Gujarat High Court
The Principal Commissioner Of Income ... vs M/Schemoil Adani Pvt. Ltd. on 29 September, 2020
Author: J.B.Pardiwala
Bench: Vikram Nath, J.B.Pardiwala
C/TAXAP/188/2020 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/TAX APPEAL NO. 188 of 2020
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THE PRINCIPAL COMMISSIONER OF INCOME TAX1
Versus
M/SCHEMOIL ADANI PVT. LTD.
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Appearance:
MRS MAUNA M BHATT(174) for the Appellant(s) No. 1
MR B S SOPARKAR(6851) for the Opponent(s) No. 1
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CORAM: HONOURABLE THE CHIEF JUSTICE MR. VIKRAM NATH
and
HONOURABLE MR. JUSTICE J.B.PARDIWALA
Date : 29/09/2020
ORAL ORDER
(PER : HONOURABLE MR. JUSTICE J.B.PARDIWALA)
1. This tax appeal under Section 260A of the Income Tax Act, 1961 (for short "the Act, 1961") is at the instance of the Revenue and is directed against the order passed by the Income Tax Appellate Tribunal "D" Bench, Ahmedabad in the ITA No.1555/Ahd/2016 dated 7th January, 2020 for the A.Y.2010-11.
2. The revenue has proposed the following questions for the consideration of this Court:
"(A) Whether the Appellate Tribunal has erred in law and on facts in holding that the assessee is engaged in manufacturing activity and also that trading activities of the assessee are eligible for exemption under section 10AA of the Act?
(B) Whether the Appellate Tribunal has erred in holding
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C/TAXAP/188/2020 ORDER
that the SEZ Act, 2005 override the Income Tax Act ignoring that the taxation of such SEZs is decided wholly and solely by Income-tax Act and that SEZ Act does not have any bearing on the same?
(C ) Whether the Appellate Tribunal has erred in law in holding that the assessee is eligible for deduction with respect to income on account of currency fluctuation, interest income and that it is entitled to deduction under section10AA of Rs.4,72,67,584/-?
(D) Whether the Appellate Tribunal has erred in law and in holding that the assessee's claim of loss of Rs.4,81,48,554/- shall increase the deduction under section 10AA by ignoring that the documentary evidences have not been furnished and that assessee's eligibility under section 10AA has been challenged?
(E) Whether the Appellate Tribunal has erred in deleting the disallowance of Rs.60,00,560/- made under section 36(1)(ii) by an inference that own funds had been utilized rather than by facts?"
3. It appears from the materials on record that the assessee is a Private Limited Company and is engaged in the business of dealing in fuel oil, high speed diesel and all types of petroleum products. The assessee has its process unit in the SEZ. Being in the SEZ, it claimed the deduction from the operations carried out therein (SEZ Unit) under Section 10AA of the Act, amounting to Rs.4,72,67,584/-. It is the case of the assessee that it is carrying out the activity of blending of different oils in the oil tanks, situated within the SEZ. For this purpose, the assessee hired seven tanks of different capacity for fuel oil storage from Adani Ports and Special Economic Zone Limited (for short "the APSEZ"). The principal argument of the assessee is that as a result of such processing, a different product with different chemical composition used to be produced.
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4. The assessee also claimed that its activity has been classified by the Development Commissioner, Mundra Port and Special Economic Zone, Ministry of Commerce and Industry, Government of India as a manufacturing activity in the "Letter of Approval" dated 17th December, 2008. In such circumstances, the assessee claimed that such processing is manufacturing activity within the meaning of the provision as defined in Clause
(iii) of Explanation I to Section 10AA read with Clause (r) of Section 2 of the Special Economic Zones Act, 2005.
5. In the alternative to the aforesaid, the assessee also claimed that assuming for the moment that its activity is a trading activity and not manufacturing activity, even then, it is entitled for the deduction under Section 10AA of the Act within the meaning of the services as defined under Section 2(z) of the SEZ Act read with Rule 76 of the Rules, 2006 by holding that the assessee has showed income from the services for Rs.33,52,920/- which could be said to be eligible only for the purpose of deduction under Section 10AA of the Act.
6. The Assessing Officer, in such circumstances referred to above, held that the amount of Rs.4,72,67,584/- is not eligible for deduction under Section 10AA of the Act as claimed by the assessee and, accordingly, reduced the deduction by such amount.
