BHAVANI GEMS, MUMBAI V. DCIT 16(3), MUMBAI

ITA 6459/MUM/2011

• Counselvise Citation: [2013] 140 COUNSELVISE.COM (IT) 71749 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 2 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 22-11-2013
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: B
• Next Hearing Date: 02-01-2013
• Assessment Year: 2008-2009
• Appeal Filed On: 22-09-2011
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: SU RENDRA KUMAR
• Assessee Lawyers: R G TRALSHAWALA
• Keywords: Depreciation; Additional depreciation; Question of law
• Section: 32; 143(3)

Judgement Text

, INCOME TAX APPELLATE TRIBUNAL,MUMBAI - B BENCH. . , !' # $%&' , % () BEFORE S/SH.D.MANMOHAN,VICE-PRESIDENT & RAJENDR A,ACCOUNTANT MEMBER ./ ITA NO. 6459/M/2011, + ,/ ASSESSMENT YEAR-2008-09 M/S. BHAVANI GEMS, 101, PRASAD CHAMBERS, M.P. MARG, OPERA HOUSE MUMBAI 400004 DCIT 16(3) MUMBAI PAN: AAAFB2302G -. / % / APPELLANT BY :SHRI. R.G.TRALSHA WALA / RESPONDENT BY :SHRI. SURENDRA KUMAR 0 1 / DATE OF HEARING : 13/11/2013 / DATE OF PRONOUNCEMENT : 22/11/2013 PER RAJENDRA, A.M. CHALLENGING THE ORDER DATED 20.06.2011OF THE CIT(A) -27,MUMBAI ASSESSEE-FIRM HAS FILED BELOW MENTIONED GROUNDS OF APPEAL: 1)IN LAW AND ON THE FACTS & IN THE CIRCUMSTANCES OF THE APPELLANTS CASE, THE HONBLE C.LT.(A) ERRED IN ARBITRARILY, FOLLOWING THE DECISIONS OF HO NBLE SUPREME COURT IN CASE OF CIT VS. GEM INDIA MANUFACTURING (2001) 249 ITR 307,A DECISION A RRIVED AT IN ABSENCE OF CERTAIN BASIC FACTS BROUGHT TO THEIR LORDSHIPS, (ON WHICH RELIANCE WAS HEAVILY PLACED BY THE LD. ASSESSING OFFICER FRAMING THE ASSESSMENT ORDER), AND IGNORING SUBSEQU ENT DECISIONS OF THE APEX COURT AS ALSO THE DEFINITION OF THE TERM MANUFACTURE IN SECTION 2(2 98A), WITHOUT APPRECIATING THE FACTS OF THE APPELLANTS CASE. THUS, THE ORDER CONFIRMING THE NO N ALLOWABILITY OF DEPRECIATION, MUST BE ANNULLED. 2)IN LAW AND ON THE FACTS & IN THE CIRCUMSTANCES OF THE APPELLANTS CASE, THE HONBLE C.LT.(A) FAILED TO APPRECIATE THE PRINCIPLES LAID DOWN IN VA RIOUS DECISIONS, RELIED UPON BY THE APPELLANT FIRM AND ALSO TO DISTINGUISH THE SAME. THE HONBLE C.L.T.(A), GROSSLY FAILED TO GIVE APPROPRIATE CONSIDERATION TO THE INTENTION OF LEGISLATION IN DE FINING THE TERM MANUFACTURE, WHICH WAS RELIED UPON BY THE APPELLANT FIRM. 3)IN LAW AND ON THE FACTS & IN THE CIRCUMSTANCES OF THE APPELLANTS CASE, THE HONBLE C.I.T.