose of holding
conferences and seminars, being of such size
and number and having such other facilities
and amenities, as may be prescribed;
(b) "hilly area" means any area located at a
height of one thousand metres or more above
the sea level;
(c) "initial assessment year"—
(i) in the case of an industrial undertaking or
cold storage plant or ship or hotel, means the
assessment year relevant to the previous year
in which the industrial undertaking begins to
manufacture or produce articles or things, or to
operate its cold storage plant or plants or the
cold chain facility or the ship is first brought
into use or the business of the hotel starts
functioning;
(ii) in the case of a company carrying on
scientific and industrial research and
development, means the assessment year
relevant to the previous year in which the
company is approved by the prescribed
authority for the purposes of sub-section (8);
(iii) in the case of an undertaking engaged in
the business of commercial production or
refining of mineral oil referred to in sub-section
(9), means the assessment year relevant to
the previous year in which the undertaking
commences the commercial production or
refining of mineral oil;
(iv) in the case of an undertaking engaged in
the business of processing, preservation and
packaging of fruits or vegetables or in the
integrated business of handling, storage and
transportation of foodgrains, means the
assessment year relevant to the previous year
in which the undertaking begins such business;
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(v) in the case of a multiplex theatre, means
the assessment year relevant to the previous
year in which a cinema hall, being a part of the
said multiplex theatre, starts operating on a
commercial basis;
(vi) in the case of a convention centre, means
the assessment year relevant to the previous
year in which the convention centre starts
operating on a commercial basis;
(vii) in the case of an undertaking engaged in
operating and maintaining a hospital in a rural
area, means the assessment year relevant to
the previous year in which the undertaking
begins to provide medical services;
(d) "North-Eastern Region" means the region
comprising the States of Arunachal Pradesh,
Assam, Manipur, Meghalaya, Mizoram,
Nagaland, Sikkim and Tripura;
(da) "multiplex theatre" means a building of a
prescribed area, comprising of two or more
cinema theatres and commercial shops of such
size and number and having such other
facilities and amenities as may be prescribed;
(e) "place of pilgrimage" means a place where
any temple, mosque, gurdwara, church or
other place of public worship of renown
throughout any State or States is situated;
(f) "rural area" means any area other than—
(i) an area which is comprised within the
jurisdiction of a municipality (whether known
as a municipality, municipal corporation,
notified area committee, town area committee
or by any other name) or a cantonment board
and which has a population of not less than ten
thousand according to the preceding census of
which relevant figures have been published
before the first day of the previous year; or
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(ii) an area within such distance not being
more than fifteen kilometres from the local
limits of any municipality or cantonment board
referred to in sub-clause (i), as the Central
Government may, having regard to the stage
of development of such area including the
extent of, and scope for, urbanisation of such
area and other relevant considerations specify
in this behalf by notification in the Official
Gazette;
(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 (65 of 1951).”
5. Before we consider the issue of correct interpretation of the
above provision, it may be necessary to note the observations of
the statutory authorities and the High Court on the issue.
6. The assessment order dated 14th December, 2009, disallowing
the deduction is as follows :
“The same is not acceptable on the ground that the
value of plant and machinery has exceeded Rs.1
crores as per the depreciation schedule annexed to
the 3CD report which do not come under the purview
of the definition of small scale industry for the year
ending 04-05 (A.Y.05-06).
In view of the above, I am constrained to hold that
the assessee company is not eligible for claim of
80IB(3) deduction amounting to Rs.75,81,910/- and
hence same is disallowed.”
7. The Commissioner of Income Tax (Appeals) in order dated 15th
February, 2011 observed :
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“I agree with the learned CIT who while passing the
order u/s 263 has pointed out that the industrial
undertaking, here initially SSI unit, has to fulfil all
conditions in each of the block years of its
entitlement or otherwise such claim has to be denied.
