DCIT CEN CIR 6(3), MUMBAI vs. EXCEL CROP CARE LTD, MUMBAI

Against the assessment order, assessee preferred an appeal before the learned Commissioner of Income Tax (Appeals) who passed an appellate order on 25/8/2014 , he confirmed disallowance of interest expenditure of ₹ 26,199,960, disallowance of excise duty debited to the profit and loss account amounting to ₹ 3,319,431 and adjustment under section 145A of the act of ₹ 28,684,800. Therefore, assessee is aggrieved with those issues and is in appeal before us.

Similarly the learned CIT – A has granted relief to the assessee by deleting disallowance of subscription expenses on Endosulfan as business expenditure, deleting disallowance of prior period

Grounds of appeals for assessment year 2009 – 10 in in appeal of the learned assessing officer are as under:-

Grounds of appeal for assessment year 2009 – 10 in for A.Y. 2009-10 raised by the assessee are as under: –

Assessee has filed an application for admission of additional grounds of appeal on 14 July 2022 wherein it has raised following grounds:-

Assessee submitted that these additional grounds of appeal are legal issues and therefore same ought to be admitted and decided on the merits of the case relying on the decision of Honourable Supreme Court in case of National Thermal Power Co Ltd versus CIT (1998) 229 ITR 383 (SC), JUTE CORPORATION OF INDIA Ltd versus CIT (1991) 187 ITR 688 (SC) and full bench decision of the Honourable Bombay High Court in case of Ahmadabad electricity Co Ltd versus CIT (1993) 199 ITR 351 (Bombay).

The learned authorized representative reiterated the above arguments for admission of these additional grounds.

The learned departmental representative vehemently opposed those grounds and submitted that with respect to ground number 1 – 2 are alternative in nature and ground number 3 and 4 are not arising out of the assessment or appellate order. These grounds require fresh investigation of facts, are not legally nature, and therefore should not be admitted. He further submitted that ground number 1 and 2 are merely alternative claims.

We have carefully considered the rival contention and perused the orders of the lower authorities as well as judicial precedent for admission of additional evidence raised before us.

We first now start the appeal of the assessee in ITA number 7394/M/2014. The first ground of appeal is against confirmation of disallowance of interest expenditure attributable to capital

The learned authorized representative vehemently submitted that when the assessee has higher interest free funds available than the amount of investment, the addition cannot be made. It was further submitted that in assessee’s own case for assessment year 2006 – 07 in ITA number 4042/M/2014 identical addition made by the lower authorities were deleted. It was further stated that capital expenditure was financed out of internal accruals and no borrowed funds were utilized. To demonstrate that a statement showing own funds utilized for addition of fixed assets on which no interest is paid was also demonstrated. The learned authorized representative also took as to the accounting policy of the assessee where any fixed asset is purchased or acquired; the interest expenditure of such qualifying asset is capitalized to the cost of those assets till the assets are first put to use. Accordingly, it was stated that the learned lower authorities failed to consider the explanation of the assessee. It was further submitted that the learned and CIT – A has confirmed the addition on the flimsy ground that assessee has failed to show the bank statement before the lower authorities. The learned authorized representative referred to the annual accounts of the assessee placed at page number 98 of the paper book to show that assessee has shareholders fund of ₹ 13,939 lakhs whereas the capital work in progress and acquisition of those fixed assets amount to only ₹ 2016 lakhs. Therefore assessee has you interest free funds available are exceeding the amount of investment in fixed assets. It was further submitted that the borrowings made by the ASSESSEE on which interest expenditure is incurred are for the purpose of working capital loans and cash credit account, which are tied up in the current assets of assessee. Therefore, the interest disallowed by the lower authorities is not sustainable.

We have carefully considered the rival contention and perused the orders of the lower authorities. On the basis of the fact that assessee has huge non-interest-bearing loan funds in the form of shareholders fund are available with the assessee then the amount of investment made in the fixed assets, we do not find any reason to confirm the disallowance. Further, the identical disallowance made by the learned lower authorities in the case of the assessee has already been deleted by the ITAT; the issue is also covered in favour of the assessee. However, on the simple fact that assessee has higher non-interest- bearing fonts available compared with the amount of investment in fixed assets, the issue is squarely covered in favour of the assessee by the decision of the Honourable jurisdictional High Court as well as the Honourable Supreme Court in case of Reliance Industries Ltd. Accordingly ground number 1 of the appeal of the assessee is allowed.

