TaxTMI 
TaxTMI 
2012 (11) TMI 1129
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....CIT in adding an amount of Rs. 33,16,900 to the value of closing stock on account of MODVAT. (3) (a) The CIT(A) erred in upholding the action of ACIT in disallowing advertisement expenditure in foreign currency of Rs. 34,32,472 under section 40(a)(i) of the Act. (b) The CIT(A) ought to have held that in accordance with the provisions of the DTAA between India and Russia, the payments made were not chargeable to tax in India and accordingly there was no obligation to deduct tax at source and correspondingly the disallowance under section 40(a)(i) could not be sustained. (4) (a) The CIT(A) erred in upholding the action of ACIT in disallowing marketing fees aggregating Rs. 34,07,003 paid in foreign currency under section 40(a)(i) of the Act. (b) The CIT(A) erred in not appreciating that the above payment was not fees for technical services. (5) The CIT(A) erred in upholding the action of ACIT in levying interest of Rs. 2,72,473 under section 234D(1). 3 Ground no.1 is regarding the disallowance of expenditure on software by treating the same as capital in nature. 3.1 The assessee has claimed an expenditure of Rs. 2,51,175/- on software. The Assessing ....
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....t when the expenditure incurred on software which does not form part of apparatus of the assessee, the same is an allowable expenditure. The ld Sr counsel has also relied upon the decision of the Hon'ble Delhi High Court in the case of CIT vs M/s Asah India Safety Glass Ltd and submitted that the issue of expenditure on software has been decided by the Hon'ble High Court in favour of the assessee and by following the said decision, the decision of the Special Bench of this Tribunal in the case of Amway Enterprise(supra) has been upheld vide order dated 4.11.2011. 5.1 On the other hand, the ld DR has submitted that the tests laid down in the decision of the Special Bench of the Tribunal in the case of Amway Enterprises (supra), has not been considered either by the Assessing Officer or by the CIT(A); therefore, the issue is required to be examined in the light of the decision of the Special Bench which has been upheld by the Hon'ble Delhi High Court. 6 We have considered the rival submissions as well as the relevant material on record. From the details of the expenditure, we note that the assessee has incurred this expenditure for the purchase of software which inclu....
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....already been paid by the manufacturer and not by the assessee. He has referred the tax audit report and submitted that the method of valuation of closing stock has been explained in Schedule III, clause 12 as well as in the note to the tax audit report. Thus, the ld Sr counsel has submitted that the assessee has valued its inventory and closing stock as per the method of accounting regularly employed by the assessee. 8.1 On the other hand, the ld DR has submitted that this issue has been considered and decided by this Tribunal in assessee's own case for the Assessment Year 2000-01 and it has been directed that the opening stock has to be adjusted accordingly. Thus, the ld DR has submitted that there is no error in the order of the Commissioner of Income Tax(Appeals) in directing the Assessing Officer to increase the opening stock for the next year. He has relied upon the orders of the authorities below. 9 Having considered the rival submissions as well as the relevant material on record, at the outset, we note that an identical issue has been considered and decided by this Tribunal in assessee's own case for the Assessment Year 2000-01 vide order dated 9.5.2012 in paras 11....
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....TV advertisement campaign was disallowed. 11.2 On appeal, the Commissioner of Income Tax(Appeals) has confirmed the disallowance made by the Assessing Officer on this account by following the order for the Assessment Year 2000-01. 12 Before us, the ld Sr counsel for the assessee has submitted that for the Assessment Year 1998-99, the Tribunal has held that in the absence of PE in India, the payment made to non-resident is not taxable in India. Further, the Tribunal has also held that the expenditure incurred on TV films and commercial and other promotional film is revenue expenditure and not capital expenditure. However, the issue was set aside by the Tribunal on the aspect whether the expenditure was incurred wholly and exclusively for the purpose of the business of the assessee because in the said Assessment Year, there was no material on record to establish the claim of the assessee. The ld Sr counsel has submitted that for the Assessment Year under consideration, the assessee has bought out on record the relevant material and details to show that the said expenditure has been incurred wholly and exclusively for the purpose of the business of the assessee. He has referred the ....
