TaxTMI 
TaxTMI 
2013 (1) TMI 655
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.... in making an addition of Rs. 1,69,53,133/- by holding that the Trademark Registration Fees and Patent Registration Fees incurred by the appellant were capital in nature, merely eligible for depreciation u/s. 32 and liable to be disallowed as business revenue expenses." 2.1 It was submitted by the Ld. A.R. that both these issues are covered in favour of the assessee by the Tribunal decision in the assessee's own case for the assessment year 2006-07 in I.T.A. No. 3140/Ahd/2010 dated 25.05.2012. He drawn our attention to para 3 to 3.12 of the tribunal order which are available on page 6-16 of this tribunal order. Copy of this tribunal order was also submitted. 2.2 Ld. D.R. of the revenue supported the orders of authorities below. 2.3 We have considered the rival submissions, perused the material on record and have gone through the orders of authorities below and the Tribunal decision cited by the Ld. A.R. We find that in assessment year 2006-07, this issue was raised before the Tribunal as per grounds No.2 & 3 and both these grounds were decided by the Tribunal in favour of the assessee as per para 3.12 of the tribunal order which is reproduced below for the sake of ready re....
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.... by the same Tribunal order in the assessee's own case for the assessment year 2006-07 and our attention was drawn to para No.4-4.8 of this tribunal order which is available on pages 16-26 of this tribunal order. 3.2 In reply, it was submitted by the Ld. D.R. that the Tribunal order in the case of Concept Pharmaceuticals Ltd. v. ACIT as reported in 43 SOT 423, is against the assessee and in favour of the revenue. He also submitted a copy of this tribunal order which is available on pages 48-54 of the paper book submitted by the Ld. D.R. He also placed reliance on the judgement of Hon'ble Gujarat High Court rendered in the case of CIT v Claris Lifesciences Ltd. as reported in 326 ITR 251 (Guj.). It was submitted by him that since contradictory Tribunal orders are available, either the matter should be decided by following the earlier order which of dated 19.11.2010 or the matter should be referred to the Special Bench. 3.3 We have considered the rival submissions, perused the material on record and have gone through the orders of authorities below and the Tribunal decision cited by both the sides. We first discuss the applicability of the tribunal decision cited by the Ld. D.R....
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....acility is eligible for weighted deduction. It is very clear from the plain reading of the provision that for an expenditure to be eligible for weighted deduction it must be incurred on (i) scientific research and (ii) on in-house research and development facility approved by the prescribed authority. The phraseology used is "on in-house research or development facility" and not "by in-house research and development facility" and therefore only the expenditure incurred on in-house research can be allowed under section 35(2AB) and not any expenditure incurred outside such facility. What the Explanation to section 35(2AB)(1) has clarified is that expenditure incurred on clinical trial in relation to drugs and pharmaceuticals, will be part of the expenditure on scientific research. The Explanation nowhere states that expenditure incurred on clinical trial even outside the in-house research and development facility can be allowed. The Explanation has only clarified the ambiguity whether the clinical trials can be claimed as part of scientific research. Normally, trial is a post research activity which is only for testing of research and one could argue that this is not an integral part....
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....he intention of the Legislature was clear that entire expenditure incurred on in-house research and development facility if approved has to be allowed. It was accordingly held that once the approval had been granted the assessee will be entitled for deduction in respect of the entire expenditure but not only the expenditure incurred after 27-2-2001. There was no issue before the Tribunal as to whether expenditure incurred outside the approved in-house R & D facility can be allowed. The Learned AR has also placed reliance on the decision of Tribunal in case of Bharat Bio Tech International (P.) Ltd. (supra). In that case expenditure on clinical trials conducted outside the approved authorities had been claimed for weighted deduction. The Tribunal allowed the claim only on the ground of consistency as similar claim in the assessee's own case in the earlier year had been allowed. There was no decision of the Tribunal on the merit of the case and therefore the said decision cannot be considered as precedent on the issue of allowability of weighted deduction in respect of expenditure incurred outside the approved research and development facility. 2.9 In view of the foregoing decisio....
