TMI Blog2012 (7) TMI 432X X X X Extracts X X X X X X X X Extracts X X X X ..... Dis allowance of Set-off of loss of STP undertakings - Held that:- Deduction allowed u/s 10A in respect of undertaking is to be allowed after setting off of brought forward loss of that undertaking - allow set off of loss from 10A units against the other business income of the assessee or income from other sources. Dis allowance of Expenditure on software imports - Held that:- This issue has been held in favour of the that the software purchased by it is in the nature of goods and the provisions of section 40(a)(ia) were not applicable to Allocation of Corporate Expenses - Held that:- No specific finds that exemption/deduction in an artificial way of allocating the expenses and that too on surmises is not justifiable – in favour of assessee. Rates and taxes - Held that:- That assessee himself has agreed to allocation of 20% of such expenditure no further disallowance warranted Software development centers outside India - Held that:- As assessee company in foreign countries also paying foreign taxes but had not recorded a finding that such goods or services have been transferred at the market value. In absence of such a finding case is remitted back to AO. “Other In ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty of AO to point out that why the allocation is not correct - assessing officer was not justified in disturbing the allocation. Trading Activity of monitors & Printers - Held that:- Monitors have been sold as part of the computer without making any value addition by the industrial undertaking, then the profit derived from sale of such monitors cannot be considered as profit derived from the industrial undertaking - not to be included for the purpose of computing deduction u/s 80IB. Other Income’ not considered as income eligible for deduction u/s.10A- Held that:- Unless rental income represents a recovery of the rent paid by the undertaking, it cannot be regarded as profit derived by the industrial undertaking. Since the rental income in the assessee company’s case does not meet this requirement, we confirm the order of the Assessing Officer that rental income should be excluded in computing the deduction u/s. 80 IB Deduction under Section 80IC/80-IAB – Held that:- An identical issue of allocation of corporate over heads to various business units / undertakings for determining the profits for computing the deduction u/s. 80IB/IAB has already been considered by the Tribunal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... DRP vide directions dt.26.9.2011 referred to above did not accept the assessee s objections to the TP adjustment and directed the Assessing Officer to complete the assessment accordingly. The Assessing Officer accordingly passed the order of assessment on 29.9.2011. 3. In all the assessee company has raised 98 grounds. These will be disposed off in seriatum ground wise as under. 4. The grounds of appeal raised at S.Nos.1 to 4 are as under : 1. The Order u/s 143(3) dated 29.09.2011 of the learned Assessing Officer (hereinafter referred to as the AO ), the Order u/s 92CA dated 15.04.2010 of the learned Transfer Pricing Officer (hereinafter referred to as the TPO ) and the Directions dated 26.09.2011 issued u/s 144C(5) of the learned Dispute Resolution Panel (hereinafter referred to as DRP ) are against the law, facts, circumstances, natural justice, equity and all other known principles of law. 2. The Order issued by the learned AO as well as the directions of the learned DRP are violative of the principles of judicial discipline and are accordingly liable to set aside as the binding nature of the orders of the higher appellate authorities has been totally ignored. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stated that the ground raised at S.No.10 regarding grant of safe harbor adjustment of / - 5 % of ALP is not being pressed in this appeal and is therefore accordingly dismissed as infructuous. 5.3 In respect of the grounds at S.Nos.5 to 9, the learned counsel for the assessee submitted that the Assessing Officer erred in making a transfer pricing adjustment of Rs. 9,67,89,370 based on the TPO s order and the confirmation of this by the DRP on the issue of interest on advances given by the assessee to its associated enterprises which were its wholly owned subsidiaries. It was submitted that the authorities below overlooked the fact that these interest free advances were given to its overseas subsidiaries out of commercial expediency from out of surplus funds available with it and in accordance with the principles and ratio laid out by the Hon'ble Apex Court in the case of S.A. Builders reported in 288 ITR 1 . The learned counsel for the assessee contends that the transfer pricing adjustment made by the TPO at 14% rate of interest based on LIBOR, as the reasonable rate of interest under the CUP method, was based on surmises and was not based on the transfer pricing requirement of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e advances given by the assessee to its wholly owned foreign subsidiaries is identical to that of the earlier years, the Assessing Officer is directed to follow the directions given in the orders for earlier years in the assessee s own case for Assessment Year 2004-05 following the decision in ITA Nos.624 1178/Bang/2007 dt.31.10.2008 in the assessee s own case for Assessment Year 2003-04. 