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2015 (8) TMI 877 - ITAT KOLKATA

2015 (8) TMI 877 - ITAT KOLKATA - TMI - Deduction under section 80IB disallowed - CIT(A) excluded from the profits eligible for deduction under sect ion 80IB, i.e. Rebate on Central Sales Tax payable as per Schedule 10 of Pilerne Unit and Commission on High Sea Sales payable as per Schedule 11 of other operational income - Held that:- By considering the totality of the facts, we restore both the issues to the file of Assessing Officer for considering it afresh regarding eligibility of these two .....

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the assessee was required to furnish the details. The Assessing Officer has himself observed that the deduction was claimed under section 10AA, but he referred to the details as were required to be furnished as per section 10AA(8). Under such ci rcumstances and for proper appreciation of facts and law, we restore the matter back to the file of Assessing Officer for fresh adjudication after providing reasonable opportunity of being heard to the assessee.

Working out S.T. capital gains .....

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that in the sale deed, there is no such bifurcation, though such bifurcation was made at the time of amalgamation. Under such circumstances, we do not find any infirmity in the order of ld. CIT(Appeals). Accordingly this ground is dismissed. - I.T.A. Nos. 43 & 44/KOL/ 2013, I.T.A. No. 2409/KOL/ 2013 - Dated:- 13-8-2015 - Shri S.V. Mehrotra and Shri Mahavir Singh, JJ. For The Assessee : Shri S.L. Kochar, Advocate & Shri Anil Kochar, Advocate For The Department : Shri Kalyan Nath, JCIT, Sr. D. .....

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thdrew the claim under section 80IB amounting to ₹ 69,86,940/- after determining the eligible claim at ₹ 1,73,39,563/-. This withdrawn was made in view of the decision of the Hon ble Supreme Court in the case of Liberty India -vs.- CIT reported in 317 ITR 218. Before we proceed further we may observe that the Assessing Officer had withdrawn the entire amount of ₹ 2,43,26,503/- after observing that the assessee claimed deduction under section 80IB for three Branches which were c .....

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ibility of assesee for deduction under section 80IB is concerned, the said issue is not before us. The only issue before us is regarding the disallowances made while computing the deduction under section 80IB of the Act. 3. Ld. counsel for the assessee, at the outset, referred to para 9 of ld. CIT(Appeals) order and pointed out that the ld. CIT(Appeals) has excluded from the profits eligible for deduction under section 80IB, on the following two items :- (a) Rebate on Central Sales Tax payable a .....

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appearing in the audited accounts. Commission on high sea sale is in respect of the transactions relating to export. Further, assesese s industrial undertaking at Pilerne is under the jurisdiction of Goa Sales Tax Authorities and rebate was received. Back Ground : Earner New SSI Manufacturing Units were exempted from Sales Tax in Goa under enetry 68 under Goa Sales Tax Act, 1964, but during the implementation of nationwide VAT system, exemptions were withdrawn and a new scheme called NPV was des .....

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India ( supra). 4. Ld. Departmental Representative for the Revenue relied on the order of ld. CIT(Appeals). 5. We have heard the rival contentions and gone through the orders of tax authorities below along with the material available on record. By considering the totality of the facts, we restore both the issues to the file of Assessing Officer for considering it afresh regarding eligibility of these two items, deduction under section 80IB in accordance with law in the light of decision of the H .....

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23,363/-. The assessment was completed at a total income of ₹ 6,19,89,391/- after making the following additions/ disallowances:- Disallowance of loss claimed from SEZ Unit. .....Rs.10,40,736/- Short Term Capital Gain........................................Rs.1,19,66,299/- The ld. CIT(Appeals) confirmed both the additions. Being aggrieved, the assessee is in appeal before the Tribunal on the following effective grounds of appeal:- (1) For that the ld. CIT(A) ought to have allowed deduction .....

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ming action of the AO in working out S.T. capital gains at ₹ 1,19,66,299/- as against Rs. NIL as claimed by the appellant. 9. Grounds No. 1 & 2 have not been pressed by the ld. counsel for the assessee at the time of hearing. Therefore, Grounds No. 1 & 2 are being dismissed as not pressed. 10. Brief facts apropos Ground No. 3 are that the assessee had a Unit in Falta-SEZ. It had claimed deduction under section 10AA. The Assessing Officer noticed that assessee suffered a loss of  .....