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....for obtaining approval from any regulatory authority and expenditure for filing application for a patent under the Patent Act 1970 are also required to be incurred in house or whether it is sufficient that these expenses are incurred in relation to the scientific research carried out in house. The tribunal in that case held that clinical drug trial expenditure is to be incurred in-house without examining this aspect for remaining two expenditures & without examining as to whether these three expenses can be incurred in-house or not. When we examine the other expenditure included in the explanation i.e. expenditure for obtaining approval from any regulatory authority and expenditure for an application for a patent under the Patent Act 1970, it is clear that these two expenses cannot be incurred in house and the same expenditure can only be incurred outside the in-house research facility. Now, the question is whether clinical drug trial expenditure is required to be incurred in-house only or the same can be incurred outside also although there is no separate provision to this effect in this Explanation for Clinical Drug trial as compared to remaining two expenses. In this regard, we ....
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....eers and/or patient into small pilot studies and subsequently large scale studies are carried out on patients and such clinical drug trial may be in one country or in multiple countries. Carrying out drug trial is essential for approval of the drug in question to be sold in the public and hence, in our considered opinion, clinical drug trial cannot be carried out inside an in-house research facility i.e. usually the laboratory. Hence, in our considered opinion, this explanation to Section 35(2AB)(1) does not require that these expenses which are included in this explanation are essentially to be incurred inside an in-house research facility because in our considered opinion, it is not possible to incur these expenses inside in-house research facility. In the tribunal order cited by the Ld. D.R., we have seen that they have not gone into this aspect as to whether these expenses specified in this explanation to Section 35(2AB)(1) can be incurred inside an in-house research facility or not and without examining this aspect, the tribunal has proceeded to hold that clinical drug trial expenditure has to be incurred within the in-house research and development facility. Since, we find th....
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.... the assessee is eligible for weighted deduction in respect of the entire expenditure incurred by the assessee u/s 35AB(2) of the Act. Hence, we find that this judgment of Hon'ble Gujarat High Court is in fact in favour of the assessee and not in favour of the revenue. Moreover, the issue involved was different as to whether even if approval is granted by the Ministry of Science & Technology from a particular date, deduction is allowable for the entire expenditure or for only those expenses which are incurred on or after the date of approval. In the present case, the dispute is not such and hence, this judgement of Hon'ble Gujarat High Court is not applicable in the present case. We also find that in that case, the dispute was regarding allowability of deduction u/s 35AB(2) whereas in the present case, the dispute is regarding allowability of deduction as per Explanation to Section 35(2AB) and for this reason also, this judgement of Hon'ble Gujarat High court is not relevant in the present case. 3.8 We find that this issue is squarely covered in favour of the assessee by the Tribunal decision rendered in the assessee's own case for the assessment year 2006-07 and only this argum....
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....ng Officer erred in law and on facts in making a disallowance of Rs. 5,00,37,043/- u/s. 14A." 4.1 It was submitted by the Ld. A.R. that the tribunal has restored this matter back to the file of the A.O. for a fresh decision in the light of the judgment of Hon'ble Bombay High court rendered in the case of Godrej & Boyce Manufacturing Co. Ltd. v. DCIT as reported in 328 ITR 81. In this regard, he drawn our attention to para 5.5 on page 33 of the Tribunal order in assessee's own case for assessment year 2006-07 as per which, this issue was restored back by the tribunal to the file of the A.O. for a fresh decision in the light of this judgement of Hon'ble Bombay High Court. He submitted that in the present year also, the matter may be restored back to the file of the A.O. for a fresh decision as was done by the tribunal in assessment year 2006-07 because as per this judgement of Hon'ble Bombay High Court, Rule 8D is applicable from assessment year 2008-09. Ld. D.R. supported the orders of authorities below. 4.2 We have considered the rival submissions and we find that in the preceding year i.e. in assessment year 2006-07, the tribunal in assessee's own case has restored back this....