Parties also submitted before us that identical issue is also in the appeal of the assessee for assessment year 2010 – 11 in ITA number 3906/M/2015 and for assessment year 2011 – 12 in ground number 1 – 2 – 3 of the appeal. Both the parties also confirmed that there is no change in the facts and circumstances of the case.

On careful consideration, we find that identical issue are also raised by the assessee in its appeal for assessment year 2010 – 11 as per

Alternative grounds raised by the assessee for assessment year 2010 – 11 in ground number 3 and 4 as well as in ground number 4 for assessment year 2011 – 12 are infructuous and therefore dismissed.

Ground number 2 of the appeal is with respect to the disallowance made by the learned lower authorities in respect of excise duty debited to the profit and loss account of ₹ 3,319,431/–. Facts relating to the above issue shows that learning assessing officer noted from the profit and loss account of the assessee that assessee have claimed deduction on account of excise duty expenses twice in the profit and loss account. Firstly as deduction from sales in the credit side of profit and loss account thereby showing only the net value of shares and secondly, by debiting excise duty paid as expenses in debit side of the profit and loss account on account of difference of excise duty contained in opening stock and closing stock. The AO was of the view that it amounts to double deduction. Hence, AO disallowed ₹ 69 57,393. The breakup of this expenditure is that excise duty included in the closing stock valuation is of ₹ 546.82 lakhs reduced by the excise duty included in the opening stock valuation of ₹ 517.55 lakhs resulting into balance of ₹ 29.27 lakhs thereto the excise duty paid on sample is added of ₹ 3.92 lakhs resulting into the amount debited to

The assessee challenged the same before the learned CIT – A. The main arguments of the assessee were that on the treatment of excise duty paid based on the guidance note issued by the Institute of chartered accountant of India the difference between the excise duty in the closing stock and opening stock is considered as expenditure. The assessee is following the exclusion method of the accounting for the excise duty and therefore the sales are of excise. The differences of ₹ 33.19 lakhs have been debited to the profit and loss account. Further the sum of ₹ 3,637,962 is allowed as a deduction for assessment year 2009 – 10 as the same was a provision made in the earlier years for assessment year 2008 – 09 which was disallowed under section 43B of the act and same on its written back cannot be added to the total income.

The learned CIT – A disallowance of excise duty of ₹ 3,319,431 stating that the above excise duty cannot be considered as paid by the appellant on or before the due date of filing of the return of income in terms of the provisions of section 43B. Further he deleted the addition of ₹ 3,637,962/–, the excise duty which was pertaining to assessment year 2008 – 09 holding that same is not taxable as income in this year.

The learned authorized representative submitted that that excise duty of ₹ 3,319,431/– debited to the profit and loss account was in respect of difference between the excise duty included in the opening stock and closing stock of the finished goods and excise duty paid on sample is and the same is not been reduced from the sales value. He further referred to the note on accounting treatment for excise duty and guidance note issued by the Institute of chartered accountants of India

The learned departmental representative vehemently supported the orders of the lower authorities. We have carefully considered the rival contention and perused the orders of the lower authorities. We have carefully considered the tax audit report furnished by the assessee. According to the details furnished before the learned assessing officer, the selling price of the assessee is inclusive of excise duty and excise duties paid to the government at the time of dispatch of the material from the factory and recovered through sales from the customer. It is not charged to the company’s profit and loss account. In the profit and loss account, the sales have been shown as gross and then the excise duty on the same is reduced from it to credit the net sales to the profit and loss account, which is the requirement of the accounting standard 9 of revenue recognition. The assessee has also valued its closing stock inclusive of the excise duty. The value of the opening stock as well as the closing stock was therefore inclusive of the excise duty. The element of amount debited to the profit and loss account of ₹ 33.19 lakhs is the difference between excise duty included in the opening and closing stock. The same amount is debited to the profit and loss account. As per the tax audit report assessee also submitted a revised statement wherein the amount of excise duty incurred is in expenditure during the year was shown at ₹ 10,402 Lacs out of which a sum of ₹ 7888 lakhs have been paid on or before the due date of filing of the return. Subsequently a sum of ₹ 2,513,989, which was not paid before the due date of filing of the return of income, was disallowed. The above fact also evident from the revised computation of income submitted before the learned assessing officer. Identical issue also arose in the sister concern of the assessee in case of Excel industries limited wherein on identical facts and circumstances we have deleted the disallowance confirmed by the lower authorities, which was made by them on the misunderstanding