(A) FAILED TO APPRECIATE THE FACT THAT ON ONE HAND, ON THE FACE OF THE ASSESSMENT ORDER ITSELF, THE LD. A.O. HAS TREATED THE APPELLANT AS MANUFACTURER AN D EXPORTER OF CUT AND POLISHED DIAMONDS, BUT WHILE FRAMING THE ASSESSMENT, TREATED THE APPEL LANT AS NOT A MANUFACTURER AND AS A CONSEQUENCE, NOT ENTITLED TO ADDITION DEPRECIATION ON PLANT & MACHINERY. 4)THE APPELLANT CRAVES LEAVE TO ADD, AMEND, SUBSTIT UTE, RESCIND AND BR ALTER ALL/ANY GROUNDS OF APPEAL BEFORE OR AT THE TIME OF HEARING. 2 ITA NO.6459/M/2011 ASSESSEE,ENGAGED IN THE BUSINESS OF MANUFACTURING A ND EXPORT OF CUT & POLISHED DIAMONDS,FILED ITS RETURN OF INCOME ON 25.09.2008 DECLARING TOTAL INCOME OF RS.27.03 CRORES. ASSESSING OFFICER(AO)FINALISED THE ASSESSMENT U/S. 143(3) OF THE ACT ON 23.12.2010 DETERMINING THE TOTAL INCOME OF THE ASSESSEE AT RS.28.19 CRORES. 2 .EFFECTIVE GROUNDS OF APPEAL IS ABOUT DISALLOWANCE MADE BY THE AO ON GROUND THAT ASSESSEE FIRM WAS NOT MANUFACTURING ANY ARTICLE OR THING AND HENCE WAS NOT ENTITLED TO ADDITIONAL DEPRECIA -TION.DURING THE ASSESSMENT AO FOUND THAT ASSESSEE HAD CLAIMED DEPRECIATION @ OF 35% FOR A NEW PLANT AND MACHINERY,THAT ASSESSEE HAD CLAIMED A DDITIONAL DEPRECIATION TO THE TUNE OF RS.1. 16 CRORES, BEING 20% OVER AND ABOVE NORMAL DEPRECIA TION.AO HELD THAT ADDITIONAL DEPRECIATION WAS ALLOWABLE TO AN ASSESSEE WHO WAS ENGAGED IN MAN UFACTURING/PRODUCTION OF ANY ARTICLE OR THING ON ELIGIBLE PLANT AND MACHINERY IF THE SAME W AS ACQUIRED AND INSTALLED AFTER 31.03.2005. HE FOUND THAT FOR THE YEAR UNDER CONSIDERATION THERE W AS ADDITION IN A PLANT AND MACHINERY AMOUNTI- ING TO RS.6.74 CRORES THAT WAS CLAIMED TO HAVE BEEN INSTALLED.RELYING UPON THE DECISION OF THE GEM INDIA MANUFACTURING CO.,DELIVERED BY THE HONBL E SUPREME COURT (249 ITR 307),HE HELD THAT CUTTING AND POLISHING ON DIAMOND COULD NOT BE TERMED MANUFACTURING OR PRODUCTION OF ARTICLE OR THING. THEREFORE, ADDITIONAL DEPRECIATION CLAIME D BY THE ASSESSEE AMOUNTING TO RS.1.16 CORES WAS DISALLOWED AND WAS ADDED BY THE TOTAL INCOME OF THE ASSESSEE. 