DCIT, Circle - 4, Kolkata, Kolkata V. M/s. Sewujpur Tea Co.(P) Ltd., Kolkata

ITA 740/KOL/2010

• Counselvise Citation: [2013] 119 COUNSELVISE.COM (IT) 2955 (ITAT-KOLKATA)
• Duration Of Justice: 2 year(s) 11 month(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 21-03-2013
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: C
• Assessment Year: 2005-2006
• Appeal Filed On: 13-04-2010
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Keywords: Opportunity of being heard
• Section: 80IB; 2

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH: KOL KATA [BEFORE SHRI P.K.BANSAL, A.M. & SHRI MAHAVIR SINGH, J.M. ] I.T.A. NOS.740 & 741/KOL/2010 : ASSESSMENT YEARS 2005-06 TO 2006-07 DCIT, CIRCLE-4, KOLKATA -VS- M/S. SEWUJPUR TEA CO.(P) LTD.,KOLKATA 8, CANNING STREET, ROOM NO.104 & 105, KOLKATA-01 PAN : AABCK 3324K ( APPELLANT ) ( RESPONDENT ) DATE OF CONCLUDING THE HEARING : 21.03.2013 DATE OF PRONOUNCING THE ORDER : 21.03.2013 APPEARANCES : FOR THE DEPARTMENT : SHRI SANJ AY MUKHERJEE, SR.DR : FOR THE RESPONDENT : SHRI SANJAY BHATTAC HARYA, FCA O R D E R PER BENCH : THESE TWO APPEALS HAVE BEEN FILED BY THE REVENUE AG AINST THE ORDERS OF THE CIT(A)-IV, KOLKATA DATED 17 TH SEPTEMBER, 2009 FOR THE ASSESSMENT YEARS 2005-06 AND 2006-07 RESPECTIVELY. ALL THESE APPEALS ARE BEI NG DISPOSED OFF BY THIS COMMON ORDER, AS THE ISSUE INVOLVED IN ALL THESE APPEALS I S COMMON EXCEPT THE CHANGE IN THE FIGURES. 2. THE ONLY COMMON ISSUE INVOLVED IN ALL THE APPEAL S FILED BY THE REVENUE RELATES TO THE ALLOWABILITY OF THE DEDUCTION UNDER SECTION 80IC(2)(B) OF THE INCOME TAX ACT. 3. BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE CL AIMED DEDUCTION UNDER SECTION 80IC. THE AO ISSUED THE SHOW CAUSE NOTICE AS TO WHY THE DEDUCTION SHOULD NOT BE DISALLOWED. THE ASSESSEE STATED THAT THE ASSESSEE I S ENGAGED IN THE ACTIVITY OF MANUFACTURING OF BLACK TEA SINCE 1999-2000 AND DEDU CTION UNDER SECTION 80IB(4) 2 I.T.A. NOS. 740 & 741/KOL/2010 SEWUJPUR TEA CO.(P)LTD.: A.YR. 2 005-06 TO 2006-07 WAS CLAIMED EARLIER. THE ASSESSEE CLAIMED THAT THE ASSESSEE IS ENGAGED IN PROCESSING OF THE TEA AND THEREFORE, THE ASSESSEES CASE FALLS UNDER ITEM 12 TO SCHEDULE 14, WHICH READS THAT PROCESSING AND RAISI NG OF PLANTATION CROPS-TEA, RUBBER, COFFEE, COCONUTS, ETC. AND THE WORDS USED AND BETWEEN PROCESSING AND RAISING REPRESENT OR. THE AO WAS OF THE VIEW TH AT SINCE THE ASSESSEE WAS NOT ENGAGED IN THE PLANTATION OF THE TEA