7. The assessee, being aggrieved with the assessment order, preferred an appeal before the CIT (A). The CIT (A) allowed the deduction under Section 10AA of the Act holding that the assessee had correctly calculated the deduction under Section 10AA and the same was allowable.
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8. The Revenue, being dissatisfied with the order passed by the CIT (A), preferred appeal before the Appellate Tribunal. The Appellate Tribunal uphold the decision of the CIT (A) and dismissed the appeal preferred by the Revenue.
9. The Revenue, being dissatisfied with the concurrent findings recorded by the two authorities, is here before this Court with the present appeal.
10. The first two questions proposed by the Revenue are in context with Section 10AA of the Act. The CIT (A), in its order, has explained in details the entire process of blending of oil. We may quote the relevant observations:
"8.8 The appellant also described the process of blending of oil and it is clear that the appellant made import of various fuel oil in bulk and out of such imports little quantity shall be blended at Mundra Port. Further after blending the oil/fuel, the blended oil shall be re-exported as bunker fuel supply to foreign run vessels as per their requirement varying mainly in terms of Viscosity, sulfur and other parameters at ports of Gujarat. The appellant has hired 7 tanks of different capacity for Fuel Oil storage from APSEZ. The blending activity takes place at the time of import of cargo/new arrival. The product being imported has the specification of e.g. "B" Grade. The product of B Grade is received in tank which already have the product of A Grade, hence the specs of imported Cargo is changed to C Grade, when it is blended with A Grade cargo already in the tank. At the time of import there remains some product in the tanks which have specification of e.g. "A" Grade. The blending activity takes place also when the product of different grades lying in various tanks is mixed and a product of a new grade comes into existence. As an operational requirement or specific order for supply, the appellant needs to carry out inter-tank transfers. In this activity the specs of two different grade products are blended and the specs of the mixed product emerge different from the specs of cargo transferred. During the process of inter-tank transfer circulation, churning, heating activity also Page 4 of 15 Downloaded on : Mon Mar 01 03:33:44 IST 2021 C/TAXAP/188/2020 ORDER carried out to have proper blending and homogeneous product at all the levels in the tank.
8.9 There is specific equipment like churners, jet pumps, hot water lines, boilers etc. are installed in the tanks for proper blending- (Specific cost to have manufacturing facility). Tanks are insulated to maintain temperature. Specific IT system are installed at storage terminal to have better control over temperature, dip measurement, level of cargo. The appellant also submitted reports generated during the manufacturing i.e. blending process carried on by the appellant assessee company. The sample copies of the said reports are submitted placed vide Annexure-1 to the appellant submission.
8.10 The appellant has also submitted "Letter of Approval"
dated 17.12.2008 granted by the office of the Development Commissioner, Mundra Port and Special Economic Zone, Ministry of Commerce & Industry, Govt. of India wherein the fuel oil with variation in viscosity has been specifically included as item of manufacture for which SEZ unit has been set up by the appellant. Accordingly, in view of the discussion made supra, the activity of blending of oils to bring into existence product with different viscosity to meet with the requirement of customers of the company should be treated as "manufacturing" as per Section 2(r) of the SEZ Act read with Section 10AA of the IT Act and accordingly, it can be held that the appellant has rightly claimed deduction u/s. 10AA of the Act on the said manufacturing activities."
11. The aforesaid findings came to be affirmed by the Tribunal holding as under:
"Now the question arises whether the activities carried out by the assessee amounts to the blending as claimed by the assessee. In this connection we note that the assessee has imported various fuel oil in bulk which were blended in the tanks hired by it at Mundra port as evident from the submission of the assessee before the AO. The relevant extract of the submission of the assessee is reproduced as under:
The assessee company has made import of various fuel oil in bulk and out of such imports few quantity shall be blended at Page 5 of 15 Downloaded on : Mon Mar 01 03:33:44 IST 2021 C/TAXAP/188/2020 ORDER Mundra Port. Thus it shall carry the process of blending at Mundra Port. Further after blending the oil/fuel, the same shall be re-exported as bunker fuel supply to foreign run vessels different vessels as per their requirement, varying mainly in terms of Viscosity, sulfur and other parameters at ports of Gujarat.