6.1 In grounds raised at S.Nos.11 to 14, the assessee has contended as under : Disallowance under section 14A 11. The learned AO, based on surmises and conjectures, erred in not accepting the actual expenditure of Rs. 89,14,479/- incurred in relation to exempt income for the purposes of section 14A of the Act quantified by the appellant with a detailed working from its accounts. The AO further erred in following the earlier year s order in estimating 5% of the dividend income as the expenditure and thereby making an adhoc disallowance u/s 14A of Rs 8,35,59,108/-. 12. The learned DRP erred in stating that no separate accounts have been maintained in respect of activity of earning income while giving a direction that the AO had rightly estimated the expenditure @ 5% of the dividend in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 0 dt.31.5.2012 for the Assessment Years 2004-05 and 2005-06 had remitted the matter to the file of the Assessing Officer with a direction to follow the decision of the Hon'ble High Court of Bombay in the case of Godrej Boyce Mfg. Co. Ltd. (supra). The Hon'ble High Court in this case held that the provisions of rule 8D of the Rules which have been notified with effect from March 24, 2008, would apply with effect from assessment year 2008-09. Even prior to Assessment Year 2008-09, when rule 8D was not applicable, the Assessing Officer had to enforce the provisions of sub-section (1) of section 14A. For that purpose, the Assessing Officer is duty bound to determine the expenditure which has been incurred in relation to income which does not form part of the total income under the Act. The Assessing Officer must adopt a reasonable basis or method consistent with all the relevant facts and circumstances after furnishing a reasonable opportunity to the assessee to place all germane material on the record. the proceedings for Assessment Year 2002-03 would stand remanded to the Assessing Officer. The Assessing Officer should determine as to whether the assessee had incurred any expendit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1,18,99,020 Total 30,30,25,916 17. The learned DRP erred in issuing its directions based on a misunderstanding of the Order of the Hon ble ITAT for AY 2004-05 wherein the decision was with regard to brought forward losses of 10A units whereas the case before the DRP was with regard to current losses of 10A units. 18. The learned DRP erred in not verifying the facts and erred in just following the earlier year s DRP directions. 19. The direction of the learned DRP is on the basis that the losses incurred by certain 10A units should be set-off against the profits earned by other 10A units which is in direct conflict with decision of the Supreme Court in 161 ITR 320 in the matter of set off of losses from the priority industry and accordingly violates the settled legal position. 20. The learned authorities below erred in not applying Sec. 70 or Sec. 71 in the matter of set off of above losses for the year in computing the total income of the assessee. 7.2 The learned counsel for the assessee submitted that the core of the issue is in respect of set off of losses of Rs. 30,30,25,916 from 12 undertakings in Software Technology Parks (STP ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... idered the material on record. We find that the identical issue was considered by a co-ordinate bench of the Tribunal in the assessee s own case for Assessment Year 2004-05 in ITA No.1072/Bang/2007 (supra), wherein the Tribunal confirming the finding of the learned CIT(A), at para 16.4 on pages 29 and 30 thereof, held as under : 16.4. We have carefully considered the contentions of the either parties and also carefully perused the order of the Hon ble Tribunal. While deciding an identical issue, the Hon ble Tribunal cited the following decisions (1) [12.5.] ITA No: 669 804/Ban/05 dated: 22.3.2006 for the AY 2000- 01 in the case of assessee company wherein it was concluded that we direct the AO to allow set off of loss from 10A units against the other business income of the assessee or income from other sources. (2) ITA NO.248 249/Bang/07 dated 27.11.2007in the case of I-Gate Global Solutions Ltd. v. ACIT wherein the issue was decided in favour of the assessee. (3) ITA No.387/Bang/06 dated: 26.6.2007 in the case of M/s Web Spectron P.Ltd the issue was decided in favour of the assessee. The Hon ble Tribunal has, further, observed that the decision of jurisdict ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lty whereas in the facts and circumstances of the appellant, the payments did not attract the provisions of section 40a(i). 24. The learned authorities below, while making the disallowance of the deprecation on imported software used in-house, erred in not following the appellate orders in appellant s own case and the order of the Hon ble Supreme Court in the case of Tata Consultancy Services Ltd reported in 271 ITR 401. 25. The learned DRP erred in not upholding judicial discipline for the only reason that the Department has not accepted the orders of the ITAT on the issue and filed appeals u/s 260A, which are pending. 