1 ITEM NO.4 Court 4 (Video Conferencing) SECTION IX S U P R E M E C O U R T O F I N D I A RECORD OF PROCEEDINGS Petition(s) for Special Leave to Appeal (C) No(s).6730/2021 (Arising out of impugned final judgment and order dated 22-10-2020 in TA No. 23/2012 passed by the High Court of Judicature at Bombay at Goa) THE COMMISSIONER OF INCOME TAX Petitioner(s) VERSUS M/S SOCIEDADE DE FOMENTO INDUSTRIAL PVT. LTD. Respondent(s) (FOR ADMISSION and I.R.) WITH SLP(C) No. 5940/2021 (IX) SLP(C) No. 6201-6202/2021 (IX) (FOR ADMISSION and I.R.) SLP(C) No. 8001-8002/2021 (IX) (FOR ADMISSION and I.R.) SLP(C) No. 6854-6855/2021 (IX) (FOR ADMISSION and I.R.) Date : 25-01-2022 These petitions were called on for hearing today. CORAM : HON'BLE DR. JUSTICE D.Y. CHANDRACHUD HON'BLE MR. JUSTICE SANJIV KHANNA For Petitioner(s) Mr. N. Venkataraman, ASG Mr. Rupesh Kumar, Adv. Mr. Manish Pushkarna, Adv. Mr. B.K. Satija, Adv. Mr. Mohammed Akhil, Adv. Mr. P.V. Yogeshwaran, Adv. Mr. Raj Bahadur Yadav, AOR For Respondent(s) Mr. Rafique Dada, Sr. Adv. Mr. Yashraj Singh Deora, AOR Ms. Jasmin Amalsadvala, Adv. Mr. Nishant Thakkar, Adv. Ms. Prakriti Roy, Adv.
2 UPON hearing the counsel the Court made the following O R D E R SLP(C) No 6730/2021 1 In arriving at the conclusion that the respondent-assessee was entitled to the benefit of the provisions of Section 10B of the Income Tax Act 1961, the Income Tax Appellate Tribunal 1 , by its decision dated 24 March 2011, applied the tests which have been formulated in the decision of this Court in Textile Machinery Corporation Ltd v CIT 2 . These tests which have been formulated in the decision of this Court are reproduced below: “i. Manufacture or production of articles yielding additional profit attributable to the new outlay of capital in a separate and distinct unit is the heart of the matter. ii. The fact that an assessee by establishment of a new industrial undertaking expands his existing business which he certainly does would not on that score, deprive him of the benefit. Every new creation in business is some kind of expansion and advancement. iii. The true test is not whether the new industrial undertaking connotes expansion of the existing business of the assessee but whether it is all the same a new and identifiable undertaking separate and distinct from the existing business, iv. In order that the new undertaking can be said to be not formed out of the already existing business, there must be a new emergence of a physically separate industrial unit which may exist on its own as a viable unit. v. The new unit may produce the same commodities of the old business or it may produce some other distinct marketable products, even commodities which may feed the old business. vi. The products produced by the new unit may be 1 “Tribunal” 2 107 ITR 195 (SC)