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.... 1998-99 has adjudicated this issue in para 13 as under: "13. Now coming to the last aspect as to whether expenditure has been incurred by the assessee wholly and exclusively for the purposes of its business or not. We observed that the said product 'Dlianos' is not registered in the name of the assessee company but is registered in the name of NIL in Russian Federation. Ld A.R. has also not brought any documents on record that the said advertisement expenditure has been incurred by NPS for and on behalf of assessee to promote the said brand in Russia under the instruction of assessee or pursuant to any agreement entered into between assessee and NPS. Further, we observe that NPS raised invoices on the assessee claiming that expenditure has been incurred by it to promote the product in Russia and assessee has reimbursed the amount to NPS without seeking details of the expenditures incurred. There is no material on record to establish that the said expenditure has been incurred for wholly and exclusively for the purposes of assessee's business. Section 37(1) of the Act provides that any expenditure incurred wholly and exclusively for the purposes of the business shall be allowed in....
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....nd disallow the claim of the assessee by following the earlier year order; therefore, this aspect of the issue is required to be examined after verification of the relevant records claimed to have been filed by the assessee. 13.4 Further, for the Assessment Year 1998-99, the Tribunal has taken note of the fact that the product 'Dlianos' is not registered in the name of the assessee company but is registered in the name of NIL in Russian Federation and therefore, this aspect was required to be examined in the light of the relevant material to be produced by the assessee. In the year under consideration since the issue has not been independently examined; therefore, it is not clear from the records whether the expenditure on advertisement has been incurred on the product which is registered in the name of the assessee or not. Therefore, in any case, the issue is required to be examined by considering all the relevant factual aspect as pointed out by the Tribunal for the Assessment Year 1998-99. 14 In view of the above facts and circumstances, we set aside this issue to the record of the Assessing Officer to examine on the point of allowability u/s 37(1) of the Act on the lim....
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....se of GE India Technology Centre P. Ltd. v. Commissioner of Income-tax reported in 327 ITR 456 and the Assessing Officer has to examine the withholding the tax u/s 195(1) in the assessment while proposing the disallowance u/s 40(a)(i) of the Act. 17.1 Apart from advancing the arguments at length on the point whether the payments made by the assessee for rendering of the services by the foreign company is in the nature of fee for technical services or managerial services, however, at the threshold, the ld Sr counsel for the assessee has submitted that no disallowance can be made u/s 40(a)(i) because prior to the amendment by the Finance Act 2003 w.e.f 1.4.2004, the provisions of sec. 40(a)(i) are discriminatory to the non resident and therefore, hit by non discriminatory provisions of DTAA under Article 22 of Indo-Switzerland. The ld Sr counsel has relied upon the decision of the Delhi Benches of the Tribunal in the case of Herbalife International India (P.) Ltd. v. Assistant Commissioner of Income-tax reported in 101 ITD 450 and submitted that the Tribunal has held that the provisions of sec. 40(a)(i) prior to the amendment w.e.f 1.4.2004 cannot be applied in the case of the payme....
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....espect to the payment to the non resident or a foreign company. He has also referred the circular reported in 176 ITR (Statute) 164 and submitted that the provisions of sec. 4(a)(i) are for the purpose of compliance of se c 195 and therefore, withholding of tax on the payments to non resident falls u/s 195. Thus, the ld Sr counsel has submitted that the purpose of sec. 40(a)(i) is only to ensure deduction of tax on the amount paid /payable or credited to non resident. 18 We have considered the rival submissions as well as the relevant material on record. Since the assessee has raised a technical ground regarding applicability of sec. 40(a)(i) prior to the amendment vide Finance Act 2003 being discriminatory to the non resident and hit by the provisions of Article 22 of Indo Switzerland treaty. There is no dispute on the point that prior to the amendment, the provisions of sec 40(a)(i) were applicable only with respect to the payments which are subjected to deduction of tax u/s 195. For ready reference, we quote the provisions of sec. 40(a)(i) as existed at the relevant time as under: "40. Notwithstanding anything to the contrary in sections 30 to 6[38], the following amou....
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....obviate the necessity of deciding the other questions raised in point (A) above. We may at this stage itself mention that apart from the consequence of disallowance of expenditure for non-deduction of tax at source at the time of making payment to a non-resident, the assessee as a person responsible for making payment of any sum chargeable to tax to a non-resident is obliged to deduct tax at source under the provisions of section 195 of the Act. On such failure the person responsible for deduction of tax at source is liable to pay the tax deductible together with interest from the date on which such tax is due to the date on which such tax is paid under the provisions of section 201(1) and (1A) of the Act. In the present case the payment to M/s. HIAI had been made by the assessee's office at Bangalore and, therefore, the officer having jurisdiction over the branch office at Bangalore had already initiated proceedings against the assessee under the provisions of Chapter XVII of the Act dealing with "collection and recurring of tax" and Part B thereof dealing with deduction at source. The assessee has, in such proceedings, taken a plea that the payment in question is not chargeable t....