8.2 It is submitted that the assessee company claimed depreciation amounting to Rs. 7,38,83,507 on software purchased both locally and imported and used in its business and furnished the details thereof to the Assessing Officer in the course of assessment proceedings. The Assessing Officer was of the opinion that the provisions of section 40(a)(ia) of the Act are applicable and proposed to disallow the depreciation claimed on such purchases. The assessee submitted that the software purchased by it is in the nature of goods and the provisions of section 4 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to29 are as under : Allocation of Corporate Expenses 26. The learned AO erred in allocating expenses of Wipro Corporate to undertakings under section 10A even though the said expenses were not required to be allocated. 27. Without prejudice, the learned AO ought to have refrained from making an allocation of expenses of Wipro Corporate in an adhoc manner to the undertakings under Section 10A, ignoring the detailed submissions made by the assessee. 28. The learned DRP erred in stating that the AO has adopted a reasonable approach by way of allocating such expenditures on the basis of turnover overlooking the fact that no allocation was required in the first place. 29. The learned authorities below erred in making an allocation of expenses of Wipro Corporate to the undertakings under Section 10A and thereby failed to follow the Order of the ITAT Bench in appellant s own case for an earlier assessment year for the reason that the said order has been challenged by the Department before the Hon ble High Court, which is pending. 9.2 It is submitted by the learned counsel for the assessee that Wipro Limited is a set up which evolves growth plans of the assessee c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... /Bang/2006 dt.3.5.2008. The relevant findings are extracted hereunder : 11.4. We have carefully considered the submissions of both the parties. We have also perused the decisions of the Hon ble Tribunal on which the assessee company has placed strong reliance. The order of the Hon ble Tribunal for the AY 97-98 in assessee s own case in ITA No:651/B/94 has decided the issue in favour of the assessee and relevant findings of the Tribunal is reproduced as under: 27.14. In view of these entire facts of the case and, in the absence of any specific finds by the authorities below that the expenditure is incurred for the various units claiming exemption/deduction in an artificial way of allocating the expenses and that too on surmises is not justifiable. We are, therefore of the opinion that the profits of the undertaking eligible for exemption u/s 10A is correctly worked out and no artificial working can be attributed thereto. The ground taken by the assessee is, therefore, allowed and the order of the Commissioner (Appeals) is reversed in this aspect. 11.5. The Hon ble Tribunal in its decision in ITA Nos:426,427,468 469/Bang/2006 dt:30.5.2008 in assessee s own case has de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ia. 32. The learned DRP erred in stating that the assessee could not prove that the work carried out at the software development centres is an extension of software development which took place in the STP Units, which is contrary to the facts on record wherein the appellant had established that revenues from clients facilitated by the overseas software development centres were derived by the undertakings in software technology parks. 10.2 It was submitted by the learned counsel for the assessee that the Software Development Centres (SDCs) in Germany, Sweden, UK, Canada and Japan were set up by the assessee to facilitate the on-site development of software to specific customers. These, it is submitted, are the cost centres of Wipro Technologies Divisions and its subunits, viz. the undertakings in Software Technology Parks (STPs) and Special Economic Zones (SEZs). It is submitted that the assessee s submissions that the SDCs are extensions of STP / SEZ units was rejected by the Assessing Officer who was of the view that they are independent of STP units. The Assessing Officer was of the view that the Revenue generated by the above SDCs abroad are included in the revenues show ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e above finding, we are of the firm view that this issue requires to be remitted back to the assessing officer and, accordingly, we are remitting back this issue to the assessing officer for necessary action as contemplated in the Tribunal s finding referred supra. On consideration of the above findings, we respectfully following this decision, are of the opinion that for this year also the issue requires to be remitted back to the Assessing Officer and accordingly do so with a direction to the Assessing Officer to follow the decision of Tribunal mentioned supra. 11.1 The grounds of appeal at S.Nos.33 to 38 are as under : Other Income not considered as part income eligible under Section 10A: 33. The learned AO erred in excluding aggregate interest income of Rs. 6,61,13,968/- from the profits of the 10A units even though the AO has given a finding that the interest income was derived out of the surpluses generated by the Units. 34. The learned AO ought to have netted out the interest paid against the interest income being items of the same nature and excluded only the net interest instead of the gross interest earned. 35. The learned DRP erred in stating tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Assessing Officer concluded that the interest shown as miscellaneous income in each of the units has to be excluded from the profits since no borrowed funds were used in the business of STP units. The Assessing Officer also held that income from sale of scrap has no relation to software development activity and hence the same is to be excluded. The learned counsel for the assessee further submitted that the DRP applied the decision in the case of Liberty India Vs. CIT (317 ITR 218) (SC) rendered in the context of section 80 IB deduction and concurred with the finding of the Assessing Officer. 