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Income Tax Appellate Tribunal, AHMEDABAD “C” BENCH
Before: SHRI MAHAVIR PRASAD & SHRI WASEEM AHMED
PER MAHAVIR PRASAD, JUDICIAL MEMBER
These three appeals out of which two have been filed by the Assessee and one appeal has been filed by the Revenue as well as one C.O. has been filed by the assessee. For the sake of convenience, we would like to all four cases together and first of all, we would like to take up in . The assessee has taken following grounds of appeal:
1. The order passed by the learned CIT(A) is bad in law and contrary to the provisions of law & facts. It is submitted that it be so done now,
2. The learned CIT(A) erred in confirming disallowance of Rs.50,00,000/- (Rupees fifty lacs) being contribution to ARDA (Amul Research Development Association) for Dairy Development(DD)/Research expenses on the ground that same is not allowable as business expenditure. 2.1. The learned CIT(A) ought to have allowed contribution made to ARDA as expenses u/s 37 as such contribution to ARDA is for the purpose of the business of the appellant. It is submitted that it be so held now and contribution made to ARDA as claimed by the appellant be allowed as deduction.
3. The learned CIT(A) erred in confirming the disallowance made by AO with respect to the agriculture income of Rs.1,96,206/- earned on account of sale of wood and grass, etc. of open area of compound of appellant on the ground that appellant has failed to establish that such trees or grass were grown on account of agricultural activity. It be so held now. 3.1 The ld. CIT(A) further erred in confirming the action of A.O. for treating the agricultural income of Rs. 1,96,206/- as income from other sources in the hands of the appellant. It be so held now.
Assessee is a Co-operative society deriving income from business of manufacturing and marketing of milk and milk products, polythene packing & 1237/A/16 & Ors. 3 . A.Y. 2011-12 films for milk and milk products, consignee agent of member unions for milk products. It also derives income from other sources.
Appellant contended that ld. A.O. erred in disallowing of Rs. 50 lacs being amount contributed to Amul Research Development Association. Ld. CIT(A) in appeal rejected the contention of appellant ITAT in to 567/Ahd/2011 for A.Ys. 2002-03, 2004-05, 2005-06, 2006-07 & 2007-08. It has been held by the ITAT as follows: "7,2. In the case in hand, undisputedly the assessee has made contribution for research, therefore such payments would fall under section 35 of the Act and for claiming deduction u/s.35 of the Act the Association is required approved in accordance with the guidelines, in the manner and subject to such conditions as may be prescribed. No material is placed on record that the Association is approved in the manner prescribed. Under these facts, we do not see any infirmity in the order of ld,CIT(A),same is hereby upheld, Thus, these grounds of assessee's appeal is rejected,"
In view of the above said ITAT order in parity with the said order, we dismiss this ground of appeal of the assessee.
5. Now we come to next ground relating to that ld. CIT(A0 erred in treating the agriculture income of Rs. 1,96,206/- as income from other sources on the ground that no evidences in respect of agricultural activities carried out, sales bills of agricultural produce and evidence of agricultural expenses were furnished.
Before the ld. CIT(A), ld. A.R. fairly conceded that this ground of appeal is decided against the appellant in 2010-11 by the ld. CIT(A) and against that order, no appeal it preferred. Thus, that order of the ld. CIT(A) is final as on date. Therefore, We dismiss this ground of appeal of the Assessee . & 1237/A/16 & Ors. 4 . A.Y. 2011-12
In the result, appeal filed by the Assessee is dismissed.
Now we come to for A.Y. 2011-12. The assessee has taken following grounds of appeal:
1. The order passed by the learned CIT(A) is bad in law and contrary to the provisions of law & facts. It is submitted that it be so done now.
2. The learned CIT(A) erred in confirming the addition made by AO with respect to the Interest of Rs.2,40,043/- earned on Sampoorna Gramin Swarojgar Yogana (SGSY). It be so held now. 2.1. The learned CIT(A) failed to understand that when grant is given for specific purpose and is kept in separate account in the bank for its utilization towards that purpose, interest earned on such grant will be part of such grant and cannot be taxed as income of the appellant particularly when grant itself is not considered as the income of the appellant. It be so held now.
