Income Tax Appellate Tribunal - Mumbai
Jyoti Plastic Works Pvt. Ltd, Mum vs Department Of Income Tax
IN THE INCOME TAX APPELLATE TRIBUNAL
MUMBAI BENCHES "J", MUMBAI
Before Shri R.S.Syal, AM and Shri N.V.Vasudevan, JM
ITA No.2964/Mum/2008 : Asst.Year 1999-2000
ITA No.2965/Mum/2008 : Asst.Year 2000-2001
ITA No.2966/Mum/2008 : Asst.Year 2001-2002
ITA No.2967/Mum/2008 : Asst.Year 2002-2003
ITA No.3443/Mum/2007 : Asst.Year 2003-2004
ITA No.3444/Mum/2007 : Asst.Year 2004-2005
The Dy.Commissioner of Income-tax M/s.Jyothi Plastic Works Private Limited
Circle 9(2) 94 Bombay Talkies Compound
Mumbai. Vs. Malad (West) Mumbai - 400 069.
PA No.AAACJ1381Q.
(Appellant) (Respondent)
CO No.168/Mum/2008 : Asst.Year 1999-2000
CO No.169/Mum/2008 : Asst.Year 2000-2001
CO No.170/Mum/2008 : Asst.Year 2001-2002
CO No.171/Mum/2008 : Asst.Year 2002-2003
M/s.Jyothi Plastic Works Private Limited The Dy.Commissioner of Income-tax
94 Bombay Talkies Compound Circle 9(2)
Malad (West) Mumbai - 400 069. Vs. Mumbai.
(Cross Objector) (Respondent)
Revenue by : Shri L.K.Agrawal
Assessee by : Shri Vijay Mehta
ORDER
Per Bench :
This batch of 10 appeals involving six appeals by the Revenue and four cross objections by the assessee in relation to the A.Ys. 1999-2000 to 2004-05 involve some common issues. We are , therefore, proceeding to dispose them off by this consolidated order for the sake of convenience.2 ITA Nos.2964/Mum/2008 & Ors.
M/s.Jyoti Plastic Works Private Limited.
2. The only issue raised in the Revenue's appeals is against the allowing of deduction u/s.80-IB by the learned CIT(A). The learned Departmental Representative took us through the facts for assessment year 2003-2004 and stated that in the other years this order has been followed either in normal course of assessment u/s.143(3) or for the purpose of reopening the earlier years' assessment. Briefly stated the facts of the case for assessment year 2003-2004 are that the assessee had one industrial unit at Daman and another at Mumbai. Deduction u/s.80-IB amounting to Rs.98,34,987 was claimed to the extent of income available in Daman unit. The Assessing Officer noted that the assessee was engaged in the business of manufacture of plastic parts for Electronic voting machines, submersible pumps, doors etc. On examination of Labour charges and Wages, it was noticed that the assessee had paid Rs.47,60,981 to the outside parties and only a sum of Rs.1,22,282 was paid as wages to its own employees. He further noticed that 98% of the goods were manufactured by outside parties. On being called upon to explain as to why deduction under this provision be not denied, the assessee tendered explanation vide its letter dated 16.3.2006, a part of which has been reproduced at page 3 of the assessment order. It was stated that the assessee owned its own machines and the contractors to whom labour charges were paid were for working at the premises of the assessee only. It was further explained that the infrastructure like Land, premises, machine, water, power, maintenance etc. belonging to the assessee were provided to them and also the raw material was purchased and stored by the assessee from which goods were got manufactured in its own factory only. It was also stated that the so called contractors did not have their independent infrastructure at all and they worked on the raw material supplied by the assessee at the premises of the assessee. The Assessing Officer did not find any force in the assessee's submission. In his opinion, section 80-IB(2) contemplated fulfilling of all the requirements as set out in different clauses to sub- section (2). He noted that clause (iii) to section 80-IB(2) provides for the 3 ITA Nos.2964/Mum/2008 & Ors. M/s.Jyoti Plastic Works Private Limited.
manufacture or production of article or thing by the assessee. As the major portion of the goods was got manufactured by the assessee from the outside parties, the A.O. held that this clause was not satisfied. Further he took into consideration clause (iv) to section 80-IB(2) as per which it was necessary to employ 10 or more workers in the manufacturing process carried on by the assessee with the aid of power. He reproduced number of workers employed by the assessee at page 6 of the assessment order, ranging between Nil to 7 in different months. As the assessee had not employed 10 or more workers, the assessee was again show caused on this issue. It was stated on behalf of the assessee that the contractors to whom labour charges were paid supplied the workers at assessee's own factory directly working under its control and number of total workers was much more than the prescribed number of ten. The A.O. did not accept this contention and came to hold that deduction could not be allowed to the assessee. In the first appeal the learned CIT(A) overturned the assessment order on this point and accepted the claim for deduction, against which the Revenue has come up in appeal before us.
