M/S. VALDEL ENGINEERS AND CONSTRUCTORS PRIVATE LIMITED,BANGALORE vs. ASSISTANT COMMISSIONER OF INCOME TAX, CIRCLE - 12(5), BANGALORE

IN THE INCOME TAX APPELLATE TRIBUNAL “B” BENCH : BANGALORE BEFORE SHRI ARUN KUMAR GARODIA, ACCOUNTANT MEMBER AND SHRI PAVAN KUMAR GADALE, JUDICIAL MEMBER

ITA Nos. 240 to 242/Bang/2017 Assessment Years :2010-11, 2011-12& 2009-10 M/s. Valdel Engineers and The Assistant Constructors Private Limited, Commissioner of #9, Meghdooth Mansion, vs. Income Tax, Hosur Road, Circle – 12 (5), Bangalore – 560 025. Bangalore. PAN: AAACK7684H APPELLANT RESPONDENT Assessee by : Shri Narendra Sharma, Advocate Revenue by : Shri T.N. Prakash, Addl. CIT (DR) Date of hearing : 02.04.2019 Date of Pronouncement : 16.04.2019

O R D E R Per Shri A.K. Garodia, Accountant Member All these three appeals are filed by the assessee and the same are directed against the combined order of ld. CIT (A)-7, Bangalore dated 21.11.2016 for Assessment Years 2009-10, 2010-11 & 2011-12. All these appeals were heard together and are being disposed of by way of this common order for the sake of convenience. 2. The grounds raised by the assessee for Assessment Year 2009-10 in ITA No. 242/Bang/2017 are as under. “1. The order of the Hon'ble Commissioner of Income Tax (Appeal)-7 in so far as it is against the appellant is opposed to law on facts, equity, weight and circumstances of the case. 2. The learned CIT(A) is not justified in holding that an amount of Rs.2,28,33,100/- being interest on income tax refund is taxable in the year of receipt ignoring the fact that the entitlement of refund has not reached finality due to pending appeals. 3. The learned CIT(A) failed to appreciate that, if the case of the appellant is decided against the appellant in the higher appeals, then it would have to refund the tax along with interest. The appellant would then not be entitled to claim deduction of the interest income

ITA Nos. 240 to 242/Bang/2017 Page 2 of 8 already offered to tax. 4. The learned CIT(A) failed to appreciate that, the rectification of mistake would not be possible after expiry of 4 years. 5. The learned CIT(A) is not justified in allocating a sum of Rs.14,50,531/- as common overheads based on revenue earned as against man hours utilized by STPI and Non-STPI units, which has been consistently followed by the appellant. 6. The learned CIT(A) is not justified in confirming the additional allocation of depreciation amounting to Rs.12,18,023/- relating to non STPI unit to STPI unit as the appellant has maintained and submitted separate Fixed assets schedules for both the units. 7. The Appellant craves leave to add, alter, delete, substitute or modify any of the grounds urged above. 8. In the view of the above and other grounds that may be urged at the time of the hearing of the appeal, the Appellant prays that the appeal may be allowed in the interest of justice and equity.” 3. The grounds raised by the assessee for Assessment Year 2010-11 in ITA No. 240/Bang/2017 are as under. “1. The order of the Hon'ble Commissioner of Income Tax (Appeal)-7 in so far as it is against the appellant is opposed to law facts equity weight of evidence facts and circumstances of the case. 2. The learned CIT(A) is not justified in disallowing the claim of depreciation of Rs.7,23,642/- u/s 40(a)(ia) of the Act in respect of software on the ground that appellant had not deducted tax at source while procuring the software. 3. The learned CIT(A) is not justified in holding that disallowance u/s 40(a)(ia) of the Act of depreciation can be made in case of TDS is not deducted on payments made towards assets capitalised as depreciation is only an allowance and not an expenditure. 4. The learned CIT(A) is not justified in law in not appreciating that the deduction of tax is only one mode of recovery of tax and once the tax recovered by any other mode is not permissible to recover the same tax again by disallowing the same tax twice under the facts and circumstances of the case. 5. The learned CIT(A) failed to appreciate the fact that the payments which have been paid by the appellant has been duly offered by the receiver of the payments in his return of income and thus once again taxing the same as income which is an outlay of expenditure amounts to unjust enrichment and not in accordance with the intention of the

