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Income Tax Appellate Tribunal, “G” BENCH, MUMBAI
Before: SHRI SAKTIJIT DEY & SHRI N.K.PRADHAN
The captioned appeal by the Revenue arises out of order dated 15th March, 2016 of learned Commissioner of Income Tax–Appeals, Mumbai pertaining to Assessment Year 2010–11. In ground no. 1 the Revenue has challenged allowance of assessee’s claim of deduction under section 10B of the Act and has 2 M/s Sequnet Scientific Ltd. further challenged the non reduction therefrom the deduction claimed under section 35(2AB) of the Act.
Briefly the facts are, the assessee is a resident company engaged in manufacture and sale of Active Pharmaceutical Ingredients (API) and bulk drugs. For the assessment year under dispute assessee filed its return of income on 15.10.2010 declaring total income of `.72,4,080/– after claiming deduction under section 10B of the Act. Subsequently, assessee filed a revised return of income on 30.3.2012 declaring total income of `. 8,99,11,494/– under the normal provisions of the Act and book profit of `. 34,91,51,096/– under section 115JB of the Act. During the assessment proceedings the Assessing Officer noticing that the assessee had claimed deduction of `. 5,33,72,623/– under section 10B of the Act in respect of its unit at Mangalore, called upon the assessee to furnish the necessary details. From the material available on record, he found that the assessee has claimed the aforesaid deduction for the first time during the year. After verifying the certificate issued by the Auditor in Form no. 56G and the permission granted by the Development Commissioner, the Assessing Officer called upon the assessee to furnish separate Profit & Loss Account of the Export Oriented Unit (EOU). On perusing the details furnished by the assessee the Assessing Officer observed that the assessee is not maintaining separate account for EOU and non EOU.
3 M/s Sequnet Scientific Ltd. Further, he observed, the Mangalore unit, in respect of which the assessee had claimed deduction under section 10B of the Act, was made after splitting up of old business. Referring to the provision of section 101B of the Act, the Assessing Officer observed that deduction under the said provision is not allowable if the unit is formed by splitting up, or reconstruction of a business already in existence except in the circumstances specified in the provision of the Act. Referring to the approval granted by the Development Commissioner on 26.2.2010 the Assessing Officer observed, it is not possible for the assessee to achieve export worth of `. 14,04,18,342/– in such a short span. Further, he observed, the assessee has not produced any evidence to prove that the export proceeds were realized within the prescribed time limit provided in section 10B of the Act. Without prejudice, the Assessing Officer observed, while computing deduction under section 10B of the Act, the additional deduction claimed under section 35(2AB) of the Act has to be reduced. On the basis of aforesaid reasoning the Assessing Officer ultimately disallowed assesse’s claim of deduction under section 10B of the Act.
Being aggrieved, assessee preferred an appeal before learned Commissioner (Appeals). In course of appeal proceedings, the assessee apart from making elaborate submissions in support of deduction claimed under section 10B of the Act also furnished some more evidences. The submissions made and evidences produced by 4 M/s Sequnet Scientific Ltd. the assessee were forwarded to the Assessing Officer seeking his comments/report. As observed by learned Commissioner (Appeals), in his report dated 9.9.2014 the Assessing Officer did not offer any comments regarding the acceptability or otherwise of additional evidences furnished by the assessee. The Assessing Officer merely repeated his own reasoning while disallowing the deduction in the assessment order. Thus, learned Commissioner (Appeals) proceeded to decide the issue on the basis of evidences available on record keeping in view the submissions of the assessee as well as the comment of Assessing Officer in the remand report. After analyzing the materials on record, learned Commissioner (Appeals) recorded a factual finding that the Mangalore unit was not formed by splitting up of an existing business. Therefore, he concluded that the assessee is eligible to avail deduction under section 10B of the Act. In so far as the issue of reduction of deduction allowed under section 35(2AB) of the Act for the purpose of computing deduction under section 10B of the Act, learned Commissioner (Appeals) having examined facts and material on record found that expenses claimed under section 35(2AB) of the Act were reduced by the assessee while computing deduction under section 10B of the Act. Hence, he observed, no further adjustment is required. Accordingly, he decided the issue in favour of the assessee.