11.3 The learned Departmental Representative relied on the finding on this issue in the orders of the authorities below. 11.4 We have heard both parties and have carefully perused and considered the material on record. We find that this issue has been considered by the co-ordinate bench of this Tribunal, in the assessee s own case for Assessment Year 2004-05 in ITA No.1042/Bang/2007 dt.30.1.2009, wherein on page 19 in para 12.5 thereof, the bench followed its earlier order wherein it was held as under : 12.5. We have carefully considered the rival submissions and also perused the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... i High court in the case of CIT v. Shriram Honda Power Equipment 289 ITR 475 has discussed such an issue at length. However, it was observed by the Delhi High Court that in a given case if the assessing officer has held the interest income as business income and this has not been challenged by the department in thereafter, then the question cannot be permitted to be reopened and the only question then will be if netting should be allowed. In the instant case the interest receipts have not been taxed as income from other sources. The assessing officer has also not discussed the nature of the interest income. It is not the case of the revenue that interest income is not business income of the undertaking eligible for deduction u/s 10A. under the circumstances, we hold that the learned CIT(A) was justified in directing for not excluding the interest for the purpose of computing deduction u/s 10A as the assessing officer has not treated the interest income as income from Other sources or has not held that such income does not belong to the undertaking to which section 10A is applicable . In view of the finding in the decision of the co-ordinate bench of the Tribunal (supra) and resp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al Representative supported the orders of the Assessing Officer and pointed out that the ITAT in the assessee s own case for Assessment Year 2004-05 had held the issue in favour of Revenue and against the assessee and sought dismissal of assessee s grounds on this issue. 12.4 We have heard both parties and have carefully perused and considered the material on record. We are not convinced with the submission of the assessee and find that the co-ordinate bench of this Tribunal in ITA No.1042/Bang/2007 in assessee s own case for Assessment Year 2004-05 had considered an identical issue and decided the issue against the assessee. The relevant extract of the finding in the Tribunal order at page 40 in para 22.1 is extracted hereunder : 22.1. The Hon ble Tribunal in assessee s own case for the AYs 2001-02 and 02-03 had an occasion to consider a similar issue. After an exhaustive deliberation and also drawing strength from its earlier decision in the case of Tata Elxsi Ltd. in ITA No: 315/Bang/2006 has confirmed the order of the Ld. CIT(A) on the issue. Respectfully following the said decision of the Hon ble Tribunal, we are of the considered view that no interference is called fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce is called for and accordingly dismiss the assessee s ground. 14.1 The grounds of appeal at S.Nos.43 to 48 and 57 to 58 are as under : Communication link and other reimbursements: 43. The learned AO erred in concluding that the amount aggregating to Rs. 30,66,70,695/- should be excluded from export turnover though the revenues towards reimbursement of communication link expenses was not involving delivery of computer software as envisaged in Explanation 2 to Section 10A of the Act. 44. The learned AO erred in concluding that the amount aggregating to Rs. 163,90,23,556/- accounted under heads such as asset reimbursements, travel reimbursements, and other reimbursements should be excluded from the export turnover by stating that from its very description, the amount is not consideration received for export turnover and it cannot be turnover of the assessee, least of all, a part of export turnover. 45. With regard to export turnover accounted under reimbursements, the learned DRP erred in giving its directions and the learned AO erred in being guided by mere nomenclature of the revenue rather than by the fact that such reimbursements were essentially a measure ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urnover' of the undertakings. The assessee also received communication link reimbursements in convertible foreign exchange as a component in the realization of the sales price for the computer software exported. The assessee submitted to the Assessing Officer that the nomenclature of the reimbursement is only representative of the customers having paid the price for the computer software developed and delivered in terms of identified expenses which are reimbursed pursuant to the contract of sale of computer software and that the amounts realized in convertible foreign exchange by way of reimbursements and incentive rewards are to be included as part of 'export turnover'. The learned counsel for the assessee submitted that the Assessing Officer dd not concur with the assessee s claim and held that reimbursements and incentive rewards cannot be turnover of the assessee, and least of all a part of 'export turnover', as it is not consideration received for export of computer software. As regards the communication link reimbursement, the Assessing Officer held that these are in the nature of telecommunication charges attributable to delivery of computer software and are therefore to be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nses are embedded in the export turnover whereas in appellant s case there is no dispute that the items sought to be excluded are business expenditure incurred in foreign currency for on-site development of computer software (including services for development of computer software) which were not specifically included in turnover. 