3. We have heard the rival submissions and perused the relevant material on record. There is no dispute on the facts that but for two clauses of section 80-IB(2), as taken note of by the Assessing Officer, the assessee is otherwise eligible for deduction under this section. The first objection of the Assessing Officer was that clause (iii) to section 80-IB(2) was not satisfied by the assessee which says that the undertaking manufactures or produces an 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. From the prescription of clause (iii) to section 80-IB(2), it can be seen that the eligible industrial undertaking must manufacture or produce the specified articles itself. The Assessing Officer has made out a case that the outside parties to whom wages were paid, which 4 ITA Nos.2964/Mum/2008 & Ors. M/s.Jyoti Plastic Works Private Limited.
constituted a larger chunk, did manufacture in their own respective factories. We have gone through the annual account of the assessee for the year, a copy of which is available in the paper book. It is seen that the assessee purchased raw material and utilized it in production. Not only the assessee paid excise duty of Rs.106.97 lakhs but also there was Cenvat claim for Rs.53.73 lakhs. The assessee owned plant and machinery worth Rs.2.32 crore before depreciation at the end of the year on which total amount of depreciation came at Rs.1.04 crore. The assessee was holding permanent SSI registration from Department of Industries, Administration of Daman & Diu. If we have a look at the Manufacturing and other expenses it comes to light that Electricity charges worth Rs.38.84 lakhs were paid by the assessee in this year apart from Repairs and maintenance of machinery at Rs.12.01 lakhs. The above details indicate that the assessee was using its factory for the purpose of manufacturing. The assessee stated before the A.O. that the outside parties to whom wages were paid worked in assessee's own factory, which was not accepted by the A.O. We have perused the summary of Labour charges paid to outside parties, viz., the contractors, which is available at page 47 of the paper book. Copies of bills issued by these parties along with necessary details are also available on paper book. Page 51 is bill raised by M/s.Pratik Consultancy Services for Rs.30,275. Its detail is available at page 52 which lists 16 persons along with number of days present and rate per day. Similarly page 53 is bill by M/s.Kimaya Enterprises for Rs.93,748. The detail of employees supplied by these parties is at page 54 of the paper book which indicates person-wise daily rate and number of days present. Similar detail is available in respect of some other parties also to whom the assessee paid wages. Then page 65 is Attendance register of workers supplied by M/s.Kimaya Enterprises. These details amply demonstrate that the outside parties were supplying labours to the assessee who were working in assessee's premises for the purpose of manufacturing. The facts that the assessee paid to these parties on the basis of number of persons, number of days present and 5 ITA Nos.2964/Mum/2008 & Ors. M/s.Jyoti Plastic Works Private Limited.
rate per day, indicate that they all were working in assessee's own premises only. In contrast to it, Page 81 of the paper book contains detail of Rs.9,60,575 which was paid by the assessee for job work done from outside its factory. When we consider wages paid by the assessee for outside work vis-à-vis wages paid for work done in its own factory, it can be easily noticed that the former amount is a nominal part of the latter. From the facts discussed above it can be seen that the assessee paid to outside parties for supplying of labour to it with a view to carry on manufacturing activity in assessee's own factory. Thus condition laid down in clause (iii) to section 80-IB(2) stands fulfilled.
4. Now coming to the other objection of the AO, being non-fulfillment of the prescription of clause (iv) to section 80-IB(2) by the assessee. we find that the requirement is that the undertaking must employ ten or more workers in a manufacturing process carried on with the aid of power. The Assessing Officer has noted the number of workers employed by the assessee month-wise between 0 and 7 and did not accept the assessee's contention that the workers supplied by outside parties be included in such total number of workers employed. Detail of Wages paid to workers is available at page 50 of the paper book for the months April 2002 to March 2003, from where it is discernible that there were total 9 number of workers employed for whole or part of the year. Apart from that the detail of Salary paid to staff is available at page 49 of the paper book, which depicts that out of 18 employees, Shri Ajaykumar Sohane at Sr.no.2 is Production Engineer, Shri Sunil Ugale at Sr.no.5 is Quality Control In-charge, employees from Sr.nos.10 to 17 are either Quality Control Assistants or Production Engineers. When we consider the total number of workers included by the assessee under the head Wages or Salaries, it exceeds ten.
