DCIT(CC)-2(4), MUMBAI, MUMBAI vs. MACLEODS PHARMACEUTICALS LIMITED, MUMBAI

5.1. During the appellate proceedings, assessee submitted that the apportionment of Research & Development expenses to eligible unit by the ld. Assessing Officer was in contrast to the consistent stand taken by the Department in scrutiny assessments for earlier years. Assessee relied upon the decision of the Coordinate Bench of ITAT, Mumbai in its own case for Assessment Years 2009-10, 2010-11, 2011-12 and 2012- 13. Assessee further relied upon the decision in the case of M/s. Zandu Pharmaceutical Works Ltd. vs. CIT in of 2007 by the Hon'ble Jurisdictional High Court of Bombay. It further submitted that smaller Research & Development facilities at each manufacturing unit carried out R&D activities related to existing products manufactured by that respective units and such R&D expenses were not claimed as weighted deduction. Assessee also submitted the details of year-wise formulation development by R&D department and various products manufactured to 3474/MUM/2024 Macleods Pharmaceuticals Ltd., AY 2013-14 to 2016-17 by the manufacturing unit to the ld. Assessing Officer during the assessment proceedings. These details indicated that R&D expenditure were totally unrelated to the present manufacturing activity of the assessee. Assessee also relied upon the decision of Hon'ble Supreme Court in the case of CIT vs. Sterling Foods and Pandian Chemicals Ltd. vs. CIT in which it was held that there must be a direct nexus between industrial undertaking and expenses sought to be apportioned. Thus, assessee submitted that the R&D expenses should not be apportioned between the different manufacturing units including units eligible to claim deduction u/s.80IB and 80IC of the Act.

5.2. Assessee submitted a copy of the order of the Coordinate Bench of ITAT, Mumbai for AYs. 2009-10, 2010-11, 2011-12 and 2012-13 in its own case. From perusal of the order, it is seen that the issue has been decided on merits in AY.2009-10 and the same has been followed in subsequent years. While deciding the ground related to apportionment of R&D expenses to various manufacturing units, the Coordinate Bench has held that allocation of R&D expenditure to units eligible for deduction u/s.80IB and 80IC, on the basis of percentage of sales of respective units to the total sales was baseless and totally unwarranted. For ready reference, the relevant para of the order for AY. 2009-10 are reproduced as under:

"19. Coming to allocation of R & D expenses, the assessee contended before the lower authorities that its Research and Development activities are not directly related to its manufacturing units as the research and development divisions is working on future products and future innovation and launches and not for the present products manufactured by the assessee in its units. It was contended that Research and development expenditure had no relevance to the working of qualifying undertakings. Further, R & D expenses are on futuristic research and the result of research is also uncertain. It was also contended that none of the items of the research was forming part of qualifying undertakings and none of the qualifying undertakings thus benefit from the present research. It was also contended that research in the field of biotech or bulk drugs will be wholly unrelated even for theoretical reckoning from impugned qualifying undertakings. Details of products manufactured by the units and products on which R & D is undertaken were on records which shows that they are completely independent from each other. Assessee placed reliance on the Zandu Pharmaceuticals Works Ltd., v. CIT [350 ITR 366] and various other decisions in support of his contention that R & D expenditure incurred in head office cannot be allocated to the units. We observe from the Assessment Order that the Assessing Officer predominantly stating that R & D expenditure incurred by the assessee is inextricably linked with the business of the assessee including the business relating to products which are manufactured in the units for which deduction u/s. 80IB and 80IC were claimed. However, nothing has been brought on record to suggest that the R & D expenditure incurred by the assessee benefitted the existing units where claims u/s. 801B and 80IC were made. We observe that when the details of products manufactured by the units and products on which R & D is undertaking by the assessee were placed on record before the Assessing Officer to show that they are completely independent from each other, the Assessing Officer completely failed to bring on record that R & D expenditure in fact benefited the existing units and thereby it is necessary to allocate the R & D expenditure among 801B and 80IC units and non 801B and 80IC units on the basis of percentage of sales on respective units to the total sales. We further observe that even after allocation of expenses among 801B eligible and non-eligible units the taxable income from the assessment under consideration remained the same as the tax was assessed under book profits u/s. 115JB of the Act and not under normal provisions of the Act.