3 .THE ASSESSEE PREFERRED A APPEAL BEFORE THE FIRST A PPELLATE AUTHORITY(FAA), AUTHORIZED REPRESENTATIVE (AR) BY THE ASSESSEE FIRM FILED WRIT TEN SUBMISSIONS BEFORE THE FAA AND RELIED UPON THE DECISION OF HONBLE SUPREME COURT IN CASE OF EMPEE POLY YARN P. LTD, ORACLE SOFT WARE INDIA LIMITED, AND ARIHANT TILES & MARBLES PVT . LTD. HE ARGUED THAT ACTIVITY UNDERTAKEN BY THE ASSESSEE WAS MANUFACTURING. AFTER CONSIDERING T HE SUBMISSIONS OF THE ASSESSEE,HE HELD THAT WHETHER CUTTING AND POLISHING OF DIAMONDS AMOUNTED TO MANUFACTURING/PRODUCTION WAS NOT DECIDED BY THE HONBLE SUPREME COURT IN THE CASES O F THAT ISSUE WAS COVERED BY A DIRECT DECISION OF THE HONBLE APEX COURT. ACCORDINGLY, HE DECIDED THE APPEAL AGAINST THE ASSESSEE. 4 .BEFORE US, AR SUBMITTED THAT IN THE CASE OF SHEETA L DIAMONDS LIMITED, (ITA NO.6687-6689/ MUM/2003, ASSESSMENT YEARS 1996-97,1997-98& 1998-99 ) J BENCH OF MUMBAI TRIBUNAL HAS DECIDED THE ISSUE IN FAVOUR OF THE ASSESSEE BY HOLD ING THAT CUTTING AND POLISHING OF DIAMONDS HAD TO BE CONSIDERED MANUFACTURING, THAT IN THE CASE OF PARMES DIAMOND EXPORTS PVT. LTD.(ITA NO. 1073-1075/MUM/2009- A.YS.1998-99,1999-2000 &2000-01 DATED 25.01.2012) C BENCH OF MUMBAI TRIBUNAL HAS FOLLOWED ORDER OF SHEETAL DIAMO NDS LIMITED, THAT THE ISSUED WAS COVERED IN FAVOUR OF THE ASSESSEE. DEPARTMENTAL REPRESENTAT IVE (DR) SUPPORTED THE ORDER OF AO AND FAA. 5. WE HAVE HEARD THE RIVAL SUBMISSION AND PERUSED MATE RIAL ON RECORDS.WE FIND THAT WHILE DECIDING THE CASE OF SHEETAL DIAMONDS LIMITED(SUPRA ),J BENCH OF MUMBAI TRIBUNAL HAS RELIED UPON THE CASE OF ARIHANT TILES AND MARBLES P.LTD.(A TMPM),(320 ITR 79-SC),WHEREAS AO AND THE FAA HAVE RELIED UPON THE JUDGMENT DELIVERED BY THE HONBLE APEX COURT IN THE CASE OF GEM INDIA MANUFACTURING CO(SUPRA).WE FIND THAT WHIL E DECIDING THE CASE OF ATMPL(SUPRA) HONBLE SUPREME COURT HAS NOT DISCUSSED THE MATTER OF GEM INDIA MANUFACTURING CO.(SUPRA).WE FURTHER FIND THAT IN THE CASE ATMPL QUESTION BEFORE THE HONBLE COURT WAS WHETHER THE ASSESSEE WAS ENTITLED TO THE BENEFIT OF DEDUCTION UNDER SECT ION 80-IA OF THE ACT,WHERE AS IN THE PRESENT CASE WE HAVE TO DECIDE WHETHER THE ASSESSEE IS ELIG IBLE TO CLAIM ADDITIONAL DEPRECIATION EVEN THOUGH IT IS NOT MANUFACTURING AN ARTICLE OR THING. 3 ITA NO.6459/M/2011 5.1. IN THE CASE OF INDIA GEM MANUFACTURING CO.(SUPRA)HO NBLE BOMBAY HIGH COURT HAD FRAMED FOLLOWING QUESTION OF LAW: WHETHER, ON THE FACTS AND IN THE CIRCUMSTANCES OF T HE CASE AND IN LAW, THE TRIBUNAL WAS RIGHT OF CONFIRMING THE ORDER OF THE COMMISSIONER OF INCOME -TAX (APPEALS) HOLDING THAT THE ASSESSEE, ENGAGED IN CUTTING AND POLISHING OF DIAMONDS, AMOU NTS TO MANUFACTURING OR PRODUCTION OF GOODS