6 ITA Nos.2964/Mum/2008 & Ors.M/s.Jyoti Plastic Works Private Limited.
5. Be that as it may, we have noted above that the parties to whom the assessee paid wages supplied workers who worked in the assessee's factory for the purpose of manufacture. Page 48 of the paper book contains detail of labourers working inside factory as supplied by various parties individually. Such number ranges between 84 and 123 per month. Thus when we include the assessee's own workers along with those taken on contract basis, the total number of workers employed by the undertaking again exceeds ten. Here it is important to mention that the Hon'ble Gujarat High Court in the case of CIT Vs. Prithviraj Bhoorchand [(2006) 280 ITR 94 (Guj.)] has held that the workers employed through the contractor are also to be included if the assessee has control over such workers. Similar view was earlier taken by the Hon'ble Gujarat High Court in the case of CIT Vs. V.B.Narania And Co. [(2001) 252 ITR 884 (Guj.)]. It is still further noted that the Hon'ble Karnataka High Court in the case of CIT Vs. K.G. Yediyurappa & Co. [(1985) 152 ITR 152 (Kar.)] has held that the casual workers working in an undertaking are to be considered for the purpose of granting relief u/s.80HH.
6. The Assessing Officer has relied on the case of R & P Exports Vs. CIT [(2005) 279 ITR 536 (All.)] for bringing home the point that the contract workers were not to be considered for this purpose. We find that the relevant discussion is there in para 7 of the judgment, the relevant part of which is as under:-
"Having given our anxious consideration to the various submissions made by the learned counsel for the applicant, we are of the opinion that such Karigars/artisans engaged by the applicant cannot be said to be persons employed by it. To put it clearly, what is meant is that there is no relationship of employer or employee or master and servant with such persons. One of the tests uniformly applied is to find out existence of a right of control in respect of the manner in which the work is to be done, rather the mere order for the work to be done. Distinction between contract of services and contract for services is firmly established. In the case of contract of service, the persons hiring the service can tell how the work is to be done, when the same is to be done, where is to be done, etc. In contract for service what is 7 ITA Nos.2964/Mum/2008 & Ors. M/s.Jyoti Plastic Works Private Limited.
to be done, only this much is stated. Thus, in the case of contract for service evidently it cannot be said that the person receiving the contract has been employed by the assessee."
7. It is seen that the Hon'ble Allahabad High Court has made a distinction between the contract of services and contract for service. It was opined that in the case of contract for service, the person receiving the contract could not be considered as having been employed by the assessee. It, therefore, shows that in the case of contract of service, there cannot be any exclusion. Contract of service means that the person hiring the service can tell how the work is to be done, when it is to be done and where it is to be done. Adverting to the facts of the instant case, we find that the outside parties supplied workers to the assessee, who were at the disposal of the assessee for using them in any manner it liked. The payment was to be made on daily basis. Even if the assessee did not have any work to be got done from them, he was supposed to pay for the number of days he hired their services. Further the assessee could use such force in any manner it liked. We, therefore, find that the judgement in the case of R & P Exports (supra) does not bring the case of the Revenue any further in the present circumstances. In the light of the above discussion, we find that the total number of workers employed by the assessee was much more than ten and hence the condition u/s.80-IB(2)(iv) also stood fully satisfied.
8. We, therefore, approve the action of the learned CIT(A) in granting deduction to the assessee in this year.
9. Both the sides are in agreement that the facts and circumstances of other appeals of the Revenue are mutatis mutandis similar to those of assessment year 2003-2004. Following our view taken herein above, we hold that the assessee was 8 ITA Nos.2964/Mum/2008 & Ors. M/s.Jyoti Plastic Works Private Limited.
rightly granted deduction by the learned CIT(A) in all the years under consideration.
10. The learned A.R. did not press the Cross objections filed by the assessee, which hereby stand dismissed.
11. In the result, all the appeals and cross objections are dismissed.
Order pronounced on this 5th day of February, 2010.
Sd/- Sd/-
(N.V.Vasudevan) (R.S.Syal)
JUDICIAL MEMBER ACCOUNTANT MEMBER
Mumbai : 5th February, 2010.
Devdas*
Copy to :
1. The Appellant.
2. The Respondent.
3. The CIT concerned
4. The CIT(A)-IX, Mumbai.
5. The DR/ITAT, Mumbai.
6. Guard File.
TRUE COPY.
By Order
Assistant Registrar, ITAT, Mumbai.
9 ITA Nos.2964/Mum/2008 & Ors.
M/s.Jyoti Plastic Works Private Limited.
Date Initial
1. Draft dictated on 04.02.2010 Sr.PS
2. Draft placed before author 04.02.2010 Sr.PS
3. Draft proposed & placed before the JM/AM
second member
4. Draft discussed/approved by Second JM/AM
Member.
5. Approved Draft comes to the Sr.PS/PS Sr.PS/PS
6. Kept for pronouncement on Sr.PS
7. File sent to the Bench Clerk Sr.PS
8. Date on which file goes to the Head Clerk.
9. Date of dispatch of Order.
*