Loading judgment…
No AI summary yet for this case.
Income Tax Appellate Tribunal, “B”, BENCH MUMBAI
Before: SHRI R.C.SHARMA, AM & SHRI SANDEEP GOSAIN, JM
आयकर अपीऱीय अधिकरण, म ुंबई न्यायपीठ ‘बी’, म ुंबई । IN THE INCOME TAX APPELLATE TRIBUNAL “B”, BENCH MUMBAI BEFORE SHRI R.C.SHARMA, AM & SHRI SANDEEP GOSAIN, JM आमकय अऩीर सं./ITA No.8338/Mum/2010 (नििाारण वषा / Assessment Year :2006-2007) ADCIT-8(2), Mumbai Vs. M/s Monsanto India Limited, 5th Floor, Ahura Centre, 96, Mahakali Caves Road, Andheri (East) Mumbai- 400093 स्थामी रेखा सं./ जीआइआय सं./ PAN/GIR No. : AAACM 2875 L (अऩीराथी /Appellant) (प्रत्मथी / Respondent) .. AND आमकय अऩीर सं./ (नििाारण वषा / Assessment Year :2006-2007) M/s Monsanto India Limited, 5th Vs. ACIT-8(2), Mumbai Floor, Ahura Centre, 96, Mahakali Caves Road, Andheri (East) Mumbai-400093 स्थामी रेखा सं./ जीआइआय सं./ PAN/GIR No. : AAACM 2875 L (अऩीराथी /Appellant) (प्रत्मथी / Respondent) .. याजस्व की ओर से /Revenue by : Shri N.P.Singh ननधाारयती की ओर से /Assessee by : Shri Rajan Vora सुनवाई की तायीख / Date of Hearing : 14/09/2015 घोषणा की तायीख/Date of Pronouncement 14/12/2015 आदेश / O R D E R PER R.C.SHARMA (A.M):
These are the cross appeals filed by the revenue and assessee against the order of CIT(A), Mumbai, for the assessment year 2006-2007.
Rival contentions have been heard and record perused. Facts in brief are that the assessee is a public limited company, engaged in 2 manufacturing and trading in agrochemical and growing and selling of seeds. During the course of scrutiny assessment the AO made following additions/disallowance :- a) Agricultural income claimed exempt u/s.10(1) of the Act – Rs.48,33,41,575/- b) Claim for deduction u/s.80IB of the Act for scrap sales- Rs.44,89,828/- c) Allocation of common expenses to 80IB units d) Disallowance u/s.14A of the Act read with Rule 8D- Rs.68,91,000/- By the impugned order the CIT(A) allowed assessee’s claim of exemption u/s.10(1) in respect of its agricultural income of Rs.48.33 crores and claim of deduction u/s.80IB in respect of sale of scrap. The CIT(A) had confirmed the disallowance u/s.14A. Against the above order of CIT(A), both assessee and revenue are in appeals before us with the following grounds :-
3. The revenue in its appeal has taken following grounds :- 1. "On the facts and in the circumstances of the case and in law, the Ld CIT(A) was not justified in holding that income of Rs.48,33,41 ,575/- derived by the assessee from growing & sale of hybrid seeds is to be treated as agricultural income falling u/s. 2(1)(a) and directing the A.O. to allow deduction u/s. 10(1) of the IT. Act, 1961." 2. "On the facts and in the circumstances of the case and in law, the CIT(A) erred in not appreciating that the A.O. disallowed the deduction u/s. 80IB of Rs.44,89,828/- related to scrap sales as the said receipt was not derived from the industrial undertaking and hence not eligible for deduction u/s. 80IB of the Act, in view of Apex Court's decision in the case of Liberty India Ltd. (317 ITR 218(SC)".
4. The assessee in its appeal has taken following grounds :-
1. On the facts and in the circumstances of the case and in law, the Commissioner of Income-tax (Appeals) erred in upholding the action of the Assessing Officer in allocating 30% of the corporate expenses to. 80-18 units against the allocation of 10% made by the appellant in the return of income.
3 2. a) On the facts and in the circumstances of the case and in law, the Commissioner of Income-tax (Appeals) erred in upholding the action of the Assessing Officer in disallowing part of the interest expenditure amounting to As 5,96,000/- under section 14A of the Income-tax Act,1961 ('Act') by applying rule 80. b) On the facts and in the circumstances of the case and in law, the Commissioner of Income-tax (Appeals) erred in upholding the action of the Assessing Officer in making disallowance under section 14A of the Act read with rule 80 towards administrative expenditure at Rs.62,95,000/- as against an amount of Rs.2,248,237/- disallowed by the appellant. c) Without prejudice to the above grounds of appeal the appellant submits that since rule 80 has been introduced only w.e.f. 24 March 2008 it should not be applied to AY 2006-07.
