HERO MOTOCORP LTD.,NEW DELHI vs. DCIT, CIRCLE- 11(1), NEW DELHI

PER SUCHITRA KAMBLE, JM

This appeal is against the assessment order u/s 143(3) read with Section 144C passed by DCIT, Range-11(1), New Delhi vide order dated 27/10/2017.

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“1. That the assessing officer erred on facts and in law in completing assessment under section 143(3) read with section 144C of the Income-tax Act, 1961 ('the Act'), vide order dated 30.01.2018, at an income of Rs. 5871,58,67,760/- under the normal provisions and at book profit of Rs. 1799,03,00,809 under section 115JB of the Act.

Amount of Proposed international Arm’s length S. International Difference transaction price of the No. Transactions shown by the international appellant transaction Payment of Export 1. Commission 11,67,48,507 NIL 11,67,48,507 Payment of Model 2. Fee 30,77,53,454 NIL 30,77,53,454 Royalty paid on 3. exports made to the AEs. 15,00,822 NIL 15,00,822 Total 42,60,02,783

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accordance with the approval granted by the central government/limits prescribed by the RBI and were therefore at arm’s length.

(a) An independent enterprise would compensate another party for ceding territory to it only when the latter party either withdraws from that territory or some restrictions are placed upon it. Nothing of that sort has happened to the AE. The AE continues its business as usual in those overseas territories. (b) The appellant’s export to South East Asian countries consists of motorcycles of 1OOcc, 125cc and 150cc capacity. The AE does not have a manufacturing facility for these classes of motorcycles in these countries. (c) If one looks at the entire arrangement in its entirety, it will be abundantly clear that the AE has simply used the appellant to position these products in the South East Asian markets at competitive prices. Neither has it actually ceded the market nor has it conferred any special benefit upon the appellant. (d) The AE is not making any special effort for the appellant. Hence, if the appellant wishes to operate as an independent enterprise, it would have first assessed as to what is the damage that is being caused to the AE by its entering those territories. (e) If the parent company allows an AE to use an already established marketing network it does not mean that a special benefit is passing to the appellant. The parent company will not allow a third party access to its network. Hence, the access that the appellant has gained to the marketing / dealer network of HMCL is incidental to its being part of the group. As per the OECD guidelines such incidental services do not call for a separate payment.

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30,77,53,454 at NIL, allegedly on the following grounds -

a. The appellant is equally responsible for the technology upgradation that is taking place in India;

b. The appellant pays model fee and royalty for the same set of service;

(a) the appellant was acting as a contract manufacturer and hence royalty paid as percentage of sale to the associated enterprises is not at arm’s length as it amounts to collecting royalty on the sale to itself.

(b) the appellant is making part of its sales to related parties and the benefit of purchasing components is reaped by the associated enterprise, the payment of royalty does not conform to arm’s length price.

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adjustment on account of international transaction of payment of export commission, model fee and royalty without applying any of the prescribed methods.

13.1. That on the facts and circumstances of the case, the assessing officer failed to appreciate that in accordance with the consistent, regular and accepted method of valuation of inventory followed by the appellant, the aforesaid costs being incurred in exceptional situations, are not to be considered for the purposes of valuation of closing inventory.

14.1. That the assessing officer erred on facts and in law in failing to appreciate that the expenditure on account of rejection of various goods debited in the profit and loss account did not comprise of normal rejections.

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14.2. That on facts and circumstances of the case, the assessing officer failed to appreciate that the aforesaid costs were abnormal in nature and, therefore, in accordance with the consistent, regular and accepted method of accounting, was not considered for the purpose of valuation of closing inventory.

15.1 That the assessing officer erred on facts and in law in observing that the appellant did not submit information/details qua the method followed for computing the aforesaid provisions.

15.2. That the assessing officer erred on facts and in law in not appreciating that total provision of Rs 10,43,44,673was made on the basis of actual price revisions approved upto the end of the relevant year, which is an allowable business expenditure, as per mercantile system of accounting, under section 37(1) of the Act.

15.3. That the assessing officer erred on facts and in law in alternatively observing that the aforesaid amount of provision for increase in price of material is further liable to be added to the cost of closing stock, without appreciating the correct facts and the legal position.

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were received or liabilities were recognized during the year, alleging the same to be prior period expenditure and not business expenditure of the relevant previous year.

16.1. That the assessing officer erred on facts and in law in failing to appreciate that the liability in respect of aforesaid expenses aggregating to Rs. 17,83,68,791 pertaining to services rendered by various vendors/creditors in the earlier years, crystallized during the relevant year only on receipt of bills and acceptance of same by the appellant and, therefore, the same did not constitute prior period expenditure.

16.2 Without Prejudice, the assessing officer erred on facts and in law in not allowing or directing to allow the aforesaid expenses in the relevant preceding year(s).

17.1. That the assessing officer erred on facts and in law in alleging that the provision for expenses at the end of relevant previous year was not made on scientific basis and was not a reasonable estimate and, therefore, contingent in nature.

17.2 That the assessing officer erred on facts and in law in observing that the appellant failed to substantiate the method of creating the aforesaid provision.

17.3. That the assessing officer erred on facts and in law in adding back the provision for advertisement expenses incurred at head office, aggregating to Rs. 10,18,89,332, while computing ‘book profit’ under section 115JB, holding the same to be an unascertained liability.

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18.1. That on the facts and circumstances of the case, the assessing officer erred in not appreciating that the aforesaid parties were not related to the appellant in terms of section 40A(2)(b) of the Act and hence no disallowance of expense on the ground that payment made to such parties was excessive, could be made.

18.2 That the assessing officer erred on facts and in law in alleging that the appellant had maintained its relationship with the parties in a manner that they do not qualify for being related parties as per the provisions of section 40A(2) of the Act.

18.3. Without Prejudice, that the assessing officer erred on facts and in law in disallowing purchases to the extent of Rs. 48.76 crores, with respect to purchases from aforesaid related parties (in terms of AS-18) for which no comparable instance supporting the allegation of excessive payment, was available, on pure estimate basis.

19.1 That on the facts and circumstances of the case, the assessing officer failed to appreciate that the payment given by the customers of HFCL to the appellant was not in the nature of loan or advance given by HFCL to appellant so as to constitute deemed dividend under section 2(22)(e) of the Act.

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19.2 Without prejudice, that on the facts and circumstances of the case, the assessing officer failed to appreciate that the provisions of section 2(22)(e) of the Act were not applicable to the aforesaid transaction, since the loan or advance allegedly given by HFCL to the appellant was in the ordinary course of business of HFCL.

19.3. That the assessing officer erred on facts and in law in observing that the loan was not advanced by HFCL in the ordinary course of business of money lending.

20.1 That the assessing officer erred on facts and in law in observing that the Revenue had powers to determine the reasonableness of the aforesaid payment made by the appellant to HCSL on the ground that the said party was related to appellant in terms of AS 18, although not related in terms of section 40A(2)(b) of the Act.

21.1. That the assessing officer erred on facts and in law in observing that since the impugned payments were not in the nature of ‘discount’ to dealers, but incentives for meeting targets, the same was in the nature of ‘commission’,

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which was subject to TDS under section 194H of the Act.

21.2. That the assessing officer erredon facts and in law in not appreciating that the aforesaid discountswere offered under contracts entered into with the dealers on a principal to principal to basis, and did not constitute ‘commission’ as referred to in section 194H of the Act.

21.3. Without prejudice, that the assessing officer erred on facts and in law in not appreciating that since the appellant was under a bona fide belief that no tax was Without prejudice, the assessing officer erred on facts and in law in required to be deducted therefrom, no disallowance was warranted under section 40(a)(ia) of the Act.

21.4. Without prejudice, the assessing officer erred on facts and in law in not appreciating that since the payees have also paid tax on the income receivable from the appellant, no disallowance could be made under section 40(a)(ia) of the Act for alleged default in deduction of tax at source by the appellant.

21.5. Without prejudice, the Assessing Officer erred on fact and in law in not not appreciating that the disallowance could not have exceeded 30% of the total expenditure in view of the amended provisions of section 40(a)(ia) of the Act.

22.1. That the assessing officer erred on facts and in law in treating reimbursement of conveyance expenses as legal and professional expenses.

22.2. That the assessing officer erred on fact and in law in not accepting the invoices raised by the vendors for reimbursement of expenses on the ground that the said claims were raised on the basis of self-serving vouchers.

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22.3. Without prejudice, that the assessing officer erred on facts and in law in not appreciating that since the appellant was under a bona fide belief that no tax was required to be deducted therefrom, no disallowance was warranted under section 40(a)(ia) of the Act.

22.4. Without prejudice, the assessing officer erred on facts and in law in not appreciating that since the payees have also paid tax on the income receivable from the appellant, no disallowance could be made under section 40(a)(ia) of the Act for alleged default in deduction of tax at source by the appellant.

22.5. Without prejudice, the assessing officer erred on facts and in law in not appreciating that the disallowance could not have exceeded 30% of the total expenditure in view of the amended provisions of section 40(a)(ia) of the Act.

23.1. That the assessing officer erred on facts and in law in observing that the appellant acquired capital assets in the nature of intellectual property rights and patents from Honda on payment of royalty and technical guidance fees under the LTAA.

23.2. That the assessing officer erred on facts and in law in observing that the appellant received benefit of enduring nature under the LTAA, since - (i) the appellant obtained exclusive right to manufacture and sell the products within the territory of India and, (ii)the license had a degree of perpetuity, as it was

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being renewed and extended year after year.

23.3. That the assessing officer erred on facts and in law in observing that payments under the LTAA covered consideration for setting up of manufacturing facility for the appellant.

23.4. That the assessing officer erred on facts and in law in holding that expenditure incurred on royalty/ technical guidance fee/ model fee were not incurred for the purpose of the business of the appellant, without giving any cogent reasons.

23.5. Without prejudice, the assessing officer erred on facts and in law in inadvertently not allowing depreciation on royalty/technical fee and model fee paid after the treating the same to be capital expenditure.

24.1. That the assessing officer erred on facts and in law in observing that investments were made by the appellant with a view to earn profit from selling the same at a later stage and, therefore, profits were taxable under the head “business income”.

24.2. That the assessing officer erred on facts and in law in observing that the appellant had earned substantial turnover from sale of investments and was engaged in day to day monitoring of investments, therefore, the appellant was primarily engaged in activity of investments, which was to be regarded as business activity and, accordingly, income arising therefore was taxable under

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the head “business income”.

25.1 That the assessing officer erred on facts and in law in applying provisions of Rule 8D of the Rules, without reaching a finding/recording satisfaction as to the incorrectness of the suo moto disallowance of expenses made by the appellant under section 14A of the Act.

25.2. That the assessing officer erred on facts and in law in attributing entire interest expenditure incurred during the year towards earning of exempt income by mechanically applying provisions of Rule 8D of the Rules.

25.3. That the assessing officer erred on facts and in law in alternatively holding that interest expenses to the extent of Rs. 13.03 lacs and administrative expenses to the extent of Rs. 111.85 lacs disallowed under section 14A and challenged in ground of appeal no. 16 to 16.2 supra, are even otherwise not allowable business deductions under section 36(l)(iii) and section 37(1) of the Act, respectively.

25.4. That the assessing officer erred on facts and in law in not appreciating that expenses incurred during the year, including interest expenditure, was for the purpose of regular business activities and had no nexus with investments, and were, therefore, allowable business deduction under section 36(l)(iii) and 37(1) of the Act.

25.5. Without prejudice, that the assessing officer erred on facts and in law in holding that interest expenditure, if any, attributable to investments was not allowable under section 48 of the Act, without appreciating that such finding was extraneous and beyond jurisdiction to the assessment year under consideration inasmuch as the said issue could be raised only in the year of sale of

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investment(s).

29.1 That the assessing officer erred on facts and in law in holding that the appellant failed to justify the commercial expediency for making the aforesaid payment of commission to the Managing Director.

29.2. That on the facts and circumstances of the case the assessing officer

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failed to appreciate that the commission was paid to the Directors in lieu of services rendered by them and not in lieu distribution of profits.

29.3. That the assessing officer erred on facts and in law in not appreciating that dividend was separately distributed amongst all the shareholders, including Shri Munjal and thus, payment of commission was not in lieu of distribution of dividend.

30.1 That the assessing officer erred on the facts and circumstances of the case, is not following the directions of the DRP in not granting depreciation on lease premium since such premium constitutes ‘business or commercial rights’ under section 32(1 )(ii) of the Act.

31.1. That the assessing officer erred on facts and in law in holding that the aforesaid payment was in the nature of application of income and not expenditure allowable against business income under the provisions of the Act.

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aforesaid extent of purchases was outsourced and, therefore, proportionate amount of profit derived from such purchases was not eligible for deduction under section 80IC of the Act.

32.1 That the assessing officer erred on facts and in law in observing that purchase of finished components from the vendors for further consumption in assembly/manufacture of two wheelers constituted outsourcing of manufacturing activity.

34.1. That the assessing officer erred on facts and in law in disallowing deduction under section 80IC to the extent of Rs. 0.62 cores, being the proportionate amount of aggregate purchases of Rs. 4.78 crores from non-eligible unit(s) after processing of semi-finished goods, computed on ad-hoc basis, on the ground that manufacturing activity to the aforesaid extent of purchases was outsourced and, therefore, proportionate amount of profit derived from such purchases was not eligible for deduction undder section 80IC of the Act.

34.2. That the assessing officer erred on facts and in law in disallowing deduction under section 80IC by an amount of Rs. 0.59 cores, being the amount of markup (adopted @10.36%, being the NP of Gurgaon unit, applied to

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purchases of Rs. 5.66 crores from that unit) attributed over the value of goods, aggregating to Rs. 20.89 crores procured from Gurgaon units, by applying the provisions of section 80IA(8) read with section 80IC(7) of the Act, on the ground that deduction under the former section needs to be computed by recording inter- unit transfer at market price.

35.1 That the assessing officer erred on facts and in law in holding that part of the alleged extraordinary profits earned by the eligible unit should have been attributed to the head office on account of sales/marketing set-up at head-office.

36.1 That the assessing officer erred on facts and in law in holding that part of extraordinary profits earned by eligible unit at Haridwar were attributable to profit earned from marketing of products and brand value.

36.2. That the assessing officer erred on facts and in law in holding that since marketing activities were carried out at Head Office, therefore, the appellant should have transferred goods to Head Office at cost plus reasonable margin and the head-office should have earned higher profit on account of sales and

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marketing activities.

36.3. That the assessing officer erred on facts and in law in holding that the assets, such as, brand value and marketing network, were not owned by the eligible undertaking at Haridwar.

36.4 Without prejudice, that the assessing officer erred on facts and in law in attributing profits to the manufacturing activities at Haridwar by applying net profit rate of 6.85%, on an arbitrary basis.

36.5. Without prejudice, that the assessing officer erred on facts and in law in holding that the net profit rate of the first year of operation of business would be the rate of profit derived solely from manufacturing activities.

36.6. Without prejudice, that the assessing officer erred on facts and in law in computing the net profit rate of 6.85% for attributing profits to the manufacturing activity at Haridwar, by computing net profit rate for the first year of operation of the appellant company on an arbitrary basis.

37.1 That the assessing officer erred on facts and in law in holding that the other income aggregating to Rs. 40,47,87,664 is taxable under the head “income from other sources”.

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(i) the appellant did not comply with provisions of Rule 18BBB(4) of the Rules, by not attaching the approval obtained from an appropriate authority for carrying on the eligible business;

(ii) the appellant did not comply with the conditions specified in the Industrial Policy and consequent Notification issued by Uttaranchal Government; and

(iii) the appellant violated the terms of factory license regarding continuous employment of specified number of employees on any given day.

38.1 That the assessing officer erred on facts and in law in observing that the appellant failed to satisfy the conditions precedent of obtaining approval from an appropriate authority to carry on the eligible business for the purpose of claiming deduction under section 80IC of the Act.

38.2 That the assessing officer erred on facts and in law in not appreciating that no separate approval was required by the appellant to carry on the eligible business of manufacturing two-wheelers at a specified location, under section 80IC of the Act.

38.3 That the assessing officer erred on facts and in law in observing that failure to comply with conditions contained in industrial policy for the relevant State would disentitle the appellant to claim of deduction under section 80IC of the Act.

38.4 That the Assessing Officer failed to appreciate that Section 80IC was an independent and self-contained provision and did not stipulate any pre-requisite conditions, as contained in the industrial policy, for claiming deduction under that section.

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39.1 That the assessing officer erred on facts and in law in observing that contracts entered with the aforesaid vendors were in the nature of ‘work contract’ and, therefore, payments made thereunder were subject to TDS under section 194C of the Act.

39.2 That on the facts and circumstances of the case, the assessing officer failed to appreciate that the provisions of section 194C of the Act were not applicable in relation to the aforesaid transactions, as the same were in the nature of contract of sale.

39.3 That the assessing officer erred on facts and in law in treating the aforesaid purchase contract as ‘work contracts’, simply because the appellant, while placing the purchase orders to the vendors, in addition to specifications of the products to be purchased from the vendors, also specified to the vendors the name of suppliers and purchase price of raw materials/components to be used in manufacture of products by such vendors.

39.4 That the assessing officer erred on facts and in law in observing that by arranging the transaction in the aforesaid manner, the appellant had adopted colorable device to avoid deduction of tax at source.

39.5 Without prejudice, the assessing officer erred on facts and in law in not appreciating that the appellant had a bonafide belief that tax was not deductible at source on aforesaid transaction of supply of goods.

39.6 Without prejudice, the assessing officer erred on facts and in law in not appreciating that the disallowance could not have exceeded 30% of the total expenditure in view of the amended provisions of section 40(a)(ia) of the Act.

39.7. Without prejudice, that the assessing officer erred on facts and in law in disallowing the aforesaid purchases for alleged failure to deduct tax at source from payments made thereagainst, without appreciating that amendment to section 40(a)(ia) disabling disallowance in cases where recipients have

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considered receipts as part of the taxable income on which tax was duly paid, had retrospective application and, therefore, no part of the payments made could have been disallowed in the hands of appellant under the said section.

40.1 That the assessing officer erred on facts and in law in observing that the appellant was liable to deduct tax at source, since the aforesaid provision was made in relation to identified parties.

40.2 That the assessing officer erred on facts and in law in not appreciating that the appellant was not liable to deduct tax at source under section 194H of the Act as the dealers were acting on a principal to principal basis qua the company and not as an agent.

40.3 Without prejudice, that the assessing officer erred on facts and in law in not appreciating that since payees were not identified nor any right to receive commission accrued in the hands of payees, there was no obligation on the appellant to deduct tax at source under section 194H of the Act.

41.1 That the assessing officer erred on facts and in law in observing that carrying out repair and maintenance services of vehicles of customers, which was the obligation of the appellant under the contract of sale of vehicles to

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customers tantamount to rendering of professional/technical services by the dealers to the appellant and the payment made by the appellant to the dealers was for availing such services.

41.2. That on the facts and circumstances of the case, the assessing officer failed to appreciate that there was an independent contract for service of vehicles between the dealers and the customers and no service was either rendered by the dealers to the appellant or to the customers for and on behalf of the appellant.

41.3 That on the facts and circumstances of the case, the assessing officer failed to appreciate that the payments against service of vehicle by dealers was made by the customers in the form of free service coupons, which were simply reimbursed/honored by the appellant in view of reciprocal obligation undertaken by the appellant at the time of sale of vehicle under the contract of sale.

41.4 Without prejudice, that the assessing officer erred on facts and in law in not appreciating that since the appellant was under a bona fide belief that no tax was required to be deducted therefrom, no disallowance was warranted under section 40(a)(ia) of the Act.

41.5. Without prejudice, the assessing officer erred on facts and in law in not appreciating that the disallowance could not have exceeded 30% of the total expenditure in view of the amended provisions of section 40(a)(ia) of the Act.

41.6. Without prejudice, the assessing officer erred on facts and in law in not appreciating that since the payees had also paid tax on the income receivable from the appellant, no disallowance could be made under section 40(a)(ia) of the Act for alleged default in deduction of tax at source by the appellant.

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located in the compound of factory at Gurgaon / Dharuhera / Haridwar plant, holding that in terms of proviso to section 32(l)(iia), additional depreciation is not admissible on any machinery or plant installed in any office premises.

42.1. That the assessing officer erred on facts and in law on holding that since computers at supervisory offices located within the factory premises were not directly involved in manufacturing activity, were not eligible for additional depreciation under section 32(l)(iia) of the Act.

42.2. That the assessing officer erred on facts and in law in observing that since the appellant was claiming depreciation on computers @60%, the same cannot be said to be plant and machinery for the purposes of the claim of additional depreciation under section 32(l)(iia) of the Act.

43.1. That the assessing officer erred on facts and in law in computing income of the power generating unit by considering the rate of Rs. 4.36 per unit, at which power was supplied by State Electricity Board, as the ‘market price’ of the power, supplied by that unit to the vehicle manufacturing unit of the appellant, as against rate of Rs. 8.95 per unit (cost of generation of power at Rs. 7.78 per unit + mark-up of 15%) adopted by the appellant.

43.2. That the assessing officer erred on facts and in law in not appreciating that the price at which electricity was supplied by HSEB was not reflective of ‘market price’ since electricity supply was not adequately available from HSEB at Gurgaon as per its requirement.

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the ground that same is an unascertained liability.

44.1. That the assessing officer erred on facts and in law in observing that since provision for warranty was always higher than actual warranty expense incurred during the year, same was an unascertained liability.

44.2. That the assessing officer erred on facts and in law in observing that the method followed by the appellant for creating provision for warranty in respect of sales made during the year is not rational and scientific.

45.1 That the assessing officer erred on facts and in law in holding that the export commission paid to Honda was in the nature of royalty/fee for technical services on the ground that the same was in consideration for, (i) right to use trademark, (ii) permission to export, and (iii) managerial and technical services provided by Honda, and accordingly the appellant was under obligation to deduct tax at source therefrom under section 195 read with section 9(l)(vi)/(vii) of the Act.

45.2 That the assessing officer erred on facts and in law in not appreciating that the payment of export commission was made to Honda in consideration of according consent/for ceding overseas territory and allowing export of motorcycle and spares by the appellant and the same was not liable to tax in India.

45.3. That the assessing officer erred on facts and in law in not appreciating that services / assistance provided by Honda were incidental to the right for

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exploiting the foreign territory and were not in the nature of ‘fee for technical services’.

45.4. That the assessing officer erred on facts and in law in not appreciating that the payment of export commission was not in consideration for use of trade mark or provision of technical assistance, for which separate payment was being made, on which tax was required to be deducted under section 195 of the Act by the appellant.

45.5. Without prejudice that the assessing officer erred on facts and in law in not appreciating that payment of export commission being for earning income from source outside India, would not be characterized as “royalty” or fee for technical service as per section 9(l)(vi)(b) or section 9(l)(vii)(b) of the Act, respectively.

45.6. That the assessing officer erred on facts and in law in holding that the appellant was bound to take a certificate from the assessing officer under section 195(2) of the Act in view of the decision of the Supreme Court in the case of Transmission Corporation of India Ltd. vs. CIT: 239 ITR 587, before remitting export commission to Honda and in absence of such certificate the appellant was required to withhold tax on export commission paid to Honda.

45.7. That the assessing officer erred on facts and in law in alternatively holding that export commission constitutes capital expenditure on the ground that the same was incurred for acquiring permission / license for making export and was not allowable under section 37(1) of the Act.

45.8. Without prejudice the assessing officer erred on facts and in law in not holding that depreciation was allowable on the payment of export commission if the same were to constitute capital expenditure.

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engaged in shifting of profits and/or losses through Client Code Modification (CCM), merely on surmises and conjectures, without providing any cogent basis thereto.”

a) The assessee is equally responsible for the technology upgradation that is taking place in India;

b) The assessee pays model fee and royalty for the same set of service

The DRP confirmed the aforesaid adjustments made by the TPO.

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with the associated enterprises for availing license to use their proprietary technology. In other words, the payment of model fee is necessary cost incurred for obtaining knowhow for manufacture of products by the assessee. The Ld. AR submitted that while implementing the Transfer Pricing regulations, it would not be appropriate for the Indian tax administration to deny payment of rightful consideration to a non resident related party (AE) pursuant to a bonafide agreement for use of their proprietary technology by the for manufacture of finished products in India. Therefore, the Ld. AR submitted that payment of royalty is made in consideration for right to manufacture products and using the technical knowhow owned by the associated enterprises. The Ld. AR submitted that the Tribunal, following the order of the Coordinate benches, the aforesaid issues have been decided in favour of the assessee by the consolidated order dated 24.10.2016 passed by the Delhi Bench of the Tribunal in assessee’s own case for assessment year 2010-11 and 2011-12 following assessee’s own case for the assessment year 2006- 07, 2007-08 and 2008-09 deleted the aforesaid addition. Further, the Ld. AR submitted that the Hon’ble High court upheld the order of the Tribunal for AY 2006-07 (ITA No. ITA 923/2015) deleting the adjustment on account of payment of model fee. While deciding the appeal for the assessment year 2012- 13, the Tribunal decided the issue following the orders for assessment year 2010-11 and 2011-12 wherein the Tribunal, following the orders for the assessment years 2006-07, 2007-08 and 2008-09 had deleted similar transfer pricing adjustment made in those years.

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(i) The position of the assessee with regard to manufacturing for the AEs is that of a contract manufacturer. The assessee is purchasing raw material from the AEs. Goods are manufactured in India and then part of it is exported to AEs. The royalty paid as a percentage of sales to the associated enterprise is not at arm's length because it amounts to collecting royalty on the sales to itself.

(ii) All the AEs are typically within the broad umbrella of the multinational corporation. Even though, it appears that the technical know-how is commercially exploited in India, in reality, the price for these activities are not fixed by market forces.

(iii) In the present case, where assessee is making a part of its sales to its related parties and the benefit of producing components is reaped by AE, the payment of charges for royalty do not confirm to arm’s length principle.

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following the orders for assessment year 2010-11 and 2011-12, wherein the Tribunal, following the orders for the assessment years 2006-07, 2007-08 and 2008-09 had deleted similar transfer pricing adjustment made in those years.

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wheelers to certain countries on payment of export commission (a) 5% of the FOB value of such exports. The payment of export commission was made by the assessee to HMCL as consideration for according consent to the assessee to export two wheelers in the overseas territory(ies), which were earlier being supplied by HMCL or its other affiliates. In other words, the payment of commission was made to HMCL in lieu of HMCL agreeing to cede the overseas market. It is to be appreciated that the assessee by virtue of the aforesaid payment gained access to new market for its products, which enabled it to enhance its sales. The export commission is also paid by the assessee to HMCL for procuring export orders using their network and infrastructure in relation to exports. The Ld. AR submitted that the Tribunal, following the order of the coordinate benches, the aforesaid issues have been decided in favour of the assessee by the consolidated order dated 24.10.2016 passed by the Delhi Bench of the Tribunal in assesee’s own case for assessment year 2010-11 and 2011- 12, following assessee’s own case for Assessment Year 2010-11 and 2011-12, following assesee’s own case for the Assessment Year 2006-07, 2007- 08 and 2008-09 deleted the aforesaid addition.

“5. We have heard both the parties and perused the material available on record. The issue is covered in favour of the Assessee for A.Y. 2006-07 by the Hon’ble High Court’s decisions in assessee’s case. For A.Ys. 2006-07, 2007- 08 and 2008-09, the Tribunal decided this issue in favour of the assessee.

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The Tribunal in immediate preceding year i.e. A.Ys. 2010-11 & 2011-12 held as under:

“43) For the subsequent year also the coordinate benches followed the similar view with respect to all the payments. Further with respect to the allowance of the model fee the Hon’ble Delhi High Court in appellant’s own case for assessment year 2006-07 has not admitted the appeal of the revenue on this aspect, and further with respect to the arm’s length price of payment of royalty on sales to associated enterprise the appellant has submitted that revenue has not challenged the aforesaid finding of the tribunal before the Hon’ble High Court which fact is not controverted by Ld. DRP therefore accordingly the finding of the coordinate bench has attained finality. In view of above, respectfully following the decision of the Coordinate Bench of the Tribunal in appellant’s own case for AY 2006-07, 2007-08 and 2008-09, we hold that the issue is squarely covered in favour of the appellant. Therefore we reverse the finding of the lower authorities in determining the arm’s length pricing of payment of export commission of Rs. 15.91 crores, model fees payment of Rs.15904 4986/- and payment of royalty on sales of Rs. 17.25 Lacs at Rs. nil. Therefore, ground no. 8 of the appeal of assessee is allowed.”

In the present Assessment Year, the assessee, for the purpose of its’ business entered into international transactions of payment of model fee amounting to Rs.1,720,872,877/- and Royalty of Rs.35,282,665/-. Since the operating profit ratio of the assessee @ 10.99% is higher than the average of the operating profit ratio of comparables companies, i.e., 10.79%, the international transactions entered into by the assessee were considered as having been entered at arm’s length price, applying TNMM. From the records it can be seen that the assessee has not sold any products to the associated enterprises on which royalty was payable and the entire amount of royalty was paid by the assessee on sales made to independent enterprises. Therefore, the TPO/AO

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as well as DRP were not correct in determining the arm’s length pricing of model fees and payment of royalty. This issue is squarely covered by the earlier Assessment Years in assessee’s favour. Therefore, Ground No. 1 to 15 are allowed in favour of the assessee.”