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....nt to Thailand for conversion for which the concerned party's bill of U$20,800 was not paid till date because the car was having some defects. He further submitted that no evidence could be brought out on record by the Revenue to show that US$20,800 was in fact paid by the assessee. Regarding other two amounts also, it was submitted that these are mere objections without any supporting evidence and hence, no addition on this account is justified. Regarding the payment of custom duty on this car after including cost of conversion etc, it was submitted that irrespective of price paid by the assessee for importing the car or any other item, custom duty has to be paid as per the valuation done by the custom authorities and only because custom duty had been paid on enhanced valuation done by custom department, it cannot be said that extra price was also paid by the assessee. 5.3 We have considered the rival submissions, perused the material on record and have gone through the orders of authorities below. Regarding the first aspect i.e. ground no.5, we find that the addition of Rs. 11,63,644/- has been made by the A.O. u/s 69 as alleged unexplained investment for the purchase of Humme....
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....ider the allowability of depreciation on this Hummar H2 motorcar. First of all, we would like to observe that the revenue is taking a contradictory stand. When the A. O. has alleged extra payment for this very car, he has made addition in the hands of the assessee company for the alleged unaccounted payment/investment but when the question of depreciation is being decided by the A.O., it is held that the assessee company is not eligible for depreciation on this car because Mr. Pankaj Patel is the owner of this car. Secondly, we also find that reliance has been placed by the Ld. A.R. on the judgement of Hon'ble Allahabad high court rendered in the case of CIT Vs Varanasi Auto Sales Pvt. Ltd. as reported in 326 IT 182 where, it was held that even if the trucks are in the name of the Director, depreciation is allowable to the assessee because the trucks were purchased in the name of the Director just for the convenience but the funds have been invested by the assessee company and hiring rent received from such tucks have been credited by the company in their account. In the present case, this is not in dispute that the payment for the car was made from the funds of the assessee compan....
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....e notice of the Tribunal in such earlier year or provisions of law or correct interpretation of law came to its knowledge subsequently. He submitted that in this view of the matter, the issue in dispute should be decided on merit afresh. In support of this contention, reliance was placed on the judgement of Hon'ble Madras Bench of the Tribunal rendered in the case of Shriram Transport and Finance Co. Ltd. v. ACIT as reported in 70 ITD 406. Reliance was also placed on one more decision of the tribunal rendered by Special bench of the Tribunal in the case of ACIT v. Gold Mine Shares Pvt. Ltd. as reported in 113 ITD 209 (Ahd.) (S.B.). It was submitted that it was held by the Special bench of the Tribunal in that case that when the provisions of statute is not considered, it cannot be said that point is concluded by the Hon'ble Supreme Court decision and the same was no longer res-integra. He also placed reliance on a judgement of Hon'ble Apex Court rendered in the case of Distributors (Baroda) P. Ltd. v. Union of India & Others as reported in 155 ITR 120 in support of this contention that there may be circumstances where public interest demand that the previous decision is reviewed an....
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...., our attention was drawn to para 9.7, 9.11 and 9.12-9.23 of the assessment order. 7.6 He has also objected to some of other findings of the tribunal in its order in the earlier year and the first objection is this that it is stated by the tribunal in para 10.3 of the earlier year that A.O. is not empowered to disturb the computation of profit. In this regard, it was submitted by him that he A.O. has to compute profit and gain of eligible unit on reasonable basis as he may deem fit as per proviso to Section 80-IA(8). 7.7 He further submitted that it is observed by the Tribunal in Para 10.8 of the tribunal order that if there is no intercorporate transfer then the A.O. has no right to determine the fair market value of such goods or to compute the arms length price of such goods and for section 80-I A(8) to apply, intercorporate transfer has to be there. In this regard, it was submitted by him that Section 80-IA (8) deals with transfer of goods between different units of the same assessee i.e. intra corporate transfer. 7.8 He again drawn our attention to para 10.8 of the tribunal order on page 66 where it is observed by the Tribunal that Section 80-IA(8) has its own impact ....
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....e reading of the provisions of the Act. It was his main submissions that the eligible unit in Baddi unit who has transferred certain goods to the company who is a non eligible entity and therefore, the A.O. invoked the provisions of Section 80-IA (8) and proceeded to find the profit of the eligible unit on reasonable basis as per the provisions of Section 80-IA(8). Ld. D.R. has submitted para-wise comments on the findings of the tribunal in its order for A. Y. 2006-07 on the issue of deduction u/s 80-IC. The same are available on pages 8-15 of the written submissions filed by the Ld. D.R. For the sake of ready reference, the same is reproduced below: "Paragraph wise comments on the findings of the ITAT in the order for AY 2006-07, on the issue of deduction u/s 80IC Para/page Findings of ITAT Comments on findings of the ITAT 10.2/59 In a case where products 'A' and 'B' are produced, where in one of the product requires more labour but fetches less price and the other takes less effort but fetches more price, in the processing department it is not possible to segregate the two components to determine the segregated margins. It is always possib....