He rightly points out that Section 80 IB(3) only forms
the basis of entitlement and its scope. The first
condition is that it must be a SSI unit in the year of
claim and entitlement Section 80 IB (14)(g) defines
what is a SSI and an exact date has been prescribed
therein so that AO can examine whether on that date
it is an SSI or not. The date is the last day of the
relevant previous year in this case 31.03.2005 and
such date is exclusively for the purpose of this section
only. Admittedly the investment in plant and
machinery on 31.03.2005 was i.e., Rs.4,05,21,730/-
which was more than the prescribed limit of that year
i.e., 1 crore. Hence it no longer remains a SSI and
hence the disallowance has to be held justified.
xxx xxx xxx
17. Summary:
Section 80 IB is an incentive provision. It stipulates
deduction in respect of profits and gains from certain
industrial undertakings. Within this section a plethora
of industries and business types have been given the
benefit of such deduction if they fulfill the conditions
mentioned in the concerned sub section of Section
80IB of the Act. Some of such concerns/industries are
ship, hotel multiplex, theatres, housing projects etc.
Sub-Section (2) of Section 80IB provides such
conditions for industrial undertakings including cold
storage and cold chain facility and also Small Scale
Industrial undertakings (in short henceforth SSIU). All
the four conditions mentioned in Section 80IB (2)
must be fulfilled to make the industrial undertaking
eligible for the benefit of the claim u/s 80IB of the I.T.
Act. Condition No.1 is that the industrial undertaking
must not have been formed by splitting up or
reconstruction of a business already in existence with
an exception that in case of units specified u/s 33B of
the I.T. Act this condition will not apply. The second
condition is that such undertaking must not have
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been formed by transfer of machinery or plant
previously used with the exception that the value of
such machinery and plant previously used must not
exceed 20% of the value of the total cost of the plant
and machinery of such industrial undertaking. The
third condition is that the industrial undertaking must
produce or manufacture any article or thing other
than any article or thing specified in the Eleventh
Schedule. Exception to this third condition is that an
SSIU can avail the 80IB benefit even if manufactures
or produces articles or things specified in Eleventh
Schedule. The fourth condition is that the industrial
undertaking running with the aid of power must not
have less than 10 employees and if it is run without
power, the number of employees must be more than
20 employees. Thus all the four conditions
narrated above must be fulfilled if the
industrial undertaking desires to avail benefit
u/s 80IB of the I.T. Act. For a SSIU there is also
an extra condition i.e., it must be an SSI unit as
per explanation (g) given in 80IB (14) of I.T. Act
which refers to Section 11B of the IDR Act 1951
which in turn prescribes a limit for investment
in plant and machinery to designate the
industrial undertaking as SSI unit. Thus out of
these five conditions, the first two conditions
may be called static or unchangeable. In other
words if in the initial year of manufacture or
production it is substantiated that it has
fulfilled these two conditions the A.O. cannot
on this ground in subsequent eligible years of
the block period deny the benefit u/s 80IB. The
rest three conditions are volatile and unstable.
The industrial undertaking must show in each
subsequent year of claim that these three
conditions have not been violated. Such claims
of the assessee has to face the analysis and
scrutiny of the A.O. Thus, since each A.Y. is
separate and independent, the revenue
authorities had every power to examine and
analyse the facts and figures as well as
relevant law points of each year to find out
whether all these three conditions are fulfilled
or not. It is also the ratio of the cited case of Natraj
Stationery 312 ITR 22 (Delhi) vide page 14 supra. It
has been stated in that case that the first two
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conditions have already been satisfied and it is
assumed that the fourth condition has been fulfilled
in that year and hence the relief. The same is also
the ratio in the case of – M/s. Janak Dehydration
(P) Limited vs. Asst. CIT (2010) 134 TTJ Ahd.
D-Trib-1. The facts of that case was that the assessee
was allowed deduction u/s 80IB from 1993-94 to
2002-03 but in the A.Y. 2003-04 the claim was
disallowed on the ground that in the initial year the
industrial unit has been formed by reconstruction or
splitting up of the existing unit. The ITAT held that it
is not open to the A.O. to doubt the earlier
acceptance of the department in respect of
reconstruction and splitting up to deny the claim in
subsequent year because that violates the principles
of consistency. But it also laid down that –
“Under the I.T. Act each year is a
separate unit of assessment and
taxable income as well as tax
liability are to be determined
keeping in view of the facts
prevailing in that year and the law
as applicable in that year.”