ITA Nos. 240 to 242/Bang/2017 Page 3 of 8 legislature under the facts and circumstances of the case. 6. The learned CIT(A) ought to have appreciated the fact that there is no loss of revenue to the government and all the legitimate taxes have been duly paid in accordance with law under the facts and circumstances of the case. 7. The learned CIT(A) failed to appreciate the fact that provisions of section 40(a)(ia) of the Act is attracted only to the amounts which are payable at the end of the year and not to the entire actual payments paid during the year under the facts and circumstances of the case. 8. The learned CIT(A) is not justified in confirming the additional allocation of depreciation amounting to Rs. 11,14,250/- of Non- STPI unit to STPI Unit as the appellant has maintained and submitted separate Fixed assets schedules for both the units. 9. The Appellant craves leave to add, alter, delete, substitute or modify any of the grounds urged above. 10. In the view of the above and other grounds that may be urged at the time of the hearing of the appeal, the Appellant prays that the appeal may be allowed in the interest of justice and equity.” 4. The grounds raised by the assessee for Assessment Year 2011-12 in ITA No. 241/Bang/2017 are as under. “1. The order of the Hon'ble Commissioner of Income Tax (Appeal)-7 in so far as it is against the appellant is opposed to law facts equity weight of evidence facts and circumstances of the case. 2. The learned CIT(A) is not justified in disallowing the claim of depreciation of Rs.6,75,470/- u/s.40(a)(ia) of the Act in respect of software on the ground that appellant had not deducted tax at source while procuring the software. 3. The learned CIT(A) is not justified in holding that disallowance u/s.40(a)(ia) of the Act of depreciation can be made in case of TDS is not deducted on payments made towards assets capitalised as depreciation is only an allowance and not an expenditure. 4. The learned CIT(A) is not justified in law in not appreciating that the deduction of tax is only one mode of recovery of tax and once the tax recovered by any other mode is not permissible to recover the same tax again by disallowing the same tax twice under the facts and circumstances of the case. 5. The learned CIT(A) failed to appreciate the fact that the payments which have been paid by the appellant has been duly offered by the receiver of the payments in his return of income and thus once again

ITA Nos. 240 to 242/Bang/2017 Page 4 of 8 taxing the same as income which is an outlay of expenditure amounts to unjust enrichment and not in accordance with the intention of the legislature under the facts and circumstances of the case. 6. The learned CIT(A) ought to have appreciated the fact that there is no loss of revenue to the government and all the legitimate taxes have been duly paid in accordance with law under the facts and circumstances of the case. 7. The learned CIT(A) failed to appreciate the fact that provisions of section 40(a)(ia) of the Act is attracted only to the amounts which are payable at the end of the year and not to the entire actual payments paid during the year under the facts and circumstances of the case. 8. The learned CIT(A) is not justified in allocating a sum of Rs. 4,80,423/- as common overheads based on revenue earned as against man hours utilized by STPI and Non-STPI units, which has been consistently followed by the appellant. 9. The learned CIT(A) is not justified in confirming the re-allocation of depreciation amounting to Rs.6,79,956/- between the STPI and Non- STPI units as the appellant has maintained and submitted separate Fixed assets schedules for both the units. 10. The Appellant craves leave to add, alter, delete, substitute or modify any of the grounds urged above. 11. In the view of the above and other grounds that may be urged at the time of the hearing of the appeal, the Appellant prays that the appeal may be allowed in the interest of justice and equity.” 5. First we take up the assessee’s appeal for Assessment Year 2009-10 i.e. in ITA No. 242/Bang/2017. It was submitted by ld. AR of assessee that ground nos. 1, 7 and 8 are general. He also submitted that ground nos. 2, 3 and 4 are relating to one and same issue i.e. in respect of taxing of interest on income tax refund of Rs. 2,28,33,100/-. He reiterated the same contentions which was raised before CIT(A). The ld. DR of revenue supported the order of authorities below. He also submitted copy of judgment of Hon'ble Karnataka High Court rendered in the case of Venkatesh Dutt Vs. CIT in ITA No. 164/2008 dated 17.06.2014. He submitted that this issue is covered against the assessee as per this judgment of Hon'ble Karnataka High Court. 6. We have considered the rival submissions. We find that it is noted by the AO in para 6 of the assessment order that the assessee has received Rs.

