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Income Tax Appellate Tribunal, ‘A’ BENCH
Before: Shri M.Balaganesh & Shri S.S.Viswanethra Ravi
Shri S.S. Viswanethra Ravi, JM :-
The above said two appeals by the revenue and the assessee are directed against the common order dated 05-02- 2013 passed by the Commissioner of Income Tax(Appeals),XII, Kolkata for the assessment year 2008-09.
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ITA No.1105/Kol/2013 A.Y 2008-09 of the revenue 2. First we shall take up the revenue’s appeal in ITA No. 1105/Kol/13 for the AY 2008-09 by the revenue.
In this appeal, the revenue has raised the following effective grounds:-
Whether on the facts and in the circumstances of the case, ld. CIT(A) erred in allowing deduction u/s. 80IB in respect of ‘common expenses’ of Rs.10,21,06,200/- though it was not correctly apportioned. 2. Whether on the facts and in the circumstances of the case, ld. CIT(A) erred in allowing deduction u/s.80IB in respect of ‘interest income’ of Rs.57,93,000/- on sale of scrap. 4. Ground no.1 is relating to disallowance of deduction u/s. 80IB on account of common expenses to an extent of Rs.10,21,06,200/-.
Brief facts are that the assessee is a company and engaged in the business of manufacturing and trading of paints, enamels and resins. The assessee is having four units i.e factories located in the State of Jammu & Kashmir as Jammu (Powder), Jammu (Water), Jammu (Solvent) and Jammu (Rajdoot). It has also factories located in Goa & Pondicheery. The assessee initially filed its return declaring total income at Rs.74,72,61,720/- and claiming Rs.2,50,58,494/- as refund. Under scrutiny, notices u/s. 143(1) and 143(2) of the Act were issued. In response to which, the assessee filed its various details.
Thereafter, the assessee filed its revised return of income on 31-03- 11 declaring at Rs.74,73,92,690/- and claiming refund of Rs.25,34,998/-. During course of proceedings the assessee claimed its income eligible for deduction under chapter VIA of the Act. According to AO, the assessee prepared a separate Profit & Loss account for each unit and claimed the profits from the above units as eligible for deduction under Chapter VI-A. The assessee determined the profit and gains from the said units considering both direct cost and indirect cost, according to AO is principally correct. The AO found that indirect expenses of the said four units is 2 | P a g e I T A N o s . 1 1 0 5 , 1 4 0 3 / K o l / 1 3 M / s . B e r g e r P a i n t s ( I ) L t d
attributing only 6.07%, according to him it should be apportioned at 20% of Rs.14,66,47,200/- as against the claim of Assessee at Rs.4,45,41,000/- and accordingly the deduction of Rs.10,21,06,2000/- should be withdrawn. In explanation, the submissions of assessee before the AO the relevant portion is reproduced herein below:-
“ Head Office expenses
The Company has apportioned the incremental expenditure incurred at the head office during the year under consideration on the basis of the ratio of turnover of the Jammu (Water Based) factory over total turnover of the company. For this purpose the expenditure incurred at the head office in the Financial year 2002-03 was taken as the base year, as the Jammu (Water Based) factory became operational in the financial year 2002-03. The expenditure incurred in the financial year 2002-03 would automatically increase due to the inflation factor. By applying the inflation factor, the real expenditure incurred in the financial year 2007-08 on the base of 2002-03 was arrived at. This expenditure would no doubt have been incurred in the financial year 2007-08 whether there was any new factory or not and therefore no part of the same can be allocated to the new factory. The balance expenditure incurred in the financial year 2007-08 i.e. the difference between the expenditure incurred in the financial year 2007-08 and the real figure of the expenditure on the basis of 2002-03, can be said to have some connection with the new factory at Jammu though in fact the Jammu (Water Based) unit being a self contained unit can be said to have run on its own. However, acting on a conservative basis the Company has allocated this additional expenditure to Jammu (Water Based) factory in the ratio of turnover of the Jammu (Water Based) factory ever total turnover.