9. Appellant contended that lower authorities has erred treating the grant of Rs. 18264951/- and interest of Rs. 2,40,043/- on it received from Sampoorna Gramin Swarojgar Yojana as revenue receipt. Appellant submitted that above said scheme is a Government of India sponsored scheme and this scheme is being implemented by the appellant and at the completion of different projects under the above said scheme. Appellant get 2% of commission and in support of its contention, appellant also filed a copy of MOU wherein it is mentioned that if there is any delay in the project then appellant will liable to pay 5% of the total cost project as penalty to the Government. And further stated that interest income from the said grant is not taxable and in support of its contention, ld. A.R. cited a judgment of Hon’ble Supreme Court in the case of Govind Chaudhary and Sons 203 ITR 881 wherein it is held that interest on such fund is concerned, the same also partakes the character of principal amount and hence the same should also be excluded from the income of the assessee. & 1237/A/16 & Ors. 5 . A.Y. 2011-12
In view of the above, we allow this ground of appeal of the assessee.
In the result, appeal filed by the Assessee is allowed.
Now we come to for A.Y. 2011-12. The Revenue has taken following grounds of appeal: 1.Whether on the facts and circumstances of the case and in law, the Ld. C.I.T. (A) erred in deleting the addition of Rs.1,85,04,494./- on account of grant received under Sampoorna Gramin Swarojgar Yogna from the Govt. without appreciating the fact that the assessee started its commercial activities much before the receipt of the aforesaid grant, hence the same ought to be treated as revenue receipt.
2. Whether on the facts and circumstances of the case and in law, the Ld. C.I.T. (A) erred in deleting the addition of Rs.1,85,04,494./- on account of grant received under Sampoorna Gramin Swarojgar Yogna from the Govt. without considering the decision of Hon'ble Supreme Court in the case of Sahney Steel and Press Works Ltd. v/s. CIT 94 Taxman 368(SC) and (ii) Kesoram Industries and Cotton Mills Ltrd. V/s.CIT 191 ITR 518 (Calc) relied upon by the A.O. in the assessment order.
3. Whether on the facts and circumstances of the case and in law the Ld. C.I.T.(A) erred in deleting addition on account of depreciation claimed on the portion of plant and machinery acquired through grant/subsidy received from NDDB under 70% loan and 30% grant scheme without appreciating that on plain reading of explanation 10 to Section 143(1) it is clear that the said explanation does not refer to assets acquired after 01-04-1999 or grant subsidy received after 01-04- 1999, which finds support from the decision of Hon'ble Karnatak High Court in the case of Shree Renuka Sugars Ltd. in I.T.A. No.5006/2011 c/w ITA No. 5007/2011, vide order dated 31-08-2012,, and that the facts of the case of Shree Renuka Sugars Ltd. (Supra) are identical to the facts of the present case.
4. Whether on the facts and circumstances of the case and in law, the Ld. C.I.T. (A) erred in deleting addition on account of depreciation claimed on the portion of plant and machinery acquired through grant/subsidy received from NDDB under 70% loan and 30% grant scheme by relying on the judgment of Kerala High Court in the case of C.I.T. vs. Sun Fiber Optics, ignoring the fact that the judgment of Hon'ble Supreme Court in the case of CIT v. P.J. Chemicals Ltd. (1994 210 ITR & 1237/A/16 & Ors. 6 . A.Y. 2011-12 830, was rendered on 14-09-2014, which was much prior to the date of introduction of explanation 10 to section 43(1) of the Act w.e.f. 01-04-1999.
5. Whether on the facts and circumstances of the case and in law, the ld. CIT(A) erred in deleting addition on account of depreciation claimed on the portion of plant and machinery acquired through grant/subsidy received from NDDB under 70% loan and 30% grant scheme by relying on the judgment of Hon’ble Gujarat High Court in the case of Mahesana District Co-operative Milk Producers Union Ltd. vs. CIT without considering the aspect that the said decision of Hon’ble Gujarat High court is not applicable to the facts of the present case in as much in that case the A.Y. involved was 1978-79, when the explanation 10 to section 43(1) w.e.f. 01.04.1999 was not in existence, whereas in the present case, the issue involved for A.Y. 2002-03 is squarely covered by the explanation 10 to Section 43(1) of the Act w.e.f. 01.04.1999.
6. Whether on the facts and circumstances of the case and in law, the ld. CIT(A) was justified in holding that deleting addition of Rs. 1,88,18,927/- being disallowance u/s. 80P(2)(d) of the Act notwithstanding the fact that the interest paid by the assessee to various co-operative banks/Societies/Bodies exceeded the income earned from its investment with Bank/Co-operative Societies nor the assessee could substantiate the claim that interest bearing funds have not been invested with Co-operative Bank.