In the light of the above legal matrix as elaborated in
Para 15 above it can be palpably seen that the
appellant has violated, the mandatory fifth condition.
It is not doubted that in the initial A.Y. the appellant
was an SSI unit, but in the A.Y. 2005-06 the
investment in plant and machinery has admittedly
exceeded the prescribed limit of Rs.1 Crore.
Therefore, it cannot be held as an SSIU. Thus the fifth
condition being violated openly and admittedly by the
appellant, the relief sought for has to be denied in the
A.Y. 2005-06.
18. In view of the above, addition/disallowance is
upheld. Appeal is dismissed.”
8. The ITAT in its order dated 24th May, 2013 observed :
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“5.3.6. Taking into account all the facts and
circumstances of the issue as discussed in the
foregoing paragraphs and also, as rightly
highlighted by the AO, the value of plant and
machinery had exceeded Rs.1 crore during the
year under consideration which incidentally
deprive the assessee to call itself as a Small
Scale Industry, we are of the considered view
that the authorities below were justified in
denying the assessee’s claim for deduction u/s
80-IB(3) of the Act. It is ordered accordingly.”
9. Considering the question framed by it, the High Court held :
“5. In the entire provision, there is no indication
that these conditions had to be fulfilled by the
assessee all the 10 years. When once the benefit of
10 years, commencing from the initial year, is
granted, if the undertaking satisfy all these
conditions initially, the undertaking is entitled to the
benefit of 10 consecutive years. The argument that,
in the course of 10 years, if the growth of the
industry is fast and it acquires machinery and the
total value of the machinery exceeds Rs.1 crore, it
ceases to have the said benefit, do not follow from
any of the provisions. It is true that there is no
express provision indicating either way, what would
be the position if the small scale industry ceases to
be a small scale industry during the said period of 10
years. Because of that ambiguity, a need for
interpretation arises. If we keep in mind the object of
the Legislature providing for these incentives and
when a period of 10 years is prescribed, that is the
period, probably, which is required for any industry
to stabilize itself. During that period the industry not
only manufactures products, it generates
employment and it adds to the wealth of the country.
Merely because an industry stabilizes early,
makes profits, makes future investment in the
said business, and it goes out of the definition
of the small scale industry, the benefit under
Sec. 80IB cannot be denied. If such a literal
interpretation is placed on the said provision, it
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would run counter to the very object of granting
incentives. It would kill the industry. Therefore,
keeping in mind the object with which these
provisions are enacted, keeping in mind the
industrial growth which is required to be achieved, if
two interpretations are possible, the courts have to
lean in favour of extending the benefit of deduction
to an assessee who has availed the opportunity
given to him under law and has grown in his
business. Therefore we are of the view, if a small
scale industry, in the course of 10 years, stabilizes
early, makes further investments in the business and
it results in it’s going outside the purview of the
definition of a small scale industry, that should not
come in the way of its claiming benefit under
Sec.80IB for 10 consecutive years, from the initial
assessment year. Therefore, the approach of the
authorities runs counter to the scheme and the
intent of the Legislature. Thereby they have denied
the legitimate benefit, an incentive granted to the
assessee. Both the said orders cannot be sustained.