The payment of model fee has been made in terms of License and Technical Assistance Agreement approved by the Government in consideration of license to manufacture “Products” and using technical know how provided by the associated enterprises during the prevalence of the agreement. The payment of model fee is a consideration in terms of agreement with the associated enterprises for availing license to use their proprietary technology and it is a necessity for the assessee for manufacturing of the products to have knowledge of know-how from the associated enterprise. Thus, payment of royalty is made in consideration for right to manufacture products and using the technical know-how owned by the associated enterprises. As regards royalty on sales to AEs, from the records it can be seen that the assessee is an independent manufacturer of products in respect of two wheelers and not a contractor manufacturer. The sale of such products made to the AE on principal to principal basis, at price agreed upon by the parties. As regards payment of export commission, the assessee paid this export commission for providing access by HMCL to the assessee for procuring export orders using their network and infrastructure in relation to export. In fact the export agreement with HMCL impart the consent to the assessee for export of specific models of two wheelers to certain countries on payment of export commission @ 5% of the FOB value of such export. It is noted here that by virtue of the said payment the assessee gained the access to new market for its products, which enabled it to enhance sales. Thus, the TPO/DRP was not correct in disallowing these three components in the Transfer pricing additions and we are allowing Ground No. 1 to 12 of the assessee’s appeal.

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inward/import clearing expenses to cost of. The assessee ordinarily purchases raw material on CIF basis and, therefore, freight cost for delivery of goods is ordinarily included in purchase price and are factored in the value of closing inventory; In exceptional circumstances viz. material shortage, where assessee has to immediately lift material, transport charges are paid, which are not loaded to the purchase price, but are separately debited to profit and loss account, since invoices of transporters are received after consumption of material; Such freight amount is not included in the valuation of closing stock, as per regularly and consistently followed method of valuation of stock accepted by the Revenue in the past. The AO/DRP held that proportionate amount of Rs. 90.58 lacs out of the total amount of freight inward charges and import clearing charges incurred as attributable to the value of closing stock on account of above expenses. However, since the assessing officer had made similar addition of Rs. 108.39 lacs on account of above in the closing stock of the last year, which constituted opening stock of the year under consideration, the assessing officer allowed deduction for the said amount, resulting in net reduction of (-) 17.81 lacs (i.e. Rs. 90.58-108.39 lacs).

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2010-11 and 2011-12. 13. The Ld. DR relied upon the Assessment Order and order of the TPO, but could not distinguish the decision of the Tribunal.

“9. We have heard both the parties and perused the material available on record. The Tribunal in assessee’s own case for A.Ys. 2010-11 & 2011-12 held as under:

“11) We have carefully considered the rival contentions. The company is a corporate entity therefore it has to value its closing stock according to the accounting standard 2 ‘valuation of inventories’ issued by the Ministry of corporate affairs and ICAI. According to that accounting standard the closing stock of the finished goods is required to be valued including all cost of the finished goods is required to be valued including all cost of purchases, cost of conversion and other cost incurred in bringing the inventory to their present location and conditions. The contentions of the appellant is that that it’s all purchases are accounted for on CIF basis and therefore the suppliers are required to provide the goods at the factory location and therefore in the closing stock of inventory there cannot be any element of freight etc., this issue has been considered by the coordinate bench in appellant’s own case for A Y 2007-08 where in it has been held that :-

“7.13. We have considered the submissions and the material filed by both the parties. The issue in question is regarding method of valuation of closing stock. The primary contention of the assessee is that it had to make emergency purchases and that these stocks so purchased were immediately consumed. In such exceptional situations, the assessee has directly accounted the freight and import clearing charges to the

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profit and loss account. This means that such raw material stocks are not part of closing stock at all. Further, this fact is not rebutted by the DR.

7.14 Though technically it can be argued that the value of closing inventory must include freight/ import clearing charges, the facts explained by the assessee are that the purchases in question are done under exceptional circumstances (which are well known in this type of industry) for immediate consumption. They are in fact consumed immediately i.e. as soon as raw material enters the factory premises which is not disputed by assessing officer, hence the question of such purchases being part of closing stock does not arise at all. In such a situation, when freight/ import charges are directly debited to the P& L A/c along with the value of the purchases, naturally the question of treating them as part of closing inventory does not arise. The assessee has acted and accounted in a proper and acceptable method. Therefore, the relief should be granted on this count alone.

7.15 Alternatively, the undisputed fact remains that the assessee has consistently following the said method of accounting in the last many years and the Revenue has been accepting these facts and method of accounting without any demur.

7.16 The contention of the DRP that, the principle of res-judicata does not apply in Income tax proceedings and therefore, the Assessing officer is correct to come to independent conclusion and is not bound by past acceptance of a factual legal point by the department is untenable. Technically the principle of res judicata may not apply to the income tax proceedings as each year is an independent year, yet there ought to be uniformity in treatment and consistency as propounded by Hon’ble Supreme Court in the case of Radhasoami Satsang vs. CIT 193 ITR 321, when the facts and circumstances are identical. It is a judicially

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accepted principle that when the facts are same, a uniform view should be adopted for the subsequent years in the income tax proceedings. Unless there is a material change in the facts, which is neither demonstrated by assessing officer nor DRP, the view which is taken earlier, should not be changed, as held by various courts. We now discuss some of the case laws.

7.17 The Hon’ble Supreme Court in the case of Radhasoami Satsang (supra), on the theory of consistency, has held as under:

“….Strictly speaking, res judicata does not apply to the income tax proceedings. Though, each assessment year being a unit, what was decided in one year might not apply in the following year, where a fundamental aspect permeating through different assessment years has been found as a fact one way or the other and parties have allowed that position to ne sustained by not challenging the order, it would not be at all appropriate to allow the position to be changed in a subsequent year.”

7.18 This view has been followed by the Hon’ble Delhi High Court in the case of CIT vs. Neo Ploy Pack (P) Ltd. [2000] 245 ITR 492 and the Hon’ble Bombay High Court in the case of CIT vs. Gopal Purohit [2011] 336 ITR 287.

7.19 Further, the Hon’ble Supreme Court in the case of CIT vs. Realest Builders and Services Limited (2008) 307 ITR 202 held as :

“In case where the department wants to tax an assessee on the ground of the liability arising in a particular year, it should always ascertain the method of accounting followed by the assessee in the past and whether change in method of accounting was warranted on the ground that profit is being underestimated under the impugned method of accounting. If the Assessing Officer comes to the conclusion that there is

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underestimation of profits, he must give facts and figures in that regard and demonstrate to the Court that the impugned method of accounting adopted by the assessee results in underestimation of profits and is, therefore, rejected. Otherwise, the presumption would be that the entire exercise is revenue neutral. In the instant case, that exercise had never been undertaken. The Assessing Officer was required to demonstrate both the methods, one adopted by the assessee and the other by the department. In the circumstances, there was no reason to interfere with the conclusion given by the High Court.”

7.20 The Hon’ble Supreme Court in the case of CIT vs. Bilahari Investment P. Ltd. 299 ITR 1 (SC) held as follows:

“Every assessee is entitled to arrange its affairs and follow the method of accounting, which the Department has earlier accepted. It is only in those cases where the Department records a finding that the method adopted by the assessee results in distortion of profits that the Department can insist on substitution of the existing method.”

7.21 In the case of CIT vs. Jagatjit Industries Ltd. (2011) 399 ITR 382 (Del.), the Hon’ble Jurisdictional High Court has held as follows:

“If a particular accounting system has been followed and accepted and there is no acceptable reason to differ with it, the doctrine of consistency would come into play. The method of accounting cannot be rejected.

The assessee was following the mercantile system of accounting. According to past business practice, the expenditure spilled over the next year and was debited in the second year and was allowed by the Assessing Officer. The Assessing Officer for the assessment year in question disallowed Rs.13,46,299 claimed as expenditure of prior period allowable in the current year. The Commissioner (Appeals)

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deleted the disallowance and this was upheld by the Tribunal. On appeal to the High Court:

Held, dismissing the appeal, that the assessee had claimed prior period expenses on the ground that the vouchers for such expenses from the employees/ branch employees were received after March 31st of the financial year. It had branch offices throughout the country. It debited the expenditure spill over the subsequent years and the Assessing officer had been allowing it in the past. The accounting practice had been consistently followed by it and accepted by the Revenue. Nothing had been brought on record to show that there had been distortion of profits or that the books of account did not reflect the correct picture. In the absence of any reason whatsoever, there was no warrant or justification to depart from the previous accounting system which was accepted by the Department in respect of the previous years.”

7.22 In the present case, the Revenue has rejected the method of accounting which is consistently followed by the assessee on the ground that there may be chance where in a particular year, the method adopted by the assessee may result in underestimation of profits. However, the Revenue failed to demonstrate with facts and figures that the impugned method of accounting may result in material underestimation of profits. On the contrary, the assessee has demonstrated that the change in the method of accounting for year under appeal would result in loss to the revenue as the opening stock would also require similar adjustment and the cascading effect will be loss to revenue. We observe that in many of the additions made in this case by the revenue, the consistent method of accounting is unnecessarily disturbed, though it has been accepted in many years. In our view such tinkering with the method is unjustified when the exercise does not materially alter the profits. The facts and figures in

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many additions demonstrate that the issue raised is revenue neutral in the long run. Such petty additions should be avoided on the ground of materiality, as AS-1 which talks about materiality, consistency, prudence etc. is part of the I.T. Act after it is notified u/s 145(2).

7.23 In view of the foregoing and proposition laid down by the Hon’ble Supreme Court and the Hon’ble High Courts, we are of the opinion that adjustment of Rs. 31.18 lacs made to total value of closing stock of Rs. 275 crores and consumption of stocks of Rs. 7178 crores is uncalled for. If valuation of closing stock is changed then the value of opening stock should also be changed on the same basis or method. The closing stock of a particular year is the opening stock of the subsequent year. It is not the case of the revenue that the method of valuation of closing stock is materially affecting the accounts and profits disclosed by the assessee. This adjustment sought to be made is revenue neutral and at best may result in preponment or postponement of revenue. The issue is whether such exercise is at all required on the ground of materiality. Materiality is a concept which is well recognized both in accountancy and law. Accounting standards notified by the CBDT u/s 145(2) mandate that the concept of materiality be taken into consideration when finalizing the accounts of an assessee.

7.24 Further, the Hon’ble Supreme Court in the case of Berger Paints India Ltd. vs. CIT (2004) 266 ITR 99 at page 103(SC), has noted with approval, the observations of the Special Bench of the ITAT in the case of Indian Communication Network Pvt. Ltd. vs. IAC (1994) 206 ITR (AT) 96 (Delhi). At page 114 it observed that:

“Before we part with the ground, we cannot help feeling that the litigation between the parties could have been avoided since it was quite immaterial, whether full deduction was allowed in one year or partly in one year and partly in the next, since the assessee is a

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company and rate of tax is uniform. The gain to one and the loss to the other is illusory since what is deferred in one year, would have to be discharged in the next. In that sense, nobody has won and nobody has lost.”

7.25 Even on this plea also, the assessee succeeds. We have dealt with this issue elaborately as, in a number of grounds, this issue would become applicable. In view of above discussion, we allow this ground of the assessee.”

25) Before us, the Ld. Departmental representative could not point out any changes in the facts and circumstances of the case for this year compared to the year in which the tribunal has decided this issue. He also did not point out any contrary decision and therefore, respectfully following the decision of the coordinate bench we allow ground no. 2 of the appeal of the assessee.”

In the present Assessment Year, the AO/DRP held that proportionate amount of Rs. 170.01 lacs out of the total amount of freight charges of Rs. 6.162.22 lacs incurred as attributable to the value of closing stock on account of above expenses. However, since the Assessing Officer had made similar addition of Rs. 177.26 lacs on account of above in the closing stock of the last year, which constituted opening stock of the year under consideration, the Assessing Officer allowed deduction for the said amount, resulting in net reduction of Rs.7.25 lacs (i.e. Rs.170.01-177.26 lacs). In the earlier years this addition was deleted by the Tribunal for A.Y. 2010-11 and 2011-12, therefore, this issue is squarely covered in favour of the assessee. Therefore, Ground No. 16 is allowed in favour of the assessee.”

The assessee is following consistent system of accounting which was without any reasons was disturbed by the Assessing Officer despite that the facts remains same in this year as well. There is no alteration in the profit of the

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assessee company. Therefore, the issue is squarely covered by the order of the Tribunal in earlier A.Ys. 2010-11, 2011-12, 2012-13 and 2013-14. Hence, Ground No. 13 to 13.1 are allowed.

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The Ld. AR submitted that aforesaid issue stands decided in favour of the assessee by the order of Delhi Bench of the Tribunal in the assesee’s own case for Assessment Year 2007-08 and 2008-09, whereby similar adjustment made in that year was deleted on the same ground. The Ld. AR submitted that the aforesaid issue has been decided in favour of the assessee by the order of the Tribunal in assessment year 2010-11 and 2011-12, wherein the Tribunal held that only normal loss is to be loaded/added to the cost of closing inventory which was in consonance with the Accounting Standards issued by the Institute of Chartered Accountants of India (ICAI). While deciding the appeal for the assessment years 2012-13 and 2013-14, the Tribunal decided the issue in favor of the assessee following the orders for the assessment years 2010-11 and 2011-12.

“13. We have heard both the parties and perused the material available on record. The Tribunal for A.Ys. 2010-11 & 2011-12 held as under:

“16. We have carefully considered the rival contention and has also perused the relevant provisions of the accounting standard – 2 which has been relied by the Ld. assessing officer. We have carefully perused the decision of the coordinate bench in the appellant’s own case for assessment year 2007-08 wherein the identical issue is dealt with as under:-

“8.9 The issue in question is whether the cost of abnormal rejections have to be considered for the purpose of valuation of closing stock. The assessee relied on Accounting standard -2- Valuation of Inventories which is a notified accounting standard by the Companies

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Act which stipulates that abnormal wastages should not be considered for valuation of inventory.

8.10 It was submitted by the Ld. AR of the assessee that it is in the manufacturing of precision and quality product and in case of unfit material it has been consistently following the method of changing the abnormal rejection of material to its profit and loss account, without any allocation to the value of closing inventory.

8.11 The assessing officer’s case is that cost of rejections needed to be included in the value of closing stock. Assessing officer worked out an amount of Rs. 9.24 lacs as attributable to closing stock out of total expenditure of Rs. 12.49 crores and closing stock value of Rs. 275 crores. The assessee as a consistent accounting policy has been claiming the cost of abnormal rejections as revenue expenditure for the previous years and this has been regularly accepted by department in past.

8.12 The amount of Rs. 9.24 lacs attributed by the assessing officer, in our view, is materially inconsequential so as to warrant disturbing the regular method of valuation of closing stock being followed by the assessee company. The quantum of the addition of Rs. 9.24 lacs is less than 0.74% of the value of abnormal rejections. As a percentage of total stocks / turn over / profits declared, this figure is miniscule.

8.13 Accounting Standard-2 stipulates that abnormal wastages should not be considered for valuation of inventory. It reads as follows:

“16. Examples of costs excluded from the cost of inventories and recognized as expenses in the period in which they are incurred are: a)Abnormal amounts of wasted materials, labour or other production costs; storage costs, unless those costs are necessary in the production

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process before a further production stage; administrative overheads that do not contribute to bringing inventories to their present location and condition; and selling costs.”

8.14 Keeping in view the treatment prescribed under AS-2 and the fact that the assessee has been regularly following the same method of accounting for valuation of charging such rejection to P&L A/c and its closing inventory, we are of the view the addition in question is uncalled for. The adjustment is not material adjustment. Further, for the reasons staged by us on the issue of consistency, while disposing around no. 2 to 2.2, we allow this ground of the assessee.”

Both the parties have admitted that there is no difference in the facts and circumstances of the case of the appellant in the assessment year before us as well as the year for which the order of the coordinate bench pertains to. On reading of the assessment order as well as the direction of the Ld. dispute resolution panel it was not found that how the loss of the assessee was found to be normal when the assessee submitted that it is an abnormal loss incurred by it during the course of manufacturing process. Further the Ld. dispute resolution panel has also stated that both the cost of normal and abnormal losses have to be loaded to the value of the closing stock is devoid of any merit as it is contrary to the accounting standard issued by the Institute of chartered accountants of India which has been mandated by the Ministry of corporate affairs, which only says that, only normal losses are required to be included and abnormal losses are required to excluded for the purpose of the valuation of the closing stock of the finished goods and semi finished goods. In view of the above, we respectfully following the decision of the coordinate bench in the appellant’s own case for the previous year allow ground no. 3 of the appeal of the assessee.

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It is pertinent to note that it is not practically possible for the assessee to segregate normal and abnormal wastages embedded in the aforesaid costs and therefore, the assessee, as per consistent and regular method of accounting, accepted by the Revenue as such in the earlier years, did not consider the aforesaid expenditure for the purposes of valuation of closing inventory of finished goods. The AO/DRP was not correct in making this addition. The issue is squarely covered in assessee’s favour by the order of earlier assessment years. Therefore, Ground No. 17-17.1 are allowed in favour of the assessee.”

It is pertinent to note that the assessee followed this method of accounting consistently and regularly which was accepted by the Revenue in the earlier years. Thus, the Revenue at this juncture cannot disturb the said method. In the present Assessment Year also the facts are similar and are squarely covered with the decision of the Tribunal for A.Ys. 2010-11, 2011-12, 2012-13 and 2013-14. Hence Ground Nos. 14 to 14.2 are allowed.

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made by the assessee. The assessee further submitted that in the absence of such understanding/ contract with the vendors, the assessee would not be able to operate and continue manufacturing operations without disruption. This same process is followed when there is reduction in cost elements of component prices, company informs the vendors for reduction in price of components. Accordingly, while price revisions are pending or negotiations are on, the vendors keep on supplying the material provisionally at the agreed rates, with the understanding that pursuant to negotiations being finalized, the arrears of the amount due to them would be paid to them retrospectively. Such price revisions, being an accrued liability at the time of purchase of raw materials, are recorded in the books of accounts by the assessee. At the year end, the company estimates the additional liability on account of price revision under negotiation and makes upward/downward provision, as the case may be, in relation to material supplied until the end of the relevant year. In the assessment order, the assessing officer held that the aforesaid provision of Rs. 10.43 crores is not allowable business expenditure. The assessing officer held that provisions emanating from retrospective price amendments are contingent in nature and thus, not an allowable business expenditure. The assessing officer also added back the aforesaid total provision while computing ‘book profit’ under section 115JB, holding the same to be an unascertained liability.

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disregard of the findings of the assessing officer in the preceding assessment year. viz. AY 2007-08 as also the consistent method followed by the assessee. In that year, the Delhi bench of the Tribunal, vide order dated 13.06.2014 passed in the assesee’s own case for assessment year 2008-09 was pleased to delete the disallowance made by the assessing officer keeping in view the principle of materiality and consistency followed by the assessee. Further, the Delhi bench of the Tribunal, vide consolidated order dated 24.10.2016 passed in assessee 's own case for assessment year 2010-11 and 2011-12, has decided the aforesaid issue in favour of the assessee holding that the provisions was made on scientific basis and the transaction is revenue neutral.

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best estimate on scientific basis or on the basis of actuarial valuation, etc., will not be regarded as provision for unascertained liability, liable to be added back to ‘book profits' under section 115JB of the Act:

CIT vs. H.P. Tourism Taxman 148 (HP) -

ACIT vs. NHPC Ltd.: 67 SOT 317 (Del. -

The Ld. AR further submitted that the Assessing Officer, thus, has limited power of adjusting the book profit as shown in the P&L account in accordance with the adjustments provided in the Explanation to section 115JB of the Act and does not have the jurisdiction to go behind the net profit shown in the profit and loss account except to the extent provided in the said Explanation. Even otherwise, it is a settled law that where liability has accrued during the previous year, the same needs to be provided in the books, provided the same is capable of being estimated with reasonable certainty, even if the liability is quantified and discharged at a future date. [Refer: Bharat Earth Movers v. CIT: 245 1TR 428 (SC): CIT v. Armour Consultants (P.) Ltd. 214 Taxman 444 (Mad.): Bayer Bio Science (P) Ltd.: 148 TTJ 73 (Mum.)] In view thereof, the Ld. AR submitted that the provision for increase in price of material being an ascertained liability made on an actual and scientific basis for the reasons submitted above would also be allowable while computing book profits under section 115.1 B of the Act.

“17. We have heard both the parties and perused the material available on record. The Tribunal for A.Ys. 2010-11 & 2011-12 held as under:

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“20) We have carefully considered the rival contentions and also perused order of the coordinate bench in the appellant’s own case for earlier years. We have also perused the page no. 1130 to 1140 of the paper book volume 3 submitted by the assessee before the Ld. assessing officer in pursuance of direction of the Ld. dispute resolution panel. The parties before us have confirmed that there is no change in the facts and circumstances of the case for this year compared to the year for which the tribunal has decided this issue in favour of the appellant. The coordinate bench in assessee’s own case for assessment year 2007-08 has decided this issue as under:-

“12.11 The addition in question is on account of provision for increase in price of material. When there is an excess provision on account o price revision made during the year, the assessee reversed the same in subsequent year i.e. when the actual figures are known. Similarly, when there is a short provision for increase in price of raw material supplied in immediately preceding year, the balance is recognized as expenditure during the year. A claim is made based on ascertainment of actual liability. The assessing officer disallowed the reversals of provision on ground that this was a prior period expenditure.

12.12 When provisions are made, what is to be seen is whether the assessee has done a bona fide and genuine exercise to estimate its liability with reasonable certainty. The term reasonable certainty means that the provision in question might be slightly higher or lower than the actual figure.. When the provision is higher, it is reversed in subsequent year, when the actual figures are known. Similarly, when the provision is lower, the same is claimed in the latter assessment year. It cannot be said that these are prior period expenditure. The actual liability in question is ascertained only during the year and hence the liability crystallizes during the year. Estimation of an expense has to be considered in contradiction to actual ascertainment

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of the expenses. Once the actual expense has been ascertained, the liability accrues in that year to the extent not provided in the earlier year and is to be allowed as revenue expenditure in the year of crystallization. Concepts of going concern, accrual and consistency have to be taken into account by the revenue authorities while evaluating such provisions and making such adjustments. The assessee is disputing the figures of disallowance and the DRP is also expressing its inability to correct the figures. In our view the DRP is not helpless and could have directed the assessing officer to verify the figures and correct the mistakes, if any. In view of the above discussion, we allow this ground of assessee for statistical purpose and direct the assessing officer to properly verify the figures and allow the claim of the assessee.”

Subsequently for the assessment year 2008-09 when the similar disallowance was made by the Ld. assessing officer the coordinate bench vide its order dated 13.04.2014 has held deleted the disallowance made by the assessing officer keeping in view the principle of materiality and consistency followed by the appellant. On the ground that the mention has been made in the purchase order that there cannot be any revision of the prices subsequently and the prices mentioning the purchase order of final based on which the Ld. assessing officer has relied very heavily we are of the view that that these are the general terms and conditions of the purchase order claimed by the appellant upon its various vendors and there is no prohibition in the said purchase orders that subsequently the prices cannot be revised. Many times the prices are dependent upon the cost of the raw material such as metal etc of the vendors which is highly fluctuating, which may result into subsequent price revision. Further when the actual payments are made to the vendors on the basis of such retrospective increase in price of material supplied, which is accepted and allowed as revenue expenditure, the provision made for such are revenue

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neutral. Accordingly there is no justification in sustaining the aforesaid disallowance. Accordingly, we reverse the action of the assessing officer and allow the ground no. 4 of appeal raised by the appellant.”

It is observed that it is common trade practice to contract with vendors on such express terms for payment of arrears in the event of substantial increase/ decrease in cost, in order to maintain continuous supply of raw materials without being affected by market fluctuations, especially in light of the volume of purchases made by the assessee. In the absence of such understanding/ contract with the vendors, the assessee would not be able to operate and continue manufacturing operations without disruption. This same process is followed when there is reduction in cost elements of component prices, company informs the vendors for reduction in price of components. Accordingly, while price revisions are pending or negotiations are on, the vendors keep on supplying the material provisionally at the agreed rates, with the understanding that pursuant to negotiations being finalized, the arrears of the amount due to them would be paid to them retrospectively. Such price revisions, being an accrued liability at the time of purchase of raw materials, are recorded in the books of accounts by the assessee. At the year end, the company estimates the additional liability on account of price revision under negotiation and makes upward/downward provision, as the case may be, in relation to material supplied until the end of the relevant year. Thus, the Assessing Officer was incorrect in disallowing this claim. Therefore, Ground No. 18 to 18.2 are allowed in favour of the assessee.”

From the records it can be seen that the provision for the material is worked out in respect of price amendments which were already issued on 31.03.2009 which was made on the basis of actual supplied made upto the end of the year as per price amendments actually issued on 31.03.2009. The provision was made on the basis of actual PO issued to the vendors for change in the prices during the year and thus, does not involved any estimation. Therefore, the

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Assessing Officer was not right in making adjustments which are not consistent with the explanation to Section 115JB of the Income Tax Act, 1961. In the present Assessment Year also the facts are similar and are squarely covered with the decision of the Tribunal for A.Ys. 2010-11, 2011-12, 2012-13 and 2013-14. Hence Ground Nos. 15 to 14.3 are allowed.

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and 2011-12.

“25. We have heard both the parties and perused the material available on record. The Tribunal in A.Y. 2010-11 and 2011-12 held as under:

“201. We have heard the rival contentions. We note that similar issue relating to disallowance of prior-period expenses was deleted by the Tribunal in the assessee’s own case for assessment year 2008-09. The relevant observations of the Tribunal for assessment year 2008-09 are as under: “5. On careful consideration of above contention and submissions of both the parties and careful perusal of the record placed before us, inter alia decision in assessee's own case for AY 2007-08 (supra), we observe that the same issue was decided by coordinate bench of this Tribunal in favour of the assessee with following findings and conclusions:- "61.10. The issue herein is year of deductibility. Additional ground of appeal was filed for A. Y. 2006-07 before the Tribunal and this additional ground was not disposed of Misc. application is pending. The assessee's contention is that the correct amount is Rs. 23.86 lakhs and not Rs. 643.05 lakhs as mentioned by the A.O. Details are given in the paper book we find that the D.R.P. has directed the assessing officer to verify the price. This working given by the assessee is not properly verified by the A.O. The AO should have verified the claim of the assessee. We direct the assessing officer to verify the claim of the assessee. Be it as it may, the genuineness of the expenditure is not in doubt and as it is a question of excess/ short provision of discount in respect of sales effected, we are of the considered opinion that method of accounting followed by the assessee need not to be disturbed as it is being consistently followed over the years and as the revenue has

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accepted the same. The assessee's claim that the amount of Rs. 23.86 lakhs is not prior period expenses is not seriously disputed by the revenue. As to the balance amount Rs. 90,000 under the festival offer scheme, it was marginal variation that arose due to estimation of liability towards sales discount to be given to dealers. Thus the disallowance cannot be sustained both on the grounds of materiality as well as consistency. Similar issues were dealt by us while disposing of ground nos. 7 and 7.1. Consistent with the view taken therein, we allow this ground of the assessee for statistical purposes.” 6. During the argument, both the parties fairly agreed that the assessee claimed deduction for following miscellaneous expenses aggregating to Rs.7,09,31,076 but in the assessment order, the amount of Rs.7,15,91,826 has been incorrectly reported on account of totaling expenses. From page no. 14-16 of DRP order, we observe that the DRP has also pointed out mistake of totaling. At the outset, we observe that the Assessing Officer has nowhere disputed the genuineness of the expenditure claimed by the assessee and if assessee is denied deduction, then it would never get deduction for such expenses. From DRP Order, we also observed that the DRP has followed its decision in respect of immediately preceding year. At the same time, we observe that the mistake of totaling and the working given by the assessee has not been properly verified at the end of Assessing Officer and the same should have been verified by the Assessing Officer. Under above circumstances, we hold that the issue is squarely covered in favour of the assessee by the decision of Hon'ble ITAT 'C' Bench in assessee's own case for AY 2007-08 (supra) and we direct the Assessing Officer to allow the claim of the assessee after proper examination and verification. Accordingly, going consistent with the view taken by this Tribunal in assessee's own case for the immediately preceding year to the year under consideration in this appeal, we hold that ground no. 1 of the revenue being devoid of merits deserves to be dismissed and we dismiss the same.”

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The Ld. departmental representative could not point out any change in the facts and circumstances of the case of the appellant as compared to the assessment year in which the above issue is decided by the coordinate bench. No other contrary decision was also pointed out therefore, respectfully following the decision of the coordinate bench in the appellant’s own case for the earlier years. We dismiss ground No. 3 of the appeal of the revenue.”