In assessment year 2010 – 11 ground number 5 in the appeal of the assessee in ITA number 3906 – M – 2015 and ground number five in appeal of the assessee for assessment year 2011 – 12 in ITA number 6775 – M – 2016 was raised where identical disallowance of been made by the learned assessing officer and confirmed by the learned CIT – A. Both the parties confirmed that there is no change in the facts and circumstances of the case with respect to the above to assessment years compared to the facts in the case of assessment year 2009 – 10. Their arguments were also similar. Accordingly, for the similar reasons, we allow ground number 5 of the appeal of the assessee for assessment year 2010 – 11 and 2011 – 12 and Ground no 1 of the Appeal of Assessee for AY 2012-13 in ITA No 6775/M/2016.

Now we come to ground number 3 of the appeal of the assessee for assessment year 2009 – 10 wherein the disallowance of adjustment under section 145A of the act of ₹ 28,684,800 made by the learned assessing officer is confirmed. The facts shows that as per the note on competition of total income submitted by the assessee was noted that during the previous year relevant to the assessment year under consideration, the assessee has adopted the guidance note on tax audit under section 44AB should by the Institute of chartered accountants of India in respect of valuation of inventory is as per the provisions of section 145A of the act. Assessee claimed that there is no impact on the profit and loss account of the assessee as well as on the total income of the assessee with respect to the computation made under section 145A of the act. It was stated that there is a decrease in the profit of rupees 3,33,98,840 on account of the adjustment under section 145A to the value of the opening stock of finished goods and semi-finished goods is the same was taken into account while computing the net effect on the profit for the assessment year 2008 – 09. It was further stated that if the appellant had followed the earlier

Assessee aggrieved with the above adjustment/addition challenge the same before the learned CIT – A. It was stated that in addition of ₹ 33,398,840 is resulted into double taxation in case of the appellant because the tax impact of the same has already been taxed in assessment year 2008 – 09. The assessee also relied upon the decision of the Honourable Supreme Court in 261 ITR 275.

The learned CIT – A, the explanation of the assessee and thereafter held bad as per the computation of total income they assessee itself is stated that if it had followed the practice of earlier years of working out the net effect on the profit and loss account, the net effect on the profit for the year would have been a net increase of a sum of ₹ 28,684,840/–. Therefore he deleted the addition of ₹ 33,398,840 but upheld the addition of ₹ 28,684,800/–.

Contesting the above addition to learned authorized representative submitted a note on the valuation of inventory is under section 145A as well as the annexure of tax audit report wherein the adjustment of 145A was also explained. He further referred to the guidance note issued by the Institute of chartered accountants of India as well as the copy of the revised computation of income from assessment year 2008 – 09 wherein the value of closing stock of semi-finished goods and finished goods was increased by a sum of ₹ 33,398,840. Thus according

The learned departmental representative vehemently supported the orders of the lower authorities.

