ADDL CIT 2(1), MUMBAI vs. GTL LTD, MUMBAI

Per Joginder Singh (Judicial Member) These two appeals are by the Revenue for Assessment Year 2005-06 and 2006-07 against the impugned orders both

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dated 23/04/2010 of the Ld. First Appellate Authority, Mumbai. First, we shall take up appeal of the Revenue for Assessment Year 2005-06 (ITA No.5245/Mum/2010), wherein, the composite ground raised pertains to holding that no expenses out of corporate expenses was incurred by the assessee in relation to STP Units claiming deduction u/s 10B of the Income Tax Act, 1961 (hereinafter the Act).

2.1. On the other hand, the Ld. Sr. Advocate, Dr. K. Shivaram, along with Miss Neelam Jahdav, ld. counsel for the assessee, strongly defended the order of the Ld. Commissioner of Income Tax (Appeal) by claiming that for Assessment Year 2005-06, the Tribunal decided the issue in favour of the assessee against which the department, challenged the same before the Hon'ble High Court. It was contended that there are various branches and there is a separate staff for the 10B unit, separate Director and only

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after considering the factual matrix, the Ld. Commissioner of Income Tax (Appeal) decided the issue in favour of the assessee. It was pleaded that there is no transfer of any man power or expenses of one unit to another unit, therefore, the provision is not applicable to the facts of the present appeal. Reliance was placed upon the decision in the case of Malay N. Sanghavi vs Income Tax Officer (ITA No.1342 of 2014) order dated 31/01/2017 from Hon'ble jurisdictional High Court. The ld. counsel asserted that for Assessment Years 2002-03 and 2003-04, while framing the assessment u/s 143(1) of the Act, department accepted the claim of the assessee. So far as, reopening of those years is concerned, it was contended that the Tribunal decided in favour of the assessee for which our attention was invited to pages 270 to 278 of the paper book (ITA No.6416 and 6971/Mum/2010 and ITA No.1246/Mum/2012) order dated 02/01/2015. Plea was raised that for later year, the assessee went to settlement commission, where the claim of the assessee was accepted. Our attention was invited to page 364 to 369 of the paper book for Assessment Year 2007-08 to 2009-10. It was contended that rule of consistency has to be followed, for which, reliance was placed upon the decision from Hon'ble Apex Court in CIT vs Excel Industries Ltd. 358 ITR 295 (SC), order dated 08/10/2013 and CIT vs Translam Ltd. 231 taxman 901 (All.). The crux of the argument is that the assessee maintains separate books of accounts for each unit.

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2.2. Before adverting further, we find that the Hon'ble High Court, vide order dated 04/12/2014 (ITA No.1675 of 2012) held as under:-

“This Appeal by the Revenue challenges the order dated 6 June 2012 in Income Tax Appeal No.5245/Mum/2010. 2. Upon perusal of the Tribunal's order and with the assistance of both sides, we find that real question before us is the manner in which the Tribunal proceeded and disposed of the Appeal filed by the Revenue. The Assessment Year is 2005-06. The Appeal is admitted on the following substantial questions of law: (i) Whether on the facts and in the circumstances of the case and in law, the ITAT was justified in summarily ignoring the objection of the Departmental Representative and the contention of the Revenue and simply accepting the “categorical observation” and “finding” of the CIT(A) without going into the details and appreciating that there was no basis for making such “categorical observation”? (ii) Whether on the facts and in the circumstances of the case and in law, the ITAT, which is the highest fact finding authority, was justified in simply accepting the finding of fact of the CIT(A) and dismissing the appeal of the Revenue when the Revenue is in appeal against the said order? 3. The Tribunal had before it the Appeal of the Revenue directed against the order of the Commissioner of Income Tax (Appeals)-4 Mumbai dated 23 April 2010. The grounds of appeal before the Tribunal and urged by the Revenue were whether on the facts and circumstances of the case and in law the Commissioner erred in holding that no expenses out of the “corporate expense” was incurred in relation to STP units while claiming deduction under section 10B of the Income Tax Act, 1961. According to the Revenue, the Commissioner erred in not appreciating the fact that the part of corporate expenses was incurred in relation to corporate office and administrative office of the Assessee company managing overall business of the Assessee company including that of STP units. 4. However, when the Appeal of the Revenue was placed before the Tribunal, the matter took altogether different turn. It appears that the Departmental Representative submitted before the Tribunal that the Assessee filed some fresh evidence with regard to location-wise details, which were not available before the Assessing Officer and that amounts to admission of additional evidence which is not permissible in law. 5. The Tribunal noted in paras 7 & 8 of the order under challenge that a Paper Book was filed by the Assessee and which was certified. That indicated that all those documents which were before the Assessing Officer alone were considered by the Commissioner and no additional

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material was filed before the Commissioner nor was any evidence produced. 6. The Tribunal, in our opinion, unnecessary wasted its precious judicial time in finding out as to whether there was indeed an additional evidence before the Commissioner and whether the Departmental Representative was justified in making complaint of the above nature. The manner in which the Departmental Representative conducted himself may have offended the Tribunal, but it was its duty as a last fact finding authority to decide the matter judiciously and on merits. The approach of the Departmental Representative and resting on the production of the additional evidence by the Assessee, so also not allowing the Tribunal to take into consideration the Paper Book filed by the Assessee, should not have resulted in refusal by the Tribunal to decide the grounds raised by the Revenue on merits. The Appeal has not been decided on merits at all. Since the last fact finding authority has not gone into merits of the grounds raised by the Revenue in this Appeal, we put it to Mr.Chhotaray, learned Counsel appearing on behalf of the Revenue, as to whether on the available material namely before the Assessing Officer and the Commissioner and the Paper Book compiled by the Assessee and tendered before the Tribunal is the Revenue willing to have the matter reconsidered by the Tribunal on merits. 7. Mr.Chhotaray, in all fairness, agreed and stated that so long as the grounds and issues are decided on merits, the Revenue will have no grievance or complaint. However, records before the Assessing Officer and the Commissioner should be summoned by the Tribunal so as to completely adjudicate the controversy. 8. Dr.Shivram, learned Sr.Counsel appering on behalf of the Assessee, submits that the Assessee would not have any grievance if the matter is sent back to the Tribunal for deciding on merits, but this Court should not express any opinion on the rival contentions and particularly that the Commissioner proceeded to place his stamp of approval only on the material produced by the Assessee and did not apply his mind independently. 9. After perusal of the Tribunal's order, we are of the view that it is not necessary to keep the Appeal pending in this Court. It is equally unnecessary to express any opinion either way on the merits of the controversy. The Tribunal would be well advised in such cases to decide the matter on merits and by satisfying itself as to whether the records before the lower authorities are adequate and sufficient to deal with the grounds or anything more is called for. In that event, the law permits the Tribunal and equally the parties to make appropriate applications and file with the leave of the Tribunal any additional evidence or documents. The time of the Tribunal should not be wasted in such technical issue and rather the Tribunal must endeavour to render substantial justice. 10. As a result of the above discussion and the Appeal being not decided satisfactorily by the Tribunal, we quash and set aside the impugned order and restore the Appeal of the Revenue to the file of the Tribunal for decision on merits and in accordance with law.