9. There is no dispute that the assessee is entitled to the benefits of the provisions of sections 80HH, 80-1 and 80-IA. Section 80-1 provides that where the gross total Income of an assessee includes any profits and gains derived from an Industrial undertaking, there shall be allowed., in computing the total income of the assessee, a deduction from such profits and gains an amount equal to twenty per cent, thereof. Section 80-IA provides that where the gross total income of an assessee includes any profits and gains derived from any business of an industrial undertaking, there shall be allowed, in computing the total income of the assessee, a deduction from such profits and gains of an amount specified therein. Section 80HH provides that whether the gross total income of an assessee includes any profits and gains derived from an industrial undertaking, there shall be in accordance with law and subject to the provisions of the section be allowed in computing the total income of the assessee a deduction from such profits and gains of an amount equal to 20 per cent, thereof.

10. While computing the profits and gains of the concerned undertaking, only expenses relating thereto can be deducted. In other words, the expenses must be Incurred, for and on behalf of the concerned undertaking. The expenses attributable to any other unit or the head office expenses which have no relevance to the industrial undertaking, cannot be deducted in respect of the said undertaking while computing the profits and gains of the undertaking.

"Whether, on the facts and in the circumstances of the case, the Tribunal was justified in law in holding that the receipt from the sale of import entitlements could not be included in the income of the assessee for the purpose of computing the relief under section 80HH of the Income-tax Act, 1961?"

12. The question, therefore, was converse to the one before us. The Supreme Court held as under (page 584):

"Crude petroleum is refined to produce raw naphtha. Raw naphtha is further refined, or cracked to produce the said products. This is not controverted. It seems to us to make no difference that the assessees buy the raw naphtha from others. The question is to be judged regardless of this, and the question is whether the intervention of the raw naphtha would justify the finding that the said products are not 'derived from refining crude petroleum'. The refining of crude petroleum produces various products at different stages. Raw naphtha is one such stage. The further refining, or cracking, of raw naphtha results in the said products. The source of the said products is crude petroleum. The said products must, therefore, be held to have been derived from crude petroleum.

We do not think that the source of the import entitlements can be said to be the industrial undertaking of the assessee. The source of the import entitlements can, in the circumstances, only be said to be the Export Promotion Scheme of the Central Government whereunder the export entitlements become available. There must be, for the application of the words 'derived from', a direct nexus between the profits and gains and the industrial undertaking. In the instant case, the nexus is not direct but only incidental. The industrial undertaking exports processed seafood. By reason of such export, the Export Promotion Scheme applies. Thereunder, the assessee is entitled to import entitlements, which it can sell. The sale consideration therefrom cannot, in our view, be held to constitute a profit and gain derived from the assessee's industrial undertaking."

13. The Supreme Court held that there must be for the application of the words "derived from" a direct nexus between the profits and gains and an industrial undertaking. Sections 80-1 and 80-IA also use the expression derived from". If there must be a direct nexus between the profits and gains and an industrial undertaking, it must follow equally that there must be a direct nexus between an industrial undertaking and the expenses which are sought to be apportioned/attributable to it. Expenses which do not relate to an industrial undertaking/unit under consideration and they relate to other units or to the head office of the assessee, cannot be taken into consideration while computing the deduction under the said provisions.