Therefore the substantial question of law is
answered in favour of the assessee and against the
Revenue.” (emphasis in
quotations is ours)
10. Section 80 IB is in Chapter VI A of the Act which provides for
deductions to be allowed from total income which is to be
computed under the relevant provisions. The scheme is to provide
incentives for purposes mentioned in different provisions of the
said Chapter. Section 80 IB provides for deductions of specified
percentage from the profits and gains of the specified industrial
undertakings other than infrastructure development undertakings
(which are separately dealt with under Section 80 IA). The clause
relevant for purposes of this appeal is Clause 2 which makes the
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deductions permissible in respect of industrial undertakings
fulfilling the conditions specified therein. The scheme applies to
small scale industrial undertakings as defined in Clause 14(g)
which in terms refers to Section 11 B of the Industries
(Development and Regulation) Act, 1951. The extent of deduction
permissible is mentioned in Clause 3 which is 25% (30% in the
case of a company) of the profits and gains derived from such
industrial undertakings for 10 consecutive assessment years
beginning with the initial assessment. The ‘initial assessment
year’ is defined in Clause 14 (c) as the year in which
manufacturing/production commences.
11. As already noted, the question for consideration is whether
deduction under Clause 3 for 10 consecutive assessment years
remains permissible irrespective of compliance of conditions
subject to which the said deduction is permitted in the relevant
assessment years. For purposes of deduction, the industrial
undertakings covered by Section 80 IB are of different categories.
Under the second proviso to Clause 2, disqualification applicable to
industrial undertaking, other than small scale industrial
undertakings, i.e., not being in 8th Schedule is not applicable. The
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small scale industrial undertakings eligible are only those which
begin manufacture or produce, articles or things during the
beginning of 1st day of April, 1995 and ending on 31st day of
March, 2002 [Clause 3(ii)]. For other categories of industrial
undertakings, different periods are prescribed, e.g. under
sub-clause (i) of Clause (3).
12. The scheme of the statute does not in any manner indicate
that the incentive provided has to continue for 10 consecutive
years irrespective of continuation of eligibility conditions.
Applicability of incentive is directly related to the eligibility and not
de hors the same. If an industrial undertaking does not remain
small scale undertaking or if it does not earn profits, it cannot
claim the incentive. No doubt, certain qualifications are required
only in the initial assessment year, e.g. requirements of initial
constitution of the undertaking. Clause 2 limits eligibility only to
those undertakings as are not formed by splitting up of existing
business, transfer to a new business of machinery or plant
previously used. Certain other qualifications have to continue to
exist for claiming the incentive such as employment of particular
number of workers as per sub-clause 4(i) of Clause 2 in an
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assessment year. For industrial undertakings other than small scale
industrial undertakings, not manufacturing or producing an article
or things specified in 8th Schedule is a requirement of continuing
nature.
13. On examination of the scheme of the provision, there is no
manner of doubt that incentive meant for small scale industrial
undertakings cannot be availed by industrial undertakings which
do not continue as small scale industrial undertakings during the
relevant period. Needless to say, each assessment year is a
different assessment year, except for block assessment
14. The observations in the impugned order are that the object of
legislature is to encourage industrial expansion which implies that
incentive should remain applicable even where on account of
industrial expansion small scale industrial undertakings ceases to
be small scale industrial undertakings. We are unable to
appreciate the logic for these observations. Incentive is given to a
particular category of industry for a specified purpose. An incentive
meant for small scale industrial undertaking cannot be availed by
an assessee which is not such an undertaking. It does not, in any
manner, mean that the object of permitting industrial expansion is
17
defeated, if benefit is not allowed to other undertakings. On this
logic, incentive must be given irrespective of any condition as the
incentive certainly helps further expansion by reducing the tax
burden. The concept of vertical equity is well known under which
all the assessees need not be uniformally taxed. Progressive
taxation is a well known element of tax policy. Higher slabs of tax
or higher tax burden on an assessee having higher income or
higher capacity cannot in any manner, be considered
unreasonable.
15. We may now refer to some of the decisions which have been
cited at the bar. It is submitted on behalf of the assessee that a
provision relating to incentive should be construed liberally to
advance the objective of the provision. Reliance has been placed
on Bajaj Tempo Ltd. versus CIT1
. Therein the assessee claimed
exemption meant for a new industrial undertaking which had not
been formed by transfer of earlier business in terms of Section 15C
of the Income Tax Act, 1922. After recording a finding of fact that
the assessee was a genuine new industrial undertaking, it was
observed that a provision of a taxing statute granting incentive for
promoting growth and development should be construed liberally.