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2.4. We have considered the rival submissions and perused the material available on record. The facts, in brief, are that the assessee is a company, in which public is substantially interested, engaged in business of providing Information Enabled Technology Services (hereinafter in short ITES) and Network Engineering Services (hereinafter in short NES). The assessee provides a wide range of IT and telecom services to its customers, which includes date centers,

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dedicated date networks, network management, website hosting and design, commerce service provider, online service provider, call centers, system integration, software application, infrastructure solutions, etc. The assessee operates IT and Telecom Services under two different groups which are summarized as under

(i) the IT Enabled (ITES) group includes various segments i.e. (a) Enterprise solutions (b) Customer management solutions group (Call Center), (c) Managed Services, (e) Software and other services, (f) ERP Services ii. the network Engineering (NE) group includes a) designs, b) engineers and commissions basic cellular, c) satcom, wired/wireless network. 2.5. The assessee also provided location-wise details of EOU and non-EOU units, which are summarized as under:-

(A) EOU unit (i) Electronics Sadan No.II(3rd Floor,) (ii) Electronic Sadan No.IV MIDC TIC, Industrial are Mahep, Navi Mumbai. (iii) Serial No.61, 2/7, Plot No. Opposite Oxford Village, Salunke Vihar Road, Wanowari, Pune (B) Location-wise details of Non-EOU Units (a) Kolkata (b) Jamshedpur (c) Bhuvnewshwar (d) Delhi (e) Jaipur (f) Luckhnow (g) Gurgaon (h) Chandigarh (i) Himachal Pradesh (j) Punjab (k) Chhatishgarh (l) Bangalore (m) Hyderabad (n) Pondichery (P) Cochin (q) Ahmadabad (r)

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Bhopal (s) Goa (t) Indore (u) Nagpur (v) Pune Prabhat Road (w) Ballard Estate, Masjid, Mumbai (x) Mahape ES II(other than STP)

2.6. The assessee declared loss of Rs.1,62,00,326/- and book profit of Rs.44,22,80,077/- in its return filed on 26/10/2005. The assessment was completed u/s 143(3) of the Income Tax Act, 1961 (hereinafter the Act) determining the total income at ‘NIL’. The Ld. Assessing Officer while framing the assessment restricted the claimed deduction u/s 10B from Rs.70,84,76,103/- to Rs.55,61,01,739/-. While doing so the Ld. Assessing Officer bifurcated the various units of the assessee company into STP and Non-STP units by holding that the expenses of corporate division were not apportioned properly as the same were loaded to Non-STP unit to inflate the income of STP unit, consequently, the Ld. Assessing Officer reapportioned the costs of corporate office over 100% EO Unit on the basis of percentage of turnover, resultantly, the claimed deduction u/s 10B of the Act was reduced. The Ld. Assessing Officer while framing the assessment referred to corporate expenses of Rs.45,63,48,404/-, whereas, the assessee provided the details income and expenses of individual units of the company vide letter dated 20/12/2008, which are summarized as under:-

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2.7. The Ld. Assessing Officer from the aforesaid information, provided by the assessee, inferred that the assessee has a unit called ‘corporate office’, managing all affairs of the assessee company but without any business carried its own. The corporate office was burdened with allocation of heavy expenses for the advantage of other units and specially the export oriented unit resulting into huge loss of Rs.30,20,52,482/-. This inference of the Ld. Assessing Officer to allocate expenses of Rs.13,30,25,559/- to the STP units out of the total expenses of Rs.45,63,48,404/- shown under the head ‘corporate’ on the basis that STP units contribute about 29.15% of the turnover/total sales of the assessee company and calculated the profit of STP units at Rs.55,61,01,739/- as against the claim of Rs.70,84,76,103/-. Broadly, we are in agreement with the observation made by the Ld. First Appellate Authority that the Ld. Assessing Officer misdirected himself without comprehending the nature of expenses shown by the assessee.

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2.8. We find that the assessee is having branch office across India and the expenses of Rs.45,63,48,404/-, inclusive of depreciation, were booked under the segment called ‘common expenses’ in various locations in all over India, which were reflected as corporate office expenses in the profit and loss account, which was submitted before the Assessing Officer. Since, the expenses were incurred at various locations, all over India, have no connection with STP units which are located at Mahape (ES-4), Navi Mumbai and Pune Offices only. The location-wise details of the said corporate expenses of Rs.45,63,48,404/- are summarized as under:- Misc Exp. Selling and Admin Cost of written Personnel marketing and other Location Sales off costs exp expenses Depreciation Total (Rs)