It can be seen that the assessee is a large sized manufacturing company which receives services from several vendors, running into hundreds. The assessee made reasonable attempt to quantify the liability incurred towards expenses during the relevant previous years and provide for it which was not doubted by the Assessing Officer. It is not practically possible to consider and provide for all expenses, in absence of relevant details/material/information for various reasons like, non-receipt of bills/invoices from the vendors, the contract terms with vendors not being settled, disputes in relation to bills received, services contracted by zonal/regional/branch officer not intimated to the head office, etc. Therefore, the assessee in our opinion has rightly claimed deduction for miscellaneous expenses aggregating to Rs. 18,01,39,937 pertaining to prior period. The facts are identical in the previous Assessment Year 2010-11 & 2011-12 and squarely covered in favour of the assessee. Therefore, Ground No. 20 to 20.1 are allowed in favour of the assessee.”

From the records it can be seen that the assessee made reasonable attempt to quantify the liability incurred towards expenses during the relevant previous years and provide for it. But it was not humanly possible to consider and provide for all the expenses, in absence of relevant details/material/information for various reasons like non-receipt of bills/invoices from the vendors, the contract terms with vendors not being settled, disputes in relation to bills received, services contracted by

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zonal/regional/branch officer not intimated to the head office, etc. Therefore, assessee in our opinion rightly claimed miscellaneous expenses aggregating to Rs. 17,83,68,791 pertaining to prior period. In the present Assessment Year also the facts are similar and are squarely covered with the decision of the Tribunal for A.Ys. 2010-11, 2011-12, 2012-13 and 2013-14. Hence Ground Nos. 16 to 16.2 are allowed.

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scientific basis. The Ld. AR pointed out that the Tribunal, in the immediately preceding assessment years, viz. AY 2010-11 and 2011-12, has decided the issue in favour of the assessee following the order for assessment year 2008-09 holding that the provision was made on rational and scientific basis, and thus the same was to be allowed as business deduction, notwithstanding that part thereof was reversed in the succeeding year. The Tribunal, in coming to the aforesaid conclusion, also held that the disallowance cannot be made on the issues which are revenue neutral. The aforesaid issue is also covered in favour of the assessee by the decision of the Tribunal in assessee’s own case for the assessment year 2008-09, wherein the Tribunal reversed the action of Assessing Officer in disallowing provision on the ground that the amount reversed there against in the succeeding year exceeded 15% of the amount of provision. The Tribunal held that the said approach followed by the AO had no valid basis and was purely ad-hoc. The Tribunal also held that the assessing officer was bound to follow the practice and stand taken by the Department on this issue in the earlier years and, accordingly, restored the matter back to the file of the assessing officer to reconsider the issue, having regard to the method of making provisions followed by the assessee and accepted by the Revenue in preceding years. The Assessing Officer, in the set-aside proceedings vide order 26.02.2015, accepted the claim of the assessee and allowed relief on the aforementioned identical issue by observing that the assessee had computed the provision on the basis of actual Purchase Orders, which was scientific and logical in nature. While deciding the appeal for the assessment years 2012-13 and 2013-14, the Tribunal decided the issue in favor of the assessee following the orders for the assessment years 2010-11 and 2011-12. The Ld. AR further submitted that the provision for advertisement expenses amounting to Rs. 10.19 crores would also be allowable while computing book profits under section 115JB of the Act for the submission/legal position submitted in GOA No. 15-15.3 above.

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could not distinguish the decision of the Tribunal.

“29. We have heard both the parties and perused the material available on record. The Tribunal for A.Ys. 2010-11 and 2011-12 held as under:

1) “33. We have heard the rival contentions. We agree with the submissions of the Ld. Counsel of the appellant, which, in fact, have even been agreed by the DRP and endorsed by Tribunal in the order for AY 2008-09, that a provision made for expenses on a scientific and rational basis is allowable business deduction. The provisions so made cannot be disallowed merely because; part thereof was reversed in the subsequent year at the time of actual quantification of the liabilities. We also find that the appellant had given complete details in respect of the method followed in creating the aforesaid provisions, which were made on the basis of details / information available with the company as at the end of the relevant year. We further reiterate and follow the finding given in the preceding ground of appeal that the Revenue should not make adjustment on the issues which are revenue-neutral, having no impact on the overall tax liability of an assessee. While following the aforesaid principles, we observe that the present disallowance is also revenue-neutral, since the impugned amount of provision, as also admitted by the assessing officer itself, was reversed in the succeeding year and consequential offered to tax in that year. If such provision is disallowed in this year, the corresponding reduction would need to be made in the return of the succeeding year, neutralizing the entire tax liability on the appellant company. For the aforesaid cumulative reasons, we hereby delete the disallowance made by the by the Ld. Assessing officer of Rs. 1 9658 1820/– in respect of provision for advertisement expenses incurred at the head office made at the end of the relevant previous year which were

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reversed in the succeeding year and allow the ground No. 7 of appeal raised by the assesse.”

In the present Assessment Year also, the provision for advertisement expenses, has been made on the basis of actual Purchase orders and agreements and thus, has been made on reasonable and scientific basis. Detail of provisions for advertisement was submitted before the lower authorities. Further, The Assessing Officer, in the set-aside proceedings for A.Y. 2008-09, vide order dated 26.02.2015, accepted the claim of the assessee and allowed relief on the aforementioned identical issue by observing that the assessee had computed the provision on the basis of actual Purchase Orders, which was scientific and logical in nature. Thus the issue is squarely covered by the order of the Tribunal in A.Ys. 2010-11 & 2011-12. Therefore, Ground No. 21 to 21.2 are allowed in favour of the assessee.”

It is pertinent to note that the provision for advertisement expenses was made on the basis of actual Purchase orders and agreements and thus, has been made on reasonable and scientific basis in this year as well. Thus, the Assessing Officer was not right in disallowing the said expenses. In the present Assessment Year also the facts are similar and are squarely covered with the decision of the Tribunal for A.Ys. 2010-11, 2011-12, 2012-13 and 2013-14. Hence Ground Nos. 17 to 17.3 are allowed.

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from any other vendors. The purchase price of components which are purchased from various suppliers are based upon negotiations with such vendors and are different due to various factors, like level of automation of vendor, amount of investment by vendor, age of the plant, capacity utilization (impacting fixed cost recovery), volume of supply, geographical differences (which could impact cost of freight, labour, power), lead time, indirect tax costs (CST vs. VAT) etc. Further, the assessee also prefers purchasing material from certain suppliers, due to business/commercial expediency, viz. de-risking the supply chain to reduce dependence, inability of existing supplier to meet demand increase, etc. The assessee submitted before the Assessing Officer that the said parties are not related to assessee, in terms of the provisions of section 40A(2)(b) of the Act. In addition to above, the assessee in the course of manufacturing two wheelers, places purchase orders on vendors of certain customized intermediary products like wheel assembly, seat assembly, etc. The assessee while placing aforesaid purchase orders to the vendors, also specifies the specifications of the raw materials/components to be used in manufacture of customized intermediary products as also the name of suppliers from whom the former vendor would purchase such materials/components at prices predetermined by the assessee. During the relevant previous year, the assessee made total purchases of various raw materials, etc. aggregating to Rs. 9366.88 crores. Out of the aforesaid total purchases, purchases from related parties, i.e.. parties related to the assessee, in accordance with definition given in AS-18 issued by the Institute of Chartered Accountants of India (ICAI) and as disclosed in the notes to accounts of the audited accounts of the relevant previous year, but admittedly not related in terms of definition provided in section 40A (2) of the Act, amounted to Rs.2711.12 crores. The Assessing Officer after comparing purchase price of certain products, which were purchased from the aforesaid related parties as also for related parties, held that the purchase price from "related parties was excessive in order to reduce the taxable income. The Assessing Officer also held that the assessee has conducted itself in such a

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manner that the parties do not qualify as ‘related party' under section 40A(2) of the Act, even though said parties were related to assessee in terms of AS- 18. The Assessing Officer had the power to lift the corporate veil, to disallow excessive purchase price paid to the aforesaid parties, notwithstanding that the said parties were not related, in terms of provisions of section 40A(2) of the Act. Accordingly, the Assessing Officer computed excessive purchase price at Rs. 15.99 crores in respect of purchases from related parties for which internal comparable of similar products purchased from related parties were available. In respect of other category of purchases from related parties for which no internal comparable was available, the Assessing Officer worked out an amount of Rs. 48.76 crores, in the same proportion as that of purchases for which internal comparable were available as the same are excessive. Thus, Assessing Officer made total disallowance of Rs. 64.75 cr out of related parties purchases.

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assessment years 2010-11 and 2011-12.

“33. We have heard both the parties and perused the material available on record. The Tribunal for A.Ys. 2010-11 and 2011-12 held as under:

“55. We have carefully considered the rival contention and perused the relevant records placed before us. It was submitted by the parties that there is no change in the facts and circumstances of the case in the present assessment year compared to the assessment year for which the coordinate bench is decided this issue in the favour of the appellant for assessment year 2007 – 08 and 2008 – 09 wherein this issue has been decided by the coordinate bench as under:- “13.14. The basic requirement for the applicability of section 40A(2) of the Act is that the payment should be made to a related person i.e. to a person referred to in clause (b), of sub-section (2) of section 40A of the Act. 13.15. In the present case, it is an undisputed fact that the payments are not made to a person mentioned in clause (b) of section 40A (2) of the Act. 13.16. Clause (a ) of sub-section (2) of section 40A of the Act provides that where the assessee incurs any expenditure in respect of which payment has been or is to be made to any person referred to in clause (b) of the sub-section and the Assessing Officer is of the opinion that such expenditure is excessive or unreasonable having regard to the fair market value of the goods, services or facilities for which the payment is made or the legitimate

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needs of the business or profession of the assessee or the benefit derived by or accruing to him there from, so much of the expenditure as it so considered by him to be excessive or unreasonable, shall not be allowed as a deduction. The object of section 40A (2) is to prevent diversion of income. An assessee who has large income and is liable to pay tax at the highest rate prescribed under the Act often seeks to transfer a part of his income to a related person who is not liable to pay tax at all or liable to pay tax at a rate lower than the rate at which the assessee pays the tax. In order to curb such tendency of diversion of income and thereby reducing the tax liability by illegitimate means, section 40-A was added to the Act by an amendment made by the Finance Act, 1968. Clause (b) of section 40A (2) gives the list of related persons. 13.17. In the present case, it is an undisputed fact that none of the parties fall within the persons specified as defined under clause (b) of section 40A (2) of the Act. Related parties are to be considered in terms of provisions of sec. 40A (2) of the Act and not as mentioned in AS-18 issued by the Institute of Chartered Accountant. Thus, we are of the view that the provisions of section 40A (2) do not apply to the present case. Further, there is no provision under the Act which authorizes the Assessing Officer to lift the corporate veil and disallow an expenditure on the ground of reasonableness and commercial expediency unless it is established that the transaction is primarily devised to evade tax. 13.18. In the present case, it was submitted by the learned AR of the assessee that the related parties are profit-making companies and are subject to tax to at some less or the same rate of tax. Thus, there is no loss of Revenue. This submission of the assessee has not been controverted before us by the learned DR. Tax benefit alleged is factually wrong as the other compared assesses are profit making companies/ assesses. There is no loss to the revenue if only the excess payment of price is taken, but this situation is not considered by the

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Revenue. Except for allegation that excess price is paid to reduce profit, no other evidence is gathered by assessing officer to prove that the assessee had in fact evaded or saved tax by such exercise. The argument of the Revenue fails. The allegation that the assessee has structured his associate concern so as to avoid sec. 40A (2) is also devoid of merit, as the revenue has failed to demonstrate as to how it has come to such a conclusion. The allegation means that profit is transferred to third parties, where the share holding of the assessee is not a major share holding. The allegation means that the assessee is distributing profits to companies with majority holding by unrelated parties for the purpose of reducing taxes. Such wild allegation cannot be endorsed by us. 13.19. The assessee does not dispute the fact that certain purchases are made at a rate higher than the rate paid to certain other parties for the same periods. The assessee at pages 1523 to 1523.18 of the paper book also furnished instances where purchases were made from these parties at price lower than the purchases made from unrelated parties. Further, the disallowance was made on adhoc basis without setting any benchmark for the disallowance. 13.20. Notwithstanding the above view, even assuming for a moment that the provisions of the section 40A (2) would apply to the present case, then the following propositions laid down by various courts have to be considered. 13.21. The Hon’ble Bombay High Court in the case of CIT v. Indo Saudi Services (Travel) (P.) Ltd. [2009] 310 ITR 306 relying on CBDT Circular No. 6-P, dated 6-7-1968 held that no disallowance should be made under section 40A(2) of the Income-tax Act in respect of the payments made to the relatives and sister concerns where there is no attempt to evade tax. 13.22. Having held that the provisions of section 40A (2) of the Act does not apply to the facts of the case. We now proceed to answer whether

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the action of the Assessing Officer in disallowing the expenditure on the ground of commercial expediency is justified. 13.23. The Hon’ble Supreme Court in the case of CIT vs Walchand & Co [1967] 65 ITR 381 in the context of deductibility of expenditure under Section 37(1) of the Income-tax Act, 1961 [Corresponding to section 10(2)(xv) of the Indian Income-tax Act, 1922] held as under: “In applying the test of commercial expediency for determining whether the expenditure was wholly and exclusively laid out for the purpose of the business, reasonableness of the expenditure has to be adjudged from the point of view of the businessman and not of the revenue”. 13.24. Further, reference is also drawn to the decision of the Hon’ble Supreme Court in the case of S.A. Builders Ltd. v. CIT (Appeals) [2007] 288 ITR 1 (SC) , where in it was held as under: "....that once it is established that there was nexus between the expenditure and the purpose of the business (which need not necessarily be the business of the assessee itself), the revenue cannot justifiably claim to put itself in the arm-chair of the businessman or in the position of the board of directors and assume the role to decide how much is reasonable expenditure having regard to the circumstances of the case. No businessman can be compelled to maximize his profit. The income-tax authorities must put themselves in the shoes of the assessee and see how a prudent business man would act. The authorities must not look at the matter from their own view point but that of a prudent businessman...." 13.25. It is a well settled principle that Commercial expediency cannot be judged by the Revenue from its point of view. In the present case, we are of the view that the assessing officer has made this disallowance based on surmises and conjectures without properly examining the facts on record and without bringing any evidence that the purchases were made at an excessive price compared to fair market value to evade tax.

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13.26. In view of the above discussions, and bearing in mind entirety of the case, we are of the considered view that the impugned disallowance was indeed uncalled for on the facts of this case. Hence, we uphold the grounds of the assessee.” In view of the above about decision of the coordinate bench in appellant’s own case and further failure on part of the revenue to controvert any of the findings in the earlier order of the tribunal or pointing out any contrary decisions on this issue, the respectfully following the order of the coordinate bench to not inclined to uphold the disallowance made by the Ld. assessing officer on account of the purchases of Rs. 72.40 crores made from the parties who are related parties in terms of accounting standard 18 issued by the Institute of chartered accountants of India but not in terms of provisions of section 40A (2) of the income tax act. In the result ground No. 11 of the appeal of the assessee is allowed.”

The purchase prices of components which are purchased from various suppliers are based upon negotiations with such vendors and are different due to various factors. The assessee also prefers purchasing material from certain suppliers, due to business/commercial expediency. The said parties are not related to assessee, in terms of the provisions of section 40A(2)(b) of the Act. During the relevant previous year, the assessee made total purchases of various raw materials, etc. aggregating to Rs. 17,791.60 crores. Out of the aforesaid total purchases, purchases from related parties, i.e., parties related to the assessee, in accordance with definition given in AS-18 issued by the ICAI and as disclosed in the notes to accounts of the audited accounts of the relevant previous year, but admittedly not related in terms of definition provided in section 40A (2) of the Act, amounted to Rs. 1886.15 crores. Thus, the issue is squarely covered by the order of the Tribunal for A.Ys. 2010-11 and 2011-12. Therefore, Ground Nos. 22 to 22.3 are allowed in favour of the assessee.”

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The purchase prices of components which are purchased from various suppliers are based upon negotiations with such vendors and are different due to various factors. The assessee also prefers purchasing material from certain suppliers, due to business/commercial expediency. The said parties are not related to assessee, in terms of the provisions of section 40A(2)(b) of the Act. During the relevant previous year, the assessee made total purchases of various raw materials, etc. aggregating to Rs. 9366.88 crores. Out of the aforesaid total purchases, purchases from related parties, i.e., parties related to the assessee, in accordance with definition given in AS-18 issued by the ICAI and as disclosed in the notes to accounts of the audited accounts of the relevant previous year, but admittedly not related in terms of definition provided in section 40A (2) of the Act, amounted to Rs. 2711.12 crores. In the present Assessment Year also the facts are similar and are squarely covered with the decision of the Tribunal for A.Ys. 2010-11, 2011-12, 2012-13 and 2013-14. Hence Ground Nos. 18 to 18.3 are allowed.

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3 days. The Assessing Officer held the aforesaid amount received by assessee from dealers as loan/advance given by HFCL to assessee and consequently deemed the same as dividend under section 2(22)(e) of the Act. The Assessing Officer further observed that the aforesaid advances were not given by HFCL to the assessee in the ordinary course of business since the aforesaid payments were given by customers of HFCL and not by HFCL directly.

“214) We have heard the rival contentions. We note that similar issue relating to addition of deemed dividend was deleted by the Tribunal in the assessee’s own case for assessment year 2007-08 which was followed in assessment year 2008-09. The relevant observations of the Tribunal for assessment year 2007-08 are as under:

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16.27.Section 2(22)(e), is a deeming section and it is well settled that it should be strictly interpreted. In the present case, the intention of the parties did not reflect that it was an advance or loan so as to attract section 2(22)(e). The assessee in this case was holding the money received from dealers as custodian of HHFL. There is no privity of contract between the assessee and HHFL. There is no positive act of granting loan or advance given by HHFL to the assessee. There is neither a stipulation for payment of interest or period of repayment. Further, the assessee has not used the funds for its own purposes, as admittedly the assessee is a cash rich company, not requiring loans. This fact is not disputed by the Revenue. The assessee was used as channel for remittance of money by the dealers to HHFL for the purpose of convenience and from assessee’s a standpoint this is business expediency. We are unable to appreciate the conclusions drawn by the assessing officer that this is a deemed loan. In our view, by no stretch of imagination it can be said that there was any amount of advance or loan given by HHFL to the assessee. 16.28.Even assuming that the transaction is in the nature of loan, we have to agree with the arguments of the Ld. AR of the assessee that the transaction cannot be deemed as dividend in terms of exemption provided in clause (ii) of section 2(22)(e) of the Act, since the loan would be considered as given by HHFL, which is engaged in the business of money lending, in the ordinary course of its business. Therefore, the amount cannot be deemed as dividend in the hands of the assessee. The arguments of the Ld. DR that since no interest was charged/ chargeable thereon from the assessee, the aforesaid loan cannot be said to be given in the ordinary course of business of HHFL is taken to its logical conclusion, supporting our view that this is not a loan or advance.

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16.29.Considering the decision of the Hon’ble Delhi High Court and the intent of the Legislature in introduction of Section 2(22)(e) of the Act, we are of the view that the transaction in question would not fall within the provisions of section 2(22)(e) of the Act. Accordingly, this ground of the assessee is allowed.” The Ld. departmental representative could not point out any change in the facts and circumstances of the case of the appellant as compared to the assessment year in which the above issue is decided by the coordinate bench. No other contrary decision was also pointed out therefore, respectfully following the decision of the coordinate bench in the appellant’s own case for the earlier years. We dismiss ground No.6 of the appeal of the revenue.”

It is pertinent to note that when payments by dealers to HFCL are due to the dealers, due to convenience of facility of collection centers of the assessee available all over India, make payment into the assessee's bank account, for and on behalf of HFCL, which is in turn remitted by the assessee to HFCL in 2-3 days. Thus, the assessee is mere custodian of the said amount. Thus, Section 2(22)(e) will not be applicable in the present case. The issue is squarely covered by the order of the Tribunal for A.Ys. 2010-11 and 2011-12. Therefore, Ground Nos. 23 to 23.3 are allowed in favour of the assessee.”

In this Assessment Year as well when payments by dealers to HFCL are due to the dealers, due to convenience of facility of collection centers of the assessee available all over India, make payment into the assessee's bank account, for and on behalf of HFCL, which is in turn remitted by the assessee to HFCL in 2- 3 days. Thus, the assessee is mere custodian of the said amount. Thus, Section 2(22)(e) will not be applicable in the present case. In the present Assessment Year also the facts are similar and is squarely covered with the decision of the Tribunal for A.Ys. 2010-11, 2011-12, 2012-13 and 2013-14. Hence Ground Nos. 19 to 19.3 are allowed.

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“41. We have heard both the parties and perused the material available on record. The Tribunal in A.Ys. 2010-11 and 2011-12 held as under:

“56) We have carefully considered the rival contentions. We have also noted the documents in relation to various services provided by HCSL, the necessity thereof was explained by the appellant in his submissions discussed above. We have also gone through the order of the Tribunal for AY 2007-08, wherein while following the settled legal propositions that an assessing officer cannot sit in the arm chair of the business man and decide the reasonableness of expenditure incurred or commercial expediency thereof, deleted the impugned disallowance made by the assessing officer as under :- “15.12. The assessing officer in this case made an ad hoc disallowance by allowing an amount of Rs. 20 lacs as expenditure for the services availed by the assessee from HCSL and disallowing the rest. The assessing officer has by observing in his order that various reports have been provided by HCSL admitted the fact that certain services were rendered in this case. His only doubt is how these services were needed in the business of the assessee. We also note that the parties are not related to each other in terms of sec. 40A(2)(b). While it is so, the action of the Revenue in disallowing the certain portion of the expenditure is not justified unless the revenue demonstrates that the transaction is primarily a device to evade tax. 15.13. The Hon’ble Supreme Court in the case of CIT v. Walchand & Co. (P.) Ltd. [1967] 65 ITR 381 held that the Income-tax authorities have to decide whether the expenditure claimed as an allowance was incurred voluntarily and on grounds of commercial expediency. In applying the test of commercial expediency for determining whether the expenditure was wholly and exclusively laid out for the purpose of the business, the Supreme Court laid down that the reasonableness of the expenditure

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has to be adjudged from the point of view of the businessman and not of the Revenue. 15.14. The Hon'ble Supreme Court in the case of CIT v. Dharamraj Giriji Riya Narsingiriji 91 ITR 544 held that "it is not open to the Department to prescribe what expenditure an assessee should incur and in what circumstances he should incur that expenditure. Every businessman knows its interest best". 15.15. It is well settled that the assessing officer cannot place himself in the arm chair of businessman and decide the amount of expenditure that is to be incurred for the purpose of running of the business. The expenditure in question cannot be disallowed for the reason that the expenditure was incurred for business and was in the revenue field and was not a personal expenditure. In the result, this ground of the assessee is allowed.”

Having regards to the facts and circumstances of the case under consideration, and in absence of any contrary decision pointed out by the Ld. departmental representative and any changes in the facts and circumstances of the case in the present assessment year we respectfully following the aforesaid finding given by the coordinate bench in appeal order for AY 2007-08 in case of appellant. Direct the assessing officer to delete the disallowance made of Rs. 2 crores on account of advisory services expenditure incurred on payment to hero corporate services Ltd. Therefore ground nos. 12 of the appeal of the assessee is allowed.”

From the records it can be seen that the assessee made elaborate submissions explaining the nature of services received from Hero Corporate Services Ltd. and nexus of same with the business of the assessee. This fact is identical with the earlier Assessment Years. The issue is squarely covered in favour of the assessee by the Tribunal’s order for A.Ys. 2010-11 & 2011- 12. Besides this the Revenue has accepted this issue and has not challenged

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the same in Hon’ble High Court. Thus, this issue attains finality. Therefore, Ground No. 24 to 24.1 are allowed in favour of the assessee.”

In the present Assessment Year also services were rendered by HCSL to the assessee and the assessee explained the nature of services received from Hero Corporate Services Ltd. and nexus of same with the business of the assessee before the Assessing Officer. Thus, the Assessing Officer was not right in disallowing the payments made for advisory services availed from HCSL. In the present Assessment Year also the facts are similar and is squarely covered with the decision of the Tribunal for A.Ys. 2010-11, 2011-12, 2012-13 and 2013-14. Hence Ground Nos. 20 to 20.1 are allowed.

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disallowed trade discount given to dealers on sales invoice at the time of sale observing that the same was based on achievement of turnover targets which represented commission on which TDS under section 194H was liable to be deducted.

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there was no failure on the part of the assessee to deduct tax at source from the impugned payment, the disallowance, if any should be directed to be reduced to 30% of the total expenditure.

“49. We have heard both the parties and perused the material available on record. The Tribunal for A.Ys. 2010-11 and 2011-12 held as under:

“75) We have heard the rival contentions. As dealership agreement entered between the appellant and dealers is on a principal-to-principal basis and dealers do not act as agents of the appellant while purchasing and further selling the vehicles. Accordingly, the incentives offered at the time of purchase of vehicles do not fall within the meaning of commission u/s 194H of the Act. Further, the issue is squarely covered by the decision of the ITAT in assessee’s own case in AY 2008-09 wherein following the ITAT decision in assessee’s own case for the year AY 2007-08, it was observed as under – “148. From the bare reading of the decision of the Tribunal in assessee’s own case for AY 2007-08 (supra), we observe that after dealing with rivals submissions and contentions of both the parties, the tribunal reached to the following finding and conclusion deciding the issue in favour of the assessee. The relevant operative part of the order of the Tribunal for AY 2007-08 in assessee’s own case (supra) read as under- “45.11. The facts of this case clearly demonstrate that what is given to the stockiest/ dealers is discount on the purchase price and not any commission. The stockiest/ dealers purchase spare parts/ vehicles from the assessee. They are not commission agents. Sale consideration

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is paid by these parties to the assessee. As a matter of incentive for higher sale the assessee grants discount if the stockiest/ dealers achieve a particular volume of transaction. Thus, in our view the discount in question is not in the nature of commission or the brokerage which attracts sec. 194H. In the case of CIT Vs. Mother Dairy Ltd. (ITA no. 1925/2010(Del) the Hon’ble Delhi High Court was considering similar case and held as follows: “3. The assessee explained in writing that it sold the products to the concessionaires on a principal to principal basis, that the concessionaires buy the products at a given price after making full payment for the purchases on delivery, that the milk and other products once sold to the concessionaires became their property and cannot be taken back from them, that any loss on account of damage, pilferage and wastage is to the account of the concessionaires and that in these circumstances the payment made to the concessionaires cannot be treated as “commission” for services rendered and consequently there was no liability on the part of the assessee to deduct tax. It is irrelevant that the concessionaires were operating from the booths owned by the Dairy and were also using the equipment and furniture provided by the Dairy. That fact is not determinative of the relationship between the Dairy and the concessionaires with regard to the sale of the milk and other products. They were licensees of the premises and were permitted the use of the equipment and furniture for the purpose of selling the milk and other products. But so far as the milk and the other products are concerned, these items became their property the moment they took delivery of them. They were selling the milk and the other products in their own right as owners. These are two separate legal relationships. The income tax authorities were not justified or correct in law in mixing up the two

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distinct relationships or telescoping one into the other to hold that because the concessionaires were selling the milk and the other products from the booths owned by the Diary and were using the equipment and furniture in the course of sale of the milk and other products, they were carrying on the business only as agents of the Diary.” 45.12. The Hon’ble High Court held that in such circumstances S.194H is not attracted. 45.13. In the case of Jai Drinks (P) Ltd. 336 ITR 383 (Del.), the Hon’ble Delhi High Court has held as follows: “Held, dismissing the appeal, that a perusal of the agreement showed that the assessee had permitted the distributor to sell its products in a specified area. The distributor was to purchase products at a pre- determined price from the assessee for selling them. Both the assessee and the distributor had been collecting and paying their sales tax separately. The CIT(A) and also the Tribunal rightly held that the payments being made by the assessee to the distributor were incentives and discounts and not commission.” 45.14. Respectfully following the propositions laid down in the aforementioned cases we allow this ground of the assessee.” 76) In that view of the matter, the Ld. departmental representative could not point out any decision contrary to the above finding of the coordinate bench or change in the facts and circumstances of the case, therefore respectfully following the decision of the coordinate bench in the appellant’s own case for assessment years 2007-08 and 2008-09 discussed supra, we delete the disallowance made by the Ld. assessing officer on account of expenditure of Rs. 3 6880 2598 towards the quarterly target on turnover discount on trade discount of Rs. 2 7744 7608 given to the dealers. In the result ground No. 15 of the appeal of the assessee is allowed.”

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This issue is covered in favour of the Assessee by the Tribunal order for A.Ys. 2010-11 and 2011-12 as well as, the decision of the Hon’ble High Court in case of Mother Dairy Ltd. (supra). Therefore, Ground No. 26 to 26.3 are allowed in favour of the assessee.”