5 M/s Sequnet Scientific Ltd.
The ld. Departmental Representative strongly relying upon the observations of the Assessing Officer submitted, the facts on record clearly reveal that the Mangalore unit in respect of which the assessee has claimed deduction under section 10B of the Act was set up after amalgamation of an existing business with the assessee. Thus he submitted, since the Mangalore unit was set up/came into existence on splitting up of existing business, one of the condition of section 10B is not fulfilled. Hence, the assessee is ineligible to avail deduction under section 10B of the Act. The learned Authorised Representative submitted, the Assessing Officer is both factually and legally incorrect while disallowing assessee’s claim of deduction under section 10B of the Act. He submitted, the Mangalore unit got approval from Development Commissioner on 27.2.2007 and commenced commercial production on 4th December, 2007. He submitted, the Mangalore unit was earlier belonging to the erstwhile Sequent Scientific Ltd. which was incorporated on 16.8.2002. He submitted, the erstwhile Sequent Scientific Ltd., did not claim any deduction under section 10B of the Act in respect of Mangalore unit. . He submitted, subsequently erstwhile Sequent Scientific Ltd. merged with the present assessee PI Drugs Limited under a scheme of amalgamation and was again renamed as Sequent Scientific Limited. He submitted, substantial additions were made to fix assets of the undertaking including building, land and machinery after amalgamation. Thus, he submitted, 6 M/s Sequnet Scientific Ltd. the Mangalore unit was not formed by splitting up of an existing business. Referring to section 10B (7A) of the Act, learned Authorised Representative submitted, as per the aforesaid provision the assessee is eligible to claim deduction under section 10B of the Act. To substantiate his submissions ld. Authorised Representative took us through various documentary evidences compiled in the paper book including the approval by the Development Commissioner and subsequent ratification by Board of Approval. Thus, he submitted assessee having fulfilled the conditions of section 10B of the Act is eligible to claim deduction. In so far as the issue of reduction of expenses claimed under section 35(2AB) of the Act, learned Authorised Representative strongly relied upon the observations of the learned Commissioner (Appeals). Further, in this regard he strongly relied upon the decision of Hon’ble Supreme Court in case of CIT vs. M/s Yokogawa India Limited,[2017] 391 ITR 274 (SC).
We have considered rival submissions and perused the material on record. We have also examined the case law cited before us. From the material on record the following factual position emerges. The Mangalore unit in respect of which the assessee has claimed deduction under section 10B was initially set up by erstwhile Sequent Scientific Limited in February, 2007. The aforesaid unit was approved as a 100% EOU by the Development Commissioner, Cochin Special Economic Zone (CSEZ) vide letter 27th February, 2007. Subsequently, the 7 M/s Sequnet Scientific Ltd. approval granted by the Development Commissioner, CSEZ, was ratified by the Board of Approval on 18th January, 2011, a copy of the said approval has been placed at page 107 of the paper book. Thus from the aforesaid facts it is clear that the first condition of section 10B that the assessee must be an approved 100% EOU stands satisfied. The next issue which arises for consideration is, whether the Mangalore unit has been set up by splitting up of a existing business. As discussed earlier, the Mangalore unit was set up by Erstwhile Sequent Scientific Unit in the year 2007 and commenced its commercial production w.e.f. 4th December, 2007. It is undisputed that the erstwhile Sequent Scientific Limited had not claimed any deduction under section 10B of the Act in respect of profit derived from Mangalore unit. The erstwhile Sequent Scientific Limited got amalgamated/merged with the assessee company, earlier known as PI Drugs Limited under a scheme of amalgamation approved by the Hon’ble High Court. After amalgamation/merger the assessee again renamed itself as Sequent Scientific Limited. It is also evident, after the merger/amalgamation assessee made substantial investment by making addition to the fixed assets, such as, building, land and machinery. The aforesaid factual position remains undisputed even before us. Therefore, in the above factual scenario the issue arising for consideration is, can there be a splitting up of