3 consumed by the assessee in his old business or may be sold in the open market. One thing is certain that the new undertaking must be an integrated unit by itself wherein articles are produced. vii. The industrial unit set up must be new in the sense that new plants and machinery are erected for producing either the same commodities or some distinct commodities. viii. In order to deny the benefit the new undertaking must be formed by reconstruction of the old unit which can take place only when the assets of more than 20% value of new unit are transferred to the new unit from the old unit.” 2 These tests have been reiterated in the decision in CIT v Indian Aluminium 3 . 3 In coming to the conclusion that the tests which have been formulated in the decision of this Court in Textile Machinery Corporation Ltd (supra) and reiterated in Indian Aluminium (supra) have been duly fulfilled, the Tribunal has entered specific findings of fact which are contained in paragraph 19 of the judgment which is extracted below: “19. It is thus submitted that the following facts will go to establish the assessee's claim that the unit formed in 1998 is a new undertaking: i. the old unit approved under license No.CIL/420 (1985) dt.26-12-1985 started producing Iron ore in the year 1986 and was setup at a total cost of Rs.3 crores having a capacity of producing 2 lac tons of beneficiated Ore per year; ii in these circumstances it was considered imperative to install a new and more sophisticated beneficiation plant whose operations would result in production of higher ferrous content of about 63% plus; iii. accordingly the appellant applied for allowing it to import plant and machinery, pursuant to the approval from the Ministry of Industry, an agreement came to be entered into between the appellant and the Government which recognized the setting up of the new unit and required that the unit should comply with fresh net foreign exchange earnings from the date of commencement of 3 108 ITR 367 (SC)
4 production of newly set up unit; iv. pursuant to the approval the appellant set up and installed primary beneficiation section (PBS-II) and other related plant and machineries along with a slime treatment plant from a Swedish company, this plant is independently capable of producing ore of higher ferrous content, i.e. up to 63% to 65% with lower content of alumina and silica as required in the international market from the low-grade ore which is mined; v. the new unit was formed in the financial year 1998-99 at a cost of over Rs.30 crores and the capacity of this unit is 15 lakhs tons compared to the earlier capacity of 2 lakhs tons per annum in old unit; vi. a photograph taken of the new unit established in 1998- 99 (copy enclosed at pg.37 of paper book) clearly shows that the new unit is a completely different and independent unit which is located at a separate plot adjacent to the old unit; vii. a certificate given by the Engineer of the appellant, one Mr. Y.S. Reddy establishes that the Greater Ferro-met Unit is capable of independently producing ore on its own of the desired ferrous" content.” 4 The Tribunal has noted that the new unit was fully a independent unit with a production capacity of 15 lakh tons per annum as compared to the earlier production capacity of 2 lakh tons per annum of the old unit. The Tribunal has also dealt with the reasons which were furnished by the CIT in coming to the conclusion that what was set up was only an expansion of the old unit and not a new unit. Ex facie , the reasons which weighed with the CIT were not compliant with the tests which have been formulated in the judgments of this Court. 5 In this backdrop, the judgment of the Division Bench of the High Court of Bombay at Goa dated 22 October 2020 affirming the judgment of the Tribunal does not suffer from any error. The Special Leave Petition is accordingly dismissed.