From the perusal of records it can be seen that as dealership agreement entered between the appellant and dealers is on a principal-to-principal basis and dealers do not act as agents of the appellant while purchasing and further selling the vehicles. Accordingly, the incentives offered at the time of purchase of vehicles do not fall within the meaning of commission u/s 194H of the Act. Thus, the Assessing Officer was not correct in holding that the assessee was liable to deduct tax from discounts/incentives under Section 194H of the Act. In the present Assessment Year also the facts are similar and is squarely covered with the decision of the Tribunal for A.Ys. 2010-11, 2011-12, 2012-13 and 2013-14. Hence Ground Nos. 21 to 21.5 are allowed.

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made in the draft Assessing Officer order, but subsequently deleted by the DRP, was challenged in Revenue's appeal for AY 2010-11 and 2011-12. However, the Tribunal upheld the order of the DRP and confirmed the deletion of disallowance on account of non-deduction of tax on reimbursement of expenses following the order for assessment years 2007-08 and 2008-09. While deciding the appeal for the assessment years 2012-13 and 2013-14, the Tribunal decided the issue in favor of the assessee following the orders for the assessment years 2010-11 and 2011-12.

“53. We have heard both the parties and perused the material available on record. The Tribunal held in A.Ys. 2010-11 and 2011-12 as under:

“222) We have heard the rival contentions. We note that similar issue relating to disallowance relating to re-imbursement of professional expenses was deleted by the Tribunal in the assessee’s own case for assessment year 2007-08 which was followed in assessment year 2008- 09. The relevant observations of the Tribunal for assessment year 2007-08 are as under: “35.8. It is the case of the assessee that it had reimbursed the expenses incurred by various consultants and vendors on travelling and out of pocket expenses. It is also claimed that out of an amount of Rs. 10.68 lacs expenses to the extent of Rs. 6.01 lacs were made after verifying the supporting vouchers for claims raised by the vendors. Balance amount of Rs. 4.66 lacs were based on self certification. In our view such reimbursement of expenditure has no element of income embodied in it. Thus, we apply the following decisions wherein it is held

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that payer is not obliged to deduct tax at source from reimbursement of expenses: - United Hotels Ltd. Vs. ITO 93 TTJ 822; - Karnavati Co-op. Bank Ltd. Vs. DCIT 134 TTJ 486 (Ahd.). 35.9. Respectfully following the same, the ground is allowed in favour of the assessee.” The Ld. departmental representative could not point out any change in the facts and circumstances of the case of the appellant as compared to the assessment year in which the above issue is decided by the coordinate bench. No other contrary decision was also pointed out therefore, respectfully following the decision of the coordinate bench in the appellant’s own case for the earlier years, We dismiss ground No.8 of the appeal of the revenue.”

In the present Assessment Year, the Assessing Officer disallowed the aforesaid expenses, invoking section 40(a)(ia), for the failure of the assessee to deduct tax at source there from under section 194J of the Act. But it is pertinent to note here that the Assessing Officer did not doubt that the payment was made by assessee towards reimbursement of expenses, it was still held that assessee was liable to deduct tax at source under section 194J of the Act. Thus, the issue is squarely covered by the order of the Tribunal for A.Ys. 2010-11 and 2011-12. Therefore, Ground Nos. 27 to 27.4 are allowed in favour of the assessee.”

In the present Assessment Year also the facts are similar and is squarely covered with the decision of the Tribunal for A.Ys. 2010-11, 2011-12, 2012-13 and 2013-14. Hence Ground Nos. 22 to 22.5 are allowed.

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two wheelers in India since 1985 on the basis of technology provided by M/s. Honda Motors Co. Ltd., Japan ("HM") and has thus far launched various models of motorcycles by obtaining the technology provided by that company. As per the License and Technical Assistance Agreement ('LTAA’) dated 02.06.2004 between the assessee and Honda provides for the latter to grant the assessee an indivisible and non-transferable right and license to manufacture, assemble, sell and distribute the products and parts during the terms of the agreement within the specified territory. In consideration thereof, the assessee paid royalty of Rs. 340,87,05,721 (including cess), Technical guidance fee of Rs. 65,70,503, model fee of Rs. 32,29,18,453 (including cess) to Honda. The assessee pays model fees in lump sum on launch of any new model. In addition, the assessee entered into a Memorandum for exchange of technicians dated 21.06.2004, wherein, Honda would impart technical guidance and training to the assessee’s engineers and deploy technicians in India for rendering training services as required by the assessee. Detailed bifurcation of the payment made by the assessee to Honda is tabulated as under:

Nature of payment Amount Model Fee 30,77,53,454 Cess on Model Fee 1,51,64,999/- Royalty 340,21,35,218 Technical guidance fee 65,70,503

The assessee had set up its plant to manufacture models of motor-cycle by using know-how of Honda Motor Co. in the year 1984 through Technical Collaboration Contract dated 24th January 1984. Under that agreement, the assessee was provided with the technical assistance not only for manufacture, assembly and servicing of the products but was also provided with information, drawings and designs for setting up of the plant. The assessee was required to pay lump sum amount of $5,00,000 in consideration of

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technical information for construction of plant, which was capitalized in the books of account and no part thereof was claimed as revenue expenditure. The aforesaid agreement expired in 1994. The LTAA was entered on 2/6/2004 for a period of 10 years and had no relation with the erstwhile agreement(s) and was not a continuation of the earlier agreement. The know-how licensed by Honda under the subject agreement of 2004 related only to manufacture, assembly inspection, maintenance, etc., of products and was not for establishment/setting up of the factory. The assessee before the Assessing Officer submitted that no plant was set-up, leave alone as per any know-how provided by Honda, during the relevant previous year. The payments by way of model fees and running royalty were made only towards limited license to use the know-how provided by Honda for manufacture of various models of motorcycles and no part of royalty/model fees paid during the year was for setting-up of the plant. The assessee further submitted before the Assessing Officer that the agreement between the assessee and Honda provides for the latter to grant to the assessee an indivisible and non-transferable right and license to manufacture, assemble, sell and distribute the products and parts during the terms of the agreement within the specified territory. The aforesaid right vested with the assessee was not exclusive inasmuch as, in terms of Article 2 of LTAA, the assessee during the currency of the agreement only had a limited right to use the technology of Honda. The ownership/proprietary rights in the technical know-how continued to vest in Honda and the assessee was not authorized to transfer, assign or convey the know-how/technical information to any third party. In the assessment order, the Assessing Officer treated the aforesaid expenditure incurred by way of royalty and model fees paid to Honda as capital expenditure on the ground that -

• The assessee had received benefit of enduring nature inasmuch as exclusive right was available with the assessee to manufacture and sell the products within the territory of India;

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• The benefit under the agreement had a degree of perpetuity since the agreement was renewed and was extended year after year and did not, therefore, remain a short term agreement.

• The assessee had acquired asset in the nature of intellectual property rights and patents from Honda.

The Assessing Officer, accordingly, disallowed the entire expenditure of Rs. 373,16,24,174 (including cess) incurred towards royalty/technical guidance fee/model fee. However, since the assessing officer had considered expenditure to the extent of Rs. 15,00,822 towards royalty and Rs. 30,77,53.454 incurred towards model fee, to be not at ATP while making transfer pricing adjustment, challenged in GOA 1 supra, the assessing officer made the disallowance of the balance amount of Rs. 340,72,04,899 (including TGF) incurred towards royalty and TGF and Rs. 151,64.999 incurred towards cess on model fee by treating the same to be capital expenditure. The Assessing Officer observed that the is to be allowed depreciation @ 25% on the expenditure treated as capital expenditure, but failed to allow depreciation while computing the amount of disallowance.

ARTICLE 2 - Grant of License and Exclusivity

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ARTICLE 17 - Maintenance of Secrecy ARTICLE 18 - Limitation of Use, and other Prohibition ARTICLE 21 - Validity and Infringement ARTICLE 27 -Trademarks ARTICLE 33 - Effect of Expiry and Termination

The Ld. AR submitted that these payments under the agreement are allowable revenue expenditure. As per the various clauses of the agreement, the Ld. AR submitted that the royalty/TGF/model fee payable to Honda is only for the purpose of use of technical assistance in the manufacture and sale of products and the assessee has not acquired any capital asset, much less in the nature of intellectual property rights or patents belonging to Honda, which, in unequivocal terms, as provided in the agreement vested in absolute ownership of Honda at all times. The Ld. AR relied upon the following decisions wherein it has been held that where payment is made to simply use the technical know- how/knowledge provided by the foreign collaborator as opposed to acquisition of ownership rights therein, the payment made would be regarded as revenue expenditure.

• As CIT v. Ciba India Ltd.: 69 ITR 692 (SC) • CIT vs. British India Corp. Ltd. [1987] 165 ITR 51 • Alembic Chemical Works Co. Ltd. Vs. CIT: 177 ITR 377 (S.C) • Shriram Refrigeration Industries Ltd. Vs. CIT: 127 ITR 746 (Del H.C) • Triveni Engineering Works Ltd. Vs. CIT(A): 136 ITR 340 (Del) • Addl. CIT vs. Shama Engine Valves Ltd, : 138 ITR 217 (Del) • CIT vs. Bhai Sunder Dass & Sons P. Ltd. : 158 ITR 195 (Del) • CIT vs. Lumax Industries Ltd. : 173 Taxman 390 (Del) Shriram Pistons & Rings Ltd. vs. CIT : 171 Taxman 81 (Del) • CIT vs. Shri Ram Pistons and Rings Ltd.: 220 CTR 404 (Del) • Goodyear India Ltd. vs. ITO : 73 ITD 189 (Del)(TM) ITO vs. Shivani Locks : 118 TTJ 467 (Del)

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• Climate Systems India Ltd. vs. CIT: 319 ITR 113 (Del- HC)] • CIT vs. Sharda Motor Industries Ltd: 319 ITR 109 (Del- HC) • CIT vs. Essel Propack 325 ITR 185 (Bom) • CIT v. Modi Revlon (P) Ltd: (2012) 9 TMI 48 (Del.) Mafatlal Denim Ltd. V. DCIT: 2011 (12) TMI 351 (Mum.) • Climate Systems India Ltd. vs. CIT: 319 ITR 113 (Del- HC) • Goodyear India Ltd. vs. ITO : 73 ITD 189 (Del)(TM) CIT v. Avery India Ltd. 207 ITR 813 (Cal) • CIT v. Bhai Sunder Dass & Sons P. Ltd.: 158 ITR 195 (Del) • CIT v. DCM Ltd.: ITA No. 87-89/1992 (Del.)(HC) • CIT v. Denso India P. Ltd.: ITA 16/2008 (Del.) (HC) CIT v. Eicher Motors Ltd.: 293 ITR 464 (MP)(Indore Bench)

The Ld. AR further submitted that since, no proprietary rights in the know how vested in the assessee the assessee being a mere licensee with limited rights to use the technical assistance during the currency of the agreement, there is no explicit or implied intention to transfer or create ownership in the technical know-how /technical information in the assessee. In view of the aforesaid, expenditure by way of royalty, technical guidance fee and model fees incurred by the assessee was allowable revenue deduction since-

• payment was made for limited license to use the knowhow provided by Honda, as the proprietary and ownership rights in the same continued to remain vested with Honda at all times and, therefore, there was no absolute parting of know-how in favour of the assessee resulting in acquisition of any asset,

• no benefit of enduring nature in the capital field accrued to the assessee, even if the license to manufacture and sell products in India is assumed to be exclusive, except for grant of license to HMSI

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The aforesaid issue is covered in favour of the assessee by the decision of Tribunal in the assessment years 2000-01; 2001-02; 2002-03, 2006-07, 2007- 08, 2008-09, 2010-11 and 2011-12 wherein the Tribunal has held that annual payment of royalty/technical guidance fee was allowable revenue expenditure. The Ld. AR submitted that the aforesaid orders of the Tribunal relating to assessment years 2000-01 to 2002-03 have been affirmed by the Delhi High Court in the assessee’s own case reported as CIT v. Hero Honda Motors Ltd.: 372 ITR 481.

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High Court has affirmed the order passed by the Tribunal in assessment year 2000-01 to 2002-03 in 372 ITR 481. The Ld. AR submitted, that when model fees, payment for which is made through the same agreement is accepted as revenue expenditure, the nature of royalty cannot be given any different treatment and, therefore, no portion thereof needs to be disallowed as being capital in nature. For the aforesaid cumulative reasons, no portion of the royalty expenditure/Technical Guidance fees/model fee incurred by the assessee calls for being disallowed. While deciding the appeal for the assessment years 2012-13 and 2013-14, the Tribunal decided the issue in relation to disallowance of royalty model fee in favor of the assessee following the orders for the assessment years 2010-11 and 2011- 12. Without prejudice, the Ld. AR further submitted that the assessing officer failed to allow depreciation @ 25% to the assessee; thereby not following the specific directions of the DRP.

“76. We have heard both the parties and perused the material available on record. The Tribunal for A.Y. 2010-11 and 2011-12 held as under:

“95) We have heard the rival contentions. We have gone through the orders in the appellant’s case for the earlier assessment years as was pointed out by the Ld. Counsel. Both the parties admitted before us that there is no change in the facts and circumstances of the case as well as the agreement under which the payments have been made by the assessee. The Ld. departmental representative also could not point out any other judicial precedent on this issue of the higher forum. In this event we

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are duty bound to follow the order of the coordinate bench passed in the case of the appellant for the beer years. For the sake brevity, we reproduce hereunder the finding in the appeal order for AY 2007-08, which was followed in the order for AY 2008-09 as under: “57. The issue whether the expenditure in question is in the capital field or the revenue field has been decided in favour of the assessee by the ITAT in assessee’s own case for earlier assessment years 2000- 01, 2001-02, 2002-03 and 2006-07. The ITAT Delhi Bench ‘C’ in assessee’s own case for A.Y. 2006-07 in ITA no. 5130/Del/2010 vide order dated 23-11-2012 has held that the annual payment of royalty was a revenue expenditure. In doing so the ITAT has relied on various judicial pronouncements including the decision of Jurisdictional High Court in the case of Climate Systems India Ltd. and Sharda Motors Industrial Ltd. No change in facts and circumstances has been pointed out by the ld. DR. Therefore, respectfully following the same, we allow this ground of the assessee.” Therefore respectfully following the above decisions of the Tribunal and High Court in the appellant’s own case, we reverse the order of the Ld. assessing officer in holding the above 3 payments as capital expenditure. In the result ground No. 19 of the appeal of the assessee is allowed.”

It is pertinent to note that no proprietary rights in the know how vested in the assessee, the assessee being a mere licensee with limited rights to use the technical assistance during the currency of the agreement, there is no explicit or implied intention to transfer or create ownership in the technical know-how /technical information in the assessee. In view of the aforesaid, expenditure by way of royalty, technical guidance fee and model fees incurred by the assessee was allowable revenue deduction as held in the decision given by the Tribunal for A.Ys. 2010-11 and 2011-12. The issue is squarely covered by the said decision. Therefore, Ground No. 32 to 32.6 are allowed.”

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It is pertinent to note that during the currency of the agreement, the assessee only had a limited right to use the technology of Honda. Ownership/proprietary rights in the technical know-how continued to vest in Honda and the assessee was not authorized to transfer, assign or convey the know-how/technical information to any third party as the assessee only acquired limited right to use and exploit the know-how. Thus, royalty/TGF/Model fee payable to Honda is only for the purpose of use of technical assistance in the manufacture and sale of products and the assessee has not acquired any capital asset. Thus, the payment made to simply use the technical know-how/knowledge provided by the foreign collaborator as opposed to acquisition of ownership rights therein are revenue expenditure only and the same should have been allowed by the Assessing Officer/TPO. The model fees is also allowable as revenue expenditure in previous years. In the present Assessment Year also the facts are similar and are squarely covered with the decision of the Tribunal for A.Ys. 2010-11, 2011-12, 2012-13 and 2013-14. Hence Ground Nos. 23 to 23.5 are allowed.

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assessee’s own case for the AY 2007-08 and 2008-09, wherein after considering the legal position and intention of the assessee company, the Tribunal came to the conclusion that income from sale of shares/mutual funds/PMS etc. would be taxable as capital gains, instead of business income brought to tax by the assessing officer on the basis that the assessee(a) was not a trader in stock; (b) had no intention of holding the shares as stock; (c) sales were affected by delivery (d) that the department had itself in earlier years taxed such transactions under the head capital gains. The Ld. AR submitted that it would be apposite to note that the Tribunal, vide order dated 24.10.2016 passed in the assessee’s own case for AY 2010-11 and 2011-12, reversed the action of Assessing Officer in changing the head of income and held that in cases where an assessee treats investments made in shares as capital assets, in view of Circular 6/2016 of the Board, gains/profits on sale of such investments shall be treated as capital gains and not income from business/profession. While deciding the appeal for the assessment years 2012-13 and 2013-14, the Tribunal decided the issue in favor of the assessee following the orders for the assessment years 2010-11 and 2011 -12.

“65. We have heard both the parties and perused the material available on record. The Tribunal for A.Ys. 2010-11 and 2011-12 held as under:

“99) We have heard the rival contentions. We have gone through the order passed by the Tribunal for the assessment year 2007-08, which was followed in appeal order for AY 2008-09. The Tribunal in that year went through the entire facts, which are similar to the year under consideration, and the legal position before coming to the conclusion that the gains

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arising from investment of surplus funds in shares/mutual funds/PMS as part of cash management policy cannot lead to the conclusion that the appellant was carrying on business to bring to tax such income under the head “business” as against ‘capital gains’ offered by the appellant. The Ld. departmental representative could not point out any change in the facts and circumstances of the case of the current assessment year compared to the assessment year for which the tribunal is decided in the appellant’s own case for earlier years. No other judicial precedent was also cited by which we could deviate from the order of the coordinate bench in the earlier years in the appellant’s own case. The relevant observations in the appeal order for AY 2007-08 are as under: “65.20. The issue that emerges for consideration is whether the gains that arose to the assessee from investment in debt mutual funds/PMS/ shares are to be taxed under the head “business income” or under the head “capital gains”. .................... 65.28. Now, we proceed to analyze the facts of the present case in the light of the principles laid down by the Courts (Supra) for determining the nature of the transaction vis a vis capital gains vs. business income: Intention of the assessee at the time of the purchase of shares: 65.29. The business of the assessee is not to deal in shares and securities. The investment was made with a view to earn capital appreciation and to use the spare fund optimally instead of keeping it in the banks. For the year under appeal, the assessee earned dividend income of Rs.22.61 crores from investments held in shares and mutual funds. Treatment in the books of accounts:

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65.30. It is an undisputed fact that the assessee had treated the transaction as investment in its books of accounts and not as stock in trade. The assesse has shown the investments in shares both at the beginning and closing of the year as an investment only and not as stock in trade. 65.31. The assessee has valued the investments at cost as per Accounting standard 13- Accounting for Investments and not in accordance with Accounting Standard –2 which deals with valuation of inventories. 65.32. The assessee has been holding the securities/ shares as investments from year to year and consistently following the same method of accounting for the purpose of disclosure and valuation. This treatment by the assessee was accepted by the Revenue for the past years.

65.33. The assessee had earned income from both long term and short term capital gains which means the assessee has also held shares for a period of more than 12 months.

Whether the investments are made out of borrowed funds 65.34. The investments were made from surplus funds of the assessee and there were no borrowings. The investments were made to optimally utilize the spare funds instead of keeping the same idle in the bank accounts. The investments were made in mutual funds (debt and liquid funds) and through portfolio management schemes/ IPOs. 65.35. The co-ordinate bench of the Delhi ITAT in the case of Narendra Gehlaut vs. JCIT [ITA No 1648/ Del/ 2010] held that despite borrowing, gains on shares assessable as Short term capital gains and not business profits. The decision is rendered considering the CBDT Circular No 4/ 2007 and various judicial precedents on the subject.

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Frequency of the transactions

65.36. Out of the total sale value of Rs 13,690.84 crores realized from the investments, an amount of Rs 12,330.33 crores relates to sale of short term debt mutual funds and liquid funds in which the transactions are effected on daily basis (i.e. surplus amounts are invested and the withdrawals are made in a short span depending on the business needs of the assessee). These funds were invested mainly into money market instruments, short-term corporate deposits and treasury. Most schemes have a lock-in period of a maximum of three days to protect against procedural (primarily banking) glitches, and offer redemption proceeds within 24 hours.

65.37. The Assessing officer has brought the transaction to tax under the head “Business income” mainly on the ground that the volume of the transaction of such investments was high and the assessee is undertaking the trading of stocks and mutual funds regularly and systematically. However, we observe that there is not much frequency in sale/purchase of investments, from analysis carried out at page 526 of objections in Form 35A. It is not the case that the assessee has indulged in regular trading in shares on day to day basis. 65.38. The Mumbai Bench of the ITAT in the case of Janak S. Rangwala (11 SOT 627) observed that mere volume and magnitude of transaction will not alter the nature of transaction if the intention was to hold the shares as investment and not in stock in trade. Investments in mutual funds – 65.39. Out of the total income earned from mutual funds, almost 67.34% of the total income earned from investments made in mutual funds was for a period of more than one year. Investments in shares –

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65.40. Investment in shares was primarily made either through PMS or under Initial Public Offer. Under PMS, the company advances funds to the Portfolio Manager, who in turn makes investment in various shares. In substance the investments under PMS are similar to investment in mutual funds. The assessee, reiterated that it is only interested in the return on funds invested and does not act as a dealer/trader, so as to be regarded as being engaged in business activity.

65.41. In view of the above factual matrix it emerges that assessee is: (i) not a trader in stocks (ii) Intention of holding the shares as investment/ stock is manifest. (iii) Sales are effected by delivery. (iv) Department has itself in earlier years taxed such transactions under the head “Capital Gains”. 65.42. Considering these facts and applicable judicial precedents on the issue, we are of the considered opinion that the income in question can be taxed only under the head “Capital Gains” and not under the head business income. This ground of the assessee is allowed.”

100) In addition to the aforesaid observations, the appellant in this year also has benefit of the recent Circular No.6 of 2016 dated 29.2.2016 issued by the CBDT, wherein with an idea to reduce litigation on this issue of classification of the head of income arising from sale of shares / mutual funds, etc., the CBDT has opined that gains arising from sale of such shares/securities held for a period of more than 12 months and shown as capital gains by the assessee should not be disputed by the assessing officer. Having regard to the aforesaid intent of the Circular where a consistent method has been followed by an assessee to treat the investment as on capital account corroborated with disclosure in balance sheet as investment, the same consistent stand should not be disputed by

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the assessing officer. It is also not disputed by the Ld. assessing officer that the capital gains arising on the various investments are held for less than 12 months and are not long-term capital gain. In view of the aforesaid reasons also, while respectfully following the appeal orders for AY 2007- 08 and 2008-09, we reverse the action of the assessing officer in changing the head of income surplus arising from sale of shares/mutual funds, etc. therefore ground No. 20 of the appeal of the assessee is allowed.

It is pertinent to note that the assessee invested surplus funds arising in the course of business under various modes of investment like mutual funds/PMS, shares, etc. The gains realized from sale of such various instruments, amounting to Rs.278.54 crores during the relevant previous year, were disclosed under the head ‘capital gains.’ The issue is identical in the AY 2010-11 and 2011-12 wherein the Tribunal allowed this issue in favour of the assessee. Therefore, Ground No. 30 to 30.2 are allowed in favour of the assessee.”

The Assessing Officer overlooked the fact that the assessee was not a trader in stock and had no intention of holding the shares as stock. Besides the Assessing Officer also overlooked the aspect that sales were effected by deliver and revenue in earlier years taxed such transactions under the head capital gains. In the present Assessment Year also the facts are similar and are squarely covered with the decision of the Tribunal for A.Ys. 2010-11, 2011-12, 2012-13 and 2013-14. Hence Ground Nos. 24 to 24.2 are allowed.

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function along with portfolio management fee. In the assessment order, the assessing officer, without giving any reasons, did not accept the method of disallowance computed by the assessee under section 14A and made further disallowance of Rs. 124.88 lakhs invoking provisions of Rule 8D of the Rules after reducing the suo moto disallowance of Rs. 31.88 lacs made by the assessee in the return of income. In the assessment order, the assessing officer, while computing book profit, made an adjustment of Rs.124.88 lacs computed under section 14A read with Rule 8D of the Rules, without assigning any reason.

• Godrej & Boyce Manufacturing Company Ltd. VS. DCIT: 394 ITR 449(SC) • Maxopp Investment Ltd: 347 ITR 272 (Del.)- Affirmed by the Hon'ble Supreme Court in 402 ITR 640 • H.T. Media Limited v. PCIT: ITA No.548/2015 (Del.) dated 23.8.2017 • Eicher Motors Ltd. vs. CIT: ITA No. 136/2017 dated 15.09.2017

The Ld. AR further submitted that even otherwise, there is no nexus of expenses, like interest expenditure and other administrative expenses with investments, warranting disallowance under section 14A.

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Further, no direct nexus of interest expenditure with investments or earning of dividend income was established by the assessing officer, for which the initial burden was on the assessing officer. The Ld. AR submitted, that the assessee had substantial free reserves of Rs 2.946.30 crores at the beginning of the relevant previous year and had also generated substantial surplus/interest free funds of Rs. 814.51 crores during the year, against which additional investments made during the year was of Rs. 669.19 crores only. In such circumstances, it is to be presumed that on 1 year interest free funds have been utilized for making investments during the year. The Ld. AR relied upon following decisions:

• East India Pharmaceutical Works Ttd. v. CIT: 224 ITR 627 (SC) • Woolcombers of India Ltd. v. CIT: 134 ITR 219 (Cal.) • Indian Explosives Ttd. V. CIT: 147 ITR 392 (Cal.) • Alkali & Chemicals Corp of India Ttd. v CI T: 161 ITR 820 (Cal) • CIT v Radico Khaitan Ltd : 274 ITR 354 (All) • CIT v Dhampur Sugar Mills Ttd : 274 ITR 370 (All) • CIT v. United Collieries Ltd. : 49 Taxman 227 (Cal) • CIT v. Enamour Investment Ttd.: 72 Taxman 370 (Cal) • CIT v. Caroline Investment Ltd.: 87 Taxman 238 (Cal) • CIT v. Kanoria Investment (P) Ltd.: 232 ITR 7 (Cal) • CIT vs. Hotel Savera: 239 ITR 795 (Mad) • Smt. Chanchal Katyal v. CIT: 298 ITR 182 (All.)

• CIT v. Reliance Utilities and Power Ltd.: 313 ITR 340 (Bom)

The Ld. AR also relied upon the following cases, wherein, the Courts have repeatedly held that interest expenditure cannot be disallowed under section 14A of the Act, where the assessee had sufficient surplus funds and there was no finding by the assessing officer of any direct nexus of borrowed funds with investments:

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• Godrej & Boyce Manufacturing Company Ltd. VS. DCIT: 394 ITR 449(SC) • Pr. CIT vs. GMM Pfaulder Ltd.: ITA No. 506 of 2017 dated 31.07.2017 (Guj) • CIT v. Max India Ltd.: 388 ITR 81 (P&H) • CIT vs. Suzlon Energy Ltd.:[2013] 215 Taxman 272 (Gujarat) • CIT v. Reliance Utilities and Power Ltd.: 313 ITR 340,

• CIT vs. M/s. Ashok Commercial Enterprises: ITA No. No.2985 of 2009 (Bom)

• Lubi Submeribles Ltd.: ITA No.868 of 2010 (Guj)

• CIT vs. K. Raheja Corporation Pvt Ltd: ITA No. 1260 of 2009\

• Gujarat State Fertilizers and Chemicals Ltd : Tax Appeal No. 82 of 2013 (Guj HC)

• Hero Honda Finlease Ltd vs. ACIT: ITA No. 3726/Del/2012 (Del) • Eimco Elecon (India) Ltd. v. Addl. CIT: 142 ITD 52 (Ahd.)