We have carefully considered the rival contention and perused the orders of the lower authorities. We find that there is no impact on the impact of the income to be offered under the income tax act as per the provisions of section 145A of the act. On careful consideration of the revised statement furnished by the assessee for the year ended on 31st of March 2009 being statement giving details of deviation from the method of valuation prescribed under section 145A and the fact there are not on the profit and loss as per the tax audit report we find that the above adjustment is tax neutral. If this fact has been accepted by the revenue for assessment year 2010 – 11 as demonstrated in the assessment order passed under section 143 (3) of the act dated 20/3/2013 that no addition is made to the total income of the assessee on the above ground. It is very important to look at dated December 17/2012 of the assessee address to the learned assessing officer on the issue of notice valuation of inventory is as per the provisions of section 145A of the act. By this letter, the assessee has disclosed the accounting entries made in the books of account as well as the accounting entries shown in the tax audit report. The assessee has categorically reiterated that the taxable profits remain the same under both the scenario of inclusive as well as exclusive method of accounting. At page number 40 assessee has mentioned in note

Consequent to finding in ground number 3 of the appeal of the assessee, the additional ground fire by the assessee becomes redundant and hence dismissed.

Assessee has filed an additional ground of appeal

We find that this issue is connected with the appeal of the learned assessing officer and it has been raised for all the three years, therefore, it would be dealt with at the time of deciding the appeal of the learned assessing officer for that respective year.

No we come to the ID number 7140/M/2014 filed by the learned assessing officer for assessment year 2009 – 10. The first ground of appeal is with respect to the disallowance in respect of subscription expenses of ₹ 2,859,672/–. Facts related to the issue shows that assessee’s claim the above amount is subscription expenses debited

Assessee submitted letter dated 8/1/2013 stating that assessee is one of the leading generic manufacturer of crop protection products and has been servicing needs of Indian and global agriculture. Over the years the company has focused its efforts on offering affordable crop protection solutions for farmers in India endorses. Endosulfan is a generic insecticide used globally for over 50 years is one of the major products of the company. This is the product which gives major contribution to the company’s profit ranging from 40% – 50%. It is an important product for Hindustan insecticide Ltd and Coromandel fertilizers Ltd. It has been facing opposition and third of ban through adverse publicity by several non-governmental organizations. It has been banned in Kerala recently in the state of Karnataka as well. It was also facing a threat of Pop Listing by Stockholm Convention and PIC Listing at Rotterdam Convention, which would severely curtail export offered and also domestic sales. Therefore, it was decided to form an Association of Manufacturers of Endosulfan to defend the product against the adverse publicity as well as international forum of Stockholm’s and Rotterdam convention. EMFWA [Endosulfan Manufacturers and formulators welfare Association) was formed in 2002 and has been registered under the societies registration act 1860. It is a trade association representing its manufacturers and formulators in India. The association is formed with an objective to promote collectively the interest of all its members and to educate the farmers the usage of Endo in the scientific and responsible manner, also to scientifically address the various misconception on its toxicity profile amongst the public, non-government organization, government officials and others. The association is taking various steps to protect and safeguarding interest of its manufacturers. Some of the effective steps are (i) conducting scientific studies on Indo shall solicitor you in different rivers/water bodies in India and to file writ petition challenging ban in Karnataka, (ii) it is a member of

The assessee challenged the same before the learned CIT – A. Before him the assessee submitted the details of subscription expenses stating that out of the above sum ₹ 1,235,243/– pertains to contribution made to association whereas the balance amount of ₹ 1,624,529/– 14 to subscription expenses paid to other trade -related organizations. He noted that the learned assessing officer has not drawn any adverse inference against payment of subscription amount into ₹ 1,624,529 and therefore there is no justification in disallowance of the same. With respect to the balance sum of ₹ 1,235,243/– he held that it is a trade association constituted to protect promote the business interest of its members comprising the manufacturer of the particular product and assessee is one of such member. The contribution is paid to such organization. Such organization is also registered under section 12 of the income tax act and engaged in promotional protect of business interest of its members. Therefore, he held that same is allowable under section 37 (1) of the act.

Therefore, now learned assessing officer challenged the order of the learned CIT – A. The learned departmental representative submitted that assessee has not produced any evidence failed to show that these expenses as wholly and exclusively for the purpose of the business of the assessee.