Kolkatta 5,98,271 13,253 5,93,999 2,11,994 14,17,517 Delhi 12,94,368 85,584 1,31,48,603 4,89,181 1,50,17,736 Jaipur 2,33,375 - - - 2,33,375 Lucknow 2,32,125 - 9,342 - 2,41,467 Bangalore 3,91,288 - 34,016 1,92,915 6,18,219 Chennai 4,21,387 5,400 11,34,444 1,92,856 17,54,087 Hyderabad 2,19,199 5,280 3,74,658 93,083 6,92,220 Pondechery 72,940 33,588 1,06,528 Ahmedabad 2,75,301 4,08,162 1,46,33,698 1,53,17,161 Nagpur 2,22,116 1,89,109 23,761 4,34,986 Pune – other than STP 9,00,842 58,33,680 9,444 67,43,966 Mahape ESII 7,75,000 7,62,26,733 17,43,642 6,79,42,606 5,19,77,783 19,86,65,764 Taloja 1,87,475 - - 8,74,200 10,61,675 Taloja Infra - 10,049 38,07,349 1,05,04,222 1,43,21,620 Ballard Estate Mumbai 1,41,94,404 11,05,93,521 47,27,792 6,54,22,091 47,84,277 19,97,22,085 (Masjid, Wadala)

Total 7,75,000 14,194,404 191,796,000 65,91,000 15,89,71,000 8,40,21,001 45,63,48,404

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2.9. If the aforesaid break up of expenses is analyzed, it is clear that expenses were incurred at branch level and were booked under common segment namely ‘common expenses’ and were reflected in the profit and loss account as corporate expenses. The assessee filed the expenses under Five heads namely cost of sales, selling and marketing, administrative and other expenses, depreciation and personal cost. It is noted that these expenses pertains to Non-STP branches and the expenses pertaining to STP branches under the same has already been included in the computation of profit in the respective STP unit. The assessee provided location wise details of expenses, where from it is evidently clear that the said expenses does not pertains to common infrastructure/services used by STP units but only relate to expenses incurred by and for the non-STP units/branches. It seems that the Ld. Assessing Officer proceeded on a wrong presumption that the expenses were from common infrastructure account i.e. common expenses. The ld. Assessing Officer, it is observed, made disallowance u/s 10B(5) r.w.s. 80IA(10) of the Act. Section 80IA(10) deals with a situation, where owing to close connection between the assessee, carrying on, eligible business and any other person, the course of business between them is so arranged that the business transacted between them produces more profit which might be expected to arose from such eligible business. It is an admitted fact that it is not the case of the Department that there was close connection between the assessee and the parties to whom such expenses were paid, however, the issue

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pertains to whether the expenses referred to by the Ld. Assessing Officer were allocable to STP units or whether the said expenses were incurred for Non-STP units, as claimed by the assessee. While claiming the claimed deduction u/s 10B of the Act, the totality of facts clearly indicates that the expenses pertains only to Non-STP unit and has no relation to STP units, consequently, the said expenses were not allocable to STP unit. In view of this factual matrix the expenses of Rs.45,63,48,404/- were incurred at various branches of the assessee company at national level have no connection with the STP Units, located at Mahape, Navi Mumbai and Pune, therefore, the observation of the Ld. Assessing Officer that expenses were mixed up by the assessee is factually incorrect, therefore, we find merit in the conclusion of the Ld. Commissioner of Income Tax (Appeal) that no expenses out of corporate expenses were incurred in relation to STP units for which claimed deduction u/s 10B of the Act was made by the assessee. The Revenue has not brought on record any evidence in support of its claim. Even during hearing the Bench directed the assessee to furnish the statement of unit-wise profitability claimed u/s 10B for year ending 31/03/2005, which was submitted by the assessee and the same was examined by us. The Ld. DR did not pin point any defect in the same. The Unit-wise Comparative profitability statement (Assessment Year-2005-06) has been given as follows:-

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Basis of STP Related Units allocation Call Centre Software and Total ERP Particulars I II

Income Sales and Services Export Actual Sales Domestic Actual 1,34,96,72,892 28,76,08,831 16,37,28,17,23 Sales.

Other Income net of 79,72,938 79,72,938 finance costs

Total Income 1,35,76,75,830 28,76,08,831 1,64,52,54,661

Expenditure Actual Cost of Sales and 3,45,46,000 3,45,46,000 Services Actual Connectivity 6,34,95,000 18,31,317 6,53,26,317 Charges Actual Personal costs 49,31,46,000 2,50,55,825 51,82,01,825 Actual Selling and 2,43,78,000 1,22,44,184 3,66,22,184 marketing expenses Actual Administration and 13,54,65,000 1,94,74,692 15,49,39,692 other expenses Actual Depreciation 14,64,89,931 14,64,89,931 Misc. Expd. Written off

Total Expenditure 89,75,19,931 5,86,06,019 95,61,25,950

Profit before tax 46,01,25,899 22,90,02,813 68,91,28,711

Less: provision for Tax

Profit after tax 46,01,25,899 22,90,02,813 68,91,28,711

Extra ordinary and prior period items

Profit after extra 46,01,25,899 22,90,02,813 68,91,28,711 ordinary items

Unit wise comparative profitability statement of Non-STP related units.

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Non-STP Units Total for the company Network Engg. Software and Corporate Total ERP I II III INCOME Sales and services Export 93607252 93607252 93607252 Domestic 2407595220 1306734394 3714329614 3714329614

Other Income (543528261) 154295922 99937661 107910599 net of finance costs Total income 2446844211 1306734 154295922 3907874527 5553129188

Expenditure Cost of sales 1,06,95,91,317 47,10,18,000 7,75,000 1,54,13,84,317 1,57,59,30,317 and Services Connectivity 8,36,50,008 8,36,50,008 charges Personal costs 320737967 92254449 191796000 604788,416 1122990241 Selling and 42007287 43648300 6591000 92246587 128868771 marketing expenses Administration 199910516 91682538 158971000 450564053 605503745 and other expenses Discretion 18,39,66,816 49,27,65,000 8,40,21,000 76,07,52,816 90,72,42,747 Misc. expd. 1,41,94,404 1,41,94,404 1,41,94,404 Written off

Total 1,81,62,13,902 12,7,50,18,295 45,63,48,404 3,54,75,80,660 4,503,7,06,550 expenditure

Profit before 63,06,30,309 3,17,16,099 (30,20,52,482) 36,02,93,926 1,04,94,22,638 tax