Common Selling Expenses
The Company had already considered in the profit and loss account of the Jammu (Water Based) unit, the advertisement and sales promotion expenses of goods manufactured at the Jammu (Water Based) unit. However, acting on a conservative basis, the Company had apportioned to the Jammu (Water based) unit expenses incurred at the sales offices/depots through which the goods manufactured at the Jammu (Water Based) unit were sold. In this case also, the expenditure incurred in the financial year 2002-03 was taken as the base figure to which was applied the inflation rate of 4.62% to arrive at the real expenditure for the financial year 2007-08 on the preceding year's basis. (This expenditure would in any case have been incurred whether or not there was a new unit. Hence this expenditure cannot be said to have any connection with the new Jammu (Water Based) unit.) Thereafter, the incremental expenditure was determined by deducting the real expenditure as above from the total expenditure incurred in the financial year 2007-08. This incremental expenditure was allocated to the Jammu (Water Based) unit by apportionment in the ratio of branch turnover to total turnover."
The above basis has been adopted for arriving at the profit derived from the industrial undertaking Jammu (Water Based) and identical basis for allocation of common head office and selling expense has been adopted with respect to the Jammu (Solvent Based) based and Jammu (Rajdoot) units of company with regard to which deduction u/s. 80-IB has been claimed in the return for the year under assessment as above...... ".
Assessee further submitted
" ... While on the issue we may draw attention of your kindself to section 80-IB of the Act which entitles an assessee to a deduction of the profits derived from an eligible undertaking subject to the provisions of the said section. Your kindself is aware that the word "derived from" has a much narrower meaning than "attributable to". The Hon'ble Supreme Court has explained the meaning of the words "derived from" in its decision in CIT vs. Sterling Foods [237 ITR 579 (SC)] and has held that the said words would require the existence of a direct nexus and a mere commercial connection with a source does not amount to 'derive from'. Therefore, in order to arrive at the profits 'derived from' the industrial undertaking, it is necessary to deduct only those expenses which are incurred directly in the three industrial undertakings at located at Jammu. 3 | P a g e
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Your kindself would therefore certainly appreciate that it is legally incorrect to allocate any other expenses which do not have any nexus or direct connection to the eligible units for the purpose of arriving at the profits and gains derived from the respective undertakings eligible for deduction under section 80-IB of the Act. However, without prejudice to the position in law in this regard, the company has itself apportioned common head office expenses and selling expenses to arrive at the amount deductible u/s. 80lB of the Act for the respective undertakings and that too by applying a consistent basis of such apportionment.
Your kindself will note that the above basis of apportionment of common head office and selling expenses has been held to be scientific and reasonable by the Hon'ble ITAT, Kolkata which is the last fact finding authority. The Hon'ble ITAT of jurisdiction, upheld the basis of apportionment of common head office and selling expenses adopted by the company after making a threadbare analysis thereof Copies of the following orders passed by the Hon'ble 'Tribunal are also enclosed herewith for ready reference - a. AY 00-01 and 01-02: ITA Nos. 1889(K)/04, 268 (K)/05, CO Nos. 107 & 65 (Kol)/2005 dated 11h October, 2006 : Annexure - I. b. AY 02-03: ITA Nos. 290/Kol/2oo6 & 1166/Kol/2006 dated 13th August, 2007: Annexure - II.
Your kindself will note that the same basis of apportionment of common head office and selling expenses has been followed by the company in the year under consideration. The computation of common head office and selling expenses by applying the said basis forms part of Form No. 10CCB already filed with your kindself and the same for Berger Division is also enclosed herewith for ready reference in Annexure – III. 3. On perusal of the aforesaid documents and submission made above including the detailed orders passed by the Hon'ble Tribunal of jurisdiction, in the case of the company itself, your kindself will no doubt appreciate that the basis of apportion of common head office and selling expenses adopted consistently by the company is a scientific and reasonable and does not call for any modification. In other words, the basis of apportionment of common Head Office and selling expenses adopted consistently by the company for arriving at the amount deductable under Section 80IB of the Act has been accepted by the Hon'ble Tribunal of jurisdiction which is the last fact finding authority....."