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The Assessing Officer however, made disallowance of such administrative expenses under section 14A in the proportion the total profit before tax bears to tax free income, which is upheld by the CIT(A) vide order dated 01.02.2018. In all fairness, the Ld. AR pointed out that Tribunal while deciding the issue in the Assessment Years 2012-13 and 2013-14 restored the matter to the file of the Assessing Officer to decide the issue afresh after taking into consideration the decision of the Hon'ble Supreme Court in the ease of Maxopp Investment Ltd. vs. CIT: 402 ITR 640. Insofar as disallowance of Rs. 124.88 lacs made under section 14A read with Rule 8D of the Rules cannot be added while computing book profits under section 115JB of the Act. The Ld. AR submitted that section 14A contained in Chapter IV of the Act begins with the phrase - “For the purposes of computing the total income under this Chapter……….Being so, section 14A has application only for the purposes of Chapter-IV. Income under the normal provisions of the Act is computed under the five heads specified in section 14 of the Act. Provisions relating to computation of income under different heads are contained in sections 14 to 59 forming part of Chapter IV of the Act. In other words, Chapter IV provides for computation of income of an assessee under the normal provisions of the Act. As a necessary corollary, provisions of section 14A cannot be extended to any Chapter, other than Chapter IV of the Act, i.e., while computing income under the normal provisions. Section 115JB finds place under Chapter XII-B of the Act. Being so, provisions of section 14A contained in Chapter IV cannot be imported and incorporated under section 115JB, more so when clause (f) to Explanation 1 to the said section contains no reference to section 14A of the Act. The Ld. AR relied upon the decision of the Hon’ble Delhi High Court in the case of PCIT v. Bhushan Steel Ltd.: ITA No. 593/2015, dated 29.09.2015, wherein, the Court upheld the decision of the Tribunal that disallowance under section 14A read with Rule 8D could not be added while computing book profits as per section 115JB and declined to frame question of law. Further, the Ld. AR also relied of the decision of the Special Bench of the Delhi Tribunal in the case of ACIT vs Vireet Investments (P.) Ltd: 165 ITD 27 (Del Trib.), inter

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alia, placing reliance on the judgment of Delhi High Court in the case of Bhushan Steel Ltd. (supra), likewise held that computation under clause (f) of Explanation 1 to section 115JB(2) of the Act is to be made without resorting to computation as contemplated under section 14A read with rule 8D of the Rules. The Ld. AR also relied upon the following decisions:

• Quippo Telecom Infrastructure Ltd v. ACIT: ITA No.4931 /Del/2010 (Del ITAT) • Beach Minerals Company (P.) Ltd. v. ACIT: ITA No. 2110/Mds/2014 (Chennai ITAT) • Shriram Capital Ltd v. DCIT (ITA. Nos.512 &513 /Mds/2015) (Chennai ITAT) • Scope Private Ltd. v. ACIT : ITA No. 8934/Mum./2010 • Reliance Industrial Infrastructure Ltd. v. ACIT: ITA Nos. 69 & 70/Mum/2009 • JCIT v. Reliance Capital Ltd.: ITA No. 3037/Mum/2008 • Bengal Finance and Investment (P) Ltd. v. CIT: ITA No. 5620/Mum/2010 • Essar Teleholdings Ltd v. DCIT : ITA 3850/Mum/2010 • Nahar Capital And Financial v. ACIT: ITA No. 1120/Chd/2011 • ACIT vs. Spray Engineering Devices Ltd: (2012) 53 SOT 69(Chd.) (URO.) • GMM Pfaudler Ltd. v. JCIT : ITA Nos. 2627 & 2923/Ahd/2008 & 3280/Ahd/2010 • Cadila Flealthcare Ltd. v. ACIT: 21 Taxmann.com 483 (Ahd.) • Reliance Petroproducts (P) Ltd. v. ACIT : ITA No. 2324/Ahd/2009 • Jindal Steel and Alloy Ltd. Vs. ACIT : ITA Nos. 961 & 962/Mum/2009 In view of the above, the Ld. AR submitted that applicability of provisions of section 14A is confined to computation of tax liability under the five heads of

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income enumerated in section 4 under normal provisions contained in Chapter-IV of the Act. The said section 14A cannot be extended and read into section 115JB falling under Chapter Xll-B of the Act.

“108) We have heard the rival contentions. We find that the appellant year after year is following a consistent method of computing disallowance u/s 14A by attributing expenditure incurred at the Treasury Department towards earning of exempt dividend income. The appellant has also given justification of nexus of such expenditure incurred at Treasury Department with portfolio management activity considering that the portfolio management is not the main business function of the appellant. The appellant is a company whose core business function is that of manufacturing and selling two-wheelers, having a turnover of Rs.16,000 crores approximately. The investments are made by the appellant as part of its cash management policy in order to better utilize the idle / surplus funds. We have also decided on the aforesaid aspect in ground of appeal no. 20 that the investment activity as part of its cash management function does not constitute business. In view of the same, we are of the view that no additional expenditure is required to be incurred more specifically of the management in investing surplus funds as per the cash management policy. The assessing officer has also not, on the basis of any tangible evidence/findings, pointed out incurrence of such expenditure. The legal position qua recording of satisfaction or coming to a finding qua inaccuracy in the method of disallowance followed by an assessee before

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making resort to the provisions of Rule 8D of the Rules, in terms of sub- section (2) / sub-section (3) of section 14A, has been repeatedly endorsed by the Hon’ble jurisdictional High Court. Reference in this regard can be made to the decision of Maxopp Investment Ltd. : 347 ITR 471. In view of the aforesaid legal position, we find that no valid satisfaction was recorded by the assessing officer in the assessment order to reject the method followed by the appellant in computing disallowance u/s 14A, before mechanically resorting to and applying the provisions of Rule 8D of the Rules. In view of such findings, the additional disallowance made by the assessing officer u/s 14A stands deleted on the aforesaid ground at the threshold. That apart, we also agree with the submissions of the appellant that, since the appellant is a cash-rich company, which, in fact, is investing surplus/idle funds in various modes of investments, there could be no nexus of interest-bearing borrowed funds with such investments. The appellant is having substantial free reserves of Rs.3760.81 crores at the beginning of the relevant year and has generated surplus interest free funds of Rs.268.64 crores during the year. The assessing officer, too, in the set-aside proceedings for the AY 2007-08 had accepted the aforesaid cash flow position and deleted the disallowance of interest expenditure. In view of this we reverse the finding of the Ld. assessing officer about disallowance of Rs. 145.62 lakhs under section 14 A of the income tax act applying the rule 8D of the income tax rules 1962. He in the result ground No. 22 of the appeal of the assessee is allowed.”

It is observed in the present case that the assessee has suo moto disallowed expenses under Section 14A of the Act. The Hon’ble Apex Court in case of Maxopp Investment Ltd. vs. CIT (2018) 402 ITR 640 (SC) held that

“40) We note from the facts in the State Bank of Patiala cases that the AO, while passing the assessment order, had already restricted the disallowance to the amount which was claimed as exempt income by applying the formula contained in Rule 8D of the Rules and holding that

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section 14A of the Act would be applicable. In spite of this exercise of apportionment of expenditure carried out by the AO, CIT(A) disallowed the entire deduction of expenditure. That view of the CIT(A) was clearly untenable and rightly set aside by the ITAT. Therefore, on facts, the Punjab and Haryana High Court has arrived at a correct conclusion by affirming the view of the ITAT, though we are not subscribing to the theory of dominant intention applied by the High Court. It is to be kept in mind that in those cases where shares are held as ‘stock-in-trade’, it becomes a business activity of the assessee to deal in those shares as a business proposition. Whether dividend is earned or not becomes immaterial. In fact, it would be a quirk of fate that when the investee company declared dividend, those shares are held by the assessee, though the assessee has to ultimately trade those shares by selling them to earn profits. The situation here is, therefore, different from the case like Maxopp Investment Ltd. where the assessee would continue to hold those shares as it wants to retain control over the investee company. In that case, whenever dividend is declared by the investee company that would necessarily be earned by the assessee and the assessee alone. Therefore, even at the time of investing into those shares, the assessee knows that it may generate dividend income as well and as and when such dividend income is generated that would be earned by the assessee. In contrast, where the shares are held as stock-in-trade, this may not be necessarily a situation. The main purpose is to liquidate those shares whenever the share price goes up in order to earn profits. In the result, the appeals filed by the Revenue challenging the judgment of the Punjab and Haryana High Court in State Bank of Patiala also fail, though law in this respect has been clarified hereinabove.

41) Having regard to the language of Section 14A(2) of the Act, read with Rule 8D of the Rules, we also make it clear that before applying the theory of apportionment, the AO needs to record satisfaction that having regard to the kind of the assessee, suo moto disallowance under Section 14A was not correct. It will be in those cases where the assessee in his return has himself apportioned but the AO was not accepting the said apportionment. In that eventuality, it will have to record its satisfaction to this effect. Further, while recording such a satisfaction, nature of loan taken by the assessee for purchasing the shares/making the investment in shares is to be examined by the AO.”

Though the Assessing Officer did not accept the method of disallowance

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computed by the assessee under section 14A and made further disallowance of Rs. 62.30 lakhs (disallowing interest expense of Rs. 38.91 and administrative expense of Rs. 94.16 lacs) invoking provisions of Rule 8D of the Income Tax Rules, 1962 after reducing the suo moto disallowance of Rs. 70.77 lakhs made by the assessee in the return of income. But the Assessing Officer has not given the proper calculation to that effect. Therefore, the matter is restored back to the file of the Assessing Officer. We direct the Assessing Officer that after taking congnizance of the the Apex Court decision, pass the appropriate order. Needless to say, the assessee be given opportunity of hearing by following principles of natural justice. Therefore, Ground No. 25 to 25.5 are partly allowed for statistical purpose.

In the present year as well, the Assessing Officer did not accept the method of disallowance computed by the assessee under section 14A and made further disallowance of Rs. 124.88 lakhs invoking provisions of Rule 8D of the Income Tax Rules, 1962 after reducing the suo moto disallowance of Rs. 31.88 lakhs made by the assessee in the return of income. But the Assessing Officer has not given the proper calculation to that effect. Therefore, the matter is restored back to the file of the Assessing Officer. We direct the Assessing Officer that after taking congnizance of the Apex Court decision in case of Maxopp Investment Ltd. (supra), pass the appropriate order. Needless to say, the assessee be given opportunity of hearing by following principles of natural justice. Therefore, Ground Nos. 25 to 25.5 are partly allowed for statistical purpose.

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commencement of production of the new model. The Assessing Officer held that expenditure incurred by the assessee towards model fee is directly related to manufacture of new models of two-wheelers and, therefore, needs to be attributed to the value of closing stock of finished goods of two- wheelers. Accordingly, the assessing officer on proportionate basis, worked out a sum of Rs. 19,26,000/- out of depreciation on model fee debited to the profit and loss account, as attributable to the value of closing stock and made addition of the said amount to the income of assessee.

“80. We have heard both the parties and perused the material available on record. The Tribunal held in A.Ys. 2010-11 and 2011-12 as under:

“112) We have carefully considered the rival contentions. In absence of any change in the facts and circumstances of the case or any contrary

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decision, We have heard the rival contentions. We find that the similar issue was raised in the assessment order for AY 2008-09, which was decided in favour of the appellant by the Tribunal in appeal order for that year by observing as under- “219. On careful consideration of above submissions of both the parties, we are of the view that if the closing stock of the year under consideration. is to be varied, then similar adjustments would need to be made in the opening stock also and corresponding adjustments would also need to be carried out in the opening stock of the succeeding year and if any addition is made in this regard, would be revenue neutral if seen in a macro perspective. From the orders of the authorities below, we clearly observe that the AO has not disputed the mode of valuation of inventory made by the assessee during preceding years and if any kind of adjustment is held to be attributable to the value of finished closing stock, then the said corresponding amount/adjustment would need to be made in the opening stock of the succeeding year and in a broader sense, such kind of adjustment/addition would be revenue neutral. On specific query from the Bench, the DR submitted that the treatment given by the revenue authorities on the issue in the preceding year is not known to him and in this situation, we hold that the / department has not disputed the claim of the assessee in the preceding years. 220. It is well accepted legal proposition that when the department has taken a particular stand on a particular issue, then the department cannot take a deviated stand on the issue in the succeeding year without ant sound, justifiable and cogent reason. The department has not disputed the fact that impugned expenditure was incurred prior to commencement of production of new model and the same was neither incurred during the manufacturing of new model nor model fee expenditure is directly related to manufacture of new models. In this

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factual aspect and circumstances, we hold that the assessee incurred expenditure on new model fees prior to commencement of production of new models of two wheelers, even otherwise this exercise would be revenue neutral in a broader perspective as the same adjustment would be required to be done in the opening stock of finished goods for the year under consideration. More so, when the assessee has followed a particular mode of accounting for this expenditure which was accepted by the Revenue, then the department cannot take a different stand in the succeeding year to make an addition in this regard. We are unable to see any valid ground to 'accept' a deviated stand of the Revenue on the issue, which in a broader sense, is revenue neutral, then no adjustment is called for in this regard. We hold that findings of the AO are not sustainable and we set aside the same. Hence, we allow ground no.58 to 58.1 of the assessee.” Accordingly, respectfully following the aforesaid decision, we decide the issue in favour of the appellant. Accordingly, the ground number 23 of appeal stands allowed.”

The facts of the present Assessment Year and the earlier Assessment Year are not different. In the present year also , the expenditure was incurred on new model fees prior to commencement of production of new models of two wheelers, thus, this action is revenue neutral in a broader perspective as the same adjustment would be required to be made to the opening stock of finished goods for the year under consideration. Thus, this issue is covered by the decision of the Tribunal for A.Ys. 2010-11 and 2011-12. Therefore, Ground No. 33 is allowed in favour of the assessee.”

It is pertinent to note that in the present year expenditure was incurred on new model fees prior to commencement of production of new models of two wheelers, and even otherwise this is revenue neutral exercise as the same adjustment would be required to be made to the opening stock of finished

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goods for the year under consideration. Thus, the facts are similar to the subsequent Assessment years and are squarely covered with the decision of the Tribunal for A.Ys. 2010-11, 2011-12, 2012-13 and 2013-14. Hence Ground No. 26 is allowed.

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case for the AY 2007-08 and 2008-09, wherein the Tribunal held that disallowance cannot be made merely on the basis that vouchers were not produced by the employees, which has been reaffirmed by the Tribunal in the order dated 24.10.2016 passed for the assessment years 2010-11 and 2011- 12. While deciding the appeal for the assessment years 2012-13 and 2013-14, the Tribunal decided the issue in favor of the assessee following the orders for the assessment years 2010-11 and 2011-12.

“84. We have heard both the parties and perused the material available on record. The Tribunal held in A.Ys. 2010-11 and 2011-12 as under:-

“226) We have heard the rival contentions. We note that similar issue relating to disallowance relating to re-imbursement of foreign travelling expenses to directors/employees was deleted by the Tribunal in the assessee’s own case for assessment year 2007-08 which was followed in assessment year 2008-09. The relevant observations of the Tribunal for assessment year 2007-08 are as under: “51.15.The assessing officer in this case has not doubted the fact that employees/ directors of the company travelled abroad and the fact that they have incurred incidental expenses in foreign currency. The reason for disallowance is that employees have not furnished to the assessee evidence in support of the fact that they have incurred conveyance, boarding and lodging expenses etc. When reasonable amount of daily allowance is fixed as per the rules of the company and when these D.A. rules are followed by the assessee, in our view, the incurring of expenditure by the employees is not to be doubted. Even in cases

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where officers of the government of India travel abroad, daily allowance is given and vouchers for such expenditure are not insisted because of practical difficulties in submitting bills/ vouchers of petty expenses. In such circumstances, what is to be examined by the assessing officer is the reasonableness of the expenses incurred as compared to the general rates of expenses and allow the same. The assessee submits that the fixed per diem allowance payable to employees depending on the grade is reasonable. When such rates are reasonable the question of disallowance does not arise unless the revenue demonstrates that the rates are excessive. In this case it is not that the expenses are not incurred for the stated purpose nor is it that the rates are unreasonable. The disallowance in question in our view on the sole ground that vouchers are not produced by the employees cannot be sustained. In the result this ground of the assessee is allowed.” The Ld. departmental representative could not point out any change in the facts and circumstances of the case of the appellant as compared to the assessment year in which the above issue is decided by the coordinate bench. No other contrary decision was also pointed out therefore, respectfully following the decision of the coordinate bench in the appellant’s own case for the earlier years, We dismiss ground No. 9 of the appeal of the revenue.”

It is pertinent to note that for payment of per diem allowance, as per policy, the assessee does not require the expenses to be necessarily supported / backed by bills considering the practical difficulties/impossibilities in producing invoices for petty expenses like local conveyance, telephone bills, etc. The employees are only required to submit details of expenditure incurred in specified form, on basis of which travel bill is settled. The Tribunal in A.Ys. 2010-11 and 2011-12 and earlier years held that disallowance cannot be made merely on the basis that vouchers were not produced by the

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employees, Thus, the facts have not changed in this year as well, therefore, the issue is squarely covered by the decision of the Tribunal for earlier Assessment Years. Therefore, Ground No. 28 is allowed in favour of the assessee.

During the course of discharge of official duties, the employees of the company are required to travel abroad and incur incidental expenses in foreign currency like local conveyance, boarding and lodging expenses, telephone expenses etc. for which the assessee introduced a policy fixing per diem allowance payable to employees, depending upon the grade/category of the employees and the place/country of travel. The employees are not entitled to any extra allowance in the event actual expenditure incurred by the employee is in excess of such per diem allowance. Thus, the details were given by the assessee company to the Assessing Officer in specified form for the expenditure on basis of which travel bill was settled. But the Assessing Officer simply disallowed the same stating that there is no sufficient evidence to establish incurrence of actual expense. The Assessing officer is not correct in disallowing this expenses as the employees will not get the extra allowance in case of excess expenditure. In the present Assessment Year also the facts are similar and are squarely covered with the decision of the Tribunal for A.Ys. 2010-11, 2011-12, 2012-13 and 2013-14. Hence Ground Nos. 27 is allowed.

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been deleted by the Tribunal vide consolidated order dated 24.10.2016, wherein the Tribunal held that such expenditure incurred by the assessee on death anniversary of Sh. Raman Kant Munjal was not personal expenditure of the promoter family and satisfied the tests of ‘commercial and business expediency’ and thus was an allowable business deduction under Section 37(1) of the Act. It is also pertinent to mention that no appeal has been filed by the department before the High Court. While deciding the appeal for the assessment years 2012-13 and 2013-14, the Tribunal decided the issue in favor of the assessee following the orders for the assessment years 2010-11 and 2011-12.

“88. We have heard both the parties and perused the material available on record. The Tribunal held in A.Ys. 2010-11 and 2011-12 as under:

“116) We have considered rival contentions. Under section 37(1) of the Act, expenditure is allowable as deduction if the same is incurred for the purpose of business out of commercial expediency. An expenditure which is personal in nature, is not an allowable business deduction. In the present case, the assessing officer has disallowed the expenditure incurred for making advertisement in newspapers to commemorate the death anniversary of late Shri Raman Munjal, being the founder and ex- managing director of the appellant, on the ground that he was family member of the promoters family, losing sight of the fact he was also ex- employee of the company who served in the capacity of managing director during his lifetime. He was, thus, simply not a distant family member of the promoters, but had strong nexus with the business of the appellant

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company. The expression “for the purpose of business” used in section 37(1) is not limited to earning of profit alone and involves incurrence of several expenses out of commercial expediency, which may not directly result in the earning of profit. Celebration of functions with employees in order to keep them motivated and build cordial relations amongst the staff is a universally accepted practice and cannot, in any eventuality, be said to be not an allowable expenditure. The Ld. Counsel of the appellant has also cited several decisions wherein similar expenses incurred to celebrate various festivals, anniversaries, etc. with the employees have been upheld to be allowable business deduction. To the same effect is the expenditure incurred for paying tribute to an ex-employee, who had assumed substantial roles and responsibilities to foster the business of the appellant company. Accordingly, any expenditure incurred by the company to pay him homage satisfies the test of business / commercial expediency and, thus, cannot be said to be not incurred for the purpose of business. More so when in past assessment years the similar expenditure have been incurred by the assessee but have not been disallowed by the Ld. assessing officer and this fact has not been controverted by the Ld. departmental representative even on the principle of consistency also we are not inclined to upheld the disallowance. In that view of the matter, we do not agree with the findings of the assessing officer in disallowing the expenditure of Rs. 3 465552/– incurred for giving advertisements in newspaper to commemorate Mr. Munjal’s death anniversary. In the result ground No. 24 of the appeal of the assessee is allowed.”

The aforesaid disallowance made by the Assessing Officer in the preceding years, viz. Assessment Year 2010-11 and 2011-12 has been deleted by the Tribunal vide consolidated order dated 24.10.2016, wherein the Tribunal held that such expenditure incurred by the assessee on death anniversary of Sh. Raman Kant Munjal was not personal expenditure of the promoter family and satisfied the tests of ‘commercial and business expediency' and thus was an

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allowable business deduction under Section 37(1) of the act. It is also pertinent to mention that no appeal has been filed by the department before the High Court. Thus, the Tribunal decision has attained the finality. Therefore, Ground No. 35 allowed in favour of the assessee.”

It is pertinent to note that such expenditure incurred by the assessee on death anniversary of Sh Raman Kant Munjal was not personal expenditure of the promoter family and satisfied the tests of ‘commercial and business expediency’ and thus was an allowable business deduction under Section 37(1) of the Act. In the present Assessment Year also the facts are similar and are squarely covered with the decision of the Tribunal for A.Ys. 2010-11, 2011-12, 2012-13 and 2013-14. Besides that no appeal has been filed by the Revenue before the Hon’ble High Court. Hence Ground No. 28 is allowed.

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shareholder of the assessee company. The Assessing Officer further observed that dividend paid actually reduced the corpus available for distribution as dividend with the intention of avoiding dividend distribution tax by paying commission to the Director.

“92. We have heard both the parties and perused the material available

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on record. The Tribunal held in A.Ys. 2010-11 and 2011-12 as under: “120) We have heard the rival contentions. We notice that the year under consideration was not the first year of payment of such commission to Mr. Pawan Munjal. The same terms and conditions of his employment, comprising salary, perquisites and commissions not exceeding 1% of the net profit was agreed/prevalent in the earlier years, which was approved by the Board of Directors (comprising of independent directors as well) and ratified by the shareholders. The aforesaid total remuneration package, including commission, is in lieu of services rendered by him in the capacity of Managing Director. There is no quarrel or doubt that Mr. Munjal had not been rendering services to the appellant company in the capacity as Managing Director. More so, since the other part of his remuneration package, i.e., basic salary and other benefits given to him have been accepted and allowed as revenue expenditure, there is no valid reason to differently treat the other part of his remuneration package given by way of 1% of net profit. It is not the case of the assessing officer that the total remuneration package comprising of 1% of net profit is unreasonable, having regard to the nature of services provided by Mr. Munjal in his capacity as Managing Director. Having not doubted the same, the assessing officer cannot disallow any part of the total remuneration package agreed between the assessee and an employee/director. Coming back to the provision of section 36(1)(ii), the said section, in fact, enabled deduction of any sum paid to an employee as bonus or commission for services rendered. The exception carved out in the aforesaid section for allowability of bonus or commission is, where such sum was otherwise payable to the employee, as profit or dividend. In other words, the aforesaid section provides for disallowance of expenditure incurred as bonus or commission, which otherwise constituted share of profit or dividend of the recipient. In the present case, as we have observed (supra) and also explained by the appellant, the commission constitutes part of Mr.

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Munjal’s remuneration package, the computation whereof is simply based on the percentage of net profit. The computation of remuneration with reference to profit does not, ipso facto, classify the same as payment of profit or dividend, covered within the exception provided in section 36(1)(ii) of the Act. In the case of a company, recipient is entitled to dividend with reference to percentage of his/her shareholding in the company. In the present case, Mr. Munjal held 0.02% of shares in the appellant company, for which separate dividend was received as per the total amount of dividend declared by the company to its all shareholders. The provisions of section 36 provides that “36. (1) The deductions provided for in the following clauses shall be allowed in respect of the matters dealt with therein, in computing the income referred to in section 28—

ii) any sum paid to an employee as bonus or commission32 for services rendered, where such sum would not have been payable to him as profits or dividend if it had not been paid as bonus or commission;’

In the present case the assessee has paid Rs. 29.50 crores to the managing director of the company as commission whereas the managing director is just holding shares of the company of 0.02% therefore it cannot be said that a sum of Rs. 29.50 crores would have been paid to that shareholder holding 0.02% as dividend. Therefore The impugned amount of commission was separate and was not in addition or in lieu of dividend linked to percentage of shares held by Mr. Munjal in the appellant company. We draw support for the aforesaid view from the recent decision of Delhi High Court in the case of Carrier Launchers India Ltd. vs. ACIT: 358 ITR 179, where, too, the High Court held that where the commission is paid in lieu of services provided by the employee and the amount of commission has no link with the dividend that the recipient would be

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entitled to as a shareholder, such payment is outside the purview of section 36(1)(ii) of the Act. The relevant observations of the High Court are as under: “19. The revenue's contention that the Tribunal erred in allowing the bonus payment to the directors cannot be accepted. It has not disputed the facts viz., (a) that the payment was supported by board resolutions and (b) that none of the directors would have received a lesser amount of dividend than the bonus paid to them, having regard to their shareholding. Further, the directors are full-time employees of the company receiving salary. They are all graduates from IIM, Bangalore. Taking all these facts into consideration, it would appear that the bonus was a reward for their work, in addition to the salary paid to them and was in no way related to their shareholding. The bonus payment cannot be characterized as a dividend payment in disguise. The Tribunal has found that having regard to the shareholding of each of the directors, they would have got much higher amounts as dividends than as bonus and there was no tax avoidance motive. The quantum of the bonus payment was linked to the services rendered by the directors. It cannot therefore be said that the bonus would not have been payable to the directors as profits or dividend had it not been paid as bonus/commission. 20. The issue has been considered by this Court in AMD Metplast (P.) Ltd v. Dy. CIT [2012] 341 ITR 563 / 20 taxmann.com 647 (Delhi) in the light of the judgment of the Bombay High Court in Loyal Motor Service Co. Ltd vs. CIT [1946] 14 ITR 647. It was observed that the judgment of the Bombay High Court (supra) does not assist the revenue and that so long as the bonus or commission is paid to the directors for services rendered and as part of their terms of employment it has to be allowed and sec.36(1)(ii) does not apply.

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The aforesaid disallowance made by the assessing officer in the preceding years, viz. AY 2010-11 and AY 2011-12 has been deleted by the Tribunal vide recent consolidated order dated 24.10.2016. In the said order, the Tribunal held that the commission paid to directors with reference to percentage of profits of the company for the services rendered as per the terms of appointment, constitutes part of the remuneration package, and in

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the absence of any disallowance on other components of remuneration paid to such director, the commission cannot, ipso facto be classified as payment of profit/dividend covered within the exception provided under Section 36(1)(ii) of the Act. It is also pertinent to mention that no appeal has been filed by the department before the High Court. Thus, the Tribunal decision has attained the finality. Therefore, Ground No. 36 to 36.3 are allowed in favour of the assessee.

In the present Assessment Year also the facts are similar and are squarely covered with the decision of the Tribunal for A.Ys. 2010-11, 2011-12, 2012-13 and 2013-14. Besides that no appeal has been filed by the Revenue before the Hon’ble High Court. Hence Ground Nos. 29 to 29.3 are allowed.

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aforesaid payment of lease enhanced the profit earning apparatus of the assessee whose benefit was of enduring nature and therefore was capital in nature. The DRP, however, allowed the assessee depreciation on the premium paid for acquiring of leasehold rights of land, considering the same as an intangible asset in the nature of ‘business or commercial right' which is eligible for depreciation under Section 32(1 )(ii) of the Act. The Ld. AR submitted that he Assessing officer, however, erred in not giving effect to such binding directions of the DRP.

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“80. We have heard both the parties and perused all the records. It is pertinent to note that the DRP, allowed the assessee depreciation on the premium paid for acquiring of leasehold rights of land, considering the same as an intangible asset in the nature of ‘business or commercial right’ which is eligible for depreciation under Section 32(1)(ii) of the Act. This direction was not at all considered by the Assessing Officer. Therefore, we direct the Assessing Officer take into account the direction of the DRP and pass necessary order after giving hearing to the assessee by following principles of natural justice. Therefore, we remand back this issue to the file of the Assessing Officer. Thus, Ground No. 21 is partly allowed for statistical purpose.”

In the present year as well the Assessing Officer has not taken into account the directions of the DRP. Therefore, we are remanding back this issue to the file of the Assessing Officer. Needless to say, the assessee be given opportunity of hearing by following principles of natural justice. Thus, Ground Nos. 30 to 30.1 are partly allowed for statistical purpose.