ITA Nos. 240 to 242/Bang/2017 Page 5 of 8 2,28,33,100/- as interest on income tax refund during this year. He has further noted that this interest on income tax refund was received on account of giving effect to the orders passed by the ITAT for Assessment Years 1993-94 to 1999-2000 and CIT(A) for Assessment Years 2001-02 to 2003-04. He has further noted that assessee has not offered this amount for taxation stating that finality has not been reached with respect to the claim of the company in respect of the above amount. This explanation of the assessee was not accepted and this amount was brought to tax by the AO and the ld. CIT(A) has confirmed this order on this issue. As per this judgment of Hon'ble Karnataka High Court rendered in the case of Venkatesh Dutt Vs. CIT (supra), it was held that once the department has refunded the amount, notwithstanding the fact that the pendency of the appeal and the assessee has received the said amount, the liability to pay tax arises. It is also held that if in the appeal, the department were to succeed and consequently the assessee is directed to refund this amount, while refunding the said amount, certainly the assessee could take into account the amount paid by way of tax and therefore, it would not be a case of double payment. Respectfully following this judgment of Hon'ble Karnataka High Court, we decide this issue against the assessee and accordingly ground nos. 2 to 4 are rejected. 7. Regarding ground nos. 5 and 6, it was submitted by ld. AR of assessee that the decision of CIT (A) on this issue is contained in paras 7.8 to 7.10 of his order. He also submitted that the details of revised allocation of various expenses to STPI unit and non-STPI unit is available on page no. 45 of the paper book. At this juncture, it was pointed out by the bench that out of depreciation expenses, the allocation was made by the assessee on the basis of asset wise schedule whereas as per revised allocation, it was made as per Working Enclosed. The said working is available on same page of the paper book i.e. page no. 45 and in that, it is stated that 46.66% of the allocation is allocated to STPI unit and remaining amount of Rs. 13,92,399/- is allocated to non-STPI unit. The bench wanted to know about the item of assets on which this depreciation was claimed of Rs. 26,10,422/- out of which 46.66% computed at Rs. 12,18,023/- was allocated to STPI unit. The

ITA Nos. 240 to 242/Bang/2017 Page 6 of 8 bench observed that if this depreciation is on those assets which are used for both STPI and non-STPI units then this allocation may be considered to be proper but if this depreciation is claimed on such assets which are used by only one unit i.e. either STPI or non-STPI, then allocation should be on actual basis. The bench wanted to see the details of such assets. It was submitted by ld. AR of assessee that the same is not readily available. The bench also wanted to know as to whether the revenue earned by the assessee on Man Hours is different in STPI unit and non-STPI unit because if the rate per Man Hour is same, then it will not impact the result whether the allocation is on the basis of Man Hour or on the basis of revenue. The ld. AR of Assessee submitted that these details are also not readily available and hence, this matter may be restored back to the file of AO for fresh decision and if that is done, then the assessee will bring all details on record. The ld. DR of revenue supported the order of authorities below. 8. We have considered the rival submissions. In view of above discussion, it is seen that the required details are not available on record and therefore, we feel it proper to restore back this matter to the file of AO for fresh decision in the light of above discussion after providing reasonable opportunity of being heard to the assessee. Accordingly ground nos. 5 and 6 are allowed for statistical purposes. 9. There is no other ground in this year and hence, the appeal of the assessee for Assessment Year 2009-10 stands partly allowed for statistical purposes.