But, the AO did not accept such submissions of the assessee. According to him, the indirect expenses apportioned on the basis of turnover claiming to be accepted being rational and scientific basis of allocation. Accordingly, total indirect expenses 20% of Rs.14,66,47,200/- (- ) Rs.445,41,000/- as apportioned by the assessee, the difference of Rs.10,21,06,200/- was withdrawn from claim of deduction u/s.80IB of the Act and the same was not allowed by the AO.
In first appeal, before the CIT-A the assessee contended that in the earlier years, the allocation of common selling & head office expenses as adopted by the assessee was accepted by the Hon’ble Kolkata Tribunal for
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the A.Ys. 2001-01, 2001-02 vide order dated 17/20-10-2006 in assessee’s own case. Considering the above submissions as made by the assessee before the CIT-A allowed the ground of appeal and deleted the addition made thereon by holding as under:-
“4. I have considered the finding of the AO in his order dt. 22-12-2011 and the written submission filed by the A.R during the appellate proceeding. Appeal on ground no. 1(a) to 1(j) are against the addition of Rs.102106200/- disallowing the claim u/s. 80IB of the I.T Act, 1961. During the appellate proceeding the A.R has submitted that this issue is covered in assessee’s favour in assessee’s own case vide ITAT order ITA No. 1332 & 1333 (Kol)/2003 dt. 20-03-2009 for A.Y 2002-03. I have considered the A.O’s finding in the assessment order and the A.R’s submission filed. As this issue is covered in assessee’s own case by the ITAT order for A.Y 2002-03, therefore, assessee’s appeal on ground no. 1(a) to 1(j) are allowed. “ 9. Before us the ld.DR has relied on the order of the AO. On the contrary, the ld.AR submits that the issue in hand is covered by the order of this Tribunal in assessee’s own case vide order dated 20-10-06, which is available at pages 86-95 of the assessee’s paper book and referred to page nos. 92 and 93 in support of his contention.
Heard rival submissions and perused the material available on record. We find that the assessee submitted before the CIT-A that the Tribunal has accepted the method of allocating the Head office and common selling expenses. Considering the above, the CIT-A in the present case allowed the deduction claimed u/s. 80IB of the Act in respect of ‘common expenses’. Therefore, it is also pertinent to reproduce the relevant finding of the ITAT, C Bench, Kolkata in assessee’s own case in ITA Nos. 1889/Kol/04 & 268/Kol/05 for the AYs 2000-01 and 2001-02 the order dated 17/20-10- 2006 is reproduced herein below:
“5.5 We have given a careful consideration to the facts of the case and the position in law. We have also considered the method/basis of estimation of common HO & selling expenses. We noted that the assessee has filed an audited certificate with the return to substantiate its claim u/s. 80IB. The profit & loss account of Pondicherry unit has been certified by the auditors’ to be true & fair subject to the aforesaid note. From the audit report it is clear that the auditors' arrived at the profit of the Pondicherry unit after considering & apportioning all expenses related to the unit except for common HO & selling expenses. Therefore the auditors' clearly stated that the profit & loss account of the Pondicherry unit gives a true & fair view as regard income & expenditures derived by the unit except for common HO & selling expenses . It was only relating to the common HO & selling expenses the Auditors' gave the said note, The company as a whole has an audited account & from this audited accounts common HO & selling expenses attributable to the Pondicherry unit 5 | P a g e I T A N o s . 1 1 0 5 , 1 4 0 3 / K o l / 1 3 M / s . B e r g e r P a i n t s ( I ) L t d