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made by the assessing officer in the preceding years, viz. AY 2010-11 and AY 2011-12 has been deleted by the Tribunal vide recent consolidated order dated 24.10.2016, wherein the Tribunal held that the expenditure incurred by the assessee company on Corporate Social Responsibility, prior to insertion of Explanation 2 to Section 37(1) of the Act, was an allowable business deduction under the said provision. The Tribunal, in the said order, further elaborated that the role of the assessee was not restricted to merely earning profit, but also discharging certain community related expenses, which would be considered to have been incurred on account of commercial/ business expediency. The Ld. AR also pointed out that no appeal has been filed by the Department in assessment year 2011-12. While deciding the appeal for the assessment years 2012-13 and 2013-14, the Tribunal decided the issue in favor of the assessee following the orders for the assessment years 2010-11 and 2011-12. The Ld. AR relied upon the following decisions:

Mysore Kirloskar Ltd. vs. CIT: 166 ITR 836 (Kar.) •

Mahindra and Mahindra vs. CIT 261 ITR 501 (Bom) •

CIT v. India Radiators Ltd.: 236 ITR 719 (Mad.) •

CIT v. Madras Refineries Ltd.: 266 ITR 170(Mad) •

CIT v. Chennai Petroleum Corpn. Ltd: T.C.(A).No.57 of 2006 (Chennai) •

CIT vs Jayendrakumar Hiralal: 327 ITR 147 (Guj) •

CIT vs. Karnataka Financial Corporation: 326 ITR 355 (Kar) •

Infosys Technologies Ltd. v. JCIT: 109 TTJ (Bang)631 •

Hindustan Petroleum Corpn. Ltd. vs. DCIT 96 ITD 186 (Bom.) •

Indian Petroleum’s vs. Department of Income Tax: ITA No. 664 and 665/ • Ahd/2008(Mum)

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CIT v. Ranbaxy Laboratories Ltd. : ITA No.743 of 2008 (Del) •

“96. We have heard both the parties and perused the material available on record. The Tribunal in A.Ys. 2010-11 and 2011-12 held as under: “235) We have heard the rival contentions. We have given our findings while disposing ground of appeal no. 24 in the assessee’s appeal supra that under section 37(1) of the Act, the expression ‘for the purpose of business’ is wide enough to cover expenses incurred on account of business/commercial expediency and is not restricted to expenses incurred for the purpose of earning profit. The appellant is a large corporate house and is one of the flagship companies in India. In the course of carrying of business, the role of the appellant is not restricted to merely earning profit but also discharging certain community related obligations, with a larger intent of fostering its goodwill/reputation. We have gone through the details of various expenses incurred by the assesse which were debited under the head “Corporate social responsibility” and elaborated in detail in the submissions made by the Ld. Counsel above. The said expenses although were not incurred towards earning profit, but were incurred out of commercial expediency and were directly/indirectly related to its business like earning goodwill/display of name, employee’s welfare, etc. The said expenses therefore, in our view, satisfy the test of being allowable as business deduction under section 37(1) of the Act. We draw support for the aforesaid conclusion from the following decisions of the various Tribunals/High Courts :

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(i) In the case of Mysore Kirloskar Ltd. vs. CIT: 166 ITR 836 (Kar.), the assessee started school for education of children of its employees for attracting technocrats and men of managerial skill to its industry. Donations made by the company to the school were claimed as business expenditure under section 37(1) of the Act. The Tribunal sustained disallowance of the deduction claimed on the ground that the expenditure was not incurred wholly and exclusively for the purpose of business of the assessee. The Hon'ble High Court did not approve the approach of the ITAT and allowed the claim of the assessee by observing as under: “Held,(i) that the words " for the purpose of business " used in section 37(1) should not be limited to the meaning of " earning profit alone ". Business expediency or commercial expediency may require providing facilities like schools, hospitals, etc., for the employees or their children or for the children of the ex-employees. Any expenditure laid out or expended for their benefit, if it satisfies the other requirements, must be allowed as deduction under section 37(1) of the Act. The fact that somebody other than the assessee was also benefited or incidentally took advantage of the provision made, should not come in the way of the expenditure being allowed as a deduction under section 37(1) of the Act. Nevertheless, it is expenditure allowable as deduction under the Act. (ii) That the word “expenditure” primarily denoted the idea of spending or paying out or away. It was something which was gone irretrievably, but should not be in respect of an unascertained liability of the future. It must be an actual liability in praesenti, as opposed to a contingent liability of the future. (iii) The reasons given by the Tribunal for rejecting the claim of the assessee were not sound. Moreover, since the Tribunal had not recorded a finding as to whether the donation made by the assessee to the trust could be considered as “expenditure”, the matter had to be

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remanded to the Tribunal for decision afresh in the light of the observations contained in the judgment.” (ii) In the case of Mahindra and Mahindra vs. CIT 261 ITR 501, the Bombay High Court allowed deduction of expenditure incurred by the assessee in making initial contribution to the approved superannuation fund to an educational society, which was running school for children of employees, as business expenditure under section 37(1) of the Act. It was held that the amount should be allowed as business expenditure because it was incurred predominantly for staff welfare. The decision in the case of Mahindra & Mahindra (supra) was further followed by the Bombay High Court in the case of CIT vs. Mahindra & Mahindra: 284 ITR 679. (iii) In the case of CIT v. India Radiators Ltd.: 236 ITR 719 (Mad.), the Madras High Court observed as under: “The finding of the Tribunal is that by making the contribution to the Panchayat for upgrading the elementary school, the assessee-company was assured by the school management that it would give preference in the matter of admission to the children of the employees in the said school. The Tribunal placed reliance on a letter from the President of the Building Committee and Parents Teacher Association of the school. It is well settled that if a certain sum of money was expended for the education of the children of the employees of the assessee-company, it should be regarded as staff welfare expenditure, particularly in view of the fact that in these days it is very hard to get admission in educational institutions. The employees of the assessee are given the satisfaction by the donation made by the assessee that their employers have taken full care of the education of their ward and such a mental satisfaction on the part of the employees would generate good will and the expenditure can be regarded as staff welfare expenditure and allowable as business expenditure. The contribution made by the

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assessee to the Panchayat has resulted in the benefit of the assessee’s business in the sense that the assessee’s employees are the beneficiaries in getting preferential admission in the school. The fact that the benefit has percolated to the general public would not stand in the way of assessee getting the necessary deduction once the expenditure is held to be business expenditure. Hence, the Tribunal has come to the correct conclusion that the expenditure incurred by the assessee was a revenue expenditure. It should also be noted that the contribution made to the Panchayat was not in contravention of any law, nor was it opposed to public policy. In this view of the matter, the contribution made by the assessee to the Panchayat for the up- gradation of the elementary school should be regarded as an allowable business expenditure under the provisions of s. 37(1).” (iv) In the case of CIT Vs. Chemicals and Plastics India Ltd. 292 ITR 115 (Mad.), the assessee claimed deduction in relation to contribution to Madras Chamber of Commerce, of which the assessee was a member, as business expenditure. It was contended that since the maintenance of the trade Chamber was for the furtherance of business interests of the constituents of the Chamber, the contribution made had to be treated as business expenditure. The assessing officer rejected the claim for deduction, which was allowed by the Tribunal. The Hon'ble High Court approved the view taken by the ITAT by holding that since activities of the Chamber of Commerce were closely linked with the welfare of corporate entities who were its members and whose interests were taken care of by the Chamber, the expenditure was deductible, irrespective of whether the expense incurred was compulsory or otherwise. (v) In the case of CIT v. Madras Refineries Ltd.: 266 ITR 170, the Madras High Court observed as under:

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“The concept of business is not static. It has evolved over a period of time to include within its fold the concrete expression of care and concern for the society at large and the people of the locality in which the business is located in particular. Being known as a good corporate citizen brings goodwill of the local community, as also with the regulatory agencies and the society at large, thereby creating an atmosphere in which the business can succeed in a greater measure with the aid of such goodwill. Monies spent for bringing drinking water as also for establishing or improving the school meant for the residents of the locality in which the business is situated cannot be regarded as being wholly outside the ambit of the business concerns of the assessee, especially where the undertaking owned by the assessee is one which is to some extent a polluting industry. The Tribunal was right in allowing the deduction of the entire expenditure of Rs. 15,32,000 as business expenditure.” (vi) In the case of Hindustan Petroleum Corpn. Ltd. Vs. DCIT 96 ITD 186 (Bom.), the assessee company incurred certain expenditure towards implementation of 20 point programme. The expenditure was incurred to improve the conditions of SC/ST in pursuance of national policies and to help acceleration of all round development of villages by providing assistance to educated unemployed to earn a living. The assessing officer held that since the expenditure was in the nature of donation, the same could not be allowed deduction. The CIT(A) upheld the order of the assessing officer by holding that the expenditure incurred did not have any direct connection with the business of the assessee because the beneficiaries of the expenditure were not employees of the assessee nor had the assessee any statutory obligation to incur such expenditure. On second appeal, by making reference to various authorities including the decision of the Hon'ble Karnataka High Court in the case of Mysore Kirloskar Ltd. Vs. CIT

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(supra), the ITAT upheld the claim of the assessee. The relevant observations of the Tribunal are as under: “It has been held by the Karnataka High Court in the case of Mysore Kirloskar Ltd. Vs. CIT (1987] 166 ITR 836/30 Taxman 467 that while the basic requirements for invoking sections 37(1) and 80G are quite different, but nonetheless the two sections are not mutually exclusive. Thus, there are overlapping areas between the· donations given· by· the assessee and the business. In other words, there can be certain amounts, though in the nature of donations, and nonetheless, these amounts may be deductible under section 37(1) as well. Therefore, merely because the expenditure in question was in the nature of donation, or, as per the words of the Commissioner (Appeals), 'prompted by altruistic motives', it did not cease to be an expenditure deductible under section 37(1). In the case of Mysore Kirloskar Ltd. (supra), the High Court observed that even if the contribution by the assessee is in the form of donations, but if it could be termed as expenditure of the category falling in section 37(1), then the right of the assessee to claim the whole of it as a deduction under section 37(1) cannot be declined. What is material in this context is whether the expenditure in question was in question was necessitated by business considerations or not. Once it is found that the expenditure was dictated by commercial expediencies, the deduction under section 37(1) cannot be declined. In the instant case, the expenditure on 20-Point Programme was incurred in view of specific directions of the Government of India. It could not but be the business interest of the assessee to abide by the directions of the Government of India which also owned the assessee. Further, the expenditure incurred for the implementation of 20-Point programme was solely for the welfare of the oppressed classes of society, for which even the Constitution of India sanctions positive

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discrimination and for contribution to all around development of villages, which has always been the central theme of Government's development initiatives. An expenditure of such a nature cannot but be, 'a concrete expression of care and concern for the Society at large and an expenditure to discharge the responsibilities of a 'good corporate citizen which brings goodwill of with the regulatory agencies and society at large, thereby creating an atmosphere in which the business can succeed in a greater measure with the aid of such goodwill' . Just because the expenditure was voluntary in nature and was not forced on the assessee by a statutory obligation, it could not cease to be a business expenditure. 236) Further, the insertion of explanation 2 to section 37(1) has been inserted w.e.f. 01/04/2015 and shall be applicable for the assessment year 2015 – 16 onwards and therefore same does not apply to the assessment year in question before us in this appeal. In view of the above we agree with the findings of the ld DRP and dismiss the ground no 11 of appeal raised by the department.”

The aforesaid disallowance made by the assessing officer in the preceding years, viz. AY 2010-11 and AY 2011-12 has been deleted by the Tribunal vide recent consolidated order dated 24.10.2016, wherein the Tribunal held that the expenditure incurred by the assessee company on Corporate Social Responsibility, prior to insertion of explanation 2 to Section 37(1) of the Act, was an allowable business deduction under the said provision. The Tribunal, in the said order, further elaborated that the role of the assessee was not restricted to merely earning profit, but also discharging certain community related expenses, which would be considered to have been incurred on account of commercial/ business expediency. It is pertinent to point out that no appeal has been filed by the Department in assessment year 2011-12. Thus, the decision of the Tribunal attains finality. Therefore, Ground No. 37 to 37.1 are allowed in favour of the assessee.”

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The role of the assessee was not restricted to merely earning profit, but also discharging certain community related expenses, which would be considered to have been incurred on account of commercial/ business expediency. In the present Assessment Year also the facts are similar and are squarely covered with the decision of the Tribunal for A.Ys. 2010-11, 2011-12, 2012-13 and 2013-14. Besides that no appeal has been filed by the Revenue before the Hon’ble High Court in A.Y. 2011-12, thus, the decision of the Tribunal attains finality. Hence Ground No. 31 is allowed.

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“100. We have heard both the parties and perused the material available on record. The Tribunal in A.Ys. 2010-11 and 2011-12 held as under:

“150) We have heard the rival contentions. On query from the bench, the appellant had furnished the process chart for manufacturing of final products followed in all the three units. On perusal of the same, it was noted that since plant at Haridwar was a new plant and Gurgaon and Dharuhera were old plants, certain initial processes, like press shop, heat treatment, etc., which was carried out at the latter unit were not carried out at the unit at Haridwar. The aforesaid lend support to the argument made by the appellant for justifying the lower consumption of electricity at Haridwar as compared to electricity consumed in other two units. That

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apart, even assuming that certain intermediary processes were not carried out by the eligible unit at Haridwar and were outsourced to the third parties or non-eligible units, the same cannot lead to the conclusion that the entire profits are not derived from the manufacturing activity for being liable for deduction under section 80IC of the Act. The profit earned by the eligible unit is from manufacturing of two wheelers, which is an eligible activity covered under section 80IC of the Act. Outsourcing of certain intermediary processes or procurement of some finished components for assembly thereof in the vehicle does not, in our view, mean outsourcing of the manufacturing operations. The Courts have in fact repeatedly held that even where the entire manufacturing activities are outsourced or carried out by third party, but the overall supervision, control, and management of the product manufactured is with the assessee, the assessee would be regarded as engaged in manufacture or production of relevant goods. The latest is the decision of Delhi High Court in the case of ITO v AAR ESS Exim (P) Ltd: 372 ITR 111. Thus, disallowance made by the assessing officer on the aforesaid ground was not based on any valid reasons and accordingly the same is deleted and ground 32 of appeal is allowed.”

The aforesaid issue stands squarely covered in favour of the assessee inasmuch as the Tribunal while adjudicating upon the issue of disallowance u/s 80IC on account of job work/ outsourcing of manufacturing activity in the immediately preceding assessment years, i.e. AY 2010-11 and AY 2011-12, held that outsourcing of certain intermediary processes or procurement of finished components in the process of manufacture does not tantamount to outsourcing of manufacturing activities and thus would not hamper the claim of deduction of the assessee company under Section 80 IC of the Act. It is also pertinent to mention that no appeal has been filed by the Department before the Hon’ble Delhi High Court. These fact are identical with the present Assessment Years. The issue is squarely covered in favour of the assessee by the Tribunal’s order for A.Ys. 2010-11 & 2011-12. Besides this the Revenue

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has accepted this issue and has not challenged the same in Hon’ble High Court. Thus, this issue attains finality. Therefore, Ground No. 38 to 38.1 are allowed in favour of the assessee.”

We fully agree with the findings of the Tribunal in A.Ys. 2010-11 to 2013-14 that outsourcing of certain intermediary processes or procurement of finished components in the process of manufacture does not tantamount to outsourcing of manufacturing activities and thus would not hamper the claim of deduction of the assessee company under Section 80 IC of the Act. It is also pertinent to mention that no appeal has been filed by the Department before the Hon’ble Delhi High Court. In the present Assessment Year also the facts are similar and are squarely covered with the decision of the Tribunal for A.Ys. 2010-11, 2011- 12, 2012-13 and 2013-14. Besides that no appeal has been filed by the Revenue before the Hon’ble High Court in A.Y. 2011-12, thus, the decision of the Tribunal attains finality. Hence Ground No. 32 is allowed.

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manufacturing plants in the following format: Units Electricity consumed Production Figures (in units) (in quantity) Haridwar 1,55,08,625 6,29,775 Gurgaon 5,58,83,492 15,58,928 Dharuhera 4,77,08,619 15,33,141

The Assessing Officer on the basis of lower consumption of electricity per unit at Haridwar vis-a-vis average rate of consumption of electricity per unit at Gurgaon and Dharuhera plants, assumed that part of manufacturing activities at Haridwar plant were outsourced and accordingly, disallowed proportion of outsourced manufacturing activities in the following manner:

Particulars Haridwar Dharuhera Gurgaon Power 1,55,08,625 4,77,08,619 5,58,83,492 Consumption(KWH) Units 6,29,775 15,33,141 15,58,928 Manufactured(No.) Consumption per 24.63 31.12 35.85 unit (KWH) Average consumption at 33.48 Gurgaon and Dharuhera Total Deduction 270.74 u/s 80IC (Crores) Allowable (Crores) 199.12 [(15.64/30.01) *1129.63)] To disallowed 71.62 (Crores)

Thus, the Assessing Officer proposed disallowance of deduction under section 80IC by an amount of Rs.71.62 crores on the ground that part of the manufacturing activities were outsourced.

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in favour of the assessee in light of the fact that disallowance made by the assessing officer on identical ground in the immediately preceding assessment years, i.e. AY 2010-11 and AY 2011-12 has been deleted by the Tribunal vide consolidated order dated 24.10.2016, wherein the Tribunal noted that difference in consumption of electricity was on account of the fact that the plant at Haridwar was more energy-efficient and hence certain processes were carried out in said plant. The Tribunal further held that outsourcing of certain intermediary processes or procurement of finished components in the process of manufacture does not tantamount to outsourcing of manufacturing activities and thus would not hamper the claim of deduction of the assessee company under Section 80 IC of the Act. The Ld. AR pointed out that no appeal has been filed by the department before the High Court. While deciding the appeal for the assessment years 2012-13 and 2013-14, the Tribunal decided the issue in favor of the assessee following the orders for the assessment years 2010-11 and 2011-12.

“104. We have heard both the parties and perused the material available on record. The Tribunal in A.Ys. 2010-11 and 2011-12 held as under:

“150) We have heard the rival contentions. On query from the bench, the appellant had furnished the process chart for manufacturing of final products followed in all the three units. On perusal of the same, it was noted that since plant at Haridwar was a new plant and Gurgaon and Dharuhera were old plants, certain initial processes, like press shop, heat treatment, etc., which was carried out at the latter unit were not carried out at the unit at Haridwar. The aforesaid lend support to the argument

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made by the appellant for justifying the lower consumption of electricity at Haridwar as compared to electricity consumed in other two units. That apart, even assuming that certain intermediary processes were not carried out by the eligible unit at Haridwar and were outsourced to the third parties or non-eligible units, the same cannot lead to the conclusion that the entire profits are not derived from the manufacturing activity for being liable for deduction under section 80IC of the Act. The profit earned by the eligible unit is from manufacturing of two wheelers, which is an eligible activity covered under section 80IC of the Act. Outsourcing of certain intermediary processes or procurement of some finished components for assembly thereof in the vehicle does not, in our view, mean outsourcing of the manufacturing operations. The Courts have in fact repeatedly held that even where the entire manufacturing activities are outsourced or carried out by third party, but the overall supervision, control, and management of the product manufactured is with the assessee, the assessee would be regarded as engaged in manufacture or production of relevant goods. The latest is the decision of Delhi High Court in the case of ITO v AAR ESS Exim (P) Ltd: 372 ITR 111. Thus, disallowance made by the assessing officer on the aforesaid ground was not based on any valid reasons and accordingly the same is deleted and ground 32 of appeal is allowed.”

The aforesaid issue stands squarely covered in favour of the assessee in light of the fact that disallowance made by the assessing officer on identical ground in the immediately preceding assessment years, i.e. AY 2010-11 and AY 2011-12 has been deleted by the Tribunal vide consolidated order dated 24.10.2016 wherein the Tribunal noted that difference in consumption of electricity was on account of the fact that the plant at Haridwar was more energy-efficient and hence certain processes were carried out in said plant. The Tribunal further held that outsourcing of certain intermediary processes or procurement of finished components in the process of manufacture does not tantamount to outsourcing of manufacturing activities and thus would not

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hamper the claim of deduction of the assessee company under Section 80 IC of the Act. It is also pertinent to mention that no appeal has been field by the Department before the High Court. These facts are identical with the present Assessment Year. The issue is squarely covered in favour of the assessee by the Tribunal’s order for A.Ys. 2010-11 & 2011-12. Besides this the Revenue has accepted this issue and has not challenged the same in Hon’ble High Court. Thus, this issue attains finality. Therefore, Ground No. 39 to 39.1 are allowed in favour of the assessee.”

In the present Assessment Year also difference in consumption of electricity was on account of the fact that the plant at Haridwar was much more energy- efficient than other plants and therefore, certain processes were carried out in said plant. Thus, outsourcing of certain intermediary processes or procurement of finished components in the process of manufacture does not tantamount to outsourcing of manufacturing activities and therefore claim of deduction under Section 80IC of the Act is just and proper. In the present Assessment Year also the facts are similar and are squarely covered with the decision of the Tribunal for A.Ys. 2010-11, 2011-12, 2012-13 and 2013-14. Besides that no appeal has been filed by the Revenue before the Hon’ble High Court in A.Y. 2011-12, thus, the decision of the Tribunal attains finality. Hence Ground No. 33 is allowed.

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components was carried out by the non-eligible units. In the books of accounts of the plant at Haridwar, which is eligible for deduction under section 80IC of the Act, goods aggregating to Rs. 10,44.47.042, were shown to have been procured from other units, i.e., Dharuhera and Gurgaon plants. Out of the aggregate transactions of Rs. 10,44,47,042, (i) components having value of Rs.4.78 crores were semi-finished goods for which nominal processing was carried out at other units before transfer to the Haridwar plant, and (ii) balance components having value of Rs. 5.66 crores were procured by the aforesaid non-eligible units from third parties and were transferred to the eligible unit at material cost. Freight charges on transfer of the aforesaid items were always booked at the receiving unit. In the assessment order, the assessing officer applied the provisions of section 80IA(8) read with section 80IC(7) of the Act and disallowed deduction under section 80-1C by an amount of 1,21.00,000, holding that for the purpose of computing deduction under the latter section, inter-unit transfer of goods should have been recorded at market price, instead of cost price as carried out by the assessee. Accordingly, the assessing officer attributed markup of Rs.0.36%, being the net profit rate of Gurgaon Unit, on the cost of goods aggregating to Rs. 5.66 crores, procured by the eligible unit at Haridwar from Gurgaon unit, which was purchased and transferred without processing, thus reducing the quantum of deduction by Rs. 0.59 crores. With respect to the other purchase of Rs. 4.78 crores, being semi-finished goods for which nominal processing was carried out at other units before transfer to the Haridwar plant, the assessing officer, for reasons similar discussed in ground of appeal No. 28-33 (supra), viz., outsourcing of manufacturing activity, disallowed deduction under section 80IC of the Act by an amount of Rs.0.62 crores, being the proportionate amount of purchases of Rs. 4.78 crores computed on ad-hoc basis, on the ground that manufacturing activity to the aforesaid extent of purchases was outsourced and. therefore, proportionate amount of profit derived from such purchases was not eligible for deduction under section 80IC of the Act.

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“108. We have heard both the parties and perused the material available on record. The Tribunal in A.Ys. 2010-11 and 2011-12 held as under:

“140) We have heard the rival contentions. We have observed that merely because there was inter-unit transfer of certain goods from non-eligible unit to eligible unit, the assessing officer automatically applied the provisions of section 80IA(8) of the Act to hold that such transfer should have been at market price without looking to the nature of transfer and the facts and circumstances of the case. It has been explained by the Appellant that substantive transfers were made on account of some finished components procured by the non-eligible unit from third party

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vendors, due to proximity of location/relationship, for further transfer to the eligible unit. The freight charges incurred in relation to the procurement and further transfer from non-eligible to eligible unit have been stated to be borne by the eligible unit. We find force in the aforesaid facts stated by the appellant, considering that the unit at Haridwar was a new unit, whereas the other non-eligible units at Gurgaon and Dharuhera were old, established way back in years 1984 and 1997, having up and running operations during the year under consideration. Various ancillary units manufacturing components for such plants were also established near the old plants, which were continuously supplying such components to the non-eligible units. There was thus strong business/commercial reasons for such ancillary units to supply the components to the non-eligible unit first, by virtue of the existing relationship / process for supply of goods in place, which were further transferred at cost to the eligible unit at Haridwar. We do not find any in-genuineness in the aforesaid practice, which is backed by strong commercial reasons as, highlighted above. In the said process, there is no additional cost burden to be borne by the non-eligible unit. The aforesaid transfer only involves additional freight cost, which as stated has been borne by the eligible unit. Further, the provisions of section 80IA(8) as discussed in ground of appeal no. 26 (supra) provides for inter unit transfer at market price. The market price of the components procured by the non-eligible units from third parties/independent vendors do not undergo any change at the time of further transfer by the non-eligible unit to the eligible unit. In other words, the market price of such components at which the same was procured by non-eligible units remains constant. Accordingly, even by applying the provisions of section 80IA(8), in our opinion, there can be no substitution of the price at which goods are debited by the eligible unit in its independent books of account. Similarly, with respect to components having value of Rs.6.34 crores, which were transferred by the non-eligible unit to the eligible unit at Haridwar after nominal processing, too, in our opinion, does not result in enhancement of

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any market price of such goods; in other words, in a free market condition such goods would have also been sold at the same price at which they have been transferred by the non-eligible unit to the eligible unit. In that view of the matter, we find that the present issue was not decided by the assessing officer in correct perspective and, therefore, erred in disallowing deduction under section 80IC, by enhancing the purchase price by adding certain markup thereon. In view of this we allow ground No. 30 of the appeal of the assessee.”

The aforesaid issue stands squarely covered in favour of the assessee, by the order dated 24.10.2016 passed by Tribunal in the immediately preceding assessment years, i.e. AY 2010-11 and AY 2011-12 wherein identical disallowance made by the assessing officer has been deleted. The Tribunal, while allowing the claim of the assessee under section 80-IC of the Act, held that for the purpose of computing market price of inter-unit transfer of goods, when the non-eligible units procured goods at market price from third party vendors and supplied the same to the eligible unit at the same purchase price as increased by the applicable freight cost, no further substitution of such price is warranted in terms of section 80IA(8) of the Act and the transaction was a genuine business transaction borne out of commercial expediency. Therefore, Ground No. 40 to 40.2 are allowed in favour of the assessee.”

The Tribunal, while allowing the claim of the assessee under section 80-IC of the Act, held that for the purpose of computing market price of inter-unit transfer of goods, when the non-eligible units procured goods at market price from third party vendors and supplied the same to the eligible unit at the same purchase price as increased by the applicable freight cost, no further substitution of such price is warranted in terms of section 80IA(8) of the Act and the transaction was a genuine business transaction borne out of commercial expediency. In the present Assessment Year also the facts are similar and are squarely covered with the decision of the Tribunal for A.Ys.

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2010-11, 2011-12, 2012-13 and 2013-14. Hence Ground Nos. 34 to 34.2 are allowed.

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Act by an amount of Rs. 227.47.04,870 being the amount of alleged extraordinary profits earned by Haridwar on account of higher sale price charged on sale of two-wheelers vis-a-vis price charged by other / non-eligible units. Since the Assessing Officer had disallowed upto Rs. 80,63,00,000 out of total deduction of Rs.270,74,38,681 as per Grounds of appeal 32 to 34 under section 80IC on various grounds , therefore balance deduction under section 801C of Rs. 190,38,38,681/- is disallowed on the aforesaid account in the assessment order.

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and 2011-12.

“112. We have heard both the parties and perused the material available on record. The Tribunal in A.Ys. 2010-11 and 2011-12 held as under:

“144) We have heard the rival contentions. At the outset, we agree with the submissions of the appellant and reject the contentions of the assessing officer that higher price was charged for vehicles sold from eligible unit vis-a-vis non-eligible unit. The appellant in this connection also produced sales invoices of vehicles of same models removed from eligible unit as also non-eligible unit. The final price charged from the customer, as it would have been ordinarily expected, was same in both the cases. The aforesaid factual position was expected, since there is no reason behind the customer to pay higher price for purchasing same model of vehicle from the eligible unit at Haridwar, vis-a-vis, price to be paid for purchase from non-eligible unit. We agree with the contentions of the appellant that the basic sale price before charging excise duty in case of eligible unit was higher than the basic price of non-eligible unit on account of exemption from excise duty given to the unit located at Haridwar. In view of the same, there was basic fallacy in the entire case made by the assessing officer, while disallowing deduction under section 80IC on the aforesaid ground. That apart, although the appellant had submitted, that no additional profits accrued to the eligible unit on account of exemption from excise duty and charging higher basic price vis-à-vis basic price at non- eligible unit due to non-availment of CENVAT credit of excise duty paid on purchases at the said unit, we hold that even assuming higher profits were

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earned by the eligible unit, the same cannot be disallowed by applying provisions of section 80IA(10) read with section 80IC(7) of the Act which reads as under: “(10) Where it appears to the Assessing Officer that, owing to the close connection between the assessee carrying on the eligible business to which this section applies and any other person, or for any other reason, the course of business between them is so arranged that the business transacted between them produces to the assessee more than the ordinary profits which might be expected to arise in such eligible business, the Assessing Officer shall, in computing the profits and gains of such eligible business for the purposes of the deduction under this section, take the amount of profits as may be reasonably deemed to have been derived therefrom” 145) The aforesaid section is applicable where the eligible unit has entered into transaction with related parties. In the given situation, as taken-up by the assessing officer, the alleged higher sale price being charged by the eligible unit is from the final customer/dealers, which are not covered within the scope of aforesaid section. In that view of the matter, for the aforesaid reason as well, the assessing officer clearly erred in doubting the sale price of goods from eligible unit and consequential earning of higher profits. As regards the other findings of the assessing officer that finished goods should have been transferred from the eligible unit to Head Office at normal profit and Head Office should have further sold the goods at higher sale price or in other words, profits earned by the eligible unit should be attributed to the Head Office for sale and marketing activities carried out by the latter unit, in our opinion, is also not correct. The Head Office is not a separate entity/person or a profit centre. The Head office in a case of multiple manufacturing units plays a central role for undertaking common expenses like administrative, marketing, etc. for all its manufacturing units. The Head Office in such a situation, in our

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view, is not rendering any separate services to the manufacturing/eligible unit but is a cost centre incurring expenses for and on behalf of all such units. The only rational approach in such a kind of situation is to apportion the common expenses incurred by the head office to various profit making units on a scientific and rational basis. Considering that such expenses are incurred by head office for and on behalf of the profit making units, no profit is liable to be attributed to the head office. We rely in this regard on the decision taken by this Bench in the case of Ranbaxy Laboratories Ltd. v. ACIT: ITA No. 196/Del/2013, wherein on the same controversy it was observed as under: “87. It is one of the contention of revenue that selling and distribution activity is itself a separate profit center and therefore whatever services have been provided by the selling and distribution arm of the company to the eligible undertaking should have been charged and reduced from the profit of the industrial undertaking after valuing service of selling and distribution arm of the company at market rate. At present assessee has allocated it at cost. Therefore, ld. AO has invoked provisions of section 80 IA (8) of the act. It is not dispute that that products manufactured by these industrial units are sold by selling and distribution arm of the assessee and the cost incurred is allocated to these respective units on the basis of appropriate allocation key of sales. Ld. AR of the appellant relying on the decision of coordinate bench of Cadila Healthcare Ltd vs. ACIT 21 Taxmann.com 483 has submitted that there cannot be any specific demarcation between manufacturing and selling activities of the assessee and profit accrues only at the time of sales of the goods only. Therefore, the contention of the revenue that selling and distribution function of the assessee is a separate profit center is required to be rejected at threshold. We have carefully considered the argument of ld. AR and of the revenue on this point as well as the ld. AO and Ld. DRP. We are of the view that this

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argument is almost similar to the argument raised by the revenue in the case of Cadila Healthcare Ltd vs. ACIT 21 Taxmann.com 483. We have carefully perused this decision and note that the controversy in this ground of appeal with respect to applicability of section 80 IA (8) of the act, on marketing and other selling distribution as well as research and development services provided by the undertaking as a whole to the eligible industrial undertaking at the cost or market rate for working out the eligible profit for deduction, has been decided. Ld. DR could not point out any other contrary judgment to the decision cited by the Ld. AR. Therefore, we respectfully following the above decision of coordinate bench hold that provisions of section 80 IA (8) of the act do not apply to the assessee on transfer of services of marketing division of the company to the eligible industrial undertaking whose profits are claimed as deductible.” 146) In view of the above, we reverse the action of the assessing office in partly disallowing deduction under section 80IC on account of the have profit earned by the assessee in the eligible unit. In the result ground No. 31 of the appeal of the assessee is allowed.