1 (1992) 196 ITR 188 (SC) = (1992) 3 SCC 78
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The judgment is distinguishable. Construing liberally does not
mean ignoring conditions for exemption. The main issue
considered in the said judgment was that though the undertaking
was a genuine ‘new industrial undertaking’ which was the
qualification for the exemption, a nominal part of the undertaking
was out of the existing undertaking and building of an existing
undertaking was taken on lease. The relevant observations are :
“9. Initial exercise, therefore, should be to find out if
the undertaking was new. Once this test is satisfied
then clause (i) should be applied reasonably and
liberally in keeping with spirit of Section 15-C(1) of
the Act. While doing so various situations may arise
for instance the formation may be without anything
to do with any earlier business. That is the
undertaking may be formed without splitting up or
reconstructing any existing business or without
transfer of any building material or plant of any
previous business. Such an undertaking undoubtedly
would be eligible to benefit without any difficulty. On
the other extreme may be an undertaking new in its
form but not in substance. It may be new in name
only. Such an undertaking would obviously not be
entitled to the benefit. In between the two there may
be various other situations. The difficulty arises in
such cases. For instance a new company may be
formed, as was in this case a fact which could not be
disputed, even by the Income Tax Officer. But tools
and implements worth Rs 3,500 were transferred to
it of previous firm. Technically speaking it was
transfer of material used in previous business. One
could say as was vehemently urged by the learned
counsel for the department that where the language
of statute was clear there was no scope for
interpretation. If the submission of the learned
counsel is accepted then once it is found that the
material used in the undertaking was of a previous
business there was an end of inquiry and the
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assessee was precluded from claiming any benefit.
Words of a statute are undoubtedly the best guide.
But if their meaning gets clouded then courts are
required to clear the haze. Sub-section (2) advances
the objective of sub-section (1) by including in it
every undertaking except if it is covered by clause (i)
for which it is necessary that it should not be formed
by transfer of building or machinery. The restriction
or denial of benefit arises not by transfer of building
or material to the new company but that it should
not be formed by such transfer. This is the key to the
interpretation. The formation should not be by such
transfer. The emphasis is on formation not on use.
Therefore it is not transfer of building or material but
the one which can be held to have resulted in
formation of the undertaking. In Textile Machinery
Corporation Ltd. v. CIT [(1977) 2SCC 368] this Court
while interpreting Section 15-C observed : (SCC p.
375, para 18)
“The true test, is not whether the new
industrial undertaking connotes
expansion of the existing business of
the assessee but whether it is all the
same a new and identifiable
undertaking separate and distinct from
the existing business. No particular
decision in one case can lay down an
inexorable test to determine whether a
given case comes under Section 15-C
or not. In order that the new
undertaking can be said to be not
formed out of the already existing
business, there must be a new
emergence of a physically separate
industrial unit which may exist on its
own as a viable unit. An undertaking is
formed out of the existing business if
the physical identity with the old unit
is preserved.”
Even though this decision was concerned with the
clause dealing with reconstruction of existing
business but the expression ‘not formed’ was
construed to mean that the undertaking should not
20
be a continuation of the old but emergence of a new
unit. Therefore even if the undertaking is established
by transfer of building, plant or machinery but it is
not formed as a result of such transfer the assessee
could not be denied the benefit.”
16. The principle of law considered in Bajaj Tempo (supra) is
certainly a valid principle of interpretation where there is
ambiguity or absurdity or where conditions of eligibility are
substantially complied. In the present case, the scheme of the
statute is clear that the incentive is applicable to a small scale
industrial undertaking. The intention of legislature is in no manner
defeated by not allowing the said incentive if the assessee ceases
to be the class of industrial undertaking for which the incentive is
provided even if it was eligible in the initial year. Each assessment
year is a separate unit.