AND WAS ONLY E NGAGED IN THE PROCESSING OF THE TEA, THEREFORE, HE DISALLOWED THE DEDUCTION. THE AS SESSEE WENT IN APPEAL BEFORE THE CIT(A). THE CIT(A) TOOK THE VIEW THAT THE DEDUCTION UNDER SECTION 80IC WILL BE AVAILABLE TO BOTH THE INDUSTRIES WHICH ARE ENGAGED IN PROCESSING OF TEA, COFFEE, ETC. OR ENGAGED IN RAISING OF THE PLANTATION OF TEA, COF FEE, ETC BY HOLDING AS UNDER: 5.2. THE WAY A.O. HAS INTERPRETED THE MEANING OF TH E PROCESSING AND RAISING THAT ASSESSEE COMPANY BEING ONLY PRODUCER OF BLACK TEA FROM PURCHASED GREEN LEAF IS NOT ENGAGED IN PROCESSING AND RAISING OF PLANTATION CROP (IN THIS CASE TEA) AND IS NOT ENTITLED TO DED UCTION U/S 80IC. SUCH A NARROW INTERPRETATION IS UNWARRANTED TO THE FACT O F THE PRESENT CASE. THE PART-A OF SCHEDULE 14 DOES NOT SAY SO. THE SAME HA S TO BE INTERPRETED IN SUCH A MANNER AS NOT TO MAKE OTIOSE AND DETERRENT [BAMA METAL INDUSTRIES VS. CCE-1996 (82) ELT 81 (TRI)]. IT CLEARLY PROVID ES THE BENEFIT TO INDUSTRIES WHICH MANUFACTURES OR PRODUCES PROCESS ING AND RAISING OF PLANTATION CROP-TEA RUBBER, COFFEE, COCONUT, ETC. IT MEANS PROCESSING AS WELL AS RAISING BOTH ACTIVITIES IS COVERED UNDER THE PROVISION. IF THE INTENTION OF THE LEGISLATURE WOULD HAVE BEEN OTHER WISE IT WOULD HAVE USED THE WORDS RAISING AND PROCESSING INSTEAD OF PRO CESSING AND RAISING IN CHRONOLOGICAL ORDER OF THE ACTIVITY. 5.3. INFERENCE AND INTERPRETATIONS COULD BE DRAWN ON THIS POINT FROM THE OTHER PROVISIONS OF THE INCOME TAX ACT 1961 AND TH E INCOME TAX RULES, 1962. IN SECTION 10(31) OF THE ACT FOR GRANTING EX EMPTION TO SUBSIDY GRANTED BY TEA, COFFEE, RUBBER BOARD TO THE ELIGIBLE ASSES SEE, IT HAS BEEN MENTIONED FOR ELIGIBILITY THAT THE ASSESSEE WHO CARRIES ON T HE BUSINESS OF GROWING AND MANUFACTURING RUBBER, COFFEE, CARDAMOM OR SUCH OT HER COMMODITY. IT DID NOT START WITH THE WORD MANUFACTURING AND GROWING . ON THE OTHER HAND, FOR DETERMINING INCOME FROM MANUFACTURE OF TEA UND ER RULE 8(1) INCOME DERIVED FROM THE SALE OF TEA GROWN AND MANUFACTUR ED BY THE SELLER IN INDIA SHALL BE COMPUTED AS IF IT WERE INCOME DERIVED FRO M BUSINESS, AND FORTY PER CENT OF SUCH INCOME SHALL BE DEEMED TO BE INCOME L IABLE TO TAX. THE STATUTE HAS USED THE WORDING GROWING AND MANUFACTURING A ND NOT THE VICE VERSA MANUFACTURING AND GROWING OR PROCESSING AND RAI SING: THEREFORE, THE INDUSTRIES NOTIFIES IN THE IMPUGNED NOTIFICATION / SCHEDULE, THE CENTRAL 3 I.T.A. NOS. 740 & 741/KOL/2010 SEWUJPUR TEA CO.