Less: provision for Tax

Profit before 63,06,30,309 3,17,16,099 (30,20,52,482) 36,02,93,926 1,04,94,22,638 tax

Extra ordinary and prior period items

Profit after 63,06,30,309 3,17,16,099 (30,20,52,482) 36,02,93,926 1,04,94,22,638 extra ordinary items

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2.10. In the aforesaid statement, the assessee has duly furnished the comparative profitability statement for Financial Year 2004-05 for all the divisions and separately for the STP division. In the aforesaid statement, separate amounts/profitability of non-STP unit has been maintained; therefore, the contention of the Ld. Assessing Officer is not substantiated. There is uncontroverted finding in the impugned order that from the break up of expenses, incurred at the various branches of the company, there is no connection with STP Units. The relevant finding as contained in para-15 and 16 of the impugned order is reproduced hereunder:-

“15. From the aforesaid hreaku1) of expenses, it is abundantly Clear that expenses of Rs. 45,63,48,404/-, which are incurred at various branches of the company all over India, have no connection with the STP units located at Mahape, Navi Mumbai and Pune. Therefore, it was wrong on the part of the AO to re-locate it part of these expenses to the STP Units of the company on the basis of percentage of the turnover of the company vis-a-vis the turnover of the STP Units, It is further submitted that the, expenses of Rs, 45,63,48,404/- also include (depreciation amounting to Rs 8,40,21,000/-. It is submitted that the depreciation costs was for the assets lying in common divisions at various above mentioned locations, The said depreciation Can be apportioned over non STP units and not on the STP units as these assets did not form part of the fixed assets of the STP Units. The action of the AO in apportioning even the deprecation cost over the STP Units is therefore absolutely unwarranted. In the light of the above, it is apparent that apportioning the corporate office expenses on 100% EOU units was not at all required, since the appellant was running all the units separately with separate personnel costs and with separate books of account. The deduction u/s 10B claimed by the company was based on the certificate issued by the auditors of the company. The AO has taken a thoroughly subjective and prejudicial view, drawn wrong inferences and reduced appellant's claim of deduction u/s. 10B. The AO erred in not granting the deduction u/s 10B as claimed by the appellant. It is our humble request before your honor to direct the AO

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to allow entire claim of deduction u/s 10B as claimed by the appellant in the return of income and re-compute its total income accordingly. 16. I have carefully considered the contention of the Assessing Officer, Appellant’s submissions, The STP units of the appellant are located at Mahape, Navi Mumbai and Pune. Non STP units are located all over the country. Obviously, the expenses of Rs.463,48,404/- which has been incurred at various branches of the company all over India have no connection with STP units which mc located in Mahapo, Navi Munbai and Pune, The AO has drawn incorrect conclusion and wrongly allocated part of the expenses to the EOU units on the basis of the percentage turnover. The disallowance made by the AO, is therefore hold as unjustified and hence deleted. The ground of appeal is, therefore, allowed.” In the aforesaid uncontroverted factual finding, it 2.11. has been observed that the assessee was running all the units separately by maintaining separate books of accounts and thus the apportioning of corporate office expenses of 100% EOU units was even not at all required and the claimed deduction u/s 10B of the Act was based upon the certificate issued by the auditors of the assessee company and the observation of the Assessing Officer is merely subjective and prejudicial/unjustified. There is a further mention that the impugned expenses were incurred at various branches of the assessee had no connection with STP units located at Navi Mumbai and Pune, thus, from this angle also, we find no infirmity in the conclusion of the Ld. Commissioner of Income Tax (Appeal). The ratio laid down by Hon'ble Allahabad High Court in the case of CIT vs Translam Ltd. (2014) 52 taxman.com 357(All.); (2015) 231 taxman 901(All.), where the assessee maintained separate accounts for each unit, it was held that the assessee would be entitled for deduction u/s 80IA of the Act. The observation made in the aforesaid order

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by the Hon'ble High Court is reproduced hereunder for ready reference and analysis:- “1. Both the appeals have been filed by the department against the consolidated order dated 26.08.2004, passed by the Income Tax Appellate Tribunal, New Delhi in I.T.A. No.1769 & 1770/Del/2001 for the assessment years 1996-97 & 1997-98.

“Whether on the facts and in the circumstances of the case, the Income Tax Appellate Tribunal have erred in law in holding that sub section (10) of section 80-1A was not applicable to the case relying on the ratio of law laid down by the Apex Court in the case of Bajaj Tempo Ltd. Vs. CIT (1992) 62 Taxman 480 ignoring the ratio of law laid down by the Apex Court in the case of CIT Vs. Sterling Foods Ltd. reported in 237 ITR 479 and CIT Vs. N.C. Buddhiraja & Co. (1993) 204 ITR page 142?”

It was held that:-

“The assessee was engaged in processing prawns and other sea food, which it exported. It also earned some import entitlements granted by the Central Government under an Export Promotion Scheme. The assessee was entitled to use the import entitlements itself or sell the same to others. It sold the import entitlements that it had earned to others.”

It was also held that:-

“There must be, for the application of the words “derived from”, a direct nexus between the profits and gains and the industrial undertaking. In

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the instant case, the nexus was not direct but only incidental. The industrial undertaking exported processed sea foods. By reason of such export, the Export Promotion Scheme applied. Thereunder, the assessee was entitled to import entitlements, which it could sell. The sale consideration therefrom could not be held to constitute a profit and gain derived from the assessee's industrial undertaking. The receipts 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.”

“Where it appears to the Assessing Officer that, owing to the close connection betweent he 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 purpose of the deduction under this section, take the amount of profits as may be reasonably deemed to have been derived therefrom”:

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“The Commissioner (Appeals) held that the Assessing Officer had not pointed out any instance of the assessee inflating the profits either by charging higher rates or suppressing the expenditure and in the absence of any such instance of manipulation, the Assessing Officer was not correct in recomputing the profits on the basis of estimation. The Tribunal held that the nature of business of the first unit and the fourth unit of the assessee were entirely different and there was no justifiable reason for the Assessing Officer to compare the profit margin of the two units. The assessee had maintained separate books in respect of the fourth unit and no material or specific defects had been pointed out by the Assessing Officer in the books which were produced before him for verification during the course of the assessment proceedings.”