52. The learned AO alternatively should have excluded the said sum from the expenditure incurred in undertakings eligible for deduction under Section 10A. 53. Without prejudice, the learned AO ought to have carried out similar exclusions from total turnover as well. 54. The learned authorities below ought to have held that total turnover is nothing but an aggregation of export turnover as defined in clause (iv) of Explanation 2 under Section 10A and other turnover. 55. Without prejudice, the learned AO erred in substituting a new arbitrary method, which is different from the arbitrary method followed in the orders for earlier years especially for Assessment year 2001-02, which the DRP has failed to set right. 56. The learned DRP erred in agreeing with the AO for not adhering to the earlier decisions of the ITAT on the issue by stating ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sing to accept the law declared by the Hon ble Supreme Court in 204 ITR (St.) 9 read with 193 ITR 71 (Punjab) wherein filing of application would tantamount to extension of time in the absence of rejection of the same. 61. The learned DRP erred in stating that relaxation provided by exim policy cannot be extended to Income Tax provisions. 62. Without prejudice, it is submitted that the receipt of sale proceeds of earlier years may be allowed for this year as part of export turnover. 16.2 The learned counsel for the assessee submits that the assessee company is aggrieved by the Assessing Officer s action in excluding the aggregate sum of Rs.65,69,39,304 received after 30.9.2007 from the 'export turnover' of undertakings eligible for deduction under section 10A of the Act. The Assessing Officer was of the view that since the sale proceeds were not remitted into India within 6 months from the end of the previous year as provided in section 10A(3) and also since the delayed realization did not have the approval of the competent authority, they were to be excluded from the 'export turnover'. The DRP, it is submitted, concurred with and upheld the Assessing Officer view brush ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that separate accounts are being shown only to satisfy the Department for 10A deduction though the AO has not recorded any finding in this regard. 68. The learned AO erred in denying the deduction under Section 10A even after recognizing the fact that the undertakings were located in Software Technology Park and all the conditions under Section 10A(2) of the Act are met. 69. The learned AO erred in holding that subsequent license granted as expansion would not result in new undertaking. 70. The learned AO erred in not accepting that the legal position on commencement of business is applicable to each undertaking and not to the license underneath. 71. The learned AO erred in law in interpreting the provision of STPI against the appellant though no such interpretation is possible. 72. The learned AO erred in not noticing the distinguishing compliance /reporting requirements for the RBI, STPI and Income Tax Act and erred in interpreting in an overlapping manner. 73. The learned AO erred in refusing to rely on the decision of Supreme Court in 107 ITR 195 and also jurisdictional High Court reported in 123 ITR 11 and 128 ITR 476. 74. The authorities below erre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n this manner, the learned counsel for the assessee submits, the Assessing Officer concluded that the assessee had only two undertakings at Bangalore and since these undertakings commenced operations prior to 1.4.1993, they were not eligible for deduction under section 10A of the Act. It is submitted that the Assessing Officer also was of the view that the undertakings are not independent since common expenses were allocated on the basis of turnover to all the units as per the method of accounting followed by the assessee and that the software development centres situated in various countries executed the work of all units. The Assessing Officer observed that the appellate orders granting relief to the assessee were contested by the Department before the High Court under section 260A and as the outcome thereof was not known, in order to keep the matter/issues alive, he is following the decisions taken by the Assessing Officer on the same issue in earlier years. With these reasons, the Assessing Officer allowed aggregate deduction under section 10A/10AA/10B of the Act of Rs. 756,44,19,580 as worked out in Annexure E of the assessment order out of an aggregate deduction of Rs. 15,47, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the finding of the learned CIT (A) that the assessee is entitled deduction u/s 10A. 17.4. Considering the facts and circumstances of the issue and respectfully following the verdict of the Hon ble Tribunal referred supra, we are of the considered view that the assessee company is entitled for deduction u/s 10A and, hence, we confirm the finding of the Ld. CIT(A) on this count. 