AND IS ENTITLED TO DEDUCTION UNDER SECTION 80-I OF THE INCOME-TAX ACT,1961? FACTS OF THE CASE WERE THAT WHILE FINALISING THE AS SESSMENT AO HELD THAT CUTTING AND POLISHING OF DIAMONDS DID NOT AMOUNT TO MANUFACTURING OR PRODUCT ION OF GOODS AND AS A RESULT ASSESSEE- COMPANY WAS NOT ENTITLED TO CLAIM DEDUCTION U/S.80I OF THE ACT.FAA ALLOWED THE APPEAL FILED BY THE ASSESSEE AND THE TRIBUNAL CONFIRMED HIS ORDER.T RIBUNAL WAS OF THE VIEW THAT IN COMMON PARLANCE AS WELL AS IN COMMERCIAL SENSE RAW DIAMOND S WERE NOT THE SAME THING AS POLISHED AND CUT DIAMONDS. THE TWO WERE DIFFERENT ENTITIES IN TH E COMMERCIAL WORLD.THOUGH THE CHEMICAL COMPOSITION REMAINS THE SAME THE PHYSICAL CHARACTER ISTICS OF SHAPE AND CLASS, ETC.,WERE SUBSTAN - TIALLY DIFFERENT.WHEN THE DECISION OF THE TRIBUNAL WAS CHALLENGED BY THE REVENUE BEFORE THE HONBLE HIGH COURT OF BOMBAY IT FRAMED ABOVE REFERR ED QUESTION OF LAW.DURING THE COURSE OF HEARING BEFORE THE HONBLE HIGH COURT COUNSEL FOR T HE PARTIES AGREED THAT THE ISSUE STOOD COVERED IN FAVOUR OF THE ASSESSEE BY THE COURTS DECISION D ELIVERED IN CASE OF LONDON STAR DIAMOND CO. (I.)LTD.(213ITR517).DEPARTMENT CHALLENGED THE ORDER OF THE HONBLE BOMBAY HIGH COURT BEFORE THE HONBLE SUPREME COURT.DECIDING THE APPEAL IN FA VOUR OF THE REVENUE HONBLE COURT HELD AS UNDER : SECTION 80-I GIVES A DEDUCTION IN RESPECT OF PROFIT S AND GAINS FROM INDUSTRIAL UNDER -TAKINGS WHICH,AMONG OTHER CONDITIONS,MANUFACTURE OR PRODUC E ANY ARTICLE OR THING.THE QUESTION, THEREFORE,IS WHETHER THE ASSESSEE,IN CUTTING AND PO LISHING DIAMONDS MANUFACTURES OR PRODUCES ANY ARTICLE OR THING. THE TRIBUNAL TOOK THE VIEW THAT IT DID BECAUSE IN C OMMON PARLANCE AND COMMERCIAL SENSE RAW DIAMONDS ARE NOT THE SAME THING AS POLISHED AND CU T DIAMONDS.THE TWO ARE DIFFERENT ENTITIES IN THE COMMERCIAL WORLD.THOUGH THE CHEMICAL COMPOSITIO N REMAINS THE SAME THE PHYSICAL CHARAC- TERISTICS OF SHAPE AND CLASS, ETC., ARE SUBSTANTIAL LY DIFFERENT. IT WOULD APPEAR THAT NO MATERIAL HAD BEEN PLACED ON THE RECORD BEFORE THE TRIBUNAL UPON WHICH IT COULD HAVE REACHED THE CONCLUSIONS THAT,EITHER IN COMMON OR IN COMMERCIAL PARLANCE, R AW DIAMONDS WERE NOT THE SAME THING AS POLISHED AND CUT DIAMONDS,AND THAT THEY WERE DIFFER ENT ENTITIES IN THE COMMERCIAL WORLD. AN IPSE DIXIT OF THE TRIBUNAL IS NOT THE BEST FOUNDATION FO R A DECISION. THE HIGH COURT, AS AFORESTATED,CONCLUDED