IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 12.07.2010 CORAM : THE HON'BLE MR.JUSTICE F.M.IBRAHIM KALIFULLA AND THE HON'BLE MR.JUSTICE M.M.SUNDRESH TAX CASE (APPEAL) NOS.546 AND 547 OF 2010 The Commissioner of Income Tax .. Appellant in both Pondicherry. the appeals/Appellant vs. M/s. Esquire Translam Industries B-125, PIPDIC Industrial Estate, Estate .. Respondent in Mettupalayam, Puducherry-605 111. T.C.A.No.546/2010/Respondent M/s. Nexus Transcore Industries No.58, PIPDIC Industrial Estate, Estate Mettupalayam, Puducherry-605 009 .. Respondent in T.C.A.No.547/2010/Respondent Prayer: Tax Case Appeals filed under Section 260A of the Income Tax Act, 1961, against the common order of the Income Tax Appellate Tribunal, Madras 'B' Bench, dated 26.06.2009 passed in I.T.A.Nos.1940 and 1942/Mds/2008 against the order of the Commissioner of Income Tax (Appeals)-XII, 121, Mahatma Gandhi Road, Chennai - 600 034 dated 30.6.2008 and made in ITA.Nos.413 and 414 of 2007-08 for the assessment year 2000-01 (T.C.No.546 of 2010) ITA.No.412/07-08 for the assessment year 2005-2006 (T.C.547/2010), and against the order of Joint Commissioner of Income Tax, Puducherry Range, Puducherry dated 31.12.2007 in P.A.No./G.I.No.AAAFE 3510H/4341-E for the assessment year 2000-01 (T.C.546/2010) P.A.No/G.I.No.AADFN3406A/N-5195 for the assessment year 2005-2006 respectively (T.C.547 of 2010) For Appellant : Mr.J.Naresh Kumar Sr. Standing Counsel for Income-tax Common Judgment (Judgment of the Court was delivered by M.M.SUNDRESH,J.) In view of the common questions of law involved in both the appeals, they have been taken up together for disposal. T.C.(A) No.546 of 2010 pertains to the assessment *year 2000–2001* and T.C. https://hcservices.ecourts.gov.in/hcservices/ (A) No.547 of 2010 pertains to the assessment year 2005–2006 respectively. 2. The orders passed by the Assessing Authority holding that the goods manufactured by the assessees would not cover the entitlement of exemption under Section 80-IB of the Income-tax Act, have been reversed by the Commissioner of Income Tax (Appeals). Challenging the same, the Revenue has filed a further appeal to the Tribunal and the Tribunal, in turn, has confirmed the said orders passed by the Commissioner of Income Tax (Appeals) and hence the present appeals. 3. The Revenue has filed these appeals by formulating the following substantial question of law: "Whether on the facts and in the circumstances of the case, the Appellate Tribunal was right in law in holding that the assessee is entitled deduction under Section 80IB of the Act, in respect of CRGO Laminations shall amount to Manufacture for the purpose of Section 80IB of the Act, is valid?" 4. It is seen that the assessees were involved in a job work by receiving the raw materials CRGO Electrical Steel owned by the customer and converted them into laminations. The process of the said manufacturing operation is extracted hereunder: "5.14.3. ... "We receive raw material CRGO Electrical Steel or semi-finished CRGO Laminations owned by our customer for job work purposes. On receipt of such material, it undergoes any of the following manufacturing processes in our factory: 1. Assorting the raw materials as per their grade, size, thickness, shapes, electrical properties, etc. 2. Slitting/Shearing the Strips/Sheets/Coils to the widths required as per customer's Specifications/Design. 3. Shearing them into various shapes/sizes as per customer's Specifications/Design. 4. Hole-punching/"V" Notching as per the desired design. 5. Deburring the Edges/Holes/V-Notch. 6.Testing/Inspecting the finished materials for its Electrical as well as Physical properties. 7. Stacking/Packing them as per their Shapes/Sizes and Weight as per Customer's specifications. https://hcservices.ecourts.gov.in/hcservices/ In this manner, the raw material/semi finished material undergoes any of the above processes and then such processed material is sent to the customer along with the scrap generated during such process. Since the raw material is owned by the customer only the above manufacturing process, comprises our Sales Value". 5. The Assessing Officer has rejected the claim of the assessees for deduction under Section 80-IB of the Act, by holding that inasmuch as the very same raw material is used for the final product and in view of the admitted position that there is no change in the product, it cannot be termed as a new product and therefore, in the absence of any manufacturing process, the assessees' claim cannot be considered. However, the Commissioner of Income Tax (Appeals), considering the above observed process involved in the conversion of the raw materials CRGO Electrical Steel into lamination, which is a distinct commercial product, marketable separately from the raw material, has allowed the appeals. 6. The said order of the Commissioner of Income Tax (Appeals) was also confirmed by the Tribunal. A perusal of the operation performed by the assessees would show that the raw material was produced by the customer for job work. Admittedly, the said material has undergone several processes such as assorting the raw materials as per their grade, size, thickness, shapes, electrical properties etc. and shearing them into various shapes. Apart from the same, the process is involved hole punching, testing and stacking the materials as per their shapes. Therefore, a factual finding has been given by the Commissioner of Income Tax (Appeals) as well as Tribunal by holding that the said process of converting the raw material into a new product would amount to manufacturing process entitling the assessee for deduction under Section 80IB of the Act. 7. The issue raised in the present appeals is covered by the judgment of the Hon'ble Apex Court in India Cine Agencies (308 ITR 98), wherein the Apex Court has observed as follows: "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. (Collector of Central Excise V. Rajasthan State Chemical Works (1991) 4 SCC 473). "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 https://hcservices.ecourts.gov.in/hcservices/ 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 processing it is not necessary to produce a commercially different article. (see Saraswati Sugar Mills V. Haryana State Board (1992) 1 SCC 418). 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)." 8. A reading of the said judgment of the Hon'ble Apex Court would show that in order to define 'Manufacture', what is sufficient is to find out a different commodity, having distinct name used in character emerging from the raw material. In the present case on hand, admittedly, a different commodity has emerged from the raw material supplied by the owner to the assessee. Therefore, applying the said ratio laid down by the Hon'ble Apex Court to the facts on hand, we are of the opinion that there is no error in the order passed by the Tribunal confirming the factual findings given by the Commissioner of the Income-tax (Appeals). Hence, the question of law raised is answered against the Revenue and the appeals are dismissed. Consequently, connected M.P.No.1 of 2010 is also dismissed. Sd/ Asst.Registrar Dated :26.07.2010 In corporate order to be issued as per order of this Court dated 14.09.2010 in T.C.(A).No.546 & 547/2010 Sd/- Asst. Registrar Dated : 17.09.2010 /true copy/ Sub Asst.Registrar https://hcservices.ecourts.gov.in/hcservices/ ATR To 1. The Assistant Registrar Income Tax Appellate Tribunal 3rd Floor, Rajaji Bhavan, Besant Nagar, Madras - 90 To be substituted 2. The Commissioner of Income Tax (Appeals)-XII to the order No.121, Mahathma Gandhi Road, Chennai 600034. already despatched on 04.08.2010 3. The Joint Commissioner of Income Tax Puducherry Range, Puducherry. 4. The Commissioner of Income Tax, Pondicherry 1 cc To Mr.J.Naresh Kumar, Advocate, SR.67681. TC (A) Nos.546 & 547 of 2010 PKB(CO) sra 27/07/2010 RVL 20.09.2010 https://hcservices.ecourts.gov.in/hcservices/