5 6 Pending application, if any, stands disposed of. SLP(C) Nos 5940/2021, 6201-6202/2021. 8001-8002/2021 and 6854-6855/2021 1 In view of the order passed in SLP(C) No 6730/2021, we are not inclined to entertain the Special Leave Petitions. The Special Leave Petitions are accordingly dismissed. 2 Pending application, if any, stands disposed of. (SANJAY KUMAR-I) (SAROJ KUMARI GAUR) AR-CUM-PS COURT MASTER
1 ITEM NO.28 Court 4 (Video Conferencing) SECTION IX S U P R E M E C O U R T O F I N D I A RECORD OF PROCEEDINGS Petition(s) for Special Leave to Appeal (C) No(s).6730/2021 (Arising out of impugned final judgment and order dated 22-10-2020 in TA No. 23/2012 passed by the High Court of Judicature at Bombay At Goa) THE COMMISSIONER OF INCOME TAX Petitioner(s) VERSUS M/S SOCIEDADE DE FOMENTO INDUSTRIAL PVT. LTD. Respondent(s) (FOR ADMISSION and I.R. ) WITH SLP(C) No. 5940/2021 (IX) SLP(C) No. 6201-6202/2021 (IX) (FOR ADMISSION and I.R.) SLP(C) No. 8001-8002/2021 (IX) (FOR ADMISSION and I.R.) SLP(C) No. 6854-6855/2021 (IX) (FOR ADMISSION and I.R.) Date : 03-12-2021 These petitions were called on for hearing today. CORAM : HON'BLE DR. JUSTICE D.Y. CHANDRACHUD HON'BLE MR. JUSTICE A.S. BOPANNA For Petitioner(s) Mr. N. Venkataraman, ASG Mr. Rupesh Kumar, Adv. Mr. B.K. Satija, Adv. Mr. Manish Puskarna, Adv. Mr. P.V. Yogeshwaran, Adv. Mr. Mohammed Akhil, Adv. Ms. Diksha Rai, Adv. Mr. Raj Bahadur Yadav, AOR For Respondent(s) Mr. Rafique Dada Sr. Adv. Mr. Yashraj Singh Deora, AOR Ms. Jasmin Amalsadvala, Adv. Mr. Nishant Thakkar, Adv. Ms. Sonal Mashankar, Adv. Ms. Prakriti Roy, Adv. Mr. Yashraj Singh Deora, AOR
2 UPON hearing the counsel the Court made the following O R D E R 1 List the Special Leave Petitions on a non-miscellaneous day on 25 January 2022. 2 Learned counsel for the parties shall file a brief note of submissions one week before the next date of listing, which shall also be emailed to cmvc.dyc@gmail.com . (SANJAY KUMAR-I) (SAROJ KUMARI GAUR) AR-CUM-PS COURT MASTER
SLP(C) 6730/2021 1 ITEM NO.38 Court 4 (Video Conferencing) SECTION IX S U P R E M E C O U R T O F I N D I A RECORD OF PROCEEDINGS Petition(s) for Special Leave to Appeal (C) No.6730/2021 (Arising out of impugned final judgment and order dated 22-10-2020 in TA No.23/2012 passed by the High Court of Judicature at Bombay at Goa) THE COMMISSIONER OF INCOME TAX Petitioner(s) VERSUS M/S SOCIEDADE DE FOMENTO INDUSTRIAL PVT. LTD. Respondent(s) (FOR I.R.) WITH S.L.P.(C) No.5940/2021 (IX) S.L.P.(C) Nos.6201-6202/2021 (IX) (FOR I.R.) S.L.P.(C) Nos.8001-8002/2021 (IX) (FOR I.R.) S.L.P.(C) Nos.6854-6855/2021 (IX) (FOR I.R.) Date : 08-11-2021 This petition was called on for hearing today. CORAM : HON'BLE DR. JUSTICE D.Y. CHANDRACHUD HON'BLE MR. JUSTICE A.S. BOPANNA For Petitioner(s) Mr. N. Venkataraman, ASG Mr. P.V. Yogeshwaran, Adv. Mr. B.K. Satija, Adv. Mr. Manish Pushkarna, Adv. Mr. Rupesh Kumar, Adv. Mr. Mohd. Akhil, Adv. Ms. Diksha Rai, Adv. Mr. Raj Bahadur Yadav, AOR