THAT THE C ASE WAS COVERED BY ITS DECISION IN THE CASE OF CIT V.LONDON STAR DIAMOND CO. (I.) LTD. [1995] 213 ITR 517.IT WAS NOT POINTED OUT TO THE HIGH COURT THAT THE QUESTION IN THAT CASE WAS WHETHER T HE ASSESSEE WAS AN INDUSTRIAL COMPANY WITHIN THE MEANING OF SECTION 2(8) OF THE FINANCE ACT, 197 5, AND THAT, IN ANSWERING THAT QUESTION,THE HIGH COURT HAD HELD THAT RAW DIAMONDS AND CUT AND POLISHED DIAMONDS WERE DIFFERENT AND DISTINCT MARKETABLE COMMODITIES HAVING DIFFERENT US ES;THEREFORE, A COMPANY ENGAGED IN CUTTING AND POLISHING RAW DIAMONDS FOR THE PURPOSE OF EXPO RT WAS ENGAGED IN THE PROCESSING OF GOODS TO CONVERT THEM INTO MARKETABLE FORM.THE QUESTION THAT THE HIGH COURT AND WE ARE HERE CONCERNED WITH IS WHETHER,IN CUTTING AND POLISHING DIAMONDS, THE ASSESSEE MANUFACTURES OR PRODUCES ARTICLES OR THINGS. THERE CAN BE LITTLE DIFFICULTY IN HOLDING THAT THE RAW AND UNCUT DIAMOND IS SUBJECTED TO A PROCESS OF CUTTING AND POLISHING WHICH YIELDS THE POLISHED DIAMOND,BUT THAT IS NOT TO SAY THAT THE POLISHED DIAMOND IS A NEW ARTICLE OR THING WHICH IS THE RESU LT OF MANUFACTURE OR PRODUCTION.THERE IS NO MATERIAL ON THE RECORD UPON WHICH SUCH A CONCLUSION CAN BE REACHED. 4 ITA NO.6459/M/2011 THE APPEAL IS, THEREFORE, ALLOWED. THE ORDER UNDER CHALLENGE IS SET ASIDE.THE QUESTION QUOTED ABOVE IS ANSWERED IN THE NEGATIVE AND IN FAVOUR OF THE REVENUE. FROM THE ABOVE IT IS CLEAR THAT THE HONBLE SUPREME COURT HAS CATEGORICALLY HELD THAT THE CUT AND POLISHED DIAMOND COULD NOT BE TREATED A NEW ARTICLE OR THING AND THAT CUTTING AND POLISHING OF DIAMONDS CANNOT BE HELD MANUFACTURING OR PRODUCTION ( EMPHASIS BY US ).THUS,FACTS OF THE CASE UNDER CONSIDERATION ARE IDENTICAL TO THE FACTS OF G EM INDIA MANUFACTURING CO.(SUPRA). GEM INDIA MANUFACTURING CO.(SUPRA).BOTH THE CASES ARE ABOUT D EDUCTION AVAILABLE U/S.80I OF THE ACT AND BOTH DEAL WITH THE POLISHED DIAMONDS.THEREFORE,FOLL OWING THE JUDGMENT OF GEM INDIA MANUFAC -TURING CO.(SUPRA)WE HAVE NO HESITATION IN HOLDING THAT CUTTING AND POLISHING OF ROUGH DIAMOND IN TO POLISHED DIAMOND IS NOT MANUFACTURING OR PROD UCING OF A NEW ARTICLE OR THING. 