We have carefully considered the rival contention and perused the orders of the authorities. Undisputedly Endosulfan was the major product manufactured by the assessee, which is facing a public outcry, and an order of the Honourable High Court has banned this product. The reasons itself says that writ petition is pending before the Honourable Supreme Court. The learned CIT – A has allowed the claim of the assessee looking at the form of the issue and on hyper- technical grounds. He passed an order on 25/8/2014. We find that the order dated 13/file/2011 Honourable Supreme Court has banned production of the above product. Honourable Supreme Court noted that the writ petition says that it has harmful effects caused by the continued use of Endosulfan on human beings and on the environment. Endosulfan is now used as a pesticide for the production of crops like paddy, sugarcane, cotton, mango, cashew, etc. Few studies have been conducted in this area and its adverse effects on human health and environment has been reported. Some of the studies also indicate that Endosulfan is significantly associated with neuro-behavioral disorders, cognitive disorders, hydrocephalus, mental retardation, cortical blindness, seizure disorders, Parkinson's disease, etc. Therefore, without going into the merits of the claim of the assessee, we reverse the order of the learned CIT – A granting deduction of such expenditure for furtherance of the product, which has been banned by Hon. Supreme Court and has such a huge threat to human life. It is

Identical issue has been raised by the learned assessing officer in ITA number 4762/M/2015 for assessment year 2010 – 11 and ITA number 6665/M/2016 for assessment year 2011 – 12 by raising ground number 1 in those appeals. For the reasons given by us in disposing off the appeal of the learned assessing officer for assessment year 2009 – 10, we do not have any hesitation in allowing the ground number one of the appeal of the learned assessing officer for assessment year 2010 – 11 and 2011 – 12.

Ground number 2 of the appeal of the assessing officer is against the deduction granted under section 80 IA of the income tax act by the learned CIT – A wherein the learned assessing officer with respect to

Assessee approached the learned CIT – A, who allowed the claim of the assessee following the decision of the coordinate bench in assessee’s own case dated 25/7/2014 for assessment year 2005 – 06 to 2008 – 09.

The learned departmental representative supported the order of the learned assessing officer. Whereas the learned authorized representative referred to circular number 1/2016 dated 15 February 2016 issued by the civility in respect of classification of the term initial assessment year and further the order of the coordinate bench in assessee’s own case for assessment year 2005 – 06 and 2008 – 09 in ITA number 3100, 3101, 8741 and 7155/M/2010. Thus, it was submitted that issue is squarely covered in favour of the assessee.

We have carefully considered the rival contentions and values the orders of the lower authorities. We find that this issue is squarely covered in favour of the assessee by the decision of the coordinate bench in assessee’s own case for earlier years based on which the learned assessing officer has made the disallowance. The learned CIT –

Identical ground number 2 is raised by the learned assessing officer for assessment year 2010 – 11 in ITA number 4762/M/2015 and for assessment year 2011 – 12 in ITA number 6665/M/2016. For the reason given by us in dismissing ground number 2 of the appeal of the learned assessing officer for assessment year 2009 – 10, ground number two of both these appeals of assessment year 2010 – 11 and 2011 – 12 are also dismissed.

Ground number three of the appeal is with respect to deduction in respect of prior period expenses. The learned AO noticed that assessee has claimed a sum of ₹ 2,959,408 is prior period expenses. AO noticed that assessee is following mercantile system of accounting and therefore, expenses, which are not pertaining to the current year, should not be allowed. Assessee submitted that it has debited a net amount of ₹ 884,303/– to its profit and loss account as prior period Expenditure. The nature of the expenditure were also given and submitted that assessee did not claim these expenditure in the year to which they pertain to because these expenditure have crystallized during the year. The AO rejected the argument of the assessee and disallowed the above sum stating that assessee is following mercantile system of accounting and therefore these expenses should have been claimed by the assessee in the year to which they pertain.

Assessee challenged the same before the learned CIT – A who deleted the disallowance holding that the expenditure has been crystallized during the year; it has accrued to the assessee during this year. Therefore, the expenditure incurred by the assessee in this year itself as the liability for such payment has been accepted in this year.