3. On the facts and in the circumstances of the case and in law, the Commissioner of Income-tax (Appeals) erred in upholding the action of the Assessing Officer in making a net increase of As 34,818,998 to the value of inventories on account of MOOVAT credit by applying the provisions of section 145A of the Act.
4. On the facts and in the circumstances of the case and in law, the Commissioner of Income-tax (Appeals) erred in upholding the action of the Assessing Officer in levying interest under Section 234B of the Act on the amount of additional disallowance computed under section 14A read with rule 8D.”
5. We have considered rival contentions and found that the issue is covered by the order of the Tribunal in assessee’s own case, passed in ITA Nos.286&287/Bng/03 & ors., A.Y.2000-01, dated 26-11-2007, wherein the Tribunal had accepted the stand of the assessee that income arising from Seeds Division was entitled for deduction u/s.10(1) of the Act. We also found that in earlier to the assessment year 1993-94, the Department had accepted such claim of the assessee at the assessment stage itself. For the subsequent Assessment Years also the Mumbai Bench of the Tribunal has accepted the stand of the assessee following the aforesaid precedents. It has also been pointed out that the Hon’ble Bombay High Court vide its order dated 5/8/2011 for assessment year 4 1993-94 to 2004-05 (except A.Y 2003-04) has upheld the assessee’s claim for exemption under section 10(1) of the Act. Copies of such orders have been placed on record. Following the aforesaid precedents, we find no merit in the ground raised by the Revenue as no fault can be found with the decision of the CIT(A), which is in consonance with the precedents in assessee’s own case. Thus, on this aspect, Revenue fails.
6. The next grievance of the revenue relates to disallowance of scrap sale u/s.80IB of the Act.
7. We have considered rival contentions and found that similar issue has been decided by the Tribunal in assessee’s own case for the assessment year 2004-05 in assessee’s favour. The relevant observation of the Tribunal was as under :- “7. The relevant facts relating to this issue are that the assessee had claimed deduction under section 80IB in respect of the income earned from the industrial undertaking in respect of the units at Silvassa for plant 1 and 2. In computing the eligible profits, the assessee has also taken into account the sale of scrap. The assessee’s claim is that sale of scrap was related to empty drums being the packing material for the raw material. According to the assessee, the amount recovered on the sale of drums would go to reduce the cost of the raw material. The claim of the assessee was not allowed by the Assessing officer by applying the decision of the Hon’ble Supreme Court in the case of CIT Vs. Sterling Foods, (1999) 237 ITR 579(SC) and in the case of Great Eastern Shipping Co. Ltd. Vs. CIT (1994) 206 ITR 505(Bom).
8. The learned counsel for the assessee relied upon the decision of the Special Bench of the Tribunal in the case of Nirrna Industries Ltd. vs. ACIT, (:2005) 95 ITD 199 (Ahd) (SB) to support the contention that the sale of scrap would reduce the cost of raw material. Reliance was also placed on the decision of Hon'ble Delhi High Court in the case of CIT Vs. Eltek SGS (P) Ltd., 300 ITR 6 (Del).
9. The learned D.R., on the other band, pointed out that the sale of empty drums was neither a bye-product nor scrap generated out of the manufacturing process undertaken by the assessee and 5 therefore, the same was not to be taken into consideration for determining the eligible profits.
10. We have given our careful consideration to the rival contentions. Since the issue is covered by the decisions referred to in Para 8 above, we respectfully following the said decisions, hold that the sale of empty drums will go to reduce the cost of production and therefore it is to be taken into consideration for working out the profits of the undertaking for computation of deduction under section 80-IB of the Act.”
8. In the instant case, the assessee has computed the profits of Plant I and II eligible for deduction under section 80IB of the Act after reducing the income from sale of scrap of Rs.44,89,828/- from the cost of material consumed. The AO declined assessee’s claim. By the impugned order, the CIT(A) allowed assessee’s claim. As the facts and circumstances during the year are pari materia, respectfully following the order of the Tribunal in assessee’s own case, we dismiss this ground of revenue’s appeal.
Accordingly, we dismiss the appeal of the revenue (i.e. ITA No.8338/M/2010).
Now, we shall take up the appeal of the assessee i.e. ITA No.8545/M/2010).
The assessee in its appeal is aggrieved for allocation of corporate expenses to 80-IB units.