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....purpose for claiming the deduction, as an attachment to form 10CCB. The found that there is a defect in total receipts credited to such P&L account. The defect needs to be removed following the provisions of section 80IA(8), the proviso and the Explanation given there under. 10.4/61 The facts of the case of Rolls Royce PLC v. DDIT 19SOT 42 relied by the AO are different. In that case: there was PE in India, section 9(1) was applied, there was no separate account in India, the word business connection was considered, circular 23 of CBDT was also applied. Rolls Royce case has been later confirmed by the Delhi High court, 339 ITR 147(Del) AO relied on the said case to buttress his argument that 'separation of profits is possible' under the Act for taxation purposes. Distinction made in the order is not correct. In Rolls Royce case, business connection, circular 23 and section 9(1) applied, because that case involved non-resident assessee. 10.4/62 In the present case there was no finding that up to the extent of 80%, the profit was attributed to the assessee-company. The segregation between 80% and 6% was not on account of any evidence thr....
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....pharmaceuticals by Baddi Unit'. In other words, it is the profit derived by 'Baddi unit from the manufacture of pharmaceuticals' is only eligible for deduction u/s.80IC. 10.6/65 This section do not suggest that the eligible profit should be computed first by transferring the product at an imaginary sale price to the head office and then the head office should sale the product in the open market. There is no such concept of segregation of profit. Section 80IA(8) lays down that the profits of eligible unit have to be found out strictly as the word used is "derived from" which has a restricted meaning. Pandian Chemicals 262 ITR 278 (SC) Sterling Foods 237 ITR 579 (SC) Section lays down that the profits of eligible units have to be arrived taking the market value whenever there is transfer of goods or services from eligible business unit to non eligible business. Section has defined the 'market value' as prevention against the tax arbitrage. 10.7/65 The Ld.AO has suggested that the assessee should have passed entries in its books of account by recording internal transfer of the product from Baddi Unit to the head office marketing unit and that too at ....
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....tion of market value of such good is out of the ambits of this section. Transfer does not always mean by 'sale'. Transfer can be without sale. When the goods are transferred from one unit of the assessee to another unit, it may be just a branch transfer. When there is such transfer as mentioned, Act lays down that the market value of such goods has to be taken as on that date. 10.8/67 If there is no inter-corporate transfer, then the AO has no right to determine the fair market value of such goods or to compute the arm's length price of such goods. Section 80IA(8) deals with a situation of transfer from one unit to other unit of the same assessee. It does not talk of inter-corporate transfer. Therefore there need not be an 'intercorporate' transfer to apply 80IA(8). 10.8/66 Though the section 80IA(8) has its own importance, but the area under which this section operates is that where one eligible business is transferred to any other business... .. The matter we are dealing is not the case where business as a whole is transferred. This is a case where manufacturing products were sold through C&F in the market There need not be transf....
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.... years could not be treated as sanctioned by law and was not acceptable for tbe purpose of computation of taxable income. B.S.C. (footwear Ltd. v. Ridgway (Inspector of Taxes) [1972] 83 ITR 26s). Matter of taxability cannot be decided on the basis of entries which the assessee may choose to make in his accounts, but has to be decided in accordance with the provisions of Income tax Act. CIT v. Mogul Line Ltd 46 ITR 590 (Bom) and Sutlej Cotton Mills Ltd 116 ITR 1 (SC) 10.9/68 And why at all this complex working of computation to be adopted by the assessee when a very simple method is adopted that on one side of the P&L A/c the production cost plus overheads were debited and on the other side of the P&L A/c sale price was credited to computed the profit. Because : (1) The method of accounting followed by the assessee is giving wrong profits of the eligible business. (2) The method of working is against the provisions of section 80IA(8). Accounting practice cannot override section 56 or any other provision of the Act. Tuticorin Alkali Chemicals & Fertilizers Ltd. v. CIT 227 ITR 172 (SC) If the Act requires a method to be adopted for accounting for t....