The assessee company has hired 7 tanks of different capacity for Fuel Oil storage from APSEZ ITA no.1555/Ahd/2016 CO No.112/Ahd/2016 & others Asstt. Year 2010-11 The blending activity takes place at the time of import of cargo/ new arrival. The product being imported have the specification of i.g. "B" Grade.
The product of B Grade is received in tank which already have the product of A Grade, hence the specs of Imported Cargo is changed to C Grade, when it is blended with A Grade cargo already in the tank.
At the time of Import there remains some product in the tanks which have specification of i.g. "A" Grade The blending activity takes place also when the product of different grades lying in various tanks is mixed and a product of a new grade comes into existence. As an operational requirement or specific order for supply the assessee company needs to carry out inter- tank transfers. In this activity the Specs of two different grade products are blended and the specs of the mixed product emerge different from the specs of cargo transferred. During the process of inter-tank transfer circulation, churning, heating activity also carried out to have proper blending and homogeneous product at all the levels in the tank.
There are specific equipment like churners, jet pumps, hot water lines, boilers etc. are installed in the tanks for proper blending. -(Specific cost to have manufacturing- facility).Tanks are insulated to maintain temperature. Specific IT systems are installed at storage terminal to have better control over temperature, dip measurement, level of cargo.
The above submission of the assessee has not been doubted by the AO during the assessment proceedings. However, the AO doubted on the manufacturing activity carried out by the assessee mainly for 2 reasons, firstly, that there was not sufficient equipment available with the assessee secondly, and the AO referred the definition of manufacture as Page 6 of 15 Downloaded on : Mon Mar 01 03:33:44 IST 2021 C/TAXAP/188/2020 ORDER provided under section 2(29B) of the Act.
8.3 Regarding the availability of equipment, we note that the assessee hired the tanks which were well equipped for carrying out the blending activities as described above.
Furthermore, the activity of blending cannot be linked with the value of the equipment shown by the assessee in the financial statements.
8.4 We also note that the definition of the manufacturing under section 10AA of the Act has already been provided for the assessee's claiming the benefit therein. Thus there was no need to import the definition provided under section 2(29B) of the Act while evaluating the fact whether the assessee is carrying out any manufacturing activity. In our considered view, the assessee in the present facts ITA no.1555/Ahd/2016 CO No.112/Ahd/2016 & others Asstt. Year 2010-11 and circumstances is carrying out blending activity which is manufacture within the meaning as provided under SEZ Act. Accordingly, we hold that the assessee is engaged in the manufacturing activity. 8.4 it is also pertinent to take a note of the fact that the deduction under section 10AA is also available to the assessee engaged in providing any services. As such we are inclined to elaborate the services eligible for deduction under section 10AA of the Act. "
12. In view of the concurrent findings recorded by the two authorities as regards the process of blending, we are of the view that both the first two questions, as proposed by the Revenue, cannot be termed as the substantial questions of law. In the aforesaid context, we may refer to a decision of the Supreme Court in India Cine Agencies vs. Commissioner of Income Tax, Madras, (2009) 308 ITR 98 (SC). In the case before the Supreme Court, the assessee was carrying on business of conversion of jumbo Rolls of photographic films into small flats and rolls in the desired sizes. The assessee claimed deductions under Sections 32AB, 80HH and 80-I of the Act. The lower authorities disallowed the claim of the assessee on the ground Page 7 of 15 Downloaded on : Mon Mar 01 03:33:44 IST 2021 C/TAXAP/188/2020 ORDER that the activity undertaken by it was neither manufacture nor production. The High Court of Madras also held that in any event because of Item 10 of the Eleventh Schedule of the Act, no deduction was permissible. The Supreme Court has observed as under;
"3. In Black's Law Dictionary, (5th Edition), the word `manufacture' has been defined as, "the process or operation of making goods or any material produced by hand, by machinery or by other agency; by the hand, by machinery, or by art. The production of articles for use from raw or prepared materials by giving such materials new forms, qualities, properties or combinations, whether by hand labour or machine". Thus by process of manufacture something is produced and brought into existence which is different from that, out of which it is made in the sense that the thing produced is by itself a commercial commodity capable of being sold or supplied. The material from which the thing or product is manufactured may necessarily lose its identity or may become transformed into the basic or essential properties. (See Deputy Commissioner of Sales Tax (Law), Board of Revenue (Taxes), Ernakulam v. M/s. Coco Fibres (1992 Supp. (1) SCC 290).