17. In Citizen Cooperative Society Limited versus Assistant
Commissioner of Income Tax, Circle-9(1), Hyderabad2
this
Court considered the incentive under Section 80-P meant for a
primary agricultural credit society or a primary cooperative
agricultural and rural development bank. The assessee was held
not to be entitled to the said incentive as business of the assessee
was held to be finance business to which the incentive was not
2 391 ITR 1 = (2017) 9 SCC 364
21
admissible even though the principle of liberal interpretation in
terms of Bajaj Tempo (supra) was applied.
18. In State of Haryana versus Bharti Teletech Ltd.3
,
eligibility of an assessee to get benefit of exemption from tax was
an issue. It was observed that while the exemption notification
should be liberally construed, the beneficiary must fall within the
ambit of the exemption and fulfill the conditions thereof. In case
such conditions are not fulfilled, the issue of application of the
notification does not arise. The principle of interpretation in the
judgment in Bajaj Tempo (supra) and other judgments was dealt
with as follows :
“22. We will be failing in our duty if we do not
address a submission, albeit the last straw, of Mr. Jain
that any provision relating to grant of exemption, be
it under a rule or notification, should be considered
liberally. In this regard, we may profitably refer to the
decision in Hansraj Gordhandas v. CCE and Customs
[AIR 1970 SC 755] wherein it has been held as
follows: (AIR p. 759, para 5)
“5. … It is well established that in a taxing
statute there is no room for any
intendment but regard must be had to the
clear meaning of the words. The entire
matter is governed wholly by the language
of the notification. If the tax-payer is
within the plain terms of the exemption it
cannot be denied its benefit by calling in
aid any supposed intention of the
exempting authority. If such intention can
3 (2014) 3 SCC 556
22
be gathered from the construction of the
words of the notification or by necessary
implication therefrom, the matter is
different.”
23. In CST v. Industrial Coal Enterprises [(1999) 2
SCC 605], after referring to CIT v. Straw Board Mfg.
Co. Ltd. [(1989 (Supp.) 2 SCC 529] and Bajaj Tempo
Ltd. v. CIT, the Court ruled that an exemption
notification, as is well known, should be construed
liberally once it is found that the entrepreneur fulfils
all the eligibility criteria. In reading an exemption
notification, no condition should be read into it when
there is none. If an entrepreneur is entitled to the
benefit thereof, the same should not be denied.
24. In this context, reference to T.N. Electricity Board
v. Status Spg. Mills Ltd.[(2008) 7 SCC 353] would be
fruitful. It has been held therein: (SCC p. 367, para
32)
“32. It may be true that the exemption
notification should receive a strict
construction as has been held by this
Court in Novopan India Ltd. v. CCE and
Customs[ 1994 (Supp) 3 SCC 606], but it
is also true that once it is found that the
industry is entitled to the benefit of
exemption notification, it would received
a broad construction. (See TISCO Ltd. v.
State of Jharkhand[(2005) 4 SCC 272]
and A.P. Steel Re-Rolling Mill Ltd. v. State
of Kerala[(2007) 2 SCC 725].) A
notification granting exemption can be
withdrawn in public interest. What would
be the public interest would, however,
depend upon the facts of each case.”
25. From the aforesaid authorities, it is clear as
crystal that a statutory rule or an exemption
notification which confers benefit on the assessee on
certain conditions should be liberally construed but
the beneficiary should fall within the ambit of the rule
or notification and further if there are conditions and
violation thereof are provided, then the concept of
23
liberal construction would not arise. Exemption being
an exception has to be respected regard being had to
its nature and purpose. There can be cases where
liberal interpretation or understanding would be
permissible, but in the present case, the rule position
being clear, the same does not arise.”
19. Same view was taken in Commissioner of Customs versus
M. Ambalal & Co.4
as follows :
“16. It is settled law that the notification has to be
read as a whole. If any of the conditions laid down in
the notification is not fulfilled, the party is not entitled
to the benefit of that notification. The rule regarding
exemptions is that exemptions should generally be
strictly interpreted but beneficial exemptions having
their purpose as encouragement or promotion of
certain activities should be liberally interpreted. This
composite rule is not stated in any particular
judgment in so many words. In fact, majority of
judgments emphasise that exemptions are to be
strictly interpreted while some of them insist that
exemptions in fiscal statutes are to be liberally
interpreted giving an apparent impression that they
are contradictory to each other. But this is only
apparent. A close scrutiny will reveal that there is no
real contradiction amongst the judgments at all. The
synthesis of the views is quite clearly that the general
rule is strict interpretation while special rule in the
case of beneficial and promotional exemption is
liberal interpretation. The two go very well with each
other because they relate to two different sets of
circumstances.”