(P)LTD.: A.YR. 2 005-06 TO 2006-07 GOVERNMENT HEREBY NOTIFIES THE INDUSTRIES INTER AL IAS ITEM NO 12 PROCESSING AS WELL AS RAISING OF PLANTATION CROPS TEA, RUBB ER, COFFEE, COCONUT ETC. 5.4. FURTHER THE PROVISIONS OF SECTION 801B(2)(II I) AND 801C(2)(B) STARTS WITH THE WORDING AS TO THE ASSESSEE THAT IT MANUFA CTURES OR PRODUCES ANY ARTICLE OR THINGS ETC. PRESCRIBED IN THE IMPUGNED PART-A OF SCHEDULE L4 OR THE IMPUGNED NOTIFICATION. EVEN FOR ARGUMENTS SAKE , IF THE INTERPRETATION AS GIVEN BY THE A.O. IN THE IMPUGNED ORDER IS APPLIED , IT WOULD DEFEAT THE BASIC PROVISIONS OF BOTH THE SECTIONS TO WHICH THEY ARE ANCILLARY/COROLLARY AND THEREFORE CANNOT OVERRIDE THE PARENT PROVISIONS FR OM WHERE THEY DERIVE THEIR LEGAL SANCTITY. 5.5. I AGREE WITH THE APPELLANT THAT EXEMPTION NO TIFICATIONS ARE BENEFICIAL PIECE OF LEGISLATION. WHILE INTERPRETING THESE NOT IFICATIONS ONE MUST BEAR IN MIND THAT THE OBJECT BEING ONE OF GRANTING THE EXE MPTION. THEREFORE, AN INTERPRETATION MUST BE PUT WHICH DOES NOT DEFEAT T HE WHOLE PURPOSE OF THE EXEMPTION. THE PRESENT NOTIFICATION/ SCHEDULE IS A LSO INTENDED FOR THE BENEFIT OF ALL CONCERNS AND DESERVES A LIBERAL CONSTRUCTIO N. IN THE MANNER THE MEANING OF THE TERM PROCESSING AND RAISING HAS B EEN EXPLAINED IN THE IMPUGNED ORDER BY THE A.O., IT WOULD MAKE IT UNWOR KABLE. THE HONBLE SUPREME COURT IN COLLECTOR OF CUSTOMS VS. UNITED E LECTRICAL INDUSTRIES LTD. [1999 (108) ELT 609) HAS RIGHTLY HELD THAT THE NOT IFICATION HAS TO BE INTERPRETED TO GIVE TRUE IMPORT AND MEANING, NOT T O MAKE IT PURPOSELESS AND NUGATORY. IT IS THUS SUBMITTED THAT THE GROUND ON WHICH THE ORDER-IN-ORIGINAL HAS BEEN PASSED DENYING THE BENEFIT OF DEDUCTION I S NOT A TENABLE GROUND IN VIEW OF THE WORDINGS OF IMPUGNED NOTIFICATION/SCHE DULE. 5.6. AS PER RULE OF BENEFICIAL INTERPRETATION, IF THERE EXISTS MORE THAN ONE INTERPRETATION, THE INTERPRETATION, WHICH IS MOST FAVOURABLE TO THE ASSESSEE, SHALL PREVAIL. THUS, IF ANY SORT OF CONFUSION PREV AILS ON INTERPRETATION IN THE CASE, THE SAME IS MITIGATED BY THE RULE OF BENEFIC IAL INTERPRETATION. IT IS RECOGNIZED PRINCIPLE OF INTERPRETATION THAT THE AD MINISTRATIVE AUTHORITY OR THE COURT SHOULD NOT WHITTLE DOWN THE PLENTITUDE O F THE EXEMPTION OR RELIEF GRANTED BY THE LEGISLATION BY LAYING STRESS ON ANY AMBIGUITY HERE OR THERE [CIT V LAXMI METAL INDUSTRIES- (1998) 193- 94, 146 CTR(ALL) 722,726] 6. THUS, IN MY OPINION, THE APPELLANT ENGAGED IN P RODUCTION OF BLACK TEA FROM GREEN LEAVES, IS ENTITLED TO 100% DEDUCTION U /S 80IC FOR RS. 20,87,612/-. 