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....uired by the Act under section 80IA(8) and (2) it is possible as the eligible unit has to be deemed as separated unit for the deduction purposes. The conclusion of the ITAT that the assessee has computed the profit of the Baddi Unit on the basis of the well accepted principle of accountancy is not correct under the law laid down by Supreme Court. Accounting practice cannot override section 56 or any other provision of the Act. Tuticorin Alkali Chemicals & Fertilizers Ltd. v. CIT 227 ITR 172 (SC) CIT v. Mogul Line Ltd 46 ITR 590 (Bom) Sutlej Cotton Mills Ltd 116 ITR 1 (SC) It may be seen from the above that the Hon'ble Tribunal has (1) not considered certain facts of the case, (2) some of the facts were taken wrongly on record for the purpose of the case and (3) Provisions of section 80-IA(8) were not fully applied and (4) Proviso placed under section 80-IA(8) was not at all considered or applied which is vital to the issue. Non consideration of the proviso to section 80-IA(8) resulted in Hon'ble ITAT concluding that there is no provision in the Act which empower the AO to disturb the computation of profit made by the assessee. Hon'ble ITAT has also not considered the Su....
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....uring unit at Baddi, the assessee earned further profit of 6.2% on overall basis. On this basis, it is held that only additional 6.2% profit had been earned due to this unit at Baddi and therefore, the profit derived form Baddi unit was worked out to 6.2% on total turnover of Baddi unit and in this manner, he has worked out deduction allowable to the assessee u/s 80-IC in respect of Baddi unit at Rs. 14,44,65,492/-. 7.13 Now, we examine the legal provisions in this regard and hence, we reproduce provisions of section 80-IC, which are as under: "80-IC. (1) Where the gross total income of an assessee includes any profits and gains derived by an undertaking or an enterprise from any business referred to in sub-section (2), there shall, in accordance with and subject to the provisions of this section, be allowed, in computing the total income of the assessee, a deduction from such profits and gains, as specified in sub-section (3). (2) This section applies to any undertaking or enterprise,- (a) which has begun or begins to manufacture or produce any article or thing, not being any article or thing specified in the Thirteenth Schedule, or which manufactures or produces....
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....sp;(i) in the case of any undertaking or enterprise referred to in sub-clauses (i) and (iii) of clause (a) or sub-clauses (i) and (iii) of clause (b), of sub-section (2), one hundred per cent of such profits and gains for ten assessment years commencing with the initial assessment year; (ii) in the case of any undertaking or enterprise referred to in sub-clause (ii) of clause (a) or sub-clause (ii) of clause (b), of sub-section (2), one hundred per cent of such profits and gains for five assessment years commencing with the initial assessment year and thereafter, twenty-five per cent (or thirty per cent where the assessee is a company) of the profits and gains. (4) This section applies to any undertaking or enterprise which fulfils all the following conditions, namely:- (i) it is not formed by splitting up, or the reconstruction, of a business already in existence : Provided that this condition shall not apply in respect of an undertaking which is formed as a result of the re-establishment., reconstruction or revival by the assessee of the business of any such undertaking as is referred to in section 33B, in the circumstances and within the perio....
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.... centre, which the Board, may, by notification in the Official Gazette, specify in accordance with the scheme framed and notified by the Central Government; (vii) "North-Eastern States" means the States of Arunachal Pradesh, Assam, Manipur, Meghalaya, Mizoram, Nagaland and Tripura; (viii) "Software Technology Park" means any park set up in accordance with the Software Technology Park Scheme notified by the Government of India in the Ministry of Commerce and Industry; (ix) "Substantial expansion" means increase in the investment in the plant and machinery by at least fifty per cent of the book value of plant and machinery (before taking depreciation in any year), as on the first day of the previous year in which the substantial expansion is undertaken; (x) "Theme Park" means such parks, which the Board, may, by notification in the Official Gazette, specify in accordance with the scheme framed and notified by the Central Government.] 7.14 As per sub-section (d) of Section 80-IC of the Income tax Act, 1961 as reproduced above, sub-section (5) and sub-sections 7-12 of Section 80-IA are also applicable in the present case. The A.O. has invoked the provisions of sub-....