5.2. IN THE MATTER OF ATMPL(SUPRA)QUESTION BEFORE THE HO NBLE APEX COURT WAS ABOUT DEDUCTION U/S.80IA OF THE ACT.AS PER THE HONBLE COURT IN THE BATCH OF CIVIL APPEALS BEFORE IT, FOLLOWING COMMON QUESTION OF LAW AROSE FOR DETERMINATION : WHETHER CONVERSION OF MARBLE BLOCKS BY SAWING INTO SLABS AND TILES AND POLISHING AMOUNTS TO MANUFACTURE OR PRODUCTION OF ARTICLE OR THING,SO AS TO MAKE THE RESPONDENT(S)-ASSESSEE(S) ENTITLED TO THE BENEFIT OF SECTION 80-IA OF THE ACT AS IT ST OOD AT THE MATERIAL TIME. WHILE DECIDING THE APPEAL HONBLE COURT TOOK NOTICE OF THE FACT THAT THE ASSESSEE(S) HAS BEEN CONSISTENTLY REGARDED AS A MANUFACTURER/PRODUCER BY VARIOUS GOVERNMENT DEPARTMENTS AND AGENCIES AND PROCESSES UNDERTAKEN BY THE RESPONDENT (S) HAVE BEEN TREATED AS MANUFACTURE UNDER THE EXCISE ACT AND ALLIED TAX LAWS. AT THE OUTSET, WE MAY POINT OUT THAT IN THE PRESEN T CASE, WE ARE NOT ONLY CONCERNED WITH THE WORD MANUFACTURE,BUT WE ARE ALSO CONCERNED WITH THE CONNOTATION OF THE WORD PRODUCTION IN SECTION 80-IA OF THE ACT WHICH, AS STATED HEREINABO VE, HAS A WIDER MEANING AS COMPARED TO THE WORD MANUFACTURE.FURTHER, WHEN ONE REFERS TO THE WO RD PRODUCTION,IT MEANS MANUFACTURE PLUS SOMETHING IN ADDITION THERETO.THE WORD PRODUCTION WAS NOT UNDER CONSIDERATION BEFORE THIS COURT IN THE CASE OF AMAN MARBLE INDUSTRIES P. LTD. [2003] 157 ELT 393 (SC). BE THAT AS IT MAY, IN THAT CASE, IT WAS HELD THAT CUTTING OF MARBLE BLOCKS INTO SLABS PER SE DID NOT AMOUNT TO MANUFACTURE .THIS CONCLUSION WAS BASED ON THE OBSER VATIONS MADE BY THIS COURT IN THE CASE OF RAJASTHAN STATE ELECTRICITY BOARD, AIR 2000 SC 2382 . IN OUR VIEW, THE JUDGMENT OF THIS COURT IN AMAN MARBLE INDUSTRIES P. LTD. [2003] 157 ELT 393 ( SC) ALSO HAS NO APPLICATION TO THE FACTS OF THE PRESENT CASE. ONE OF THE MOST IMPORTANT REASONS FOR SAYING SO IS THAT IN ALL SUCH CASES, PARTICULARLY UNDER THE EXCISE LAW, THE COURT HAS TO GO BY THE FACTS OF EACH CASE. IN EACH CASE ONE HAS TO EXAMINE THE NATURE OF THE ACTIVITY UNDERTAKE N BY AN ASSESSEE. MERE EXTRACTION OF STONES MAY NOT CONSTITUTE MANUFACTURE.SIMILARLY, AFTER EXT RACTION, IF MARBLE BLOCKS ARE CUT INTO SLABS THAT PER SE WILL NOT AMOUNT TO THE ACTIVITY OF MANUFACTU RE. BEFORE CONCLUDING, WE WOULD LIKE TO MAKE ONE OBSERV ATION.IF THE CONTENTION OF THE DEPARTMENT IS TO BE ACCEPTED, NAMELY, THAT THE ACTIVITY BY THE RE SPONDENTS HEREIN IS NOT A MANUFACTURE, THEN, IT WOULD HAVE SERIOUS REVENUE CONSEQUENCES. AS STATED ABOVE, EACH OF THE RESPONDENTS IS PAYING EXCISE DUTY,SOME OF THE RESPONDENTS ARE JOB WORKERS AND THE ACTIVITY UNDERTAKEN BY THEM HAS BEEN RECOGNISED BY VARIOUS