4. THE LD. A.R. BEFORE US VEHEMENTLY CONTENDED THAT THE ASSESSEE WAS CLAIMING THE DEDUCTION UNDER SECTION 80IB FROM ASSESSMENT YE AR 2001-02 TO 2003-04 (BUT 4 I.T.A. NOS. 740 & 741/KOL/2010 SEWUJPUR TEA CO.(P)LTD.: A.YR. 2 005-06 TO 2006-07 NO DEDUCTION WAS CLAIMED IN THE ASSESSMENT YEAR 199 9-2000, 2001-02 AND 2004-05 IN VIEW OF THE LOSS). THE ASSESSEE, CONSEQUENT TO T HE AMENDMENT IN SECTION 80IB, CLAIMED DEDUCTION UNDER SECTION 80IC(2)(B) READ WIT H ITEM 12 OF SCHEDULE 14 WHICH READS THAT PROCESSING AND RAISING OF PLANTAT ION CROPS TEA, RUBBER, COFFEE, COCONUTS, ETC.. THE ASSESSEE IS ENGAGED IN THE MA NUFACTURING OF BLACK TEA SINCE ASSESSMENT YEAR 1999-2000 AND ACCORDINGLY CLAIMED D EDUCTION UNDER SECTION 80IB(4). THE AO DISALLOWED THE DEDUCTION UNDER SECT ION 80IC. BEFORE THE AO, THE ASSESSEE TOOK THE VIEW THAT IN VIEW OF ITEM 12 OF S CHEDULE 14, THE ASSESSEE MUST BE ENGAGED IN RAISING OF THE PLANTATION AS WELL AS PROCESSING. THE LD. AR BEFORE US REFERRED TO ITEM NO.1,2 AND 4 OF SCHEDULE 14 AND CO NTENDED THAT THERE, THE WORD AND HAS BEEN USED BETWEEN THE TWO WORDS FRUIT A ND VEGETABLE, MEAT AND POULTRY PRODUCTS, FOOD AND BEVERAGES. IF THE I NTERPRETATION OF THE AO BE TAKEN, THEN THE INDUSTRY MUST BE ENGAGED IN PROCESS ING OF BOTH FRUITS AND VEGETABLES, MEAT AND POULTRY PRODUCTS AND FOOD AND BEVERAGE INDUSTRIES. THE NATURE OF BOTH THE INDUSTRIES IS ENTIRELY DIFFERENT AND BOTH THE INDUSTRIES CANNOT BE MIXED UP. THE WORD AND CAN BE INTERPRETED ONLY O R NOT AND. IF THE ASSESSEE IS ENGAGED IN ANY ONE OF THE ACTIVITIES I.E. EITHER PROCESSING OR RAISING OF PLANTATION OF CROPS OF TEA ETC., THE ASSESSEE MUST BE ENTITLED FOR THE DEDUCTION. THIS IS THE PROVISION IN THE TAXING STATUTE GRANTING THE INCENT IVE FOR PROMOTING GROWTH AND DEVELOPMENT AND THEREFORE SHOULD BE CONSTRUED LIBER ALLY. RELIANCE WAS PLACED IN THIS REGARD ON THE DECISION OF THE HONBLE SUPREME COURT IN THE CASE OF BAJAJ TEMPO LTD. VS- CIT 196 ITR 188 (SC). RELIANCE WAS ALSO PLACED ON THE DECISION OF THE HONBLE SUPREME COURT IN THE CASE OF MYSORE MINERALS LTD. VS- CIT 239 ITR 775 (SC) WHERE IT WAS HELD THAT IF THERE ARE TW O POSSIBILITIES OF TAXING PROVISIONS, THE ONE WHICH IS FAVOURABLE TO THE ASSE SSEE SHOULD BE PREFERRED. ALTERNATELY, IT WAS SUBMITTED THAT IN CASE THE DEDU CTION IS NOT ALLOWED UNDER SECTION 80IC, IT SHOULD BE ALLOWED UNDER SECTION 80 IB. THE LD. DR RELIED ON THE ORDER OF THE AO. 5 I.T.A. NOS. 740 & 741/KOL/2010 SEWUJPUR TEA CO.