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....termining the taxable profits of the first mentioned resident, be deductible under the same conditions as if they had been paid to a resident of the first mentioned State." The provisions of section 40(a)(i) as it stood prior to it's amendment by the Finance Act, 2003 with effect from 1-4-2004 applied to payments by an assessee outside India to a non-resident only. After 1-4-2004 the provisions apply equally to both resident and non-resident. In this appeal we are concerned with assessment year 2001-02 in which the provisions of section 40(a)(i) as it existed prior to 1-4-2004 alone are applicable. Admittedly in the present case the exceptions set out in Article 26(3) are not attracted. Therefore the payment by the assessee to M/s. HIAI is of the nature contemplated by Article 26(3). 23. A question may arise for consideration is as to whether assessee who is a resident could take benefit under this clause i.e. Article 26(3). A plain reading of Article 26(3) clearly suggests that the assessee can claim the benefit. In this regard it would be relevant to refer to the provisions of section 90(2) of the Act, which reads as follows : "90(2) where the Central Government has ent....
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.... achieving Government objectives, have made a model Double Taxation Convention. The member countries generally use this model as a basis for negotiating Double Taxation Conventions. India is not a member of the OECD. We may at this stage set out the provisions of non-discrimination as contained in the OECD model. Article 24(4) of the OECD model is in pari materia the same as that of Article 26(3) of the Indo-US DTAA and the same reads thus : "Article 24(4) : Except where the provisions of paragraph 1 of Article-9, paragraph 6 of Article-11 or paragraph 4 of Article-12, apply, interest, royalties and other disbursements paid by an enterprise of a Contracting State to a resident of the other Contracting State shall, for the purpose of determining the taxable profits of such enterprise, be deductible under the same conditions as if they had been paid to a resident of the first mentioned State. [Other portion of Article 24(4) are not repeated as they are not relevant to the present issue]." Mr. Philip Baker, Author of the book on "Double Taxation Conventions and International Tax Law" A Manual on the OECD Model Tax Convention on Income and on Capital, 1992, Second Edition at page 396....
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....dent. Thus this clause in DTAA neutralizes the rigour of the provisions of section 40(a)(i). By virtue of the provisions of section 90(2) the law which is beneficial to the assessee to whom the DTAA applies, should be followed. We therefore hold that in view of Article 26(3) of Indo-US DTAA, the Assessing Officer cannot seek to invoke the provisions of section 40(a)(i) of the Act to disallow the claim of the assessee for deduction even on the assumption that the sum in question is chargeable to tax in India. We however make it clear that the question whether the sum is chargeable to tax is left open for adjudication by the appropriate forum in the appropriate proceedings already referred to in this order." 19.1 The said decision of the Tribunal has been subsequently followed by the coordinate Bench of this Tribunal in the case of Central Bank of India (supra). In the case of Herbalife International India (P.) Ltd. (supra) as well as Central Bank of India (supra), the treaty involved is Indo-US DTAA and Article 26(3) reads as under: "Article 26(3): Except where the provisions of paragraph-1 of Article 19 (Associated Enterprises), paragraph-7 of Article-11 (Interest), or paragraph-....
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....t and affecting the case of the assessee. It is clear from the language of article 22(1) and re-numbered as 24(1) that nationals of a contracting state cannot be subjected to more burdensome requirement connected with any taxation, then the requirement to which the nationals of other state in the same circumstances. Accordingly, following the decision of the Delhi Benches of the Tribunal, in the case of Herbalife International India (P.) Ltd. (supra), we hold that the pre-amended provisions of section 40(a)(i) as existed at the relevant point of time do not apply in the case of the assessee in view of the provisions of Article 22(1) of Indo Switzerland. 20 Since the issue of applicability of sec 40(a)(i) is decided in favour of the assessee; therefore, we do not propose to go into the merits of the issue whether the payments are in the nature of fee for technical services or managerial services as per the provisions of Article 12 of Indo Switzerland DTAA. 21 Ground no. 5 is regarding levy of interest u/s 234D. 22 We have heard the ld Sr AR as well as ld DR and considered the relevant material on record. At the outset, we note that this issue is now covered against the assessee b....