This fact is identical with the earlier Assessment Years. The issue is squarely covered in favour of the assessee by the Tribunal’s order for A.Ys. 2010-11 & 2011-12. Besides this the Revenue has accepted this issue and has not challenged the same in Hon’ble High Court. Thus, this issue attains finality. Therefore, Ground No. 41 is allowed in favour of the assessee.”

Section 80IA(10) is applicable to transactions entered with related parties whereas the prices charged by the assessee was from customers/dealers. Thus the final price charged to the end customer was the same irrespective of the unit of manufacture. Therefore, the Assessing Officer was not correct in disallowing the claim of the assessee. In the present Assessment Year also the facts are similar and are squarely covered with the decision of the Tribunal for

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A.Ys. 2010-11, 2011-12, 2012-13 and 2013-14. Besides that no appeal has been filed by the Revenue before the Hon’ble High Court in A.Y. 2011-12, thus, the decision of the Tribunal attains finality. Hence Ground Nos. 35 to 35.1 are allowed.

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have been attributed to advertisement/marketing activities carried out by head office. In order to attribute profits to marketing/advertisement activities, the Assessing Officer computed rate of net profit for the financial year 1984-85, being the first year of operations of the assessee company, at 6.85% on an arbitrary basis and applied the same to arrive at the profit solely attributable to the manufacturing activity of Haridwar unit. On the basis of above, the assessing officer computed profit attributable to the manufacturing activity at Rs. 142.29 crores. Accordingly, deduction under section 80IC qua remaining profit of Rs. 128.45 crores, attributable to marketing and advertisement activity was disallowed. Since the assessing officer had disallowed the entire amount of deduction claimed under section 80IC on various which has been objected in ground of appeal no. 28-34(supra), no further disallowance on account of above was made in the assessment/order.

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record. The Tribunal held in A.Y. 2012-13 as under:

“116. We have heard both the parties and perused the material available on record. The Tribunal in A.Ys. 2010-11 and 2011-12 held as under:

“154) We have heard the rival contentions. We have already discussed the aforesaid issue at length while disposing the ground of appeal No. 31 to 31.2 supra, wherein we have dealt with that head office is a separate cost centre and expenses incurred thereat needs to be allocated to various profit centers/manufacturing units on a rational and scientific basis, without any element of profit/markup. The issue raised by the assessing officer in the present ground of appeal is categorically similar to that raised in the aforesaid ground. Accordingly following our findings stated above, we reverse the action of the assessing officer and delete the disallowance made under section 80IC. Accordingly, the ground No. 33 of appeal is allowed.”

The issue is squarely covered in favor of the assessee by the order dated 24.10.2016 passed by the Tribunal for immediately preceding assessment years, i.e. AY 2010-11 and AY 2011 -12, wherein identical disallowance made by the AO has been deleted. The Tribunal, in coming to the aforesaid discussion, reiterated that the head office is not a separate profit centre and, therefore, no profit is to be separately attributed to such activity. It further observed that, for the purpose of working out eligible deduction under section 80-IC of the Act, actual expenses incurred at the head office are to be allocated between various profit centers on a rational and scientific basis. Therefore, Ground No. 42 to 42.6 are allowed in favour of the assessee.”

The Head office is not a separate profit centre and therefore, no profit is to be separately attributed to such activity. Thus, for the purpose of working out eligible deduction under Section 80IC of the Act, actual expenses incurred at the head office are to be allocated between various profit centers on a rational

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and scientific basis which has been rightly done by the Assessee company. Therefore, the Assessing Officer was not correct in disallowing the said expenses. In the present Assessment Year also the facts are similar and are squarely covered with the decision of the Tribunal for A.Ys. 2010-11, 2011-12, 2012-13 and 2013-14. Hence Ground Nos. 36 to 36.6 are allowed.

1 Interest on loan given at subsidized rate 1,16,460

to the employees

2 Interest on loan provided for working 1,92,329

capital support to vendors

3 Freight Recovery from Customers 37,91,84,235

4 Misc Income Vendors-Cash discounting 2,52,94,640

TOTAL 40,47,87,664

In the return of income, the assessee claimed deduction under section 80IC on the aforesaid ‘other incomes’ since the said receipts had direct and immediate nexus with the business of manufacturing and selling of specific articles or things. The Assessing Officer, without considering the nature of each of the aforesaid receipts, held that the aforesaid incomes were not derived from the business of manufacturing of articles or things and were, therefore, taxable under the head “income from other sources". Accordingly, the Assessing Officer disallowed deduction under section 80IC by an amount of Rs 40,47,87,664.

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However, since the Assessing Officer had disallowed the entire amount of deduction under section 80IC on various grounds which have been challenged in Grounds of appeal No. 28 to 36 and no further disallowance for the aforesaid amount, was made in the assessment order.

“120. We have heard both the parties and perused the material available on record. The Tribunal in A.Ys. 2010-11 and 2011-12 held as under:

158) We have heard the rival contentions. Our findings on the various issues raised by the assessing officer are given in seriatim hereunder: 1. Interest on loan given at subsidized rates to employees

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The Supreme Court in the case of Liberty India vs. CIT: 317 ITR 218, has held that source of income beyond the first degree nexus with the manufacturing operation cannot be considered as derived from such business/activity. Following the aforesaid decision, the Courts / Tribunal in certain cases have held that interest income earned from fixed deposits made by the eligible unit is not eligible for deduction under the relevant provisions of the Act. [Refer: Paswara Electronics (P) Ltd. v. ITO: ITA No. 71/D/2011; Reckit Benckiser India Ltd. v. Addl. CIT: 231 Taxman 585 (Cal.)] However, the facts under consideration are slightly different. The question that needs to be answered is whether interest income earned from loan given at subsidized rate to employees has first-degree nexus with the business operations carried on by the eligible unit. The appellant is engaged in the business of manufacturing two-wheelers and is not engaged in the activity of giving loans and advances to earn interest income. It is not the case of appellant or the assessing officer that surplus funds were given to the employees to earn interest income. The loans/advances to employees under consideration was a measure of incentive / perquisites to the employees involved in carrying on the business of manufacturing. The source of such income is, thus, not the activity of giving loan, but benefit extended to employees engaged in the business. The first-degree nexus of such income, in our view, is the eligible business carried on by the appellant. Therefore, such income would be eligible for deduction u/s 80IC of the Act. The action of the assessing officer on this account is thus reversed. 2. Interest on loans provided for making capital support to vendors The present issue is similar to the immediately preceding issue. In our view, loan has been given to vendors to provide uninterrupted supply of goods to the appellant. The first-degree nexus of giving loan is, thus, business of manufacturing. Accordingly following our findings in the

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preceding issue, the action of the assessing officer on this account is reversed. 3. Freight recovery from customers The assessing officer has completely gone wrong in considering freight charges recovered from customers as an independent source of income. The freight charges recovered by the appellant for supply of vehicle are recoupment of such charges, which were paid by the appellant at the first place to the transporter delivering the vehicle to the customer/dealers. There is no profit element in the aforesaid recovery. In the absence of any income on the aforesaid recovery there was no warrant to deny benefit of deduction under section 80IC on the above. Accordingly, the action of the assessing officer is reversed on this ground. 4. Sundry Sales The present issue is also similar to the immediately preceding issue relating to freight recovery. The sale of some finished components also does not involve any income element inasmuch as semi-finished components are supplied to ancillary units for further processing and finished components procured there from are subsequently debited at cost in the books. There is no profit element in the aforesaid transaction and therefore the benefit of deduction under section 80IC cannot be denied on above. In that view of the matter, the action of the assessing officer is reversed on this ground. 5) Miscellaneous income – cash discounting from vendors The cash discount availed on early/prompt payment to creditors/supplies of material is also not an independent source of income but a discount towards the purchase price. The purchase price of goods is reduced from the profits of the eligible unit to arrive at profit derived from the manufacturing activity. Accordingly, any benefit towards purchase price would have direct nexus with the computation of the aforesaid profits. The

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aforesaid income is, thus, directly related to business of manufacturing. Accordingly the action of the assessing officer in disallowing deduction under section 80IC on above was not valid and therefore, the action of the assessing officer on aforesaid ground is reversed. 6) Exchange fluctuation gain As regards denial of deduction under section 80IC on fluctuation gain of Rs.34,13,666, the appellant has pointed out that there was some mistake in the aforesaid claim which have been rectified by the assessing officer in the order dated 07.05.2015 passed under section 154 of the Act. Accordingly we do not render any finding on the aforesaid issue. As regards gain arising on reinstatement of liabilities in foreign currency against import of goods in our view is similar to the issue of cash discount on purchases dealt supra. Similar to our findings given on the said issue, considering that fluctuation gain on import of goods is going to directly reduce foreign exchange liability to be discharged against import of goods being debited in the profit and loss account to arrive at the profits of the eligible business, such benefit has direct nexus with the said business, which is eligible for deduction under section 80IC of the Act. We draw support for the aforesaid conclusion from the decision of the Bombay High Court in the case of CIT v. Rachna Udyog : 233 CTR 72. Accordingly the action of the assessing officer on this ground is reversed and we hold that assessee is eligible for deduction under section 80 IC of the income tax act on interest on loans given at subsidized rates to the employees of Rs. 1 62975/–, interest on loans provided for working capital support to vendors Rs. 6626854/–, freight recovery from customer Rs. 935418395/–, sundry sales of Rs. 9 2410 3150/–, cash discount received from the vendor is Rs. 5 673 2831/– and exchange fluctuation of Rs. 2 416 7060/–. In the result ground No. 34 of the appeal of the assessee is partly allowed.”

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Similar disallowance made by the assessing officer in the immediately preceding assessment years, i.e. AY 2010-11 and AY 2011-12 has been deleted by the Tribunal vide consolidated order dated 24.10.2016. The Tribunal, after examining the nature of the aforesaid incomes, held that other incomes in the nature of Interest on loan to employees, interest on loan to vendors for working capital support, freight recovery, sundry sales, cash discounting from vendors and exchange fluctuation gain, etc. earned by a unit eligible for deduction under Section 80IC of the Act shall be considered as incidental to the activity of carrying out manufacturing and thus eligible for deduction under that section. Accordingly, the aforesaid issue stands squarely covered in favour of the assessee. Therefore, Ground No. 43 to 43.1 are allowed in favour of the assessee.”

Other incomes in the nature of Interest on loan to employees, interest on loan to vendors for working capital support, freight recovery, sundry sales, cash discounting from vendors and exchange fluctuation gain, etc. earned by a unit eligible for deduction under Section 80IC of the Act has to be considered as incidental to the activity of carrying out manufacturing and thus eligible for deduction under that section as held by the Tribunal in A.Y. 2010-11 and A.Y. 2011-12. In the present Assessment Year also the facts are similar and are squarely covered with the decision of the Tribunal for A.Ys. 2010-11, 2011-12, 2012-13 and 2013-14. Hence Ground Nos. 37 to 37.1 are allowed.

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28.06.2004 as industrial Estate under section 80IC(2)(a)(ii). In this connection, following documents were enclosed. License and registration certificate Direct tax Notification No. 177 dated 28.06.2004 (relevant extracts) Khasra no. Certificate - Central Excise Registration Certificate - Commercial Tax Registration Certificate - First Sales Invoice - Consent to establish motorcycle unit from Uttaranchal - Environment Protection and Pollution Control Board

The assessee for the purpose of establishing a factory/plant, as per the Factory Act, 1948, was required to obtain permission/license from the appropriate authority, in accordance with local State Government Factory Rules, i.e., Uttar Pradesh Factory Rules, 1950. which were applicable in the present case. No separate license was required to carry on the business of manufacture of two wheelers as also to claim deduction for such activity under section 80IC of the Act. The only permission required was the aforesaid license to work as factory, which was submitted along with audit report in Form 10CCB read with Rule 18BBB(4) of the Rules. In view of the aforesaid, the assessee claimed deduction of Rs. 1129.63 crore under section 80IC of the Act during the relevant assessment year. In the assessment order, the Assessing Officer disallowed the entire amount of deduction claimed u/s 80IC of the Act, on the ground that the assessee failed to comply with Rule 18BBB(4) of the Rules inasmuch as the assessee did not obtain any approval for carrying on the business of manufacturing two-wheelers in the State of Uttaranchal. The Assessing Officer further observed that the assessee failed to comply with the condition specified in the Industrial Policy and consequent Notification issued by Uttranchal Government and also failed to meet the condition of continuous employment of specified number of employees on any given day, as contained in the factory license. Since the Assessing Officer had disallowed the entire deduction claimed under section 80IC on various grounds, which have been objected in

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Grounds of Appeal Nos. 28-37 (supra), no further disallowance for the aforesaid amount of Rs. 270,74,38,681 was made in the assessment order.

“124. We have heard both the parties and perused the material available on record. The Tribunal in A.Ys. 2010-11 and 2011-12 held as under:

“136) We have heard the rival contentions. The case of the assessing officer was that the appellant is not eligible for claiming deduction u/s 80IC since it did not satisfy the following conditions: a) The appellant failed to comply with Rule 18BBB of the Rules inasmuch as the appellant did not obtain any approval for carrying on the business of manufacturing two-wheelers in the State of Uttaranchal;

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b) The appellant failed to comply with the condition of employment of natives of State of Uttaranchal at prescribed percentage as contained in the industrial policy issued by the Government for the State of Uttaranchal; [Communication no.429/lnd. Dev. / Employment /2005- 06, dated 19.11.2005, issued by the Secretary, Industrial Development to Director, Industries, Uttranchal] c) The appellant failed to meet the condition of continuous employment of specified number of employees on any given day, as contained in the factory license. As regards the first condition prescribed in Rule 18BBB regarding approval to carry on the eligible business, it was explained by the appellant that for the purposes of carrying on business of manufacturing two-wheelers other than obtaining factory license as per the Factory Act, 1948, no other approval / permission was required from any Central / State government under any law. No such requirement has even been prescribed by the assessing officer. As regards the factory license, the appellant had obtained the said license from the appropriate state authority which was attached along with audit report in Form 10CCB in compliance of Rule 18BBB(4) of the Rules. Considering that no license was required to be obtained to carry on the eligible business under any law, the appellant could not have been said to violate the provisions of said Rule. As regards the other two failures, relating to state industrial policy alleged by the assessing officer, the satisfactions of such conditions have not been stipulated as a condition precedent under any provision of section 80IC of the Act. The provisions of section 80IC are self-contained and if the condition stipulated therein are satisfied, the benefit therein cannot be denied on the ground of non-satisfaction of certain extraneous condition. We, accordingly, hold that there was no failure of satisfaction of conditions precedent to claim deduction u/s 80 IC as was pointed out by the

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assessing officer in the assessment order. That apart, we additionally note that the DRP had also agreed with the aforesaid view and had directed the assessing officer to not deny the benefit of deduction under section 80IC on the aforesaid ground. The DRP had set aside the matter to the file of the assessing officer to examine whether other conditions precedent for claiming deduction u/s 80IC were satisfied by the appellant or not. The aforesaid findings of the DRP have not been challenged by the assessing officer in appeal before us. Such findings have, thus, become final, which could not have been overridden by the assessing officer in the assessment order. Accordingly, for the aforesaid additional reason also, we hold that deduction u/s 80IC cannot be denied for alleged failure to comply with the aforesaid three conditions specified in the assessment order. As regards compliance of conditions precedent for claiming deduction u/s 80IC, we note that the appellant during the course of set-aside proceedings had point-wise given entire details /information as to how it satisfied each condition precedent for claiming deduction under said section. The claim of deduction of the appellant is also duly supported with the audit report in Form 10CCB issued by the auditors, answering each question in the format and how the appellant satisfied all such conditions. In the final assessment order, the assessing officer has not pointed out violation of any such condition precedent. We agree with the submissions of the Ld. Counsel that the various errors (assuming without admitting) in submission of complete details/information by the appellant to the assessing officer, as noted in the assessment order, related to the computation of deduction, on the basis of which entire claim could not have been denied. Accordingly, in our view, the assessing officer was not justified in denying the benefit of deduction u/s 80IC to the appellant of Rs. 9972535090/–. In view of this ground No. 29 of the appeal of the assessee is allowed.”

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This fact is identical with the earlier Assessment Years. The issue is squarely covered in favour of the assessee by the Tribunal’s order for A.Ys. 2010-11 & 2011-12. Besides this the Revenue has accepted this issue and has not challenged the same in Hon’ble High Court. Thus, this issue attains finality. Therefore, Ground No. 44 to 44.4 are allowed in favour of the assessee.”

The assessee company has given all the necessary details to the Assessing Officer and fulfilled all statutory conditions for the claim of deduction under Section 80IC of the Act. In the present Assessment Year also the facts are similar and are squarely covered with the decision of the Tribunal for A.Ys. 2010-11, 2011-12, 2012-13 and 2013-14. Besides, no appeal has been filed by the department before the High Court, thus the order of the Tribunal attains finality. Hence Ground Nos. 38 to 38.4 are allowed.

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hedge itself against the price fluctuation and also to get best rates on account of bulk volumes, negotiated and fixes the rate of above raw materials, which are purchased by the vendors, for making component, etc. supplied by them to the assessee. Further, the components to be fitted in the two-wheelers have to be standardized and must conform to the specifications of the motorcycles to be manufactured by the assessee company. The quality of components used in the assembly of motorcycles, which are sourced from several vendors has not only to be uniform but top grade as well. In order to ensure that the vendors use quality material in fabrication/ manufacture of the intermediary products/components supplied to the assessee, the assessee company after extensive research and investigation zeroes in on credible and reputable manufacturers and insists that the vendors source the raw material /components required from such manufacturers only. Further, in view of the sheer magnitude and size of its operations, the assessee is able to negotiate with the manufacturers of raw material / components for best prices. The assessee advices the vendors who supply intermediary products to the appellant, of the prices negotiated by the assessee with the manufacturers of raw material / components, to be sourced by such vendors. Since the price paid by the assessee to the vendors of intermediary products / components is, in turn dependent on prices of inputs paid by the vendors to suppliers of raw material / components, it is in the best interest of the assessee to ensure that the prices of raw material / components sourced by the vendors from independent manufacturers are kept to the minimum. It is in this background that the assessee seeks to leverage its strength, given the magnitude of its business and requirement of intermediary products to extract the best prices from the manufacturers of raw material or components. The benefit of lower prices enjoyed by the vendors is, in turn, passed on to the assessee when the assessee purchases intermediary products / components from the vendors, utilizing raw materials / components sourced from independent manufacturers at best prices negotiated by the assessee. Furthermore, the assessee specifies suppliers, in view of their technical expertise level, references / reputation, in

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view of their financial stability and staying power, ability to meet delivery due dates and capacity to align with the growth of the company. Also, the supplier must be in a position to serve the assessee company's long term needs by adhering to the delivery agreements with higher technical production level. Therefore, selecting the most appropriate suppliers is considered as an important strategic management decision that helps the company to ensure uniform quality, control prices and ensure continuous and uninterrupted supply of material. Excise duty, sales tax, etc. and other applicable taxes are paid by the vendors on manufacture and sale of goods to the applicable, while claiming CENVAT credit in respect of duty paid on raw materials purchased by the vendors (from the suppliers) for manufacture of goods. The raw material is acquired by the vendor from suppliers, specified by the assessee, in their own name and not on account or behalf of the assessee. The assessee at no point of time acquires ownership of raw material, etc., supplied by the suppliers to the vendors. The goods manufactured remain at the risk of the vendors until supplied to the assessee. The assessee acquires ownership only of the finished goods manufactured and supplied by the vendors at that stage and not at any anterior point of time. Thus, the aforesaid contract was in the nature of contract of sale. The Assessing Officer held that the assessee by specifying the name of vendors of raw material along with purchase price thereof, was controlling the supply of raw material to the vendors, which was to be deemed as supply of raw-material by the assessee itself, and hence the contract with vendors constituted ‘work contract’ under section 194C, as amended by Finance (No. 2) Act, 2009. The Assessing Officer also observed that the vendors are not operating as independent business entities but as captive units and working under the directions and dictation of the assessee, thereby having no independent decision making. In Assessment order, the Assessing Officer further observed that the assessee, while arranging the transactions in the aforesaid manner, viz., routing the supply of material through parties, has hoodwinked the Revenue in order to evade liability to deduct tax at source. The Assessing Officer held that the aforesaid transaction of purchase from vendors

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was in the nature of contract for carrying out work, which was subject to TDS under section 194C and in view of assessee’s failure to deduct tax at source under the aforesaid section, the entire purchases aggregating to Rs. 3,517.67 crores made from the aforesaid vendors was disallowable under section 40(a)(ia) of the Act.

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their tax liability and certificate of CA to that effect have been provided by the parties, no disallowance is even otherwise warranted under section 40(a)(ia) of the Act. In the assessment year 2013-14, the assessing officer while giving effect to the directions of the DRP deleted the disallowance on the basis that the payees have paid taxes on such income. Further without prejudice to the above, the Ld. AR submitted that the assessing officer erred in disallowing 100% of the purchases, instead of restricting the disallowance to 30% of the said total purchases, in terms of the provisions of section 40(a)(ia) as amended by the Finance (No.2) Act, 2014. The Ld. AR pointed out that although the Finance (No.2) Act, 2014 states the aforesaid amendment to be effective from 01.04.2015, however the aforesaid amendment was made with an intent to remove the hardship, the same is also applicable retrospectively including the year under consideration. The Ld. AR relied upon the following decisions wherein it has been held that the aforesaid amendment of reducing the amount of disallowance from 100% to 30% is retrospective:

* Smt. Kanta Yadav vs. ITO (ITA No. 6312/Del/2016)

* Shri Rajendra Yadav vs. ITO (ITA No. 895/JP/2012) Smt. Sonu Khandelwal vs. ITO (ITA No. 597/JP/2013)

Thus, the Ld. AR submitted that without prejudice to the submissions above that there was no failure on the part of the assessee to deduct tax at source from the impugned payment, the disallowance, if any, should be directed to be reduced to 30% of the total expenditure.

“45. We have heard both the parties and perused the material available on record. The Tribunal for A. Ys. 2010-11 and 2011-12 held as under:

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“65) We note that the Ld. assessing officer had adopted the findings and reasons given in the assessment order for AY 2007-08, while repeating the disallowance in the assessment year under consideration. The Tribunal in the order for AY 2007-08 in appellant’s own case has reversed the aforesaid findings of the assessing officer. The coordinate bench has held that impugned transaction is not covered within the scope of section 194C of the Act. The relevant observations of the coordinate bench are as under: “14.58. The issue before us for adjudication is whether on the facts and circumstances of the case, the customized intermediatery products like wheel assembly, seat assembly etc. sourced by the assessee from the vendors is a contract of sale by the vendors or a contract of work. 14.59. The assessing officer issued summons u/s 131 to nine vendors and recorded their statements. This exercise resulted in the assessing officer gathering information from the vendors that they have procured material from the sources specified by the assessee and at rates specified by the assessee. Based on the statements from nine vendors, the assessing officer came to the conclusion that the assessee has termed the “contract of work” as “contract for sale”. The reasons in details for arriving at such conclusion by the Assessing officer and as confirmed by the DRP are discussed in the above paragraphs (supra). 14.60. With the above background, we examine the legal position in this regard. ................... 14.73. On perusal of the above mentioned CBDT Circulars, it can be appreciated that the fact that the goods sold are manufactured according to specifications of the buyer is not relevant in determining whether the contract is a contract of sale or works

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contract. What is relevant to determine the stage of passing of property/title in the goods from the vendor to the buyer. Where title to the goods passes to the buyer at the time goods are manufactured and transported, the contract would be one for sale of goods, notwithstanding that the goods are manufactured according to the specifications of the buyer. 14.74. The principal test to be applied to determine whether the contract is works contract or contract for sale is examined whether title to the goods passes to the purchaser at any time anterior to the manufacture and delivery of goods to the purchaser. If the answer to the aforesaid query is in the negative, then, the contract is one of sale, when the vendor manufactures goods in his own right, as principal, and not as job worker. 14.75. The legal position is well settled that in case title/ownership in goods passes to the buyer on transfer of goods by the vendor, even though goods are manufactured according to the specifications and design supplied by the purchaser, the contract cannot be regarded as contract for carrying out work falling under section 194C of the Act. ................... 14.86. Whether a particular contract constitutes “contract for sale” or “contract for work” is based on facts of each case. The same would depend upon the intention and conduct of the parties as evidenced by the terms of the contract. It is a settled judicial preposition that the substance and not the form of the contract is material in determining the nature of transactions. 14.87. Applying the principals laid by the Courts to the facts of the present case, we now proceed to examine whether the contract in the case on hand is “contract for sale” or “contract for work”.

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(1) All the nine parties are independent legal establishments engaged in the manufacturing of finished products and are not captive units of the assessee. (2) The vendors have their own manufacturing establishments, employing huge labour; utilize the raw materials purchased by them, for producing customized finished goods for the assessee. (3) The assessee has issued purchase orders for supply of components as per the assessee’s specification. The assessee has filed copies of the purchase orders/ invoices. The same finds place in the paper book filed by the assessee. (4) The raw materials are delivered to the vendors by the suppliers and are at the risk and title of the vendors. The suppliers collect from the vendors, sales tax, VAT etc. on sale of raw material and the vendor paid the same. (5) Excise duty is paid by the vendors in their own right, as an independent manufacturer and not as a job worker in respect of goods manufactured and sold to the assessee. (6) The assessee has paid sales tax/VAT, as the case maybe, for the goods purchased from the vendors.

14.88. Further on perusal of the sample purchase orders produced before us and the terms and conditions on which the purchase order is placed, we observe that the transaction is on a principal to principal basis. ................. 14.90. Combined reading of all the terms and conditions of the purchase order takes us to the conclusion that the vendors supply

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finished goods to the assessee at their risk and cost. Title to the finished goods was transferred to the appellant when the supplier/ vendor completed production of the finished goods and dispatched the same to the assessee and only when the assessee approves and accepts the said goods i.e. title passes on acceptance of goods. Until that stage of acceptance on delivery, there is no transfer of title as per the intention of the parties gathered from the purchase order. The transfer of title at the stage of acceptance of deliveries by the purchaser would be, in our opinion, only a sale of goods but not work contract. 14.91. The test laid down by the courts is to examine the intention of the parties as to the point of time when they want to transfer of title in the goods. In this case, the title in the goods vests in the assessee on delivery of the goods. The assessee never acquired any title prior to the point of delivery. 14.92. We are unable to appreciate the conclusion drawn by the assessing officer as approved by the DRP that the assessee has made a deemed purchase of the raw material and in turn made a deemed supply of the same to the vendors. This is nothing but a presumption unsupported by facts. The assessing officer accepts that all the vendors purchase raw material and components from their supplier after paying sales tax, excise duty etc. wherever applicable. The purchases are made on a principal to principal basis. Title in the goods passes to the vendors from the supplier on delivery of the raw material and the assessee does not in any way acquire any title to the goods i.e. raw material. The argument of the Ld. DR that the nature of arrangement of the assessee is that of indirect supply of material to the vendor, which is in the nature of contract for carrying out work is farfetched, devoid of merit and not supported by evidence. It is not the case of revenue that there are any financial transactions

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between the assessee and the raw material suppliers of the vendors. The test is to see the fact whether the assessee acquired any title to the raw material purchased by the vendors from the suppliers. The answer to this is no. We are unable to understand as to how the assessing officer as well as the DRP has considered this as a deemed purchase by the assessee. The reason enunciated by the assessee w.r.t identifying the suppliers of the material along with the determination of price of the raw material fixing of payment terms etc., clearly constitutes a matter of business expediency for the assessee. 14.93. Further, in the statement recorded from the vendors after summoning them u/s 131 of the Act, the vendors have confirmed that this is a case of sale of goods and not a works contract. Mr. Yogesh Kumar Jindal has explained the purpose for which the assessee specifies the suppliers and the rate. 14.94. We have carefully gone through the decision of the Karnataka High Court in the case of Nova Pharma Ltd. (supra) relied by the Ld. DR and are of the view that the fact of the case is clearly distinguishable and cannot be applied to the facts of the present case. The assessee has rightly distinguished the case. As the same is brought out in the earlier part of the order, for sake of brevity we do not repeat the same.