(P)LTD.: A.YR. 2 005-06 TO 2006-07 5. WE HAVE CAREFULLY HEARD THE RIVAL SUBMISSIONS AN D PERUSED THE MATERIALS ON RECORD ALONG WITH THE ORDERS OF THE TAXING AUTHORIT IES. IT IS NOT DENIED BY THE LD. DR THAT THE ASSESSEE WAS ENTITLED FOR THE DEDUCTION IN THE EARLIER YEARS UNDER SECTION 80IB AND DEDUCTION UNDER SECTION 80IC CLAIMED BY TH E ASSESSEE FOR THE FIRST TIME IN ASSESSMENT YEAR 2005-06. WE ALSO NOTED THAT IN VIEW OF THE PROVISO (3) INSERTED BY THE FINANCE ACT, 2003 W.E.F. 01.04.2004 UNDER SECTI ON 80IB(4), AN ASSESSEE IS NOT ENTITLED FOR THE DEDUCTION UNDER SECTION 80IB(4) IN CASE, THE ASSESSEE IS FALLEN WITHIN THE PROVISIONS OF SECTION 80IC(2). THE MAIN ISSUE INVOLVED IN BOTH THESE APPEALS RELATES TO THE INTERPRETATION OF THE WORD AND IN ITEM NO.12 GIVEN IN SCHEDULE 14. SECTION 80IC(2), SUB-SECTION (B) ALLOW S THE DEDUCTION TO AN ASSESSEE ALONG WITH OTHER CONDITIONS. IF THE ASSESSEE PRODUC ES AN ARTICLE OR THINGS, PRESCRIBED IN THE SCHEDULE 14, THE ASSESSEES CLAIM IS THAT HIS CASE FALLS IN ITEM 12 OF SCHEDULE 14, AS THE ASSESSEE IS ENGAGED IN THE B USINESS OF PROCESSING OF BLACK TEA. ITEM 12 OF SCHEDULE 14 READS AS PROCESSING AN D RAISING OF PLANTATION CROPS TEA, RUBBER, COFFEE, COCONUTS, ETC. THE CONTENTION OF THE ASSESSEE IS THAT THE WORD AND BETWEEN PROCESSING AND RAISING SHOULD BE READ AS OR. THE DEDUCTION IS AVAILABLE TO ANY PERSON ENGAGED EITHER IN PROCESSIN G OR RAISING OF THE PLANTATION CROPS. THE ASSESSEE IS NOT REQUIRED TO CARRY ON BOT H THE ACTIVITIES I.E. PROCESSING AS WELL AS RAISING OF PLANTATION CROPS. FOR COMING TO THIS INTERPRETATION, THE ASSESSEE BASICALLY RELIES ON ITEM NOS. 1,2 AND 4 OF SCHEDULE 14. WE HAVE GONE THROUGH ITEM NOS. 1,2 AND 4 OF SCHEDULE 14. WE NOTED THAT IN THE SE ITEMS, THE NOMENCLATURE OF THE ARTICLE OR THINGS HAS BEEN MENTIONED FIRST AND ACTIVITY IS GIVEN SUBSEQUENTLY WHILE IN ITEM NO.12, IT IS THE ACTIVITY WHICH HAS B EEN MENTIONED FIRST. AN ARTICLE AND THINGS HAS BEEN MENTIONED SUBSEQUENTLY TO THAT. IF WE SEE THE ACTIVITIES IN ITEM NO.1 BETWEEN THE ACTIVITIES, THE WORD OR HAS BEEN USED AS IS APPARENT IN THE CASE OF FRUIT AND VEGETABLE, PROCESSING INDUSTRIES, MANUFACTURING OR PRODUCING. SIMILARLY IN ITEM NO.2 ALSO, BETWEEN THE ACTIVITIES , THE WORD OR HAS BEEN USED, MANUFACTURING OR PRODUCING. SIMILARLY, IN ITEM NO.4 ALSO, THE WORD OR HAS BEEN USED BETWEEN THE ACTIVITIES, WHILE IN ITEM NO.12, T HE WORD AND HAS BEEN USED BETWEEN ACTIVITIES. IT CLEARLY DENOTES THAT BOTH TH E CONDITIONS, I.E., PROCESSING AND 6 I.T.A. NOS. 740 & 741/KOL/2010 SEWUJPUR TEA CO.