has not been considered by the auditors. We agree with the A/R that this allocation is an estimation from audited figures based on some scientific/reasonable method and not audit (as the company has an audited account). the same has been covered by way of note. The assessee itself has adopted a basis for allocation of common HO and selling expenses which may be attributed to the operations at the Pondicherry unit as stated in the foregoing paragraphs. The assessee has taken all relevant common HO & selling expenses attributable to Pondicherry "Unit, applied inflation rate @ 5% from F.Y. 1996-97 (i.e. AY.l997-98) & after arriving at the total common HO & Selling expenses for the relevant assessment year applied the turnover ratio (turnover of Pondicherry/ turnover of the company). From the detailed calculations of allocations of common head office expenses placed at pages 67-68 of the Paper Book, we note that all the common expenses (viz. MCRE, rent - office & residence, Office & flat un keep, law charges. tea room, medical, electricity, rates and taxes, TTP, BP & BE, printing & stationery, boo & perm lea. traveling, LTA, bank charges, in-house computer expenses, cash commission, repacking expenses, HRA, incentive salesman, other expenses, canteen, staff welfare, donation & subscription, directors fees, gratuity, machine accounting. sec. off expenses, insurance, training & developments, professional fees.. brokerage & commission, in-house Xerox, ESI, shifting expenses, ARB, internal audit expenses' etc.) including expenses on salaries, advertisement and sales promotion etc. have been duly considered by the assessee for allocation to the unit eligible for deduction u/s. 80ID and thus there cannot be any question of inflated profits as raised by the Department in Ground No. (iv). On going through the basis of allocation of the said common head office and se1Jing expenses adopted by the assessee consistently from the AY 98-99, we are of the considered view that the said basis adopted by the assessee for allocation of common expenses is a reasonable and scientific basis and does not call for any modification. The basis accepted by the AO is arbitrary as he has not stated the reason for rejection of the assessee’s method, he has not stated how he arrived at 20% for allocating common HO exp. Which shows he has taken an adhoc figure & we accept that profit ratio cannot be applied consistently in all years. Moreover, in addition to the audited accounts of the company, the assessee maintains separate accounts for the Pondicherry unit to ascertain its profit & which again is certified by the auditors. The same should be accepted. We are in agreement with the contention of the Ld. A/R which is supported by the decision of the Hon’ble Supreme Court as stated above that once the Department has accepted a decision on a particular issued by not challenging the same before any higher forum it is not open for it to contend in the contrary on the sme issue in a later year. We would reiterate that in the present case the Department has accepted the basis of allocation of common head office and selling expenses in the AY 98-99 and there is no dispute as to the fact that the same basis has been adopted by the assessee in AY 2000-01 which are before us. Following the ratio laid down in the decisions rendered by the Hon’ble Supreme Court, we uphold the decision of the CIT(A) on this issue and thus dismiss Ground Nos. (iii) & (iv) raised by the Department.”
On perusal of the orders for AY 2000-01 and 2001-02 in ITA No’s. 1889/Kol/2004, 268 /Kol/2005 and CO No’s. 107 & 65 /Kol)/2005 in assessee’s own case placed at page no-86 of paper book shows the basis of apportionment of head office and common selling expenses is being followed by the Assessee consistently. We find the Tribunal found the basis of apportionment of common head office and common selling expenses adopted consistently by the company is scientific and reasonable and accepted and allowed deduction under Section 80IB of the Act. Respectfully following the above, we uphold the impugned order of the CIT-A and we have no hesitation to allow the deduction as claimed
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u/s.80IB of the Act and therefore, ground raised in this regard fails and it is dismissed.
Ground no.2 is relating to disallowance of deduction u/s. 80IB of the Act in respect of income of Rs.57,93,000/- on account of sale of scrap.
During the assessment proceedings the AO found that the assessee credited an amount of Rs.57,93,000 to its P & L account and claimed the same as deduction u/s. 80IB of the Act on account of sale of scrap. According to AO, it cannot be treated as derived from profit and gains of industrial undertaking being eligible for business.