14. Ms. Khan's reliance upon a judgment of the Division Bench of the Madras High Court in Bush Boake Allen (India) Ltd. v. Asstt. CIT [2005] 273 ITR 152 is well founded. In that case, the assessee claimed a deduction under sections

80HH and 80-1. The Assessing Officer allocated certain expenditure on research and development pertaining to the Chittoor unit. It was submitted by the assessee that the amount so included did not pertain to the Chittoor unit inasmuch as the research and development undertaken at the Madras unit had no connection with the products manufactured in the Chittoor unit. The Chennai High Court held that the question had not been dealt with by the authorities. It was held that the apportionment of the expenses on the activities of the research and development to the Chittoor unit merely on the presumption that the products manufactured at the Chittoor unit also had the benefit of the research made at the Chennai R & D department, was not proper. It was further held that the authorities had proceeded on the presumption that any technology about new flavours and essences would automatically be utilized in the Chittoor unit without examining whether the R & D carried out in Chennai s of use to the unit at Chittoor. The matter was, therefore, remanded to ascertain whether the R & D undertaken related to the products manufactured in the Chittoor unit.

15. We are in respectful agreement with the judgment, the basis of which is that unless the expenditure incurred on the R & D work relates to the undertaking/unit in question, the same cannot be apportioned to it.

to 3474/MUM/2024 Macleods Pharmaceuticals Ltd., AY 2013-14 to 2016-17 5.3. In the present case, there is no change in the facts and circumstances regarding apportionment of R&D expenses to various manufacturing units on the basis of the turnover to the respective unit of total sales when compared with the facts and circumstance of AYs. 2009-10 to 2012-13. The Coordinate Bench of ITAT, Mumbai had taken a consistent stand in the case of the assessee in earlier years that R&D expenses were not required to be apportioned to various units, including units eligible to deduction u/s.80IB and 80IC, on the basis of sales of respective units to total sales.

6. Per contra, ld. CIT DR could not bring anything contrary to the submissions made by the assessee.

7. Respectfully, following the decision of the Coordinate Bench of ITAT, Mumbai in the case of the assessee for AYs. 2009-10 to 2012-13 and also there being no material change in the facts and circumstances of the case for the present year, apportionment of R&D expenses by the ld. Assessing Officer on the basis of sales of respective units to total sales, including eligible unit was not warranted. Accordingly, ld. Assessing Officer is directed not to apportion Research & Development expenses to various units including the eligible units claiming deduction u/s.80IB and 80IC on the basis of sales of respective unit to total sales. Ld. Assessing Officer is directed to allow deduction u/s.80IB and 80IC without apportionment of R&D expenses to the eligible units.

9. Per contra, ld. CIT DR could not bring anything contrary to the submissions made by the assessee.

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5. Having heard learned Advocates appearing for parties and on perusal of records in general and order passed by tribunal in particular it is clearly noticeable that Clause (i) of section 92BA of the Act came to be omitted w.e.f. 01.04.2019 by Finance Act, 2014. As to whether omission would save the acts is an issue which is no more res intigra in the light of authoritative pronouncement of Hon'ble Apex Court in the matter of Kolhapur Canesugar Works Ltd. v. Union of India AIR 2000 SC 811 whereunder Apex Court has examined the effect of repeal of a statute vis-a-vis deletion/addition of a provision in an enactment and its effect thereof. The import of section 6 of General Clauses Act has also been examined and it came to be held:

"37. The position is well known that at common law, the normal effect of repealing a statute or deleting a provision is to obliterate it from the statute- book as completely as if it had never been passed, and the statute must be considered as a law that never existed. To this rule, an exception is engrafted by the provisions of section 6(1). If a provision of a statute is unconditionally omitted without a saving clause in favour of pending proceedings, all actions must stop where the omission finds them, and if final relief has not been granted before the omission goes into effect, it cannot be granted afterwards. Savings of the nature contained in section 6 or in special Acts may modify the position. Thus the operation of repeal or deletion as to the future and the past largely depends on the savings applicable. In a case where a particular provision in a statute is omitted and in its place another provision dealing with the same contingency is introduced without a saving clause in favour of pending proceedings then it can be reasonably inferred that the intention of the legislature is that the pending proceedings shall not continue but fresh proceedings for the same purpose may be initiated under the new provision."

Order is pronounced in the open court on 28 October, 2024