(P)LTD.: A.YR. 2 005-06 TO 2006-07 RAISING OF PLANTATION CROPS MUST BE SPECIFIED BY AN UNDERTAKING ELIGIBLE FOR DEDUCTION UNDER SECTION 80IC(2)(B). THIS IS THE SET TLED LAW THAT A FISCAL STATUTE SHALL HAVE TO BE INTERPRETED ON THE BASIS OF THE LANGUAGE USED THEREIN AND NOT DE HORS THE SAME. NO WORDS OUGHT TO BE ADDED AND ONLY THE LANGU AGE TO BE USED OR CONSIDERED SO AS TO ASCERTAIN THE PROPER MEANING AND INTENT OF THE LEGISLATION. THE COURT IS TO ASCRIBE THE NATURAL AND ORDINARY MEANING TO THE WOR DS USED BY THE LEGISLATURE AND THE COURT OUGHT NOT, UNDER ANY CIRCUMSTANCES, STATU TE TO ITS OWN IMPRESSION AND IDEAS IN PLACE OF THE LEGISLATIVE INTENT AS IS AVAI LABLE FROM A PLAIN READING OF THE STATUTORY PROVISIONS. THE HONBLE SUPREME COURT IN THE CASE OF ORISSA STATE WAREHOUSING CORPORATION VS- CIT 237 ITR 589 (SC) H AS CLEARLY HELD THAT AN EXEMPTION IS AN EXCEPTION TO THE GENERAL RULE AND S INCE THE SAME IS OPPOSED TO THE NATURAL TENURE OF THE STATUTE, THE ENTITLEMENT FOR EXEMPTION, OUGHT NOT TO BE READ WITH ANY LATITUDE TO THE TAXPAYER OF EVEN WITH A WI DER CONNOTATION TO RESTRICT ITS APPLICATION TO THE SPECIFIC LANGUAGE USED DEPICTING THE INTENT OF THE LEGISLATURE. THE DECISION OF THE HONBLE SUPREME COURT IS BINDIN G ON US. THIS DECISION IS DELIVERED SUBSEQUENT TO THE DECISION OF THE HONBLE SUPREME COURT IN THE CASE OF BAJAJ TEMPO LTD. VS- CIT 196 ITR 188 ON WHICH THE LD. A.R. HAS VEHEMENTLY RELIED ON. THIS IS THE SETTLED LAW IN VIEW OF THE D ECISION OF GOVINDAINIK VS. WEST PATENT PREST CO. AIR (KAR) 92 (FB) 1980 AND BHIKA R AM & OTHERS VS- UNION OF INDIA & OTHERS 238 ITR 113 THAT EVEN THERE IS A CON FLICT BETWEEN THE TWO DECISIONS OF THE SUPREME COURT, THE ONE DECIDED BY A LARGER B ENCH IS BINDING. IF BOTH DECISIONS ARE RENDERED BY THE BENCH CONSISTING OF E QUAL NUMBER OF JUDGES, THE LATTER DECISION IS BINDING. 5.1 WE HAVE ALSO GONE THROUGH THE DECISION OF BAJAJ TEMPO LTD. VS- CIT 196 ITR PAGE 188 (SC) ( SUPRA ). THE ISSUE INVOLVED IN THIS CASE WAS ENTIRELY DIF FERENT. IN THIS CASE, THE ASSESSEE HAS CLAIMED THE DEDUCTIO N UNDER SECTION 15C(1) AND THE AO DID NOT DISPUTE THAT THE ASSESSEE HAS COMPLIED W ITH ALL THE CONDITIONS STIPULATED THEREIN BUT IN VIEW OF SECTION 15C(2), T HE AO WAS OF THE VIEW THAT THE ASSESSEE WAS FORMED BY SPLITTING BY TRANSFER TO A N EW BUSINESS OF BUILDING, 7 I.T.A. NOS. 740 & 741/KOL/2010 SEWUJPUR TEA CO.