While coming to the aforesaid conclusion, the Hon'ble Court duly considered the decision from Hon'ble Apex Court in the case of Arisudana Spinning Mills vs ACIT (2012) 348 ITR 385 and another decision from Hon'ble Delhi High Court in CIT vs Delhi Press Patra Prakashan Ltd. (2013) 355 ITR 14 (Del.). Thus, there is merit in the argument of the ld. Counsel for the assessee, therefore, from this angle, we affirm the stand of the ld. Commissioner of Income Tax (Appeals).

2.12. During hearing, the ld. Counsel for the assessee claimed that a search and seizure operation u/s 132 was conducted on the group on 21/09/2010, wherein, the assessee company filed settlement petition before the Income

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Tax Settlement Commission, wherein, similar claim u/s 10B of the Act in the case of the assessee was accepted for Assessment Year 2007-08 to 2009-10, for which, our attention was invited to pages 280 to 307 of the paper book containing application made u/s 245C of the Act and Rule 44C dated 12/03/2013, order passed u/s 245D(1) dated 20/03/2013 (pages 308 to 318), order passed u/s 245D(4) dated 27/11/2013 (pages 319 to 353), original computation of total income for Assessment Year 2007-08 (page 354 to 357), original computation of total income for Assessment Year 2008-09 (page 358 to 360) original computation of total income for Assessment Year 2009-10 (page 361-363) computation filed before the Settlement Commission for Assessment Year 2007-08 (page 364 to 365). Since, the claim of the assessee was accepted, it was contended that on the rule of consistency, the claim of the assessee has to be accepted. The ld. DR did not controvert the assertion of the assessee that for the aforementioned years the claim of the assessee was accepted by the Income Tax Settlement Commission.

2.13. Thus, on the issue of consistency, in principle, we are in agreement with the contention of the assessee that unless and until contrary facts are brought on record, the Rule of consistency, has to be accepted. We note that, as claimed by the assessee and not controverted by the Revenue, as discussed in para-2.9 (supra), the Income Tax Settlement Commission accepted the claim of the assessee, therefore, in

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the absence of contrary facts, no U-turn is permissible. The learned Assessing Officer is bound by rule of consistency. The following cases support the case of the assessee:

i. Parshuram Pottery Works Ltd. vs ITO 106 ITR 1 (SC) ii. Security Printers 264 ITR 276(Del.) iii. CIT vs Neo Polypack Pvt. Ltd. 245 ITR 492 (Del.) iv. CWT vs Allied Finance Pvt. Ltd. 289 ITR 318 (Del.) v. Berger Paints India Ltd. vs CIT 266 ITR 99 (SC) vi. DCIT vs United Vanaspati (275 ITR 124) (AT)(Chandigarh ITAT) vii. Union of India vs Kumudini N. Dalal 249 ITR 219 (SC) viii. Union of India vs Satish Pannalal Shah 249 ITR 221 ix. B.F.Varghese vs State of Kerala 72 ITR 726 (Ker.) x. CIT vs Narendra Doshi 254 ITR 606 (SC) xi. CIT vs Shivsagar Estate 257 ITR 59 (SC) xii. Pradip Ramanlal Seth vs UOI 204 ITR 866 (Guj.) xiii. Radhaswamy Satsang vs CIT 193 ITR 321 (SC) xiv. Aggarwal warehousing & Leasing Ltd. 257 ITR 235 (MP) The sum and substance of the aforesaid judicial pronouncements is that on the basis of principle of judicial discipline, consistency has to be followed and once in a particular year, if any view is taken, in the absence of any contrary material, no contrary view is to be taken as finality to the litigation is also a principle which has to be followed. Before us, no contrary facts or any adverse material was brought on record by the Revenue.

2.14. So far as, administrative expenses for managing overall business of the assessee company including the business of STP units is concerned, on the basis of foregoing

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discussion, we find no infirmity in the conclusion of the Ld. Commissioner of Income Tax (Appeal). Even otherwise, it is the assessee, who is to safeguard his business interest and unless and until some unjustifiability is pointed, the Revenue is not expected to guide/direct the assessee as to how to run the business. The stand of the Ld. Commissioner of Income Tax (Appeal), is therefore, affirmed.

23 M/s GTL Ltd. ITA Nos.5245 & 5419/Mum/2010

Financial Year-2005-06 Assessment Year 2006-07 Unit Wise Profitability statement as per section 10B

Notes:- 1. There is a separate Bank Account of STP division 2. It has separate set books of account 3. The division has its own strength of employees exclusively doing STP activities. Financial Year-2005-06 Assessment Year 2006-07 Unit Wise Profitability statement as per section 10B

24 M/s GTL Ltd. ITA Nos.5245 & 5419/Mum/2010

3.1. In the aforesaid form 56G report u/s 10B of the Act was also made available before the Ld. Assessing Officer as well as before the First Appellate Authority, which contains statement of profit u/s 10B for the year ending 31/03/2006 and unit wise profitability statement as per section 10B for Financial Year 2005-06 (Assessment Year 2006-07). The assessee has duly depicted the allocation and its basis for EOU related units and non-EOU units along with the corporate division (Non-EOU). In the notes attached to the aforesaid statement, it has been clearly mentioned that there is a separate books of accounts of STP division and it has own strength of employees exclusively doing STP activities. So, we find no infirmity in the conclusion of the Ld. Commissioner of Income Tax (Appeal) as necessary details were filed by the assessee and the same were duly examined by the First Appellate Authority. Thus, ground no.1 and 2 (a) (b) are dismissed.

25 M/s GTL Ltd. ITA Nos.5245 & 5419/Mum/2010

4.1. The crux of argument advanced by Ld. CIT-DR, is that onus is upon the assessee to prove as to why the value has gone down, therefore, the Assessing Officer rightly added back. Our attention was invited to page-12 of the assessment order. On the other hand, the ld. counsel for the assessee contended that the assessee has not claimed any deduction, therefore, the conclusion arrived at in the impugned order was defended. Reliance was placed upon the decision from Hon'ble jurisdictional High Court in 251 ITR 15(Bom.) and Hon'ble Apex Court in 255 ITR 273 (SC).