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Ld. CIT(Appeals) confirmed the addition. Ld. counsel for the assessee pointed out that the exemption has been claimed under section 10AA and there is no mention for furnishing particulars in the said section as mentioned by the Assessing Officer in his order. He pointed out that there is no corresponding provision to section 10A(8) in section 10AA of the I.T. Act. 12. Ld. Sr. D.R. submitted that since the facts are not clear only the Assessing Officer is in a position to point out under which se .....

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the details as were required to be furnished as per section 10AA(8). Under such circumstances and for proper appreciation of facts and law, we restore the matter back to the file of Assessing Officer for fresh adjudication after providing reasonable opportunity of being heard to the assessee. 14. Brief facts apropos Ground No. 4 are that during the year, M/s. Shree Writing Aids Pvt. Ltd., a company which was subsequently amalgamated with the assessee-company had disposed off the office at Mumbai .....

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tails of sale of fixed assets as per clause no. 14(d), Annexure-C, it was found that the assessee deducted only ₹ 6,34,845/- instead of ₹ 1,21,00,000/- the sale consideration received on sale of office at Mumbai which was only asset having written down value at the beginning of the year ₹ 1,33,701/- in the block of asset s being building used for other than residential purposes in the depreciation schedule as per Income Tax Act in the accounts of M/s. Shree Writing Aids Pvt. Lt .....

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d not accept this contention of ld. counsel of the assessee by observing as under:- Therefore, sale consideration of ₹ 1,21,00,000/- received by the Shree Writing Aids Pvt. Ltd., amalgamating company with assessee is only for sale of office as described in the schedule as above. Therefore, under the facts and circumstances as discussed above, the assessee was required to reduce the above sale consideration in the block of building other than the residential as per provisions of sec. 43(6) .....

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ion received on - (1) Sale of Mumbai Office. (being only asset in this block of Amalgamating co. M/s. Shree Writing Aids Pvt. Ltd. in the block) Rs.1,21,00,000/- W.D.V. of the block at the beginning of the y ear- ₹ 1,33,701/- Short term capital gain on sale of depreciation assets : Rs.1,19,66,299/- Therefore, the short term capital gain of ₹ 1,19,66,299/- is added back to the total income. 16. Ld. CIT(Appeals) confirmed the action of the Assessing officer by observing as under:- 13. .....

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ard the rival submissions and perused the material available on record. Admittedly in the books of account the assessee s block of assets was ₹ 1,33,701/- which was liquidated by way of sale at a total consideration of ₹ 1,21,00,000/-. Therefore, there was no justification in allocating the sale consideration against various items, i.e. furniture & fixtures, electric installation, air conditioners, office equipments, etc. The ld. CIT(Appeals) has observed that in the sale deed, t .....

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y may kindly be condoned and has occurred due to administrative reason. Ld. counsel for the assessee did not seriously oppose it. We accordingly condone the delay and admit the appeal. 20. The only issue in the present appeal is regarding allocation of expenses amongst various Units. The Assessing Officer has observed as under:- Further, though the two units of the assessee situated in Kolkata and Goa is engaged in the manufacturing of the similar ranges of product, the profit margin in Kolkata .....

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circumstances of the case, ld. CIT(Appeals) erred in allowing apportionment expenses of ₹ 1,34,08,126/- without appreciating the findings of the AO put forward in the assessment order . 22. At the outset, ld. counsel for the assessee pointed out that Tribunal has restored the issue in assessee s own case in ITA Nos. 1170 & 1171/KOL/2011 for the assessment year 2005-06 & 2008-09 to the file of Assessing Officer by observing as under:- 3. The learned DR had no objection to such pray .....

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he Assessing Officer has computed the income from business as per the Net Profit account of the Head Office but has computed the claim of deduction/s.80IB unit-wise. It was submitted that the Assessing Officer's observation that the three units were created at a later stage since original business was started and that the joint assets were distributed and accounted for by the Head Office were not only against fact finding as per audited accounts and certificate for matter of deduction claime .....

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