4. Manufacture implies a change but every change is not manufacture, yet every change of an article is the result of treatment, labour and manipulation. Naturally, manufacture is the end result of one or more processes through which the original commodities are made to pass. The nature and extent of processing may vary from one class to another. There may be several stages of processing, a different kind of processing at each stage.
With each process suffered, the original commodity experiences a change. Whenever a commodity undergoes a change as a result of some operation performed on it or in regard to it, such operation would amount to processing of the commodity. But it is only when the change or a series of changes takes the commodity to the point where commercially it can no longer be regarded as the original commodity but instead is recognized as a new and distinct article that a manufacture can be said to take place. Process in Page 8 of 15 Downloaded on : Mon Mar 01 03:33:44 IST 2021 C/TAXAP/188/2020 ORDER manufacture or in relation to manufacture implies not only the production but also various stages through which the raw material is subjected to change by different operations. It is the cumulative effect of the various processes to which the raw material is subjected to that the manufactured product emerges. Therefore, each step towards such production would be a process in relation to the manufacture. Where any particular process is so integrally connected with the ultimate production of goods that but for that process processing of goods would be impossible or commercially inexpedient, that process is one in relation to the manufacture. (See Collector of Central Excise, Jaipur v. Rajasthan State Chemical Works, Deedwana, Rajasthan (1991 (4) SCC 473).
5. `Manufacture' is a transformation of an article, which is commercially different from the one, which is converted. The essence of manufacture is the change of one object to another for the purpose of making it marketable. The essential point thus is that, in manufacture something is brought into existence, which is different from that, which originally existed in the sense that the thing produced is by itself a commercially different commodity whereas in the case of processing it is not necessary to produce a commercially different article. (See M/s. Saraswati Sugar Mills and others v. Haryana State Board and others (1992 (1) SCC 418).
6. The prevalent and generally accepted test to ascertain that there is `manufacture' is whether the change or the series of changes brought about by the application of processes take the commodity to the point where, commercially, it can no longer be regarded as the original commodity but is, instead, recognized as a distinct and new article that has emerged as a result of the process. There might be borderline cases where either conclusion with equal justification can be reached. Insistence on any sharp or intrinsic distinction between `processing and manufacture', results in an oversimplification of both and tends to blur their interdependence. (See Ujagar Prints v. Union of India (1989 (3) SCC 488).
7. To put it differently, the test to determine whether a particular activity amounts to `manufacture' or not is:
Does a new and different good emerge having distinctive name, use and character. The moment there is Page 9 of 15 Downloaded on : Mon Mar 01 03:33:44 IST 2021 C/TAXAP/188/2020 ORDER transformation into a new commodity commercially known as a distinct and separate commodity having its own character, use and name, whether be it the result of one process or several processes `manufacture' takes place and liability to duty is attracted. Etymologically the word `manufacture' properly construed would doubtless cover the transformation. It is the transformation of a matter into something else and that something else is a question of degree, whether that something else is a different commercial commodity having its distinct character, use and name and commercially known as such from that point of view, is a question depending upon the facts and circumstances of the case. (See Empire Industries Ltd. v. Union of India (1985 (3) SCC
314).
8. The aforesaid aspects were highlighted in Kores India Ltd., Chennai v. Commissioner of Central Excise, Chennai (2005 (1) SCC 385) in the background of Central Excise Act, 1944 (in short the `Excise Act') and Central Excise Rules, 1944 (in short the `Excise Rules') and Central Excise Tariff Act, 1985 (in short the `Tariff Act'). The stand of the revenue was that it amounted to "manufacture", contrary to what has been pleaded in these cases. This Court held that it amounted to manufacture.