4.2. We have considered the rival submissions and perused the material available on record. The facts, in brief are that the assessee company made investment in the shares of M/s Indian Agri Business System Pvt. Ltd. and the same were shown as at cost. The assessee follows valuing the investment at cost in its accounting policy less provision for diminution in the value of such investment amounting to Rs.3 crore on account of reduction in the value of shares of M/s Indian Agri Business System Pvt. Ltd. The same was reduced accordingly and netted off from profit and loss account. Since, there was permanent reduction, it was claimed as allowable expenditure. The assessee company prepared the accounts as per the provisions of Companies Act, 1956. This factual matrix was disclosed in the accounting policy by the assessee by way of note. During hearing, the ld. counsel invited our attention to accounting

26 M/s GTL Ltd. ITA Nos.5245 & 5419/Mum/2010

standard-13(AS-13) on ‘accounting for investment’. The para- 7 reads as under:-

“Long term investments are usually carried at cost. However, when there is a decline, other than temporary, in the value of a long term investment, the carrying amount is reduced to recognize the decline.” “Investments classified as long term investments should be carried out in the financial statements at cost. However, provision for diminution shall be made to recognize a decline, other than temporary, in the value of the investments, such reduction being determined and made for each investment individually.” In the aforesaid factual matrix, it is apparent that the assessee has made provision in the books of accounts for permanent diminution in the value of investment and as such the diminution is not temporary. It is also noted that to a question whether the provision for diminution in the value of investment should be made by way of charge to the profit and loss account was also as per para-33 of AS-13, which is as under:-

“Any reduction in the carrying account and any reversal of such reductions should be charged or credited to the profit and loss statement.”

The aforesaid factual matrix and AS-13, clearly indicates that the assessee has correctly made the provision for the diminution in the value of investments in its accounts. This exactly has been observed by the Ld. Commissioner of Income Tax (Appeal) also. Before the Ld. Commissioner of Income Tax (Appeal) as well as before this Tribunal, it has been claimed by the assessee that assessee-company has not reduced the

27 M/s GTL Ltd. ITA Nos.5245 & 5419/Mum/2010

diminution in the value of investment, while calculating the taxable income, therefore, there was no question of adding back. The facts indicates that the Ld. Assessing Officer, thus wrongly disallowed the same without appreciating that the assessee added back the amount of diminution in the computation of income. The brake up of the income, shown by the assessee, is reproduced hereunder:-

Sl. Particulars Amount No. 1 Profit on sale of investment-Cr (26,411,015) 2 Loss on sale of Investment-Dr 768409 3 Diminution in value of investment- 28,829,361 unquoted 4 Diminution in value of investment-Eq (309,414) Shares 5 Dr 2,877,341

The aforesaid analysis indicates that the amount of Rs.28,77,341/- has already been added back, therefore, no further action was required by the Assessing Officer as the same amounts to double disallowance, therefore, we affirm the stand of the Ld. Commissioner of Income Tax (Appeal), resulting into dismissal of impugned ground raised before us.

4.3. However, while computing the book profit u/s 115JB of the Act, the assessee has not added back the provision in diminution in the value of investment. Clause (i) of explanation-1 to section 115JB of the Act, inserted by the Finance (No.2) Act, 2009, with retrospective effect from 01/04/2001, requires the profit to be increased by the amount/amounts set-aside as provision for diminution in

28 M/s GTL Ltd. ITA Nos.5245 & 5419/Mum/2010

value of any asset, therefore, the Ld. Assessing Officer is directed to re-compute the book profit after addition of net provision of diminution in value of investment of Rs.2,85,19,947/-, consequently, this ground of the Department is partly allowed.

5.1. On the other hand, the ld. counsel for the assessee asserted/explained that software inventories, due to advancement in technology, became outdated, therefore, as per the order of the Hon'ble High Court, the assessee wrote it off and claimed, in computation, as deduction. Before doing so, the assessee took the opinion of the expert namely Delloite. Our attention was invited to pages 78 to 82 of the paper book containing the opinion of the expert. The details of writing off are available at page -74 to 75 of the paper book. The crux of argument is that it was written off as per

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the order of the Hon'ble High Court. It was also contended that the valuation was done by the management and there is no adverse qualification by the auditor.

5.2. We have considered the rival submissions and perused the material available on record. The facts, in brief, are that there was scheme of arrangement and reconstruction between the assessee and its associate concern namely GTL Infrastructure Ltd. and GTL Technology Investment, which was approved by Hon'ble jurisdictional High Court, vide order dated 28/04/2006. As per this order, the assessee was required to adjust any diminution in the value of assets against the ‘securities premium account’ instead of profit & loss account. The scheme of demerger is available at pages 109-140 and the order of the approval from Hon'ble Bombay High Court (dated 28/04/2006) is available at pages 141 to 186. The relevant observation/finding is available at page- 176 of the order which is reproduced hereunder:-

“26. (a) The balance standing in the securities premium account of GTL on the Appointed Date (Called ‘share premium account’ in the books of GTL) (“the Securities Premium Account’) will be adjusted and reduced as it is unrepresented by available assets of GTL. In view of the diminution in the value of the assets of GTL such as plant and equipment (including software rights and test and repair equipment), network, inventories, electrical fittings, office equipment, furniture and fixtures, miscellaneous expenditure (to the extent not written off) and other such assets which have diminished in value.”

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5.3. In the light of the order of the Hon'ble High Court, the assessee write off the stock amounting to Rs.135.69 crores in respect of obsolete or non-moving inventory on the basis of technical evaluation, ageing analysis, on the basis of commercial expediency. The assessee adjusted the said write off against security premium account. However, for the purpose of computing its total income, the assessee claimed write off as deduction. The assessee filed a letter dated 12/11/2009 before the Assessing Officer (page-63 to 69 of the paper book) (relevant page-65) and letter dated 17/11/2009 to the Assessing Officer (page 70 to 73 of the paper book), the details of stock of written off are available at page 74 and 75 and opinion from the Deloitte is available at page-78 to 82 of the paper book. Vide letter dated 10/12/2009, address to the Assessing Officer (page-100 to 106 of the paper book), the details of stock written off (page- 107 and 108), bills of software (page 183 to 217) were made available to the Assessing Officer. The Ld. Assessing Officer disallowed the claimed deduction of write off on the premise that

(i) write off is not debited to profit and loss account but adjusted against securities premium account,

(ii) the expenditure is capital in nature

(iii) The assessee did not provide any evidence to justify the write off.