20. In State of Jharkhand versus Ambay Cements5
, the
question was whether exemption for newly set up industrial units
was applicable to the assessee therein. The High Court having
4 (2011) 2 SCC 74
5 (2005) 1 SCC 368
24
allowed the benefit even though the assessee did not qualify for
the same, this Court reversed the view of the High Court and held
that the conditions for grant of exemption from tax are mandatory
and in absence thereof exemption could not be granted.
Distinguishing the judgments of this Court in Bajaj Tempo
(supra), it was observed :
“23. Mr Bharuka further submitted that in taxing
statutes, provision of concessional rate of tax should
be liberally construed and in respect of the above
submission, he cited the judgment of this Court in
CST v. Industrial Coal Enterprises [(1992) 3 SCC 78]
and in the case of Bajaj Tempo Ltd. v. CIT. We are
unable to countenance the above submission. In our
view, the provisions of exemption clause should be
strictly construed and if the condition under which the
exemption was granted stood changed on account of
any subsequent event the exemption would not
operate.
24. In our view, an exception or an exempting
provision in a taxing statute should be construed
strictly and it is not open to the court to ignore the
conditions prescribed in the industrial policy and the
exemption notifications.
25. In our view, the failure to comply with the
requirements renders the writ petition filed by the
respondent liable to be dismissed. While mandatory
rule must be strictly observed, substantial compliance
might suffice in the case of a directory rule.
26. Whenever the statute prescribes that a particular
act is to be done in a particular manner and also lays
down that failure to comply with the said requirement
leads to severe consequences, such requirement
would be mandatory. It is the cardinal rule of
interpretation that where a statute provides that a
25
particular thing should be done, it should be done in
the manner prescribed and not in any other way. It is
also settled rule of interpretation that where a statute
is penal in character, it must be strictly construed and
followed. Since the requirement, in the instant case,
of obtaining prior permission is mandatory, therefore,
non-compliance with the same must result in
cancelling the concession made in favour of the
grantee, the respondent herein.”
21. In view of the above judgments, we do not see any difference
in the situation where the assessee, is not initially eligible, or
where the assessee though initially eligible loses the qualification
of eligibililty in subsequent assessment years. In both such
situations, principle of interpretation remains the same.
22. Thus, while there is no conflict with the principle that
interpretation has to be given to advance the object of law, in the
present case, the assessee having not retained the character of
‘small scale industrial undertaking’, is not eligible to the incentive
meant for that category. Permitting incentive in such case will be
against the object of law.
23. For the above reasons, we hold that the assessee is not
entitled to benefit of exemption if it loses its eligibility as a small
scale industrial undertaking in a particular assessment year even if
in initial year eligibility was satisfied.
26
The appeal is accordingly disposed of in the above terms.
Civil Appeal No. 20856 of 2017
(@ Special Leave Petition(Civil) No.8331 of 2016)
Civil Appeal No. 20857 of 2017
(@ Special Leave Petition(Civil) No.3323 of 2016)
Civil Appeal No. 20855 of 2017
(@ Special Leave Petition(Civil) No.148 of 2016)
24. Leave granted. In view of the judgment in the main matter,
these appeals are disposed of in the same terms.
25. The assessing authority may pass an order of compliance by
applying the above principle to the facts of individual cases.
…………………………………..J.
[RANJAN GOGOI]
…………………………………..J.
[ADARSH KUMAR GOEL]
…………………………………..J.
[NAVIN SINHA]
NEW DELHI;
5
TH DECEMBER, 2017.