SLP(C) 6730/2021 2 For Respondent(s) Mr. Rafique Dada, Sr. Adv. Mr. Yashraj Singh Deora, AOR Ms. Jasmin Amalsadvala, Adv. Mr. Nishant Thakkar, Adv. Ms. Sonal Mashankar, Adv. Ms. Prakriti Roy, Adv. UPON hearing the counsel the Court made the following O R D E R SLP (C) No 6730 of 2021 1 Issue notice. 2 Tag with SLP (C) No 5940 of 2021. SLP (C) No 6730/2021, S.L.P.(C) No.5940/2021, S.L.P.(C) Nos.6201- 6202/2021, S.L.P.(C) Nos.8001-8002/2021 and S.L.P.(C) Nos.6854- 6855/2021 1 List the Special Leave Petitions on 3 December 2021. (CHETAN KUMAR) (SAROJ KUMARI GAUR) A.R.-cum-P.S. Court Master
SLP(C) 5940/2021 1 ITEM NO.31 Court 4 (Video Conferencing) SECTION IX S U P R E M E C O U R T O F I N D I A RECORD OF PROCEEDINGS Petition(s) for Special Leave to Appeal (C) No.5940/2021 (Arising out of impugned final judgment and order dated 22-10-2020 in TA No.25/2012 passed by the High Court of Judicature at Bombay at Goa) THE COMMISSIONER OF INCOME TAX Petitioner(s) VERSUS SOCIEDADE DE FOMENTO INDUSTRIAL PVT. LTD. Respondent(s) WITH S.L.P.(C) Nos.6854-6855/2021 (IX) (FOR I.R.) S.L.P.(C) Nos.6201-6202/2021 (IX) (FOR I.R.) S.L.P.(C) Nos.8001-8002/2021 (IX) (FOR I.R.) Date : 01-10-2021 These petitions were called on for hearing today. CORAM : HON'BLE DR. JUSTICE D.Y. CHANDRACHUD HON'BLE MRS. JUSTICE B.V. NAGARATHNA For Petitioner(s) Mr. N. Venkataraman, ASG Mr. B.K. Satija, Adv. Mr. Manish Pushkarna, Adv. Mr. P.V. Yogeswaran, Adv. Mr. Rupesh Kumar, Adv. Mr. Mohammed Akhil, Adv. Mr. Raj Bahadur Yadav, AOR For Respondent(s) Mr. Nishant Thakkar, Adv. Mr. Yashraj Singh Deora, AOR
SLP(C) 5940/2021 2 Ms. Sonal Mashankar, Adv. Ms. Prakriti Roy, Adv. UPON hearing the counsel the Court made the following O R D E R 1 Mr Nishant Thakkar, learned counsel appearing on behalf of the respondent states that counter affidavit in the Special Leave Petitions will be filed within a period of three weeks. 2 List the Special Leave Petitions along with SLP(C) No 6730 of 2021 on 8 November 2021. (CHETAN KUMAR) (PARVEEN KUMARI PASRICHA) A.R.-cum-P.S. ASSISTANT REGISTRAR
ITEM NO.4 Court 4 (Video Conferencing) SECTION IX S U P R E M E C O U R T O F I N D I A RECORD OF PROCEEDINGS Petition(s) for Special Leave to Appeal (C) Nos.8001-8002/2021 (Arising out of impugned final judgment and order dated 22-10-2020 in TA No.69/2014 22-10-2020 in TA No.74/2014 passed by the High Court of Judicature at Bombay at Goa) THE COMMISSIONER OF INCOME TAX Petitioner(s) VERSUS SOCIEDADE DA FOMENTO INDUSTRIAL PVT. LTD. Respondent(s) (FOR I.R.) Date : 20-09-2021 These petitions were called on for hearing today. CORAM : HON'BLE DR. JUSTICE D.Y. CHANDRACHUD HON'BLE MRS. JUSTICE B.V. NAGARATHNA For Petitioner(s) Mr. N. Venkataraman, ASG Mr. Rupesh Kumar, Adv. Ms. Diksha Rai, Adv. Mr. Manish Puskarna, Adv. Mr. P.V. Yogeshwaran, Adv. Mr. Raj Bahadur Yadav, AOR For Respondent(s) Mr. Yashraj Singh Deora, AOR Mr. Nishant thakkar, Adv. Ms. Sonal Mashankar, Adv. Ms. Prakriti Roy, Adv. Ms. Jasmin Amalsadvala, Adv. UPON hearing the counsel the Court made the following O R D E R 1 Issue notice. 2 Counter affidavit be filed within a period of four weeks. 3 Tag with SLP (C) No 5940 of 2021. (CHETAN KUMAR) (SAROJ KUMARI GAUR) A.R.-cum-P.S. Court Master