31 M/s GTL Ltd. ITA Nos.5245 & 5419/Mum/2010

However, the Ld. Commissioner of Income Tax (Appeal) considered the factual matrix and allowed the claim of the assessee. The contention of the Ld. Assessing Officer as well as the argument of Ld. DR is that some of the items, considered for write off, were acquired shortly, before actual write off. The Ld. Commissioner of Income Tax (Appeal) granted relief to the assessee by holding that:

(i) that the treatment in accounts was not conclusive of the nature of transaction, therefore, disallowance cannot be rejected merely because it was not routed through profit and loss account, and

(ii) that the expenditure cannot be treated as capital in nature merely on the basis of quantum when the write off pertained to stock.

We note that the ld. DR, before us, heavily relied upon the points raised by the Assessing Officer by contending that the Ld. Commissioner of Income Tax (Appeal) has not appreciated the facts properly. On the other hand, the crux of argument on behalf of the assessee is that it is a settled law that whether the assessee is entitled to a particular deduction or not will depend upon the position of law, relating thereto, and not on the view which the assessee might take of his rights nor can the existence or absence of entries in the books of account can be decisive or conclusive. Reliance was placed upon the decision from Hon'ble Apex Court in Kedarnath Jute Mfg. Ltd. vs CIT (1971) 82 ITR 363

32 M/s GTL Ltd. ITA Nos.5245 & 5419/Mum/2010

(SC). It was argued that merely the quantum and periodicity of the expenditure is not a relevant factor to decide the nature of expenditure for which reliance was placed in M.K. Brothers (P.) Ltd. vs CIT (1972) 86 ITR 38 (SC) and Travancore Sugar & Chemicals Ltd. vs CIT (1966) 62 ITR 566 (SC). It was explained that valuation of entries is a regular practice and the assessee is in earlier and subsequent years, written off inventories, which were allowed. Admittedly, the assessee provided the complete details of inventories, written off, which were not mentioned in the assessment order. It was also pleaded that there was no adverse qualification in the audit report for which reliance was placed in Alfa Laval India Ltd. vs DCIT (266 ITR 418)(Bom.) and Avaya Global Connect Ltd. vs ACIT (122 TTJ 300)(Bom.). The Bench raised a query to the Ld. counsel to the observation of the Ld. DR that some of the items were written off, shortly after their purchase, it was explained that the orders were placed much earlier and part of the stock was received earlier and these items were purchased on account of earlier commitment to the vendors by the assessee.

We find that such write off was pursuant to the order from Hon'ble High Court Bombay. The write off is of closing stock in trade and not asset or investment, hence, it cannot be treated as capital expenditure. So far as, the contention of the Ld. DR, that entry in books of account is not conclusive, reliance can be placed upon the decision from Hon'ble Apex Court in Tuticorin Alkali Chmicals & Fertilzers Ltd. (2055)

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227 ITR 172 (Sc) and Kedarnath Jute Mg. Co. Ltd. CIT (1971) 82 ITR 363 (SC) (page-367), where, the Hon'ble Court observed as under:-

“Whether the assessee is entitled to a particular deduction or not will depend on the provisions of law & not on the view which the assessee might take nor can the existence or absence of entries in the books of accounts be decisive or conclusive in the matter.” 5.4. The expenditure which has been claimed is nothing but write off for stock in trade, therefore, it is a revenue business expenditure. The Ld. Assessing Officer disallowed the claim of the assessee considering the magnitude of expenses. We are of the view that it depends upon the nature/volume of business, therefore, quantum expenditure cannot be the ground to disallow the revenue expenditure. Even otherwise, the assessee following accounting standard-2 (AS-2), valuation of inventories, as per which inventories have to be valued at lower of the cost or net market value in conformity with the commercial accounting unless such principle stands superseded or modified by a legislative enactment. This principle has been accepted in various judicial pronouncements. The details of inventories, written off, were made available by the assessee before the authorities and the ld. Assessing Officer has not adduced any finding as to how the valuation of stock of written off was incorrect. It is the decision of the management and the assessee company is subject to internal as well as statutory audit and no adverse qualification has been given by the auditors. The decision from Hon'ble jurisdictional High Court

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in the case of Alfa Laval India Ltd. vs DCIT (2004) 266 ITR 418 (Bom.), wherein at para-8, the Hon'ble High Court observed/held as under:-

“8. In the present case, there is no dispute that the duly certified auditor's report placed before the AO clearly justified valuation of obsolete items at 10 per cent of cost. There is no dispute that the assessee is entitled to value the closing stock at market value or at cost whichever is lower. It is also not in dispute that the value of the closing stock has been taken as the value of the opening stock in the subsequent year. Moreover, it is also not disputed that the obsolete items were in fact sold in the subsequent year at a price less than 10 per cent of the cost. Under the circumstances, it could not be said that the valuation of the obsolete items done by the assessee and certified by the auditors was not proper or arbitrary. The AO in fact has arbitrarily valued the items in question at 50 per cent of the cost without disclosing the basis of such valuation. The AO had not doubted the correctness of the certificate of the auditors regarding the valuation of obsolete items. The summary of the obsolete items were before the AO. There is nothing on record to show that the assessee was called upon to furnish the list of obsolete items or that the assessee was called upon to establish that the items were not moving for 3 years. Under these circumstances, it could not be said that the assessee has failed to furnish list of obsolete items and failed to establish that the said items were not moving. In the absence of any basis for valuing the obsolete items at 50 per cent of the cost, the Tribunal could not have upheld the findings of the AO on the ground that the list of obsolete items were not produced by the assessee. Accordingly, we answer the question No. 1 in the negative, that is, in favour of the assessee and against the Revenue.”