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....s from R & D services were on account of exploitation of excess capacity available with the assessee. 6. On the facts and in the circumstances of the case and in law the Ld. CIT(A) erred in directing not to reduce 9O°/o of the gross receipts arising from IT Services, Koishet Site sharing expenses and Kolshet Site rent, from the profits and gains of business for the purpose of computing deduction u/s.8OHHC ignoring the fact that the receipts had accrued as a result of exploitation of excess capacity in the infrastructure available with the assessee for the purpose of its business." 24 Ground no.1(a) & (b) regarding disallowance of interest capitalised in the books of account. 24.1 The Assessing Officer has noted that the assessee has reduced from the profit an amount of Rs. 79,71,375/- on account of interest capitalised in the books of account; but claimed as revenue expenditure in the computation of income. The assessee explained and submitted before the Assessing Officer that the interest on borrowed capitals for purchase of capital assets, though capitalised in the books of account; but is an allowable expenditure u/s 36(1)(iii). The Assessing Officer disallowed the claim ....
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....eatment given by the assessee to it in its own books of account. Similar view has been taken by Hon'ble apex Court in the case of Kedarnath Jute Mfg. Co. Ltd. v. Commissioner of Income-tax, 82 ITR 363(SC). Hence, we uphold the order of ld CIT(A) by rejecting Ground No.1 taken by department." 26.1 The ld Sr counsel has also relied upon the decision of the Hon'ble Supreme Court in the case of Deputy Commissioner of Income-tax v. Core Health Care Ltd. reported in 298 ITR 194 whereby the decision of the Hon'ble Gujarat High Court has been upheld. Following the earlier order of the Tribunal as well as the decision of the Hon'ble Supreme Court in the case of Core Health Care Ltd. (supra), we decide this issue in favour of the assessee and against the revenue. 27 Now take up the ground 1 ( c) as well as ground no.2 together. Since both are relating to the income which is exempt u/s 10B of the I T Act and the question arose whether post amendment, the provisions of sec. 10B are in the nature of exemption or deduction. 28 We have heard the ld DR as well as the ld Sr counsel for the assessee. The ld DR has relied upon the decision of the Hon'ble Karnataka High Court in the case of Commiss....
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....eded on the erroneous premise that section 10B is a provision in the nature of an exemption. Plainly, section 10B as it stands is not a provision in the nature of an exemption but provides for a deduction. Section 10B was substituted by the Finance Act of 2000 with effect from April 1, 2001. Prior to the substitution of the provision, the earlier provision stipulated that any profits and gains derived by an assessee from a 100 per cent. export oriented undertaking, to which the section applies "shall not be included in the total income of the assessee". The provision, therefore, as it earlier stood was in the nature of an exemption. After the substitution of section 10B by the Finance Act of 2000, the provision as it now stands provides for a deduction of such profits and gains as are derived by a 100 per cent. export oriented undertaking from the export of articles or things or computer software for ten consecutive assessment years beginning with the assessment year relevant to the previous year in which the undertaking begins to manufacture or produce. Consequently, it is evident that the basis on which the assessment has sought to be reopened is belied by a plain reading of the ....
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....t to reopen the assessment under Section 148. The Division Bench noted that upon the substitution of the provision by the Finance Act, 2000, Section l0B was no longer a provision for exemption, but a provision for deduction. The Division Bench observed as follows: "Plainly, section 10B as it stands is not a provision in the nature of an exemption but provides for a deduction. Section lOB was substituted by the Finance Act of 2000 with effect from April 1, 2001. Prior to the substitution of the provision, the earlier provision stipulated that any profits and gains derived by an assessee from a 100 per cent export oriented undertaking, to which the section applies "shall not be included in the total income of the assessee". The, provision, therefore, as it earlier stood was in the nature of an exemption. After the substitution of Section 1 OB by the Finance Act of 2000, the provision as it now stands provides for a deduction of such profits and gains as are derived by a 100 per cent export oriented undertaking from the export of articles or things or computer software for ten consecutive assessment years beginning with the assessment year relevant to the previous year in which the u....