17.5 After careful consideration of the facts and circumstances of this issue and respectfully following the decision of the Tribunal, for Assessment Year 2004-05 (supra), we are of the considered view that the assessee company is entitled for deduction under section 10A and therefore direct the Assessing Officer to allow the same in accordance with law. 18.1 The grounds raised at 75 to 77 are as under : Deduction under Section 80IB (Allocation of Corporate Overheads to 80 IB unit) 75. The learned AO erred in not allowing the deduction under section 80-IB in respect of the eligible undertaking at Pondicherry for manufacture of computer even though the appellant complied in all respects with the provisions of the said section. 76. The learned DRP has erred in giving its directions on t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the said order the Tribunal has held as under : 20.3. We have carefully considered their submissions. We have respectfully perused the decision of Hon ble Tribunal referred supra. The Hon ble Tribunal, after analyzing an identical issue exhaustively with reference to submissions of either party and also considering the reasoning of the Ld.CIT (A) in depth, has concluded, thus 33.7. In respect of allocation of expenditure, we have perused the order of the learned CIT(A). The assesse himself has allocated the overheads and such allocation has been made on the basis of sales turnover. Once such an allocation has been made by the assessee, then it was the duty of the assessing officer to point out that why the allocation is not correct. The assessing officer has simply ignored the details filed by the assessee and made the allocation. Without pointing out any error in the allocation the assessing officer was not justified in disturbing the allocation. Hence, the finding of the leaned CIT(A) on this issue is confirmed. 20.4. Respectfully, following the above ruling, we confirm the Ld.CIT(A) s action. We, therefore, respectfully following the decision of this Tribun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n u/s. 80 IB of the Act. It was submitted by the learned counsel for the assessee that the DRP upheld the view of the Assessing Officer while disposing off the assessee s objections. 19.3 The learned Departmental Representative on his part supported the orders of the authorities below and prayed that they be upheld. 19.4 We have heard both parties and have carefully perused and considered the material on record. We find that a similar issue was considered by the Tribunal in the assessee s own case for A.Y. 2004-05 (supra) wherein the Tribunal following its earlier order for Asst. Years 2001-02 and 2002-03 at pages 43 and 44 at paras 25.3 and 25.4 have held the issue against the assessee as under : 25.3. Rival submissions were duly considered. The Hon ble Tribunal in its order referred supra, has dealt with a similar issue in the assessee s own case for the AYs.01-02 02-03, comprehensively. After taking into account the Ld.AO s action, the findings of the Ld. CIT(A) and also a detailed rebuttal submitted by the assessee, the Hon ble Tribunal has observed thus 33.5. We have heard both the parties. As per section 80IB(3), the deduction is available as a percentage of p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... industrial undertaking, then the profit derived from sale of such monitors cannot be considered as profit derived from the industrial undertaking. Therefore, the learned CIT (A) was justified in holding that profit from sale of monitor is not includible for computation of deduction u/s 80-IB. 25.4. Respectfully following the said decision, we are of the considered view that (i) profit from AMC cannot be included and (ii) the profit from sale of monitors cannot be included for computation of deduction u/s 80- IB. Respectfully following the decision of the Tribunal in the assessee s case for A.Y. 2004-05 (supra) and earlier years (supra), we are of the considered opinion and hold that the profit from sale of monitors and printers are not to be included in computation of deduction u/s.80 IB of the Act. These grounds raised by the assessee are accordingly dismissed. 20.1 The grounds of appeal raised at S.No.81 is as under : ( Other Income not considered as income eligible for deduction u/s.10A) 81. The learned AO erred in excluding other income from the profits of 80-IB units by stating that deduction is not allowed on other income. The learned AO ought to have ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ompany and it cannot be the case that a provision will reduce the profits of an undertaking but its subsequent reversal will not enhance such profits. In the facts and circumstances of this case, we are of the view that no details of the said provision have been brought on record by the assessee to establish that it was in fact derived by the industrial undertaking and how it was so derived. The fact that it would reduce the profits or enhance it, is immaterial. In this view of the matter, we hold that the item provision no longer required should not be included in the profits derived by the industrial undertaking and therefore would not be included in the profits eligible in computation of the deduction u/s. 80 IB of the Act. It is ordered accordingly. 