REVISED ITEM NO.10 Court 4 (Video Conferencing) SECTION IX S U P R E M E C O U R T O F I N D I A RECORD OF PROCEEDINGS Petition(s) for Special Leave to Appeal (C) No(s).6201-6202/2021 (Arising out of impugned final judgment and order dated 22-10-2020 in TA No. 71/2014 and TA No. 72/2014 passed by the High Court of Judicature at Bombay at Goa) THE COMMISSIONER OF INCOME TAX Petitioner(s) VERSUS SOCIEDADE DE FOMENTO INDUSTRIAL PVT. LTD. Respondent(s) (FOR ADMISSION and I.R.) Date : 09-09-2021 These petitions were called on for hearing today. CORAM : HON'BLE DR. JUSTICE D.Y. CHANDRACHUD HON'BLE MR. JUSTICE VIKRAM NATH HON'BLE MS. JUSTICE HIMA KOHLI For Petitioner(s) Mr. N. Venkataraman, ASG Mr. Adit Khorana, Adv. Mr. Manish Pushkarna, Adv. Ms. Meera Patel, Adv. Mr. Divyansh H. Rathi, Adv. Mr. Raj Bahadur Yadav, AOR For Respondent(s) Mr. Yashraj Singh Deora, AOR Mr. Nishant Thakkar, Adv. Ms. Sonal Mashankar, Adv. Ms. Prakriti Roy, Adv. Ms. Jasmin Amalsadvala, Adv. UPON hearing the counsel the Court made the following O R D E R 1 Issue notice. 2 Mr Yashraj Singh Deora, learned counsel appearing on behalf of the respondent, waives service. 3 Counter affidavit be filed within four weeks. 4 Tag with SLP(C) No 5940 of 2021. (SANJAY KUMAR-I) (SAROJ KUMARI GAUR) AR-CUM-PS COURT MASTER
ITEM NO.10 Court 4 (Video Conferencing) SECTION IX S U P R E M E C O U R T O F I N D I A RECORD OF PROCEEDINGS Petition(s) for Special Leave to Appeal (C) No(s).6201-6202/2021 (Arising out of impugned final judgment and order dated 22-10-2020 in TA No. 71/2014 and TA No. 72/2014 passed by the High Court of Judicature at Bombay at Goa) THE COMMISSIONER OF INCOME TAX Petitioner(s) VERSUS SOCIEDADE DE FOMENTO INDUSTRIAL PVT. LTD. Respondent(s) (FOR ADMISSION and I.R.) Date : 09-09-2021 These petitions were called on for hearing today. CORAM : HON'BLE DR. JUSTICE D.Y. CHANDRACHUD HON'BLE MR. JUSTICE VIKRAM NATH HON'BLE MS. JUSTICE HIMA KOHLI For Petitioner(s) Mr. N. Venkataraman, ASG Mr. Raj Bahadur Yadav, AOR For Respondent(s) Mr. Yashraj Singh Deora, AOR Mr. Nishant Thakkar, Adv. Ms. Sonal Mashankar, Adv. Ms. Prakriti Roy, Adv. Ms. Jasmin Amalsadvala, Adv. UPON hearing the counsel the Court made the following O R D E R 1 Issue notice. 2 Mr Yashraj Singh Deora, learned counsel appearing on behalf of the respondent, waives service. 3 Counter affidavit be filed within four weeks. 4 Tag with SLP(C) No 5940 of 2021. (SANJAY KUMAR-I) (SAROJ KUMARI GAUR) AR-CUM-PS COURT MASTER