7. Whether on the facts and circumstances of the case and in law, the ld. CIT(A) was justified in t deleting addition of Rs. 1,88,18,927/- by relying on the decision of Hon’ble Supreme Court of India in the case of Munjal Sales Corp. vs. CIT, Ludhiana reported in 168 Taxmann 43 (SC) and decision of Hon’ble High Court of Bombay in the case of CIT vs. Reliance Utilities & Power Ltd. reported in 178 Taxmann 135, without appreciating the facts of the present case is distinguishable from the facts of the said cases, in as much whereas in the instant case the issue pertained to disallowance u/s. 80P(2)(d) of the Act, whereas in the said cases referred to by Hon’ble supreme Court and Hon’ble Bombay High Court the issue pertained to disallowance of deduction u/s. 36(11)(iii) of the Act.
In this case, appellant received a grant of Rs. 18504494/- on account of grant received under Sampoorna Gramin Swarojgar Yojana and being a Co-operative Milk Society it deposited Rs. 18818927/- with the Co-operative Bank and earned interest income from the said deposit, the assessee claim was that its income is not taxable and will get the benefit of Section 80P(2)(d) of the Act. & 1237/A/16 & Ors. 7 . A.Y. 2011-12 As society funds were deposited with Co-operative Bank and squarely covered by the order of Co-ordinate Bench in assessee’s own case for A.Y. 2008-09 wherein appeal of the revenue was dismissed with the following observation: 8. Regarding the claim of deduction u/s. 80P(2)(d) of the act of Rs. 3640842/- the Ld. Counsel has submitted that the Hon'ble ITAT in assessee's own case for A.Y. 1986-87 while rejecting the appeal of department for denying the deduction of interest u/s 80P(2)(d) held that assessee cannot borrow the money for temporary investment. He has also submitted that even Gujarat High Court in assessee's own case while dealing with issue of re-opening u/s. 148 for disallowing the deduction of interest observed that AO is conscious about the claim made by the assessee and the position of interest earned on investment, vis-a-vis interest or commission paid by it, and has been treating the investment income having no relation to the interest paid in as much as it was consistent finding that no interest has been paid on borrowings for earning interest on investment. The same has been reported in 87 Taxman 144. In view of the above, in earlier years i.e. from A.Y. 1986-87 it is consistently accepted by the AO, CIT(A), ITAT and High Court in assessee's own case that assessee has never borrowed the money for making the investment as always assessee has interest free funds more than investment. In A.Y. 91-92, section 80AB has also been considered while allowing the deduction u/s. 80P(2)(d) of the Act. In view of these facts and findings, we are inclined with the findings of the Ld.CIT(A). Accordingly, both the grounds of appeal of the revenue on this issue stands dismissed.
In parity with the ITAT order in assessee’s own case in wherein similar circumstances, appeal of the revenue was dismissed. & 1237/A/16 & Ors. 8 . A.Y. 2011-12 15. Now we come to grant received by the assessee from the Government of India is concerned, lower authorities has held the grant by the Government of India is a revenue receipt.
On the other hand, assessee contention is that then a capital receipt and assessee will get only 10% of the total grant that to only after completion of the project and if because of some reason projects undertaken by the assessee under under Sampoorna Gramin Swarojgar Yojana then assessee will be liable to pay 5% of the penalty and in the assessment year under question, projects were under progress and same were not completed. Therefore assessee has not earned any income from the said project. Since assessee has not earned any income from the said project and grant by the Government of India for the projects which are to be completed by the State Government through the assessee. In our considered opinion, such receipts are capital receipts and cannot be called revenue receipts. Therefore, we allow this ground of appeal of the Revenue.
In the result, appeal filed by the Revenue is dismissed.
Now we come to C.O. No. 19/Ahd/2016. The assessee has taken following grounds of appeal:
1. The Learned CIT(A) erred in not adjudicating the ground with respect to the Interest of Rs..2,40,043/- earned on Sampoorna Gramin Swarojgar Yogana (SGSY) taxed as revenue receipt by the learned AO. It is submitted that when grant is given for specific purpose and is kept in separate account in the bank for its utilization towards that purpose, interest earned on such grant will be part of such grant and cannot be taxed as income of the appellant particularly when & 1237/A/16 & Ors. 9 . A.Y. 2011-12 grant itself of Rs. 1,82,64,951/- is not considered as the income of the appellant. It be so held now.
Since we have dismissed appeal of the Revenue in ITA No. 3558/Aghd/2015. Thus, we allow this C.O. of the assessee and hold interest earned on Sampoorna Gramin Swarojgar Yojana by the assessee will not be taxed as same is to be spent on the aforesaid Yojana. Therefore, we allow C.O. of the Assessee.
Order pronounced in Open Court on 26- 06- 2019