ITA Nos. 240 to 242/Bang/2017 Page 7 of 8 both these Tribunal orders and submitted that in the case of DCIT Vs. Sangeetha Mobiles Pvt. Ltd. (supra), the Tribunal has followed another Tribunal order rendered in the case of Kawasaki Microelectronics Inc – India Branch Vs. DDIT(IT) in IT(IT)A No. 1512/Bang/2010 dated 26.06.2015 and it was held that once the assessee has capitalized the payment in question, then even if the assessee has not deducted tax at source, the provision of section 40(a)(ia) cannot be invoked for disallowance of depreciation. The ld. DR of revenue supported the orders of authorities below. 11. We have considered the rival submissions and by respectfully following these two Tribunal orders cited by ld. AR of assessee, we decide the issue in favour of the assessee. Accordingly, ground nos. 2 to 7 are allowed. 12. Regarding ground no. 8, it was submitted that this issue is regarding allocation of common overhead between STPI and non-STPI units and this issue is identical to ground nos. 5 and 6 raised by assessee in Assessment Year 2009-10 and the same can be decided in similar line. The ld. DR of revenue also agreed to this proposition put forward by the learned AR of the assessee. While deciding this issue in Assessment Year 2009-10 as per paras 7 and 8, we have restored back this issue to the file of AO for fresh decision. Accordingly this issue is restored back to the file of AO for fresh decision in the present year also with similar directions. Accordingly, ground no. 8 stands allowed for statistical purposes. 13. There is no other ground in this year. In the result, the appeal filed by the assessee for Assessment Year 2010-11 stands allowed in the terms indicated above. 14. Now we take up the remaining appeal for Assessment Year 2011-12 in ITA No. 241/Bang/2017. It was submitted by ld. AR of assessee that in this year, ground nos. 1, 10 and 11 are general. It is also submitted that ground nos. 2 to 7 are identical to ground nos. 2 to 7 in Assessment Year 2010-11 and the same can be decided on similar line. While deciding ground nos. 2 to 7 in Assessment Year 2010-11 as per paras 10 and 11 above, this issue was decided by us in favour of the assessee and accordingly in present year also, this issue is decided in favour of the assessee on similar line. Ground nos. 2 to 7 are allowed.

ITA Nos. 240 to 242/Bang/2017 Page 8 of 8 15. Regarding ground nos. 8 and 9 for Assessment Year 2011-12, it was submitted that these grounds are identical to ground no. 8 of the assessee’s appeal for Assessment Year 2010-11 and this issue can be decided on similar line. The ld. DR of revenue agreed to this proposition put forward by the ld. AR of assessee. We find that in Assessment Year 2010-11, while deciding the ground no. 8 in that year as per Para 12 above, we have restored back this issue to the file of AO for fresh decision in line with our decision in respect of assessee’s appeal for Assessment Year 2009-10 in ground nos. 5 and 6 as per paras 7 and 8,. Hence in present year also, this issue is restored back to the file of AO for fresh decision with similar directions as were given by us in Assessment Years 2009-10 and 2010-11. Ground nos. 8 and 9 are also allowed for statistical purposes. 16. In the result, the appeal filed by the assessee for Assessment Year 2011-12 stands allowed in the terms indicated above.

Sd/- Sd/- (PAVAN KUMAR GADALE) (ARUN KUMAR GARODIA) Judicial Member Accountant Member Bangalore, Dated, the 16th April, 2019. /MS/ Copy to: 1. Appellant 4. CIT(A) 2. Respondent 5. DR, ITAT, Bangalore 3. CIT 6. Guard file By order

Assistant Registrar, Income Tax Appellate Tribunal, Bangalore.