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TMI Blog2012 (6) TMI 156X X X X Extracts X X X X X X X X Extracts X X X X ..... /s 80IB. He failed to appreciate that exporte3d goods were also manufactured in the unit, which is eligible for deduction and DEPB benefits cannot be treated as not derived from the undertaking. The appellant prays that no adjustment be made to the profits of the undertaking as shown by the appellant and claim u/s 80IB be allowed in full as claimed by the appellant. ii) The CIT(A) has erred in confirming the action of the Assessing Officer in disallowing the claim of the appellant for deduction u/s 80IA in respect of profit of windmills. He failed to appreciate that the appellant had correctly claimed the deduction u/s 80IA and there was no need to disallow the deduction claimed u/s 80IA. The appellan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... scussion about why strategic investments should not be considered." 3. Ground no.1 is regarding exclusion of DEPB benefit for deduction u/s 80IB. 4. We have heard the ld AR as well as the ld DR and considered the relevant material on records. At the outset, we note that this issue is now settled against the assessee by the decision of the Hon'ble jurisdictional High Court in the case of Commissioner of Income-tax v. Kalpataru Colours and Chemicals reported in 328 ITR 451 (Bom) as well as the decision of the Hon'ble Supreme Court in the case of Liberty India v. Commissioner of Income-tax reported in 317 ITR 218(SC). Accordingly, this issue is decided against the assessee. 5. Ground no.2 is regarding disallowance u/s 8 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is judgment has been rendered in the context of a business which had income only from the eligible business and there was no income from any non-eligible unit. It is in this backdrop of the fact that the Hon'ble High Court held that if the brought forward loss of the eligible unit has been set off against the income then for the purpose of sub-section (5), it should be construed that there is no brought forward loss for the purposes of reducing the profit earned in the year of claim of deduction u/s.80-IA. It can be explained in a simple manner. Suppose there is only eligible business and in the year of setting up there is loss from business at Rs.100. Simultaneously the assessee earns income from 'other sources' in the same eligible busine ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h the special bench order. In that view of the matter it is seen that the judgment rendered in Velayudhaswamy spinning Mills (P) Ltd. (supra) is not applicable to the facts of the present case. Rather the authorities below were justified in jettisoning the claim of the assessee on deduction u/s 80-IA by relying on the Special Bench order in the case of Goldmine Shares and Finance (P) Ltd. (supra). We, therefore, uphold the impugned order on this issue. This ground is not allowed." 6.2 Accordingly, respectfully following the order of the Tribunal in assessee's own case, we decide this issue against the assessee. 7. Ground no.3 is regarding capitalisation of software expenses. 8. We have heard the ld AR as well ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... India Enterprises (supra) after allowing reasonable opportunity of being heard to the assessee. 9. Ground no.4 is regarding capitalization of trademark related expenses. 10. We have heard the ld AR as well as the ld DR and considered the relevant material on records. The ld AR of the assessee has pointed out that though this issue was considered by the Tribunal in assessee's own case for the AY 2004-05 and 2006-07; however, during the year under consideration, apart from the expenditure on registration of trademark, the assessee has also incurred the expenses regarding legal fee, processing fee for renewal of the existing trademark. Therefore, the ld AR of the assessee submitted that to the extent the expenditure incurred f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Mills Ltd. [(1951) 20 ITR 475] in which it was held that the expenses for registration of trademark are deductible in full. It is seen that the assessment years under consideration before the Hon'ble Supreme Court were 1943-44 and 1944-45. As the necessary amendment has been made to section 32(1)(ii) by specifically including trademark in the definition of intangible asset, the ratio laid down in Finlay Mills Ltd. (supra)would not apply as the case would be governed by section 32(1). It is further seen that the Assessing Officer has denied deduction by relying on his order for the immediately preceding year 2005-2006. On a pertinent query the learned A.R. admitted that the assessee accepted the addition made in assessment year 2005-2006 an ..... X X X X Extracts X X X X X X X X Extracts X X X X
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