5.5. It is noteworthy that the aforesaid decision of Hon'ble Bombay High Court was confirmed by Hon'ble Apex Court In (2007) 295 ITR 451 (SC). In another case, the

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Hon'ble Apex Court in CIT vs British Paints India ltd. (1991) 188 ITR 44 (relevant page-51) held as under:-

Where the market value has fallen before the date of valuation and, on that date, the market value of the article is less than its actual cost, the assessee is entitled to value the articles at market value and thus anticipate the loss which he will probably incur at the time of the sale of the goods. Valuation of the stock-in-trade at cost or market value, whichever is the lower, is a matter entirely within the discretion of the assessee. But whichever method he adopts, it should disclose a true picture of his profits and gains. If, on the other hand, he adopts a system which does not disclose the true state of affairs for the determination of tax, even if it is ideally suited for other purposes of his business, such as the creation of a reserve, declaration of dividends, planning and the like, it is the duty of the Assessing Officer to adopt any such computation as he deems appropriate for the proper determination of the true income of the assessee. This is not only a right but a duty that is placed on the officer, in terms of the first proviso to s. 145, which concerns a correct and complete account but which, in the opinion of the officer, does not disclose the true and proper income. The correct principle of accounting is to enter the stock in the books of account at cost unless the value is required to be reduced by reason of the fall in the market value of those goods below their original cost. Ordinarily, therefore, the goods should not be written down below the cost price except where there is an actual or anticipated loss. On the other hand, if the fall in the price is only such as it would reduce merely the prospective profit, there would be no justification to discard the initial valuation at cost.

(Paras 10 & 11)

It is not only the right, but the duty of the Assessing Officer to consider whether or not the books disclose the true state of accounts and the correct income can be deduced therefrom. It is incorrect to say, as contended on behalf of the assessee, that the Officer is bound to accept the system of accounting regularly employed by the assessee, the correctness of which had not been questioned in the past. There is no estoppel in these matters, and the Officer is not bound by the method followed in the earlier years. Any system of accounting which excludes, for the valuation of the stock-in-trade, all costs other than the cost of raw material for the goods in process and finished products, is likely to result in a distorted picture of the true state of the business for the purpose of computing the chargeable income. Such a system may produce a comparatively lower valuation of the opening stock and the closing stock, thus, showing a comparatively low difference between the two. In a period of rising turnover and rising prices, the system adopted by the assessee, as found by the Tribunal, is apt to diminish the assessment of the taxable profit of a year. The profit of one year is likely to be shifted to another year which is an incorrect method of computing profits and gains for the purpose of assessment. Each year being a self-contained unit, and the taxes of a particular year being payable with reference to the income of that year, as computed in terms of the Act, the method adopted by the

36 M/s GTL Ltd. ITA Nos.5245 & 5419/Mum/2010

assessee has been found to be such that income cannot properly be deduced therefrom. It is, therefore, not only the right but the duty of the Assessing Officer to act in exercise of his statutory power, and reject the accounting system adopted by the assessee, as he has done in the instant case, for determining what, in his opinion, is the correct taxable income.—British Paints India Ltd. vs. CIT (1978) 111 ITR 53 (Cal) : TC2R.122 reversed; B.S.C. Footwear Ltd. vs. Ridgway (Inspector of Taxes) (1971) 2 WLR 1313 (HL) CIT vs. Sarangpur Cotton Manufacturing Co. Ltd. (1938) 6 ITR 36 (PC) : TC1R.109, CIT vs. A. Krishnaswami Mudaliar & Ors. (1964) 53 ITR 122 (SC) : (1964) TAX 18(3) 88 : TC1R.131, S.N. Namasivayam Chettair vs. CIT (1960) 38 ITR 579 (SC) : (1960) TAX 13(3) -105 : TC1R.532, IRC vs. Cock, Rusell and Co. Ltd. (1949) 29 Tax Cases 387, Whimster and Co. vs. IRC (1917-26) 12 Tax Cases 813 and Chainrup Sampatram vs. CIT (1953) 24 ITR 481 (SC) : TC2R.124 relied on. xxxxxxxxxxxxxxxxxxxxxxxxxx 5.6. Broadly, in the aforesaid case, the Hon'ble Court has held that where the market value has fallen before the date of valuation and, on that date, the market value of the article is less than its actual cost, the assessee is entitled to value the articles at market value and thus anticipate the loss which he will probably incur at the time of the sale of the goods. Valuation of the stock-in-trade at cost or market value, whichever is the lower, is a matter entirely within the discretion of the assessee. There can be no doubt that the loss, which has crystallized during the year and claimed by the assessee, the assessee is entitled to claim the same. In principle, we are in agreement with the argument of the ld. counsel for the assessee, so far as principle is concerned.

5.7. However, we find that the assessee at the threshold must substantiate the heavy decrease in value of stock, written off, short after their purchase, by providing quantitative details vis-à-vis market price. Therefore, the matter is restored back to the file of Ld. Assessing Officer to verify the claim of the

37 M/s GTL Ltd. ITA Nos.5245 & 5419/Mum/2010

assessee in this regard and the assessee in-turn is directed to substantiate his claim by providing necessary details. The ground stands allowed for statistical purposes.

Finally, the appeals of the Revenue, for Assessment Year 2005-06 is dismissed and for Assessment Year 2006-07 is partly allowed.

Order pronounced in the open court on 31/05/2017.

Sd/- Sd/- (Manoj Kumar Aggarwal) (Joginder Singh) लेखा सद�य / ACCOUNTANT MEMBER �या�यक सद�य / JUDICIAL MEMBER मुंबई Mumbai; �दनांक Dated :31/05/2017

f{x~{tÜ? P.S /�नजी स�चव आदेश क� ��त�ल�प अ�े�षत/Copy of the Order forwarded to :

आदेशानुसार/ BY ORDER, स�या�पत ��त //True Copy// उप/सहायक पंजीकार (Dy./Asstt. Registrar) आयकर अपील�य अ�धकरण, मुंबई / ITAT, Mumbai,