21.1 The grounds raised at S.Nos.82 to 84 are as under : Deduction under Section 80IC computing the deduction 82. The learned AO erred in not allowing the claimed deduction under section 80-IC in respect of the eligible undertakings for manufacture of Toilet Soaps at Baddi, Himachal Pradesh and Glucovita Factory even though the appellant complied in all respects with the provisions of the said section. 83. The le ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pra) in paras 20.3 and 20.4 thereof and has deleted the allocation of corporate overheads made by the Assessing Officer. Respectfully following this decision of the Tribunal on the issue of allocation of corporate overheads, we delete the allocation of corporate overheads made by the Assessing Officer to the soap unit at Baddi, Himachal Pradesh and the Glucovita unit while computing the deduction u/s. 80 IC of the Act. 22.1 In the ground raised at S.No.85, the assessee has challenged the Assessing Officer s action in excluding other income of Rs.11,91,013 from forming a part of the income derived from the manufacturing activity at industrial undertaking at Baddi, H.P. for the purposes of computing the deduction u/s.80 IC of the Act. 22.2 We have heard both the learned counsel for the assessee and the learned Departmental Representative on the point. On careful perusal and consideration of the material on record, we find that the assessee company had not filed any objection against the Assessing Officer s finding before the DRP on this issue. Further, it is seen that there are no details of this issue on record. Since there is no cause of grievance on this issue to the assesse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rporate expenses allocable to it and in accordance with this view allocated a sum of Rs.8,23,157 to the SEZ unit. It is submitted that the DRP concurred with the view of the Assessing Officer and dismissed the assessee s objections. 23.3 The learned Departmental Representative supported the orders of the authorities below and prayed that these orders be upheld. 23.4 We have heard both parties and have carefully perused and considered the material on record. We find that the issue of allocation of corporate overheads to various business units has already been considered by a Bench of this Tribunal in the assessee s own case in the earlier years in ITA No. 1072/Bang/2007 (supra) at para 11 to 11.4 at pages 15 to 17 thereof and has held in favour of the assessee deleting the allocation of corporate overheads made by the Assessing Officer. Respectfully following the decision of the Tribunal on the issue of allocation of corporate overheads, we direct the Assessing Officer not to allocate corporate expenditure to the SEZ unit while considering the assessee s claim for deduction u/s.80IAB of the Act. 24.1 The ground of appeal at S.No.90 is as under : Credit for Foreign taxes ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s is to be allowed as credit. Accordingly, the Assessing Officer allowed credit of Rs.62,85,17,644. The DRP concurred with the view of the Assessing Officer and rejected the assessee s objection. 24.3 The learned Departmental Representative supported the orders of the authorities below. 24.4 We have heard both parties and have carefully perused and considered the material on record. We find that a similar issue was considered by this Tribunal in ITA No.1072/Bang/2007 (supra) in the assessee s own case at paras 18 to 18.5 on pages 32 to 34 thereof. The finding of the Tribunal on this issue is at para 18.3 to para 18.5 of the said order and is as under : 18.3. We have carefully considered the submissions of the Ld.A.R and also the Ld.D.R. in the matter. An identical issue had cropped up in the AY 02- 03 too. While considering the same, the Hon ble Tribunal was of the opinion that - 22.6 .. Though the learned CIT(A) has discussed the reasons as to why the Assessing Officer has not allowed the deduction claimed by the assessee, but he has not given finding as to how the order of the Assessing Officer is not legally correct. The Assessing Officer has mentioned that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssee. We, accordingly, direct the Assessing Officer to examine and verify the TDS claims of the assessee and to allow eligible TDS to the assessee. 26.1 The ground raised at S.No.93 to 96 are as under : Interest under Sections 234B / 234D 93. The appellant denies the liabilities for interest under Section 234B. Further prays that the interest, if any, should be levied only on the returned income and the levy should be limited to the date of regular assessment. 94. The appellant denies liabilities for interest under Section 234D as no refund was actually granted to the appellant as per the provisions of the Act. 95. No opportunity has been given before the levy of interest u/s 234B and 234D of the Act. 96. Without prejudice to the appellant s right of seeking waiver before appropriate authority, the appellant prays for consequential relief in the levy of interest under section 234B and section 234D. 26.2 The assessee company denies its liability to the interest charged under section 234B and 234D of the Act. The charging of interest is consequential and mandatory and is to be charged in accordance with the provisions of the Act. The Assessing Officer havi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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