(P)LTD.: A.YR. 2 005-06 TO 2006-07 MACHINERY OR PLANT, PREVIOUSLY USED IN OTHER BUSINE SS. SUB-SECTION (2) IS A RESTRICTIVE CLAUSE AND DENIES THE BENEFIT EVEN IF A N UNDERTAKING COMPLIES WITH ALL THE CONDITIONS AS GIVEN UNDER SECTION 15C(1). THE A SSESSEE IN THIS CASE HAS TAKEN THE BUILDING ON PAYMENT OF MONTHLY RENT ON LEASE. T HE AO TOOK THE VIEW THAT THE UNDERTAKING WAS FORMED BY TRANSFER TO A NEW BUSINES S OF BUILDING. IN THIS CONTEXT, WHEN THE MATTER TRAVELED TO THE SUPREME COURT, THE SUPREME COURT TOOK THE VIEW THAT THE TRANSFER, TO TAKE THE NEW UNDERTAKING, OUT OF THE PURVIEW OF SUB-SECTION (1), MUST BE SUCH THAT, BUT FOR THE TRANSFER, THE N EW UNDERTAKING COULD NOT HAVE COME INTO BEING AND HELD THAT IN THEIR OPINION ON T HE FACTS FOUND BY THE TRIBUNAL, THE PART PLAYED BY TAKING THE BUILDING ON LEASE WAS NOT DOMINANT IN THE FORMATION OF THE COMPANY. IN THIS CONTEXT, THE HONBLE SUPREM E COURT HAS OBSERVED THAT BY THAT CLAUSE, THE LEGISLATURE INTENDED TO CONTROL AN Y ATTEMPT OR EFFORT TO ABUSE THE BENEFIT INTENDED FOR NEW UNDERTAKING BY CHANGING TH E LABEL. THE INTENTION WAS NOT TO DENY THE BENEFIT TO GENUINE NEW INDUSTRIAL UNDER TAKING BUT TO CONTROL THE MISCHIEF, WHICH MIGHT HAVE OTHERWISE TAKEN PLACE. A DOPTING A LITERAL PERCEPTION WOULD RESULT IN DEFEATING THE VERY PURPOSE OF SECTI ON 15C. IN THE CASE BEFORE US, THE QUESTION IS WHETHER THE ASSESSEE COMPLIED WITH THE PRIMARY CONDITIONS OF CARRYING ON THE ACTIVITIES AS STIPULATED UNDER ITEM 12 OF SCHEDULE 14. THINGS AND ARTICLES ARE DIFFERENT FROM THE ACTIVITIES. THIS DE CISION, IN OUR OPINION, IS NOT APPLICABLE TO THE CASE OF THE ASSESSEE. THE STRESS GIVEN UNDER ITEM 12 OF SCHEDULE 14 IS THAT THE ASSESSEE MUST BE ENGAGED IN BOTH THE ACTIVITIES I.E. PROCESSING AND RAISING OF PLANTATION CROPS- TEA, RUBBER, ETC. IN T HIS CASE, EVEN THE THEORY BENEFICIAL CONSTRUCTION WILL NOT APPLY AS THERE IS ONLY ONE IN TERPRETATION THAT THE ASSESSEE MUST CARRY OUT BOTH THE ACTIVITIES. WE ARE OF THE V IEW THAT THERE IS NO AMBIGUITY IN THE PROVISION AS STIPULATED UNDER THE SAID SCHEDULE 14 AND THIS IS A SETTLED LAW IN VIEW OF THE DECISION OF THE HONBLE SUPREME COURT I N THE CASE OF IPCA LABORATORY LTD. VS- DCIT 266 ITR 521 THAT WHEN THERE IS NO AM BIGUITY IN THE PROVISIONS OF THE STATUTE, THE PROVISIONS CANNOT BE INTERPRETED T O CONFER BENEFIT ON THE ASSESSEE. EVEN MUMBAI HIGH COURT IN THE CASE OF INDIAN RAYON CORPORATION LTD. VS- CIT 231 ITR 26 HAS CATEGORICALLY HELD THAT PRINCIPLES O F BENEFICIAL INTERPRETATION WOULD 8 I.T.A. NOS. 740 & 741/KOL/2010 SEWUJPUR TEA CO.