ITEM NO.44 Court 4 (Video Conferencing) SECTION IX S U P R E M E C O U R T O F I N D I A RECORD OF PROCEEDINGS Petition(s) for Special Leave to Appeal (C) No(s).5940/2021 (Arising out of impugned final judgment and order dated 22-10-2020 in TA No. 25/2012 passed by the High Court of Judicature at Bombay At Goa) THE COMMISSIONER OF INCOME TAX Petitioner(s) VERSUS SOCIEDADE DE FOMENTO INDUSTRIAL PVT. LTD. Respondent(s) Date : 27-08-2021 This petition was called on for hearing today. CORAM : HON'BLE DR. JUSTICE D.Y. CHANDRACHUD HON'BLE MR. JUSTICE M.R. SHAH For Petitioner(s) Mr. N. Venkataraman, ASG Mr. B.K. Satija, Adv. Mr. Manish Pushkarna, Adv. Mr. P.V. Yogeswaran, Adv. Mr. Raj Bahadur Yadav, AOR For Respondent(s) Mr. Yashraj Singh Deora, AOR Mr. Nishant Thakkar, Adv. Ms. Sonal Mashankar, Adv. Ms. Prakriti Roy, Adv. Ms. Jasmin Amalsadvala, Adv. UPON hearing the counsel the Court made the following O R D E R 1 Counter affidavit be filed within a period of four weeks. 2 List the Special Leave Petition on 1 October 2021. (SANJAY KUMAR-I) (SAROJ KUMARI GAUR) AR-CUM-PS COURT MASTER
ITEM NO.9 Court 4 (Video Conferencing) SECTION IX S U P R E M E C O U R T O F I N D I A RECORD OF PROCEEDINGS Petition(s) for Special Leave to Appeal (C) Nos.6854-6855/2021 (Arising out of impugned final judgment and order dated 22-10-2020 in TA No.70/2014 22-10-2020 in TA No.73/2014 passed by the High Court of Judicature Bombay at Goa) THE COMMISSIONER OF INCOME TAX Petitioner(s) VERSUS M/S SOCIEDADE DE FOMENTO INDUSTRIAL PVT. LTD. Respondent(s) (FOR I.R.) Date : 27-08-2021 These petitions were called on for hearing today. CORAM : HON'BLE DR. JUSTICE D.Y. CHANDRACHUD HON'BLE MR. JUSTICE M.R. SHAH For Petitioner(s) Mr. N. Venkataraman, ASG Mr. Aman Lekhi, ASG Mr. Manish Pushkarna, Adv. Ms. Swarupama Chaturvedi, Adv. Ms. Adit Khorana, Adv. Mr. Raj Bahadur Yadav, AOR For Respondent(s) Mr. Yashraj Singh Deora, AOR Mr. Nishant Thakkar, Adv. Ms. Sonal Mashankar, Adv. Ms. Prakriti Roy, Adv. Ms. Jasmin Amalsadvala, Adv. UPON hearing the counsel the Court made the following O R D E R 1 Issue notice. 2 Mr Yashraj Singh Deora, learned counsel appears on behalf of the caveator and waives service. 3 Tag with SLP(C) No 5940 of 2021. (CHETAN KUMAR) (SAROJ KUMARI GAUR) A.R.-cum-P.S. COURT MASTER
ITEM NO.17 Court 5 (Video Conferencing) SECTION IX S U P R E M E C O U R T O F I N D I A RECORD OF PROCEEDINGS Petition(s) for Special Leave to Appeal (C) No(s).5940/2021 (Arising out of impugned final judgment and order dated 22-10-2020 in TA No. 25/2012 passed by the High Court of Judicature at Bombay at Goa) THE COMMISSIONER OF INCOME TAX Petitioner(s) VERSUS SOCIEDADE DE FOMENTO INDUSTRIAL PVT. LTD. Respondent(s) (WITH I.R.) Date : 29-06-2021 This petition was called on for hearing today. CORAM : HON'BLE DR. JUSTICE D.Y. CHANDRACHUD HON'BLE MR. JUSTICE R. SUBHASH REDDY HON'BLE MR. JUSTICE S. RAVINDRA BHAT For Petitioner(s) Mr. N. Venkataraman, ASG Mr. P.V. Yogeswaran, Adv. Mr. B.K. Satija, Adv. Mr. Manish Pushkarna, Adv. Mrs. Anil Katiyar, AOR For Respondent(s) Mr. Rafique Dada, Sr. Adv. Mr. Nishant Thakkar, Adv. Mr. Yashraj Singh Deora, AOR Ms. Jasmin Amalsadvala, Adv. Ms. Sonal Mashankar, Adv. Ms. Prakriti Roy, Adv. UPON hearing the counsel the Court made the following O R D E R Issue notice returnable in eight weeks. (SANJAY KUMAR-I) (SAROJ KUMARI GAUR) AR-CUM-PS COURT MASTER