GOVERNMENT AUTHORITIES A S MANUFACTURE. TO SAY THAT THE ACTIVITY WILL NOT AMOUNT TO MANUFACTURE OR PRODUCTION UNDER SECTI ON 80-IA WILL HAVE DISASTROUS CON- SEQUENCES,PARTICULARLY IN VIEW OF THE FACT THAT THE ASSESSEES IN ALL THE CASES WOULD PLEAD THAT THEY WERE NOT LIABLE TO PAY EXCISE DUTY,SALES-TAX,ETC.BE CAUSE THE ACTIVITY DID NOT CONSTITUTE MANUFACTURE.KEEPING IN MIND THE ABOVE FACTORS, WE ARE OF THE VIEW THAT IN THE PRESENT CASES, THE ACTIVITY UNDERTAKEN BY EACH OF THE RESPONDENTS CONS TITUTES MANUFACTURE OR PRODUCTION AND, THEREFORE, THEY WOULD BE ENTITLED TO THE BENEFIT OF SECTION 80-IA OF THE INCOME-TAX ACT, 1961. 5 ITA NO.6459/M/2011 IN OUR OPINION FACTS OF THE CASE OF ATMPL(SUPRA)ARE NOT APPLICABLE TO THE FACTS OF THE PRESENT CASE.ACTIVITY OF CUTTING AND POLISHING OF DIAMONDS IS NOT SUBJECT OF EXCISE LAW,WHEREAS ASSESSEES POLISHING MARBLE HAS NOT TO PAY EXCISE DUTY.IN OUR OPINION JUDICIAL DISCIPLINE DEMANDS THAT IF A JUDGMENT THAT DIRECTLY DEALS WITH ISSUE TO BE DECID ED IS AVAILABLE,THEN SAME HAD TO BE FOLLOWED.IN SUCH CASES JUDGMENT DELIVERED WITH REGARD TO OTHER ISSUE SHOULD BE AVOIDED.IN THE CASE UNDER CONSIDERATION ISSUE TO BE DECIDED IS WHETHER CUTTIN G AND POLISHING OF ROUGH DIAMONDS CAN BE TREATED MANUFACTURING ACTIVITY OR NOT-WE ARE NOT DE CIDING THE ISSUE OF MARBLE CUTTING ACTIVITY WHICH IS GOVERNED BY EXCISE LAWS ALSO.AS PER THE PR OVISIONS OF SECTION 32 OF THE ACT ADDITIONAL DEPRECIATION IS AVAILABLE ONLY TO THOSE ASSESSEES W HO ARE ENGAGED IN MANUFACTURING ACTIVITIES.WE HAVE HELD THAT ASSESSSEE-COMPANY WAS NOT ENGAGED IN MANUFACTURING,SO,WE ARE UNABLE TO AGREE WITH THE ASSESSEE THAT IT IS ENTITLED TO CLAIM ADDI TIONAL DEPRECIATION. EFFECTIVE GROUND OF APPEAL IS DECIDED AGAINST THE ASSESSEE-COMPANY. AS A RESULT,APPEAL F ILED BY THE ASSESSEE STANDS DISMISSED. !'$$%&' ORDER PRONOUNCED IN THE OPEN C OURT ON 22 ND NOVEMBER,2013 ' ) * + ,- ./ 22 , 2013 ! 0 SD/- SD/- ( . / D. MANMOHAN ) ( $%&' / RAJENDRA ) !' / VICE-PRESIDENT % () /ACCOUNTANT MEMBER , * /1!2 MUMBAI, ./ /DATE: 22.11 . 2013 A.K.PATEL (%2 0 3+145 6%5,1 2 COPY OF THE ORDER FORWARDED TO : 1. ASSESSEE / ' 2. RESPONDENT / 3. THE CONCERNED CIT (A) / /13' * 4 4. THE CONCERNED CIT / /13 * 4 5. DR B BENCH, ITAT, MUMBAI / 56 7 /89 , '''+', * /1! 6. GUARD FILE/ 8:! 5 //TRUE COPY// ) * / BY ORDER, ;2 %/$ DY./ASST. REGISTRAR ''7 , , * /1! /ITAT, MUMBAI