14.95. In this case, there is no supply of raw material by the assessee to the vendors either directly or indirectly. In laying down the quality specification of the products, the assessee is ensuring the required quality of its purchases which in turn ensures the quality of its two wheelers. Considering the magnitude of the total requirements, the assessee was able to negotiate the price and hence is controlling its input costs. The low price enjoyed by the vendors, in turn would be

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passed on to the assessee. This is a case where the vendors were purchasing raw material on their own account by payment of excise duty, VAT etc. The goods were manufactured by the vendors to the specification and other terms and conditions spelt out in the purchase orders and in their own right as independent manufactures. On this factual matrix, we have no hesitation in holding that it is a case of contract of sale and not contract of work. Hence, in our view, the provision of Sec. 194C are not applicable and consequently the disallowance made u/s 40(a)(ia) is to be deleted. 14.96. It would be pertinent to point that section 194C was amended by the Finance (2) Act, 2009 w.e.f. 1.10.2009, whereby the definition of “work” was enlarged to include contract for manufacturing or supplying a product according to the requirement or specification of a customer by using material purchased from such customer. The said amendment also provided that contract for carrying out work shall not include contract for manufacturing or supplying of product according to the requirement or specification of a customer by using material purchased from a person other than such customer. 14.97. In case of the assessee, the finished goods are manufactured by the supplier as per the prescribed specifications of the assessee. The raw material and other ingredients required for manufacture are specified by the appellant, in order to ensure proper quality of the finished products. The rates are negotiated to achieve economy of scale and to leverage the position of the assessee, which leads to reduction in cost of production. Such raw-materials are however acquired by the vendor on their own account and not on behalf of the assessee. 14.98. The right of ownership passes to the assessee only after the goods come into existence, on manufacture and are supplied to the

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assessee as finished goods. Prior thereto, the risk in the goods vests with the vendor/supplier. All the other terms of purchase/sale between the vendor and supplier, like payment terms, period of delivery etc. is for acquisition of ascertained goods – the contract is thus one of sale and not a contract for carrying out work. 14.99.In view of the above finding, we are not adjudicating on the other arguments raised by the assessee on this issue, though we find force in the argument of the assessee that since all the vendors have filed their returns of income and paid taxes on the receipts from the assessee, no disallowance under section 40(a)(ia) is warranted. Hence the additional evidence and additional argument is not adjudicated as it would be an academic exercise. In the result, this ground of the assessee is allowed.” 66) In absence of any contrary decision pointed out by the Ld. departmental representative and the facts and circumstances of the case remaining the same was the assessment years , We follow the aforesaid findings given in the appeal order for 2007-08 and therefore, we hold that the transaction entered by the appellant for purchase of material from vendors is outside the scope of section 194C of the Act. Accordingly, for the aforesaid cumulative reasons, we delete the impugned disallowance made by the assessing officer on account of purchases of Rs. 3 828.78 crores disallowed for failure to deduct tax under section 194C of the income tax act. In the result ground No. 13 of the appeal of the assessee is allowed.”

The issue is squarely covered in favour of the assessee by the Tribunal’s order for A.Ys. 2010-11 & 2011-12. In the present case the recipient have discharged their tax liability and certificate of Chartered Accountant to that effect was provided by the parties, therefore, no disallowance can be made under Section 40(a)(ia) of the Act. Thus, this issue is squarely covered by the

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Hon’ble Delhi High Court decision in case of Ansal Land Mark Township P. Ltd.(supra). Therefore, Ground No. 25 to 25.7 are allowed.”

In this year as well, the issue is squarely covered in favour of the assessee by the Tribunal’s order for A.Ys. 2010-11 & 2011-12 as well as 2012-13 & 2013- 14. In the present case the recipient have discharged their tax liability and certificate of Chartered Accountant to that effect was provided by the parties, therefore, no disallowance can be made under Section 40(a)(ia) of the Act. Thus, this issue is squarely covered by the Hon’ble Delhi High Court decision in case of Ansal Land Mark Township P. Ltd.(supra). Hence Ground Nos. 39 to 39.7 are allowed.

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the Ld. AR, is squarely covered in favour of the applicant by the order of the Tribunal in applicant's own case for assessment year 2007-08 and 2008-09, wherein it was held by the Tribunal that tax is not required to be deducted under section 194H on payments made to dealers on account of sales by dealers on principal to principal basis. Further, it would be pertinent to point out that similar disallowance made by the assessing officer in assessment years 2010-11 and 2011-12 as well as in A.Y. 2012-13 has been deleted by the Tribunal vide order dated 24.10.2016, following the aforesaid orders for earlier years, viz. AY 2007-08 and 2008-09.

“49. We have heard both the parties and perused the material available on record. The Tribunal for A.Ys. 2010-11 and 2011-12 held as under:

“75) We have heard the rival contentions. As dealership agreement entered between the appellant and dealers is on a principal-to-principal basis and dealers do not act as agents of the appellant while purchasing and further selling the vehicles. Accordingly, the incentives offered at the time of purchase of vehicles do not fall within the meaning of commission u/s 194H of the Act. Further, the issue is squarely covered by the decision of the ITAT in assessee’s own case in AY 2008-09 wherein following the ITAT decision in assessee’s own case for the year AY 2007-08, it was observed as under – “148. From the bare reading of the decision of the Tribunal in assessee’s own case for AY 2007-08 (supra), we observe that after dealing with rivals submissions and contentions of both the parties, the tribunal reached to the following finding and conclusion deciding the issue in

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favour of the assessee. The relevant operative part of the order of the Tribunal for AY 2007-08 in assessee’s own case (supra) read as under- “45.11. The facts of this case clearly demonstrate that what is given to the stockiest/ dealers is discount on the purchase price and not any commission. The stockiest/ dealers purchase spare parts/ vehicles from the assessee. They are not commission agents. Sale consideration is paid by these parties to the assessee. As a matter of incentive for higher sale the assessee grants discount if the stockiest/ dealers achieve a particular volume of transaction. Thus, in our view the discount in question is not in the nature of commission or the brokerage which attracts sec. 194H. In the case of CIT Vs. Mother Dairy Ltd. (ITA no. 1925/2010(Del) the Hon’ble Delhi High Court was considering similar case and held as follows: “3. The assessee explained in writing that it sold the products to the concessionaires on a principal to principal basis, that the concessionaires buy the products at a given price after making full payment for the purchases on delivery, that the milk and other products once sold to the concessionaires became their property and cannot be taken back from them, that any loss on account of damage, pilferage and wastage is to the account of the concessionaires and that in these circumstances the payment made to the concessionaires cannot be treated as “commission” for services rendered and consequently there was no liability on the part of the assessee to deduct tax. It is irrelevant that the concessionaires were operating from the booths owned by the Dairy and were also using the equipment and furniture provided by the Dairy. That fact is not determinative of the relationship between the Dairy and the concessionaires with regard to the sale of the milk and other products. They were licensees of the premises and were permitted the use of the equipment and

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furniture for the purpose of selling the milk and other products. But so far as the milk and the other products are concerned, these items became their property the moment they took delivery of them. They were selling the milk and the other products in their own right as owners. These are two separate legal relationships. The income tax authorities were not justified or correct in law in mixing up the two distinct relationships or telescoping one into the other to hold that because the concessionaires were selling the milk and the other products from the booths owned by the Diary and were using the equipment and furniture in the course of sale of the milk and other products, they were carrying on the business only as agents of the Diary.” 45.12. The Hon’ble High Court held that in such circumstances S.194H is not attracted. 45.13. In the case of Jai Drinks (P) Ltd. 336 ITR 383 (Del.), the Hon’ble Delhi High Court has held as follows: “Held, dismissing the appeal, that a perusal of the agreement showed that the assessee had permitted the distributor to sell its products in a specified area. The distributor was to purchase products at a pre- determined price from the assessee for selling them. Both the assessee and the distributor had been collecting and paying their sales tax separately. The CIT(A) and also the Tribunal rightly held that the payments being made by the assessee to the distributor were incentives and discounts and not commission.” 45.14. Respectfully following the propositions laid down in the aforementioned cases we allow this ground of the assessee.” 76) In that view of the matter, the Ld. departmental representative could not point out any decision contrary to the above finding of the coordinate bench or change in the facts and circumstances of the case, therefore respectfully following the decision of the coordinate bench in the

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appellant’s own case for assessment years 2007-08 and 2008-09 discussed supra, we delete the disallowance made by the Ld. assessing officer on account of expenditure of Rs. 3 6880 2598 towards the quarterly target on turnover discount on trade discount of Rs. 2 7744 7608 given to the dealers. In the result ground No. 15 of the appeal of the assessee is allowed.”

This issue is covered in favour of the Assessee by the Tribunal order for A.Ys. 2010-11 and 2011-12 as well as, the decision of the Hon’ble High Court in case of Mother Dairy Ltd. (supra). Therefore, Ground No. 26 to 26.3 are allowed in favour of the assessee.”

The issue in the present Assessment Year is also identical to that of A.Ys. 2010-11 to 2012-13. Besides that since the payees have also paid tax on the income received/receivable from the assessee, no disallowance could be made under Section 40(a)(ia) of the Act. We agree with the findings of the Tribunal for A.Y. 2007-08 that tax is not required to be deducted under Section 194H on payments made to dealers on account of sales by dealers on principal to principal basis. Thus, Ground Nos. 40 to 40.3 are allowed.

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when the same are presented by the dealers to the company, in terms of the reciprocal obligation of the company towards the dealers, incurred by the Company at the time of sale of products to the dealers. The Assessing Officer/DRP held that the payments made by the assessee in the form of reimbursement of free service coupons is nothing but consideration in lieu of service provided by the dealers to the appellant, which falls within the meaning of "professional’ or ‘technical’ service in terms of section 194J read with section 9(i)(vii) of the Act. In view of the same, since the assessee has failed to deduct tax at source under section 194J from the expenditure of Rs. 71.42 crores incurred during the year, the same was disallowable under section 40(a)(ia) of the Act.

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on to the company merely because payment is made by the customer not in cash but by way of prepaid coupon, the liability where under is discharged by the company. In view of the above, no service or work is rendered to and no work is performed for the company by the dealer, so as to result in the company being obliged to deduct tax at source under the provisions of Chapter XVIIB of the Act from payment towards free service coupons to the dealers. The Ld. AR further pointed out that the aforesaid issue is squarely covered in favour of the assessee by the decision of the Delhi bench of the Tribunal in the assessee's own case for the assessment year 2007-08, wherein the Tribunal deleted the disallowance made under section 40(a)(ia) on the ground that - (i) repair services do not fall within the meaning of professional services defined under section 194J of the Act and (ii) no service was, in any case, availed by the assessee from dealers; service, if any, was availed by customers from the dealers, necessitating obligation on the assessee to deduct tax at source. Further, no disallowance on the aforesaid ground has also been made by the Revenue authorities in the succeeding assessment years. The Ld. AR submitted that following the order for the Assessment year 2007-08, the Tribunal decided the issue in favor of the assessee in the assessment years 2008-09, 2010-11 and 2011-12.

“218) We have heard the rival contentions. We note that similar issue relating to disallowance u/s 40(a)(ia) for non-deduction of tax from reimbursement of free service coupons, was deleted by the tribunal in the assessee’s own case for assessment year 2007-08 which was followed in assessment year 2008-09. The relevant observations of the Tribunal for assessment year 2007-08 are as under:-

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“29.41.In the case on hand, the obligation incurred by the assessee at the time of sale to pay the cost of free services and is not payment made in consideration for the rendering of any managerial, technical or consultancy services as defined for the purpose of S.194J. Routine repairs which includes supply of spares does not attract Sec. 9(1)(vii) of the Act and hence no TDS need be done u/s 194J. As sec. 194J does not apply, disallowance u/s 40(a)(ia) on the ground that no deduction of tax at source is made u/s 194J is bad in law and has to be deleted.

29.42. We also find force in the argument of the assessee that the services in this case are availed by the ultimate customer who has paid the consideration by way of sale price to dealer by a separate transaction of purchase of two-wheeler. Service is neither availed by the assessee nor is the payment made by the assessee in consideration of availing a service for itself. As already stated, even if it taken as a service availed by the assessee, sec. 194J is not attracted as this is not a technical service.

29.43. Revenue has placed reliance in Circular No. 8/2009 dated 24-11- 2009. In this circular it was clarified that payments made by TPA on behalf of insurance company to Hospitals are liable for deduction of tax at source. The view in this case is that the service is a professional service in the field of medical service. Hence Sec. 194J was made applicable. The same does not apply here. Even otherwise, this proposition as a matter of fact supports of the case of the assessee. In the case of the assessee, the dealer is playing a role similar to that of the TPA in as much it is making payment to the person doing the repair job. This payment made for service rendered is only being made by the dealer. Applying the proposition laid out in the Board Circular, technically it is the dealer who is liable to deduct tax at source on payments made to the service provided for doing the repair jobs but not the assessee The subsequent reimbursement made by the assessee to the dealer cannot be covered under the provisions of sec.

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194J of the Act.

29.45. On this factual matrix, and as Sec. 194J is not attracted in this case, we uphold the contentions of the assessee and allow this ground of appeal.”

The Ld. Departmental representative could not point out any change in the facts and circumstances of the case of the appellant as compared to the assessment year in which the above issue is decided by the coordinate bench. No other contrary decision was also pointed out therefore, respectfully following the decision of the coordinate bench in the appellant’s own case for the earlier years, We dismiss ground No. 7 of the appeal of the revenue.”

In the present case also the facts are identical and there is no distinguishing factors pointed out by the Ld. DR. Thus, repair services do not fall within the meaning of professional services defined under Section 194J of the Act. From the records it can be seen that no service was availed by the assessee from the dealers. Therefore, Ground Nos. 41 to 41.6 are allowed.

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“61. We have heard both the parties and perused the material available on record. Similar disallowance of additional depreciation on computers installed in factory premises made in the preceding assessment years, viz. AY 2010-11 and 2011-12, was set aside by the Tribunal to the file of assessing officer to determine if the computers were used for data processing at industrial premises. The Tribunal held as under:

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“90) We have heard the rival contentions. We find that there is no dispute to the effect that the computers on which additional depreciations have been claimed during the year under consideration are not installed on the shop floor or such computers directly facilitate in the manufacturing process, but have been installed in the administrative / supervisory offices located in the compound of the factory premises. The plea of the appellant has been that for the purpose of additional depreciation, distinction has to be drawn between the computers installed in the supervisory offices of the manufacturing plant with the computers installed at the head office / corporate office, which is involved in the overall supervision of the business function. It has been argued that in the former case, although the computers are not directly involved in the manufacturing operations, but are indirectly facilitating the manufacturing activity as opposed to the computers installed at head office / corporate office. It was the submission that the exclusion of “machinery or plant installed in any office premises” under clause (b) of the proviso to section 32(1)(iia) of the Act is applicable to office premises like head office / corporate offices where there is no direct or indirect nexus with the manufacturing operations. The plant and machinery installed in the offices supervising the manufacturing operations should be viewed distinctly and are outside the ambit of exclusion provided in the aforesaid section. We have, however, found that the aforesaid plea was not accepted by the Tribunal in the appeal orders for AY 2007-08, which was followed in appeal for AY 2008-09. However during the course of hearing before us, the Ld. authorized representative has placed reliance on the decision of the Hon’ble Gujarat High Court in the case of CIT versus startronics enterprise is private limited 288 ITR 455, which was not raised before the coordinate bench in the earlier orders of the appellant for earlier assessment year, wherein the Hon’ble high court has considered the identical issue with respect to the computer installed in the office premises and under:-

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“8. Placing reliance upon section 32(1)(iia) of the Act, it is submitted that if the plant or machinery is installed in any office premises or in residential accommodation, then, no deduction shall be allowed under clause (iia) of section 32(1). Section 32(1)(iia), with its proviso, for the purposes of this case, would read as under : 32.(1) In respect of depreciation of buildings, machinery, plant or furniture owned by the assessee and used for the purposes of the business or profession, the following deductions shall, subject to the provisions of section 34, be allowed—. . . (iia) in the case of any new machinery or plant (other than ships and aircraft) which has been installed after the 31st day of March, 1980, but before the 1st day of April, 1985, a further sum equal to one-half of the amount admissible under clause (ii) (exclusive of extra allowance for double or multiple shift working of the machinery or plant and the extra allowance in respect of machinery or plant installed in any premises used as a hotel) in respect of the previous year in which such machinery or plant is installed or, if the machinery or plant is first put to use in the immediately succeeding previous year, then, in respect of that previous year : Provided that no deduction shall be allowed under this clause in respect of— (a) any machinery or plant installed in any office premises or any residential accommodation ; . . . " 9. It is submitted that even if the computers and data processing machines are taken to be plant and machinery and are entitled to investment allowance, because of their location in the office, additional depreciation would not be allowable. The thrust of the argument is on the words " office premises" .

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Thus, in the present year as well we are remanding back the matter to the file of the Assessing Officer to determine if the computers were used for data processing at industrial premises or not. We direct the Assessing Officer that after taking congnizance of the same pass appropriate order. Needless to say, the assessee be given opportunity of hearing by following principles of natural justice. Therefore, Ground No. 29 to 29.2 are partly allowed for statistical purpose.”

In the present Assessment Year also the facts are similar and are squarely covered with the decision of the Tribunal for A.Ys. 2010-11, 2011-12, 2012-13 and 2013-14. Thus, in the present year as well, we are remanding back the matter to the file of the Assessing Officer to determine if the computers were used for data processing at industrial premises or not. We direct the Assessing Officer that after taking congnizance of the same pass appropriate order. Needless to say, the assessee be given opportunity of hearing by following principles of natural justice. Hence Ground No. 42 is partly allowed for statistical purpose.

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the cost of production of electricity by the assessee no deduction under section 80IA of the Act was allowed in the assessment order.

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has been pleased to admit the substantial question of law on the aforesaid issue of deduction under section 801A in assessment year 2002-03 in assessee’s own case in ITA No. 31/2014 vide order dated 15.07.2014. The Ld. AR pointed out that the assessee filed a miscellaneous application against the aforesaid order passed by the Tribunal pointing out that the assumption of the Tribunal that Maruti supplied power to related/ associated enterprises, which have been defined under section 92A of the Act to mean companies having common control/ directions, etc., had no factual foundation. The Tribunal vide order dated 06.09.2013 modified its earlier order by substituting the words “associated enterprises” with “ancillary units”. The Ld. AR further pointed out that the Tribunal in the assessee’s own/case for the assessment year 2010-11 and 2011-12, after taking into account the MA order of the Tribunal for the assessment year 2006-07 decided the issue in favour of the assessee, holding that for the purpose of determination of ‘market price7 of power under Section 80IA(4) read with 80IA(8) of the Act, where multiple options of price of a product are available, then the price which is most favorable to the needs to be adopted. The Tribunal, while distinguishing the decision of Delhi bench of the Tribunal in the earlier years, also held that price of power charged by State Electricity Board is not reflective of market price for computing deduction under Section 80IA(4) of the Act.

“124) We have carefully. We find that the expression ‘market value’ for inter-unit transfer has been defined under Explanation to section 80IA of the Act as follows:

…………………………

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In the present case also there are three rates, (i) rates at which power is purchased from state electricity board, (ii) the cost of production of the power by the legible unit of the assessee and mark up thereon (iii) the rates at which power is supplied by Independent party to its ancillary unit. Therefore, there are multiple basket of the market rates. As held in above decision that where multiple options for the price of a product are available, then the option which is most favorable to assessee needs to be adopted for the purposes of determining inter-unit transfer price u/s 80IA(8) of the Act. Further it is not the case of the revenue that the power cost incurred by the assessee is inflated or incorrect. In that view of the matter, in the present case, considering that three different prices for supply of power are available in the market, the method adopted by the appellant to compute inter-unit transfer price by imputing a reasonable mark-up on its cost of production, i.e., Rs. 8.75, which was less than the rate of Rs. 9.84 charged by Maruti, was quite a reasonable for the purposes of computing deduction u/s 80IA(4) of the Act. Therefore we reverse the disallowance made by the Ld. assessing officer of deduction of Rs. 807.76 Lacs under section 80IA, in relation to the generation of power. Accordingly, the ground No. 26 of appeal stands allowed.”

In the present Assessment Year also the facts are similar and are squarely covered with the decision of the Tribunal for A.Ys. 2010-11 and 2011-12. In fact here also price of power charged by State Electricity Board is not reflective of market price for computing deduction under Section 80IA (4) of the Act. Hence Ground No. 43 is allowed.

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average cost for the actual claims received in the past two years, which was a scientific and rational basis, and had been accepted in the past by the Revenue. The assessee had, in the relevant previous year debited provision of Rs.7.45 crores in respect of warranty liability for sales made during the relevant previous year. The assessee as per consistent, regular and accepted method of accounting claimed deduction of the said expenditure on account of provision for warranty as revenue expenditure. The Assessing Officer observed that a more scientific formulae could have been adopted to arrive at an amount which was closer to the actual expenditure and that liability arrived at as per the present method was not appropriate. The assessing officer also observed that since provision made each year is more than actual warranty claims, the said provision is an unascertained liability, which could not be allowed deduction.

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year 1999- 2000 was also dismissed by the Supreme Court. Further, the Tribunal in assessee's own case for assessment year 1998-99, 1999-00, 2001- 02. 2007-08 and 2008-09 decided the issue in favour of the assessee and accepted the method of accounting for warranty claim. The departmental appeal has not been entertained by the High Court against said orders. The Ld. AR pointed out that the Revenue has not preferred appeal against the order passed by the CIT(A) on the aforesaid issue for the assessment year 2003-04 which is pending before the Tribunal. Thus the Ld. AR submitted that the Revenue itself has accepted the aforesaid claim made by the assessee.

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the Tribunal. Thus the Revenue accepted the aforesaid claim made by the assessee. Therefore, the Assessing Officer was not correct in disallowing the provision for warranty holding the same to be unascertained as the provision for warranty was made by the assessee since A.Y. 1996-97 on the basis of weighted average cost for the actual claims received in the past two years which was a scientific and rational basis and accepted by the revenue in past. Hence Ground Nos. 44 to 44.2 are allowed.

(i) that the assessee shall utilize distribution network and other intangibles of HM while making export sales; and

(ii) the exported products must bear the trade-marks designated by Honda.

The assessee submitted before the Assessing Officer that the aforesaid payment of export commission is for the purpose of ceding overseas territories for export by the assessee company and payment so received by Honda was not taxable in India and was allowable revenue expenditure in the hands of assessee. The Assessing Officer held that the payment of export commission to Honda was in the nature of royalty/fee for technical services on the ground that same was consideration for right to use trademark and managerial and technical services, which was taxable in India in terms of section 9(1)(vi)/(vii) of the Act and accordingly the assessee was under obligation to deduct tax under section 195 of the Act on such payment. In view of the failure of the assessee to deduct

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tax at source from the /aforesaid payment, the Assessing Officer disallowed the entire amount of export commission paid by the assessee, invoking provision of section 40 (a)(i) of the Act. The Assessing Officer also held that since the whole arrangement between the assessee and Honda revealed that Honda directed export to specified territories and the said exports were more for the purpose of Honda than the assessee company, the same could not, therefore, be allowed under section 37(1) of the Act. According to the Assessing Officer, the expenditure was purely in the nature of license acquired by the assessee for the purpose of making export to the countries where Honda had exclusive privilege to operate. The export commission was also disallowed under section 92CA, objected infra, on the ground of not being at arm's length price.

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favour of the assessee. In the present Assessment year also the facts remains the identical. Therefore, Ground Nos. 45 to 45.8 are allowed.

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transaction in the case of assessee was also not genuine. The disallowance has been made purely on the basis of surmises. The Ld. AR submitted that it is a settled legal position that once the initial onus was discharged by the assessee, the onus was upon the assessing officer to prove that the transaction was not genuine, by bringing some adverse material on record. The Ld. AR made reference to the following decisions:

Kalwa Vs. UOl 49 HR 165 (SC) •

CIT vs. Daulat Ram 87 ITR 349 (SC) •

CIT vs. Durgaprasad 82 ITR 540 (SC) •

In view of the above, in the absence of any adverse evidence being brought on record by the Assessing Officer thereby failing to discharge placed on it, the impugned disallowance deserves to be deleted on the aforesaid ground itself, at the threshold.

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MCX/T&S/032/2007 22nd Jan., 2007 had earlier directed that modification of up to 1% of the total traded value of securities shall be permissible and no penalty thereof shall be levied on brokers for such rectification. The aforesaid Circular was later superseded vide Circular No. DNPD/6/2011 dated 05.07.2011 wherein it has been categorically stated that Stock Exchange may allow for modifications of client codes of non-institutional trades to rectify a genuine error in entry of client code at the time of placing / modifying the related order. Thus, it would be appreciated that even the SEBI considers a modification of 1 % as normal on account of human element involved in the process of securities transactions. The Ld. AR therefore submitted that assuming that such shifting had happened, such shifting was genuinely happened on account of human error in recording the wrong code on the part of the broker. The Ld. AR relied upon the decision of the Ahmedabad bench of the Tribunal in the case of ACIT v Kunvarji Finance (P.) Ltd: 170 TTJ 345. In that case, the assessee company was engaged in business of shares and securities, commodity trading, speculation in shares and commodities, etc. and was part of group of companies which included K Ltd. K Ltd. was a registered broker in Commodity Exchanges. In course of search at assessee's group company, it was noted that K Ltd. had done client code modifications multiple times. Assessing Officer was of view that since company and KCBPL were group concerns, client code modifications was done with intention of transferring profit to some other persons as against and therefore, worked out notional profit/loss which could have occurred to had client code been not modified. The Tribunal observed that as per MCX Circular, client code modification upto 1% of total order is absolutely normal and broker is permitted to modify client up to 1 per cent without paying any penalty and since assessee's client code modification is less than 1 per cent of total trading transactions, impugned addition was to be deleted. The Ld. AR relied upon the following decisions:

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• AC IT vs. Amar Mukesh Shah: 46 ITR(T)234( Ahm)

• Ashok Goyal (HUF) vs. AC1T: 165 TTJ 306(Ahm)

• Pal Commodity Services Pvt. Ltd. vs. DIT: ITA No. 3498/M u/2012

For the aforesaid cumulative reasons, the Ld. AR submitted that the disallowance made on account of alleged shifting on profits/losses through client modification on an ad-hoc basis is unwarranted and liable to be deleted. The Ld. AR submitted that the CIT(A) in the assessment year 2010-11 deleted the addition made in the assessment order passed under section 147 of the Act holding that the assesssee would not engage in such a miniscule transaction taking into consideration the fact that huge capital gain of Rs. 20 crores was offered to tax in the return of income.

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been made purely on the basis of assumptions and surmises. There was no adverse material on record which shows that the assessee has shifted the profits and/or losses through Client Code Modification (CCM). In fact, the assessee recorded profit/loss of Rs. 145.43 crores from transactions of sale/purchase of shares & mutual funds and tax thereon had been offered to tax in the return of income as well by the assessee. Thus, Ground No. 46 is allowed.

Order pronounced in the Open Court on 23rd April, 2019.

Sd/- Sd/- (N. K. BILLAIYA) (SUCHITRA KAMBLE) ACCOUNTANT MEMBER JUDICIAL MEMBER

Dated: 23/04/2019 R. Naheed * Copy forwarded to: 1. Appellant 2. Respondent 3. CIT 4. CIT(Appeals) 5. DR: ITAT

ASSISTANT REGISTRAR ITAT NEW DELHI

202 ITA No. 1351/Del/2018

Date of dictation Date on which the typed draft is placed before the dictating Member

Date on which the typed draft is placed before the Other Member

Date on which the approved draft comes to the Sr. PS/PS

Date on which the fair order is placed before the Dictating Member for pronouncement

Date on which the fair order comes back to the Sr. 23.04.2019 PS/PS

Date on which the final order is uploaded on the 23.04.2019 website of ITAT

Date on which the file goes to the Bench Clerk 23.04.2019

Date on which the file goes to the Head Clerk

The date on which the file goes to the Assistant Registrar for signature on the order

Date of dispatch of the Order