business as alleged by the Assessing Officer. On a careful reading of section 10B as a whole 8 M/s Sequnet Scientific Ltd. and sub section (7A) in particular, it becomes clear that in case of transfer of an undertaking before the expiry of period of deduction specified under section 10B to another Indian company in a scheme of amalgamation of demerger, no deduction would be allowed to the amalgamating/demerged company for the previous year in which amalgamation/demerger takes place. However, the benefit of deduction would be available to the amalgamated company as would have applied to the amalgamating or the demerged company had amalgamation or demerger not taken place. In the facts of the present case, admittedly, the Mangalore unit of erstwhile company was transferred to the assessee under a scheme of amalgamation. Thus, the provision of sub section (7A) of section 10B of the Act would be applicable to the present case. Accordingly it cannot be said that the Mangalore unit has been formed by splitting up of an existing business. Having held so, it is now necessary to examine the doubt raised by the Assessing Officer with regard to the quantum of export turnover achieved by the assessee during the year. The Assessing Officer had observed that considering the fact that the Mangalore unit was approved on 26.02.2010 it would not have been possible to export goods worth `. 14,04,18,342/– within such a short time. As rightly observed by the learned Commissioner (Appeal), the doubt raised by the Assessing Officer was on account of factual misconception that the EOU was approved on 26.02.2010. On the contrary, the material on 9 M/s Sequnet Scientific Ltd. record clearly demonstrates that the EOU was approved on 27.02.2007 and the approval was ratified by the Board of Approval on 14th January, 2011. Thus the doubt raised by the Assessing Officer also stands clarified. In so far as the objection raised by the Revenue relating to non reduction of expenses claimed under section 35 (2AB) of the Act, it is observed, in paragraph 5.4.11 of his order learned Commissioner (Appeal) has recorded a factual finding that after verifying the details furnished by the assessee it was found that expenses claimed under section 35(2AB) were reduced while computing deduction 10B of the Act, thereby, requiring no further adjustment. The learned Departmental Representative has not brought any material on record to controvert the aforesaid factual finding In view of the above said we do not find any reason to interfere with the decision of learned Commissioner (Appeals) on this issue. The ground raised
being devoid of merit is dismissed.
6. In ground no. 2 Revenue has challenged the decision of learned Commissioner (Appeals) in directing the Assessing Officer to allow deduction of `. 12,55,44,413/– representing the addition made to closing inventory.
7. We have heard the parties and perused the material on record. As could be seen from facts on record, in course of assessment proceeding for A.Y. 2009–10 the Assessing Officer noticed that inventories to the extent of `. 14,40,81,661/– were written off in the 10 M/s Sequnet Scientific Ltd. revised return of income. After considering the explanation of the assessee that it represents obsolete stock of the amalgamating company and rejecting it, the Assessing Officer disallowed the claim of write off. While deciding assessee’s appeal on the issue learned Commissioner (Appeals) allowed claim of write off to the extent of `. 12,55,67,368/– and disallowed the balance amount. Against the aforesaid decision of ld. Commissioner (Appeals) both the assessee and the Revenue went in appeal before the Tribunal. While deciding the issue, the Tribunal vide order dated 10.01.2018 in and 5263/Mum/2013 allowed assessee’s claim of write off on the entire amount of `.14,40,81,661/–. Learned Authorised Representative fairly submitted, since, assessee’s claim of write off has been fully allowed in A.Y. 2009–10, the relief granted in the impugned assessment year has to be withdrawn. Learned Departmental Representative agreed with the aforesaid submission of learned Authorised Representative. Having considered rival submissions, we find that assessee’s claim of write off of inventories amounting to `. 14,40,81,661/– stands allowed fully in A.Y. 2009–10 by the decision of the Tribunal, as referred to above. Thus, the additional relief granted to the assessee in the impugned assessment year has to be withdrawn. Therefore, the decision of learned Commissioner (Appeals) on the issue is reversed. Ground raised is allowed.