9. The matter can be looked at from another angle. In Commissioner of Income Tax v. Sesa Goa Ltd. (2004 (271) ITR 331) this Court considered the meaning of word `production'. The issue in that case was whether the extraction and processing of iron ore amounted to manufacture or not in view of the various processes involved and the various processes would involve production within the meaning of Section 32A of the Act. It was inter alia observed as under:
"There is no dispute that the plant in respect of which the assessee claimed deduction was owned by it and was installed after March 31, 1976, in the assessee's industrial undertaking for excavating, mining and processing mineral ore. Mineral ore is not excluded by the Eleventh Schedule. The only question is whether such business is one of manufacture or production of ore. -The issue had arisen before different High Courts over a period of time. The High Courts have held that the activity amounted to "production" and answered the issue in question in favour Page 10 of 15 Downloaded on : Mon Mar 01 03:33:44 IST 2021 C/TAXAP/188/2020 ORDER of the assessee. The High Court of Andhra Pradesh did so in CIT v. Singareni Collieries Co. Ltd. [1996) 221 ITR 48, the Calcutta High Court in Khalsa Brothers v. CIT [1996] 217 TTR 185 and CIT v. Mercantile Construction Co. [1994] 74 Taxman 41 (Cal) and the Delhi High Court in CIT v. Univmine (P.) Ltd, [1993] 202 ITR 825. The Revenue has not questioned any of these decisions, at least not successfully, and the position of law, therefore, was taken as settled.
The reasoning given by the High Court, in the decisions noted by us earlier, is, in our opinion, unimpeachable. This court had, as early as in 1961, in Chrestian Mica Industries Ltd. v. State of Bihar [1961] 12 STC 150, defined the word "Production", albeit, in connection with the Bihar Sales Tax Act, 1947. The definition was adopted from the meaning ascribed to the word in the Oxford English Dictionary as meaning "amongst other things that which is produced; a thing that results from any action, process or effort, a product; a product of human activity or effort". From the wide definition of the word "production", it has to follow that mining activity for the purpose of production of mineral ores would come within the ambit of the word "production" since ore is "a thing", which is the result of human activity or effort. It has also been held by this court in CIT v. N.C. Budharaja and Co. [1993] 204 ITR 412 that the word "production" is much wider than the word "manufacture". It was said (page
423) :
"The word `production' has a wider connotation than the word `manufacture'. While every manufacture can be characterised as production, every production need not amount to manufacture .
The word 'production' or 'produce' when used in juxtaposition with the word 'manufacture' takes in bringing into existence new goods by a process which may or may not amount to manufacture. It also takes in all the by-products, intermediate products and reside rodeos which emerge in the course of manufacture of goods."
10. In "Words and Phrases" 2nd Edn. by Justice R. P. Sethi the expressions `produce' and `production' are described as under:
"In Webster's New International Dictionary, the word Page 11 of 15 Downloaded on : Mon Mar 01 03:33:44 IST 2021 C/TAXAP/188/2020 ORDER "produce" means something that is brought forth either naturally or as a result of effort and work; a result produced. In Black's Law Dictionary, the meaning of the word `produce' is to `bring into view or notice; to bring to surface'. A reading of the aforesaid dictionary meanings of the word `produce' does indicate that if a living creature is brought forth, it can be said that it is produced. (See Commissioner of Income Tax v. Venkateswara Hatcheries (P) Ltd. (1999 (3) SCC 632), Commissioner of Income Tax, Orissa and Ors. v. M/s N.C. Budharaja and Company and Ors. (1994 Supp 1 SCC 280).
Production or produce- The word `production' or `produce' when used in juxtaposition with the word `manufacture' takes in bringing into existence new goods by a process, which may or may not amount to manufacture. It also takes in all the byproducts, intermediate products and residual products, which emerge in the course of manufacture of goods. The expressions `manufacture' and `produce' are normally associated with movables articles and goods, big and small but they are never employed to denote the construction activity of the nature involved in the construction of a dam or for that matter a bridge, a road and a building. (See Moti Laminates Pvt. Ltd. and Anr. v. Collector of Central Excise, Ahmedabad (1995 (3) SCC
23). "
11. In Advanced Law Lexicon, 3rd Edn. by P. Ramanatha Aiyar, the expressions `production' and `manufacture' are described as under:
"'Production' with its grammatical variations and cognate expressions; includes-
(i) packing, labeling, relabelling of containers.
(ii) re-packing from bulk packages to retail packages, and
(iii) the adoption of any other method to render the product marketable.