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....10-B by which a prohibition has been introduced by the Legislature in setting off of a loss which is sustained from one source falling under the head of profits and gains of business against income from any other source under the same head. On the other hand, there is intrinsic material in Section l0B to indicate that such a prohibition was sub -section (7) of Section 10B provides that the provisions of sub-section (8) and subsection(10) Section 80-IA shall, so far as may be, apply in relation to the undertaking referred to in the section as they apply for the purposes of an undertaking referred to in Section 80-IA. Section 80-IA contains a specific provision in sub-section (5) to the following effect: "(5) Notwithstanding anything contained in any other provision of this Act, the profits and gains of an eligible business to which the provisions of sub-section (1)apply shall, for the purposes of determining the quantum of deduction under that sub-section for the assessment year immediately succeeding the initial assessment year or any subsequent assessment year, be computed as if such eligible business were the only source of income of the assessee during the previous year ....
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....o 1 ( c) is concerned, 29.4 As far as the issue involved in ground no.2 regarding the setting off of loss of STP unit u/s 10B are against other business income, the same is covered by various decisions of the Hon'ble jurisdictional High Court as relied upon by the assessee and reproduced in the foregoing paras. 30 Ground no.3 is regarding exclusion of excise duty from the total turnover for the purpose of computing the deduction u/s 80HHC. 31 We have heard the ld DR as well as the ld Sr counsel for the assessee and considered the relevant material on record. This issue is covered in favour of the assessee by the decisions of the Hon'ble Supreme Court in the case of Commissioner of Income-tax v. Lakshmi Machine Works reported in 290 ITR 667(SC) as well as tin the case of Commissioner of Income-tax v. Catapharma (India) P. Ltd. Reported in 292 ITR 641(SC). Even other wise, for the AY 1998-99 and 1999-00, the Tribunal has considered and decided this issue in favour of the assessee and against the revenue. 31.1 Since the issue is settled; therefore, we do not find any error or illegality in the order of the ld CIT(A) in directing the Assessing Officer to exclude the excise duty fro....
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....e computing the deduction allowable u/s.80 HHC of the Act." 36 Following the earlier order of this Tribunal, this issue is remitted to the record of the Assessing Officer for computing the deduction u/s 80HHC in the light of the decision of the Hon'ble Supreme Court in the case of ACG Associated Capsules Pvt Ltd (supra) ITA No.8489/Mum/2004(By the assessee - AY 2001-02) 37 This appeal by the assessee is directed against the order of the CIT(A) dated 10.9.2004 passed u/s 154 for the AY 2001-02. 37.1 The assessee raised the following effective ground in this appeal: "The Commissioner of Income-tax (Appeals)-XIX, Mumbai erred in confirming the action of the Additional Commissioner of Income-tax, Circle 7(1) in reducing 90% of income aggregating to Rs. 73,25,000 as mentioned below while computing 'profits of the business' by treating the same as covered by 'any other receipt of a similar nature' as appearing in Explanation (baa) to section 8OHHC. (i) Liability no longer required Rs. 47,80,000 (ii) Other income mainly on account of scrap sales Rs. 25,45,000 38 We have heard the ld Sr counsel for the assessee as well as the ld DR and considered the relevant material on record. ....
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....far as the scrap sale is concerned, since in the absence of any details an identical issue was remitted to the record of the Assessing Officer by the Tribunal in para 22.3 for the AY 2001-01 as under; "22.3 In respect of Rs. 12,32,000, we observe that in the details filed to the Annual Account, it is shown as "other income" and nowhere it is stated that this income is on account of sales of scraps. We observe that in the grounds taken before ld CIT(A) as well as the ground before us it is shown as "other income" mainly on account of scrap sales and no break up as to how much is the scrap sales included in the said amount of Rs. 12,32,000 has been given. In view of above facts, we do not find any infirmity in the order of ld CI(A) to exclude 90% of Rs. 12,32,000 while computing deduction u/s. 80 HHC. Hence, Ground No.5 is allowed in part." 40 Accordingly, the issue regarding written back liability is decided in favour of the assessee and the issue regarding scrap sale is remitted to the record of the Assessing Officer for deciding the same afresh. ITA No. 5047/Mum/2005 (AY 2002-03) - By the assessee: 41 For the AY 2002-03, the assessee has raised the followi....