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.... this manner presents exceptional difficulty, the A.O. may compute such profit and gains on such reasonable basis as he may deem fit. Hence, in order to invoke the provisions of this proviso to sub-section (8) of Section 80-IA, it is necessary for the A.O. to establish that some goods or services have been transferred by the eligible unit to some other unit of the assessee or by some other unit of the assessee to the eligible unit and then he has to further establish that for recording such transfer, the value adopted for recoding in the books is not as per market value of such goods or services and then he has to establish that there is exceptional difficulty in computation of profit of eligible unit as provided in sub-section (8) of Section 80-IA and then only he can proceed to compute the profits of eligible unit on a reasonable basis as he may deem fit. Even in such circumstances, the basis adopted by the A.O. should be reasonable basis. 7.16 Hence, first, we examine as to whether the basis adopted by the A.O. is permissible or not. The A.O. has proceeded on this basis that since the assessee company was earning around 80% profit by purchasing the goods and selling them, onl....
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....nsferred from the Baddi unit. Thirdly, it is not established by the A.O. that even if it amounts to transfer of goods by Baddi unit to some other unit of the assessee company then there is exceptional difficulty in computing the profits as per the provisions of sub-section (8) of Section 80IA by adopting fair market value of the goods so transferred and therefore, the A.O. has to adopt computation of such profit and gains of Baddi unit on reasonable basis. Lastly, the basis adopted by the A.O. has to be reasonable basis and in the facts of the present case, it is not so in our opinion. 7.17 In the absence of any transfer of goods by Baddi unit to any unit of the assessee company, the provisions of section 80-IA(8) are not applicable and there is no occasion for the A.O. to compute the profits of Baddi unit on reasonable basis. Secondly, no price had been adopted by Baddi unit to record for any transfer of goods by it to some other unit of the assessee company and hence, there is no occasion to examine as to whether such price adopted by the Baddi unit is as per the market value of such goods or not. Assuming that that there is transfer of goods by Baddi Unit, the A.O. can find o....
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....annot be considered at more than the profit of the first assessee who is selling the goods locally because it can be said that the extra profit is on account of export and not on account of manufacturing activity of the eligible unit. 7.20 The next instance could be that on the date of sale of goods to an outside buyer, the rate of dollar was Rs. 40 per dollar but at the time when the remittance was received in India and converted into rupees, the dollar price rose to Rs. 50/dollar and hence, such additional profit on account of increase in price of dollar is not the profit of eligible unit but this profit is on account of increase in exchange rate and therefore, to this extent, the profit is not eligible for deduction u/s 80-IC or 80-IB. 7.21 There may be numerous other instances where the profit of eligible unit has to be bifurcated if the stand of the A.O. is approved. In our considered opinion, the stand of the A.O. cannot be approved because it is not a reasonable basis for computation of profit of an eligible unit. In our considered opinion, the profit has to be computed on the basis of selling price (-) cost of goods produced along with various overheads and only where....
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....e learned Assessing Officer erred in law and on facts in disallowing the mark to market exchange loss on foreign exchange derivatives of Rs. 28,06,887/-." 9.1 It was submitted by the Ld. A.R. that this issue is covered in favour of the assessee by the Tribunal decision rendered in the case of DCIT v. Bank of Bahrain & Kuwait as reported in 41 SOT 290 (Mum.). He further submitted a copy of this judgement which is available on page 34-38 of the paper book submitted by the assessee. 9.2 Ld. D.R. supported the order of authorities below but it could not be pointed out as to how, this issue is not covered in favour of the assessee by this decision of Special bench of the Tribunal cited by the Ld. A.R.. Hence, we decide this issue in favour of the assessee by respectfully followings the decision of Special bench of the Tribunal cited by the Ld. A.R. This ground is allowed. 10. Ground No.12 is as under: "12. That the learned Assessing Officer erred in law and on facts in making an addition of Rs. 10,81,1437- as upward adjustment on international transactions under the provisions relating to Transfer Pricing." 10.1 It was submitted by the Ld. A.R. that in assessment year 200....