The learned departmental representative supported the orders of the l learned assessing officer whereas the learned authorized representative referred to several judicial precedents wherein it has

We have carefully considered the rival contention and perused the orders of the lower authorities. The identical issue is covered in favour of the assessee for assessment year 2006 – 07 in ITA number 4042/M/2014 in assessee’s own case wherein the expenditure were held to be incurred by the assessee as it crystallized when it is accounted for in the books of account. The decision of the Honourable Bombay High Court in case of CIT versus Mahanagar gas Ltd as well as the decision of the Honourable Gujarat High Court in case of Saurashtra cement and chemical industries Ltd versus CIT 213 ITR 523 also supports the case of the assessee. Accordingly, ground number 3 of the appeal of the AO is dismissed. Identical ground number three is also raised for assessment year 2010 – 11 by the learned assessing officer in ITA number 4762/M/2015, which is also dismissed.

Accordingly, additional ground raised by the assessee on this aspect has also become academic and hence dismissed.

Ground number four relates to disallowance under section 14 A of the act. The learned AO found that assessee has earned exempt income of ₹ 170,299 and also had offered ad hoc disallowance of expenditure of ₹ 170,568 under section 14 A of the act. The learned AO was the details of such expenditure disallowed by the assessing officer along with the proof and further noted that assessee has claimed huge expenditure of ₹ 60 crores in its profit and loss account and therefore the expenditure claimed by the assessee for disallowance is not correct. He adopted rule 8D and disallowed the sum of ₹ 242,928/– being 0.5% of the average value of investment. As assessee has disallowed sum of ₹ 170,568 the balance disallowance of ₹ 135,360 was made.

The assessee aggrieved with disallowance preferred an appeal before the learned CIT – A. The learned CIT – A-based on the decision of the

The learned departmental representative vehemently supported the order of the learned assessing officer and submitted that the rule 8D is mandatory where the satisfaction of the learned assessing officer is already recorded about the incorrect method of the claim of the assessee.

The learned authorized representative supported the order of the learned CIT – A as well as the order of the coordinate bench in assessee’s own case for assessment year 2008 – 09 wherein 10% of the disallowance of salary of general manager was accepted as adequate disallowance.

We have carefully considered the rival contention and perused the orders of the lower authorities. We find that the exempt income earned by the assessee is a dividend income of Rs 4294/- and profit from tax-free units of ₹ 165,375/–. Assessee has offered the disallowance of ₹ 170,568. In any case, the disallowance cannot exceed the exempt income. Even otherwise, for assessment year 2009 – 10, the provisions of rule 8D has been correctly applied by the learned assessing officer. It is incorrect to say that if the learned assessing officer is accepted the same in the earlier year, may be because of the smallness of amount, the same incorrect methodology of disallowance should be continued indefinitely. We are of the view that that is the gross aberration of the principle of the consistency. Accordingly, we direct the learned assessing officer to restrict the disallowance under section 14 A of the act to the extent of exempt

Ground number four of the appeal for assessment year 2010 – 11 of the learned assessing officer, ground number seven and 12 of the appeal of the assessee for assessment year 2011-12 and ground number two and three of the appeal of the assessee for assessment year 2012-13 are also allowed to that extent that disallowance under section 14 A cannot exceed the exempt income or during the year by the assessee.

Now the last ground that remains to be decided is with respect to claim of the assessee, that subsidy received by it in terms of warranted policy of focus market scheme is capital receipt and therefore same cannot be charged to tax. It is claimed that issue is squarely covered in favour of the assessee by the decision of the Honourable Rajasthan High Court in case of principal Commissioner of income tax versus Nitin spinners Ltd (2020) 116 taxmann.com 26 (Rajasthan).

The learned departmental representative submitted that to examine whether it is a capital receipt or revenue receipt one has to look at the object and purpose of the scheme. As that object and purpose of the scheme is not available on record, the matter should be restored back to the file of the learned assessing officer for verification of the same.

We have carefully considered the rival contention and perused the orders of the lower authorities. We find that the Honourable Rajasthan High Court has already dealt with the above issue holding that subsidy received by the assessee under the focus market scheme of the foreign trade policy is capital receipt not chargeable to tax. In view of this, there is no point in setting aside the claim of the assessee back to the file of the learned assessing officer. Therefore, this additional ground is allowed. The learned assessing officer is directed to exclude the subsidy received by the assessee under focus market scheme it is not an income but capital receipt.