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....to valuation of closing stock on account of Modvat. 45 This ground is common to the ground no.2 of the assessee's appeal for the AY 2001-02. Accordingly, following our findings for the AY 2001-02, we decide this issue in similar terms. 46 Ground no.3 is regarding reducing of 100% profits eligible for deduction u/s 80HHE while computing the eligible profits u/s 80HHC. 47 We have heard the ld Sr counsel for the assessee as well as the ld DR and considered the relevant material on record. At the outset, we note that this issue is now covered by the decision of the Hon'ble jurisdictional High Court in the case of Associated Capsules P. Ltd. v. Deputy Commissioner of Income-tax reported in 332 ITR 42. We note that the Hon'ble High Court has held in para 41 as under: "41.In the result, we hold that section 80-IA(9) does not affect the computability of deduction under various provisions under heading C of Chapter VI-A, but it affects the allowability of deductions computed under various provisions under heading C of Chapter VI-A, so that the aggregate deduction under section 80-IA and other provisions under heading C of Chapter VI-A do not exceed 100 per cent. of the profits of the bu....
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....nue expenditure. In support of his contention, he has relied upon the decision of the Hon'ble Gujarat High Court in the case of Deputy Commissioner of Income-tax v. Sun Pharmaceuticals Ind. Ltd. Reported in 329 ITR 479 (Guj). 53.1 The ld DR on the other hand has submitted that this issue is covered against the assessee by the decision of the Special Bench in the case of JCIT vs Mukund Ltd reported in 106 ITD 231. 54 We have considered the rival submissions as well as the relevant material on record. In the case of Sun Pharmaceuticals Ind. Ltd (supra), the Hon'ble Gujarat High Court has observed in paras 7 to 9 as under: "7 The Tribunal has thus, after referring to two decisions of the Supreme Court, held that the land in question was not acquired by the assessee. That merely because the deed was registered the transaction in question would not assume a different character. The lease rent was very nominal. By obtaining the land on lease the capital structure of the assessee did not undergo any change. The assessee only acquired a facility to carry on business profitably by paying nominal lease rent. 8 In the light of the aforesaid findings of fact and the ratio of the ape....
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....low depreciation @ 60% on software expenses though there is no provision in the Act to provide 6O% depreciation to the software. 2. On the facts and in the circumstances of the case and in law the Ld. CIT(A) erred in allowing the loss of Rs. 5,81,60,016/- being the expenditure of the Turbhe unit which was disallowed by the AO as being incurred for earning the income which was exempt u/s.1OB of the I.T.Act. 3. On the facts and in the circumstances of the case and in law the Ld. CIT(A) erred in directing the AO to exclude the excise duty from the total turnover for the purpose of computing the deduction u/s.8OHHC. 4. On the facts and in the circumstances of the case and in law the Ld. CIT(A) erred in directing not to exclude 9O% of the following items from the profits and gains of business for the purpose of computation u/s.80-HHC ignoring that explanation (baa) to Sec.80-HHC is not covered on these items. (i) Liability no longer required 47,11,000 (ii) Other income mainly on account of scrap sales 46,17,000 (iii) Profit on sale of raw/Packing material 1,01,000 5. On the facts and in the circumstances of the case and in law the Ld. CIT(A) erred in directing that the net exchan....
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.... Year 2001-02, we decide this issue in favour of the assessee and against the revenue. 64 Ground no.4 is common to ground no.1 of the assessee's appeal against 154 order for the Assessment Year 2001-02. Therefore, following our findings in assessee's appeal for the Assessment Year 2001-02, the issue regarding written back liability is decided in favour of the assessee and the issue regarding scrap sale is remitted to the record of the Assessing Officer for deciding the same afresh. Accordingly, this ground is disposed off. 65 Ground no.5 is regarding exclusion of 90% gross profits and exchange gains of business u/s 80HHC. 66 This ground is common to the ground no. 4 of the revenue's appeal for the AY 2001-02. Accordingly, we decide the issue in favour of the assessee. 67 Ground no.6 is regarding reducing 90% of net or gross receipt arising from R&D and IT services etc. 68 This ground is common to ground no.6 of revenue's appeal for the Assessment Year 2001-01. While deciding the appeal of the revenue for the AY 2001- 02, we remitted the issue to the record of the Assessing Officer by following the order of the Tribunal in earlier year. Therefore, following our findings ....