(P)LTD.: A.YR. 2 005-06 TO 2006-07 APPLY ONLY IN A CASE WHERE THE COURT IS IN DOUBT AB OUT THE TRUE SCOPE AND AMBIT OF THE PROVISIONS OR FINDS TWO EQUALLY REASONABLE INTE RPRETATIONS WHERE THE WORDS OF THE STATUTE ARE PLAIN, PRECISE AND UNAMBIGUOUS. IN VIEW OF OUR AFORESAID DISCUSSIONS, WE ARE OF THE FIRM VIEW THAT UNTIL AND UNLESS COMPLIED WITH THE CONDITIONS OF ENGAGING IN PROCESSING AND RAISING OF THE PLANTATION OF TEA, THE ASSESSEE CANNOT BE ALLOWED DEDUCTION UNDER SECTION 80IC(2)(B). 5.2 NOW COMING TO THE ALTERNATE SUBMISSION OF THE L D. A.R. THAT THE ASSESSEE IS ENTITLED FOR THE DEDUCTION UNDER SECTION 80IB, WHIC H WAS ALLOWED TO THE ASSESSEE IN THE EARLIER YEARS ALSO, SINCE THIS ISSUE HAS COME U P BEFORE US FOR THE FIRST TIME AND THE LD. D.R. ALSO DID NOT DENY THAT THE ASSESSEE WA S ALLOWED DEDUCTION EARLIER UNDER SECTION 80IB, WE, THEREFORE, IN THE INTEREST OF JUSTICE AND FAIR PLAY TO BOTH THE PARTIES, SET ASIDE THE ORDER OF THE CIT(A) AND REST ORE THIS ISSUE TO THE FILE OF THE AO WITH THE DIRECTION THAT THE AO SHALL EXAMINE THE PL EA OF THE ASSESSEE WHETHER THE CLAIM OF THE ASSESSEE FALLS UNDER SECTION 80IB. IN CASE, THE AO FINDS THAT THE CLAIM OF THE ASSESSEE FALLS UNDER SECTION 80IB, THE DEDUC TION TO THE ASSESSEE UNDER SECTION 80IB BE ALLOWED, AFTER GIVING PROPER AND RE ASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE TO SUBMIT THE EVIDENCE AND DO CUMENTS, ON WHICH THE ASSESSEE MAY RELY IN THIS REGARD. 6. IN THE RESULT, THE APPEALS FILED BY THE REVENUE IN BOTH THE ASSESSMENT YEARS ARE ALLOWED FOR STATISTICAL PURPOSES. THIS ORDER IS PRONOUNCED IN THE OPEN COURT ON 21 ST MARCH, 2013. SD/- SD/- (MAHAVIR SINGH) (P. K. BANSAL) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED : 21 ST MARCH, 2013 COPY OF THE ORDER FORWARDED TO: 1. M/S. SEWUJPUR TEA CO.(P) LTD., 8, CANNING STREET, ROOM NO.104 & 105, KOLKATA-01 2. DCIT, CIRCLE-4, KOLKATA 9 I.T.A. NOS. 740 & 741/KOL/2010 SEWUJPUR TEA CO.(P)LTD.: A.YR. 2 005-06 TO 2006-07 3. THE CIT(A), KOLKATA 4. CIT, KOLKATA 5. DR, KOLKATA BENCHES, KOLKATA TRUE COPY, BY ORDER, ASSTT. REGISTRAR , ITAT, KOLKATA TALUKDAR(SR.P.S.)