In first appeal, the CIT-A allowed the ground of appeal as raised by the assessee before him by relying on the order of the Tribunal in assessee’s own case supra by finding as under:-
“5. Appeal on grounds no. 2(a), (b) and ( c) are against the addition of Rs.57,93,000/- disallowing deduction u/s. 80IB of the I.T Act, 1961. The AO in his assessment order has mentioned that ‘the other income of Rs.11586000/- is from sale of scrap. It is clear that deduction u/s. 80IB/80IC is not allowable on interest income and sale of scrap because this receipts cannot be treated as profit and gains derived from business referred to in sub-sec. 1 of Sec. 80IB/80IC.”The A.R in his written submission filed during the appellate proceeding has brought on record that this issue was covered in order passed u/s. 263 of the I.T Act, 1961 by the Ld. CIT-IV, Kolkata in the case of assessment year 2000-01. But the order passed u/s. 263 was quashed by the Hon’ble ITAT vide its order in ITA No.922(Kol)/2005 for A.Y 2000-01. I have considered the finding of the A.O and the written submission filed by the A.R. I find that this issue was there in the order passed u/s. 263 by the Ld. CIT-IV, Kolkata for A.Y 2000-01 but his order was later on quashed by the Hon’ble ITAT, Kolkata. Accordingly, assessee’s appeal on ground 2(a), (b) and ( c) are allowed.” 15. Before us the ld.DR relied on the order of the AO. On the contrary, the ld.AR submits the issue in hand is covered by the orders of various Hon’ble High Courts and referred to page no’s.175 and 176 of the paper book.
Heard rival submissions and perused the material available on record. We find that the issue in hand is covered by various Hon’ble High Courts in the cases of DClT vs Harjivandas Juthabhai Zaveri reported in 2581TR 785 (GUj), ClT vs Sundaram Clayton Ltd reported in 1331TR 34 (Mad), CIT vs Wheels India Ltd reported in 141 ITR 745 (Med) and Arati 7 | P a g e I T A N o s . 1 1 0 5 , 1 4 0 3 / K o l / 1 3 M / s . B e r g e r P a i n t s ( I ) L t d
Industries Ltd Vs DCIT reported in 95 TTJ 14 (Ahm) as rightly pointed out by the ld.AR of the assessee before us. We find that the AO following the same allowed the deduction and relevant finding of which is reproduced herein below:
“With respect to the second issue the assessee submitted that ".....other income' of Rs.15,86,OOOI- as appearing in the Profit & Loss A/c of the Unit at Pondicherry comprises of income arising on account of sale of scrap generated in the manufacturing process employed at said Unit. The said fact would be apparent from the complete set of invoices reused by the unit In this regard. Since such general of scrap is directly connected w:th the production process employed by the company at its Unit at Pondicherry the profit derived from which is eligible for deduction under sect/on 80-IB of the Act. The generation of scrap has therefore a direct nexus with the goods produced by the company at the said eligible Unit and the profit derived therefrom is incidental to the activity of the industrial undertaking. The provision of section 80-IB under which the impugned deduction has been allowed by the Assessing Officer is in pari material to section 80-I and 80IA. It is submitted that in the under noted decisions which have been rendered in the context of section 80-I of the Act by various High Courts, it has been inter alia held that scrap generated in the manufacturing activity carried on by the assessee is eligible for deduction under the provisions of the said section- DClT vs Harjivandas Juthabhai Zaveri [2581TR 785 (Guj) CIT vs Sundaram Ciayton Ltd [1331TR 34 (Mad)] CIT vs Wheels India Ltd [141 ITR 745 (Med)] Arati Industries Ltd Vs DCIT [95 TTJ 14 Ahm) “ The submissions of the assessee have been examined and the copies of the invoices submitted have been carefully checked. It is seen that the invoices have been raised by the Pondicherry unit (which qualifies for deduction u/s 80IB) and that these relate to sale of scrap. Since the issue of Inclusion of income from sale of scrap for calculating the allowable deduction u/s 801B has already been decided by various Courts, no addition in this matter is called for. “
We find that the various Hon’ble High Courts held that scrap generated in the manufacturing activity is eligible for deduction and respectfully following the same, we hold that the Assessee is entitled to claim deduction under the provisions of the section 80IB of the Act and the impugned order of the CIT-A on this issue is justified and delete the addition of Rs.57,93,000/- as made by the AO, accordingly, ground no-2 of revenue’s appeal is dismissed.
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Now, we shall take up the assessee’s appeal in ITA No. 1403/Kol/13 for the AY 2008-09.