From the record we found that the assessee had incurred certain expenditure which is not directly identifiable to any particular business unit. Such expenses mainly relate to corporate overhead expenses. The assessee had made a disclosure in Note 4 b of the Notes to Accounts prepared for the Silvassa Plants I and II that 10% of Corporate Expenses 6 were allocated between Plant I and II in the ratio of production hours utilized by the two plants. Considering the fact that the corporate expenses aggregating to Rs.1,34,44,167/- (as determined above) constituted 10%) of the total corporate expenses, the AO by making backward calculation computed total corporate expenses at Rs.13,44,41,670/- (Rs.1,34,44,167 / 10%). By the impugned order the CIT(A) upheld the aforesaid basis of allocation as computed by the AO.
We have considered rival contentions and found that the basis of allocation of common corporate expenses at 10% between the 80IB units was consistently adopted by the assessee and was accepted by the department for the past several assessment years. Relevant extracts of the orders passed u/s.143(3) of the Act by the AO for AY 2004-05 and AY 2005-06 are placed on record. We also found that allocation of common corporate expenses at 10% on scientific basis. Accordingly, we do not find any merit for disregarding the method of allocation adopted by the assessee.
The next grievance of the assessee relates to disallowance u/s.14A r.w.rule 8D.
We found that the issue is covered by the decision of Tribunal in assessee’s own case for the assessment year 2007-08, wherein disallowance of interest was found to be faulty as the assessee was having sufficient interest free funds.
With regard to the disallowance of other expenses, the AO has not recorded any satisfaction with regard to the disallowance offered by the assessee.
We found that portfolio of mutual investment of assessee comprises of investments in growth scheme. The assessee at suo moto considered salary of two employees and related cost as expenses in relation to earning exempt income and accordingly disallowed sum of Rs.22,48,237/- under Section 14A. As the relevant assessment year under consideration is 2006-07, wherein rule 8D is not applicable. Accordingly, we do not find any merit in the action of AO for making disallowance as per rule 8D. Accordingly, the AO is directed to restrict the disallowance to the extent of Rs.22.48 lakhs as offered by the assessee by giving full justification. 18. The next grievance of the assessee relates to adjustment u/s.145A of Rs.3,48,18,998/-. 19. From the record we found that the assessee follows the exclusive method of accounting and records purchases net of MODVAT and inclusive of sales tax. Consequently, inventories are also recorded net of MODVAT credit. In the assessment order passed under section 143(3) of the Act the AO has recomputed the value of closing stock by adding back the closing balance of unutilized MODVAT credit at the end of the year and also including the element of excise duty including MODVAT credit availed on purchases. Similar valuation method has been adopted for opening stock and the difference on account of the increase in the value aggregating to Rs.3,48,18,998/- was added back to the total income. This 8 issue is covered by the order of the Tribunal for the assessment year 2007-08, wherein the issue has been decided against the assessee after having the following observation:- “20. The only other ground in the appeal of the assessee is by way of Ground of Appeal
No.3, which relates to the recomputing value of closing inventory in accordance with the provisions of section 145A of the Act.
21. In this context, the brief facts are that before the CIT(A), assessee submitted that while passing assessment order for the preceding Assessment Year of 2006-07, the Assessing Officer made an adjustment to the value of closing stock to the tune of Rs.4,13,28,639/- on account of adjustment under section 145A of the Act. The assessee explained that in the course of assessment proceedings it submitted a working of adjustment under section 145A of the Act based on the stand of the Department of the earlier assessment years, whereby the net effect of the adjustment in opening-stock as well as closing-stock was resulting in reduction of profit by Rs.1,57,02,765/-. The assessee pointed out that such relief was not allowed by the Assessing Officer. The CIT(A) in principle agreed with the assessee that merely because in the current year the effect of section 145A of the Act results in reduction in profit, the Assessing Officer would not be justified not to make similar adjustment. The CIT(A) further noticed that in the earlier years the CIT(A) had upheld the adjustment under section 145A of the Act and, therefore, he directed the Assessing Officer to recompute the disallowance under section 145A of the Act in the current year by taking the figure of opening stock as per the closing stock valued by him for the preceding assessment year of 2006-07.
22. Against such decision of the CIT(A), the assessee is in further appeal before us. Apart from pointing out that even after applying the provisions of section 145A r.w. section 43B of the Act there would be no effect on profit, the assessee company has not substantiated the said plea. In any case we find that the direction of the CIT(A) to the Assessing Officer for adopting the value of opening stock in consonance with the value of closing stock adopted for the immediately preceding year does not require any interference, and is hereby affirmed. Thus, on this aspect assessee has to be failed.” As the facts and circumstances during the year under consideration are same, respectfully following the order of the Tribunal in assessee own case, this ground of assessee’s appeal is dismissed.