`Production' in relation to a feature film, includes any of the activities in respect of the making thereof. (Cine Workers and Cinema Theatre Workers (Regulations of Employment) Act (50 of 1981) S.2(i).
The word `production' may designate as well a thing produced as the operation of producing; (as) production of commodities or the production of a witness.
Page 12 of 15 Downloaded on : Mon Mar 01 03:33:44 IST 2021C/TAXAP/188/2020 ORDER `Manufacture' includes any art, process or manner of producing, preparing or making an article and also any article prepared or produced by manufacture. (Patent and Designs Act (2 of 1911), S.2(10).
`Manufacture' includes any process-
(i) incidental or ancillary to the completion of a manufactured product; and
(ii) which is specified in relation to any goods in the section or Chapter notes of the First Schedule to the Central Excise Tariff Act, 1985 (5 of 1986) as amounting to manufacture, or, and the word `manufacturer' shall be constructed accordingly and shall include not only a person who employs hired labour in the production or manufacture of excisable goods but also any person who engages in their production or manufacturer on his own account.
(iii) which is specified in relation to any goods by the Central Government by notification in the Official Gazette as amounting to manufacture. (Central Excise Act (1 of 1944) S.2(f)) The matter can yet be looked from another angle. If there was no manufacturing activity, then the question of referring to Item 10 of the Eleventh Schedule for the purpose of exclusion does not arise. The Eleventh Schedule, which was inserted by Finance (No.2) Act, 1977 w.e.f. 1.4.1978 has reference to Sections 32A, 32AB, 80CC (3)(a)(i), 80-I(2), 80J(4) and 88A (3)(a)(i) of the Act."
13. The aforesaid decision of the Supreme Court is a complete answer to the principal argument of Mr. Bhatt, the learned senior counsel appearing on behalf of the Revenue. The essence of manufacture is the change of one object to another for the purpose of making it marketable. As held by the Supreme Court in India Cine Agencies (supra) that the essential point is that, in manufacture, something is brought into existence which is different from that which originally existed, in the sense that the thing produced is, by itself, a commercially different Page 13 of 15 Downloaded on : Mon Mar 01 03:33:44 IST 2021 C/TAXAP/188/2020 ORDER commodity, whereas in the case of processing, it is not necessary to produce a commercially different article. It is the cumulative effect of the various processes, to which, the raw material is subjected to that the manufactured product emerges. Therefore, each step towards such production would be a process in relation to the manufacture.
14. In view of the aforesaid, we are not inclined to admit this tax appeal on the first two proposed questions of law. This appeal stands dismissed so far as the question Nos.2(A) and (B) are concerned. However, we clarify that Question No.2(A) also raises the issue with regard to the trading activities of the assessee. Although both the authorities below have held in favour of the assessee on this ground, yet we do not propose to go into the question of "trading activities" and keep this question open for being considered in any other appropriate case.
15. We now proceed to consider Question No.2(E) as proposed by the Revenue. Question No.2(E) also cannot be termed as a substantial question of law in view of the decision of this High Court in the case of Commissioner of Income Tax-I vs. UTI Bank Ltd., 2013 (32) Taxmann.com 370 (Gujarat). The ratio of this decision is that if there are sufficient interest free funds to meet the tax free investments, they are presumed to be made from the interest free funds and not the loaned fund and no disallowance can be made under Section 14A.
16. In view of the aforesaid, this appeal stands dismissed so far as Question No.2(E) is concerned.
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17. We are of the opinion that the Question Nos.2 (C ) and (D) respectively, as proposed by the Revenue, deserve to be considered.
18. In view of the aforesaid, this tax appeal is admitted on the following two substantial questions of law;
"(C) Whether the Appellate Tribunal has erred in law in holding that the assessee is eligible for deduction with respect to income on account of currency fluctuation, interest income and that it is entitled to deduction under Section 10AA of Rs.4,72,67,584/-?
(D) Whether the Appellate Tribunal has erred in law and in holding that the assessee's claim of loss of Rs.4,81,48,554/- shall increase the deduction under Section 10AA by ignoring that the documentary evidences have not been furnished and that assessee's eligibility under Section 10AA has been challenged?"
(VIKRAM NATH, CJ) (J. B. PARDIWALA, J) Vahid Page 15 of 15 Downloaded on : Mon Mar 01 03:33:44 IST 2021