ITA No. 1403/Kol/13 AY 2008-09 of Assessee
During the assessment proceedings the AO found that the assessee has earned dividend income of Rs.20,53,923/- and offered Rs.21,921/- as expenditure incurred towards earning such exempt income. According to AO, the assessee invested Rs.29.52 crores against total loan fund of Rs.78.05 crores and observed that investment is made only 37.82%. The AO not satisfied with the correctness of claim of assessee in respect of determined expenditure as incurred in relation to exempt income and applying Rule 8D disallowed Rs.38,07,778/- for the purpose of computation of expenditure u/s. 14A of the Act.
Before the CIT-A the assessee contended that all the details relating to said expenditure were filed before the AO and without satisfying the precondition as required to be followed before application of Rule 8D, disallowed the impugned addition arbitrarily. The CIT-A observed that the AO rightly applied the Rule 8D as he was not satisfied with the expenditure as offered by the Assessee on its own and confirmed the impugned addition made by the AO .
Before us the ld.AR submits that the assessee on its own disallowed to an extent of Rs.21,921/- which involves electricity, corporation tax and telephone charges. The AO did not examine the workings of assessee as offered by the assessee before him in the assessment proceedings. He did not make any reference to such workings in his order and without proving the
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nexus between the borrowed funds and investments made applied Rule 8D. The Ld.AR referred to page no- 192 of the paper book to show the details of expenditure as made by the assessee. The Ld.AR also referred to page no-8 of the paper book to show that the assessee has reserve of Rs.200 crores of common fund and referred to page no-9 of the paper book to substantiate its claim. The ld.AR of the assessee also drew our attention to page no-10 of the paper book to show the profit on sale of investments and dividend income earned from investments and further referred to page no-12 to show interest expenditure. In support of assessee’s contention the AR relied on the order of the Hon’ble Calcutta High Court in the case of CIT Vs. Ashish Jhunjhunwala in GA 2190/2013 in ITAT 157/2013.
On the contrary, the ld.DR relied on the orders of the authorities below.
Heard rival submissions and perused the material evidence available in the paper book as filed by the assessee before us. It was submitted that reserve and surplus funds as available in common pool was more than the investments. It is seen from the page no-8 at para-8 it was stated that as on 11-04-07 the opening surplus was 212 crores and as on the same the share capital was at 63.77 crores. Therefore it amply proves that the Assessee has made investments from its own funds and as rightly pointed by the Ld.AR that the AO did not examine the nexus between the investments if any made from borrowed funds, without the same application of Rule 8D to compute the expenditure for the purpose of disallowance u/section 14A of the Act is bad. We find that the issue in hand is covered by the decision of the Hon’ble Calcutta High Court in the case of supra 10 | P a g e I T A N o s . 1 1 0 5 , 1 4 0 3 / K o l / 1 3 M / s . B e r g e r P a i n t s ( I ) L t d
which held that while rejecting the claim of the Assessee with regard to expenditure or no expenditure, as the case may be, in relation to exempted income, the AO has to indicate cogent reasons. We find the AO without assigning any reasons to the claim of the Assessee applied Rule 8D, therefore, the disallowance as made to an extent of 38,07,778/- is not maintainable. Respectfully following the decision supra, we have no hesitation to delete the impugned addition as made by the AO and confirmed by the CIT-A and sole ground of as raised in this appeal is allowed.
In the result, the appeal of Revenue in ITA No.1105/Kol/2013 for A.Y 2008-09 is dismissed and the appeal of assessee in ITA No. 1403/Kol/2013 for the A.Y 2008-09 is allowed.
ORDER PRONOUNCED IN OPEN COURT ON 14-12-2016 Sd/- Sd/- M.Balaganesh S.S. Viswanethra Ravi Accountant Member Judicial Member
Dated 14 /12/2016 Copy of the order forwarded to: 1. The Appellant/department: The DCIT, Cir-12, Kolkata P-7 Chowringhee Square, Aaykar Bhawan, 7th Floor, Kol-69. 2 The Respondent/assessee: M/s. Berger Paints (I) Ltd, Berger House, 129 Park St, Kol-17. 3 /The CIT(A) 4.The CIT
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DR, Kolkata Bench 5.
Guard file.
**PP/SPS True Copy, By order, Asstt Registrar
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