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DCIT, Circle-4 (1) , New Delhi Versus M/s Leroy Somer & Controls (India) P. Ltd. and Vica-Versa

2015 (9) TMI 220 - ITAT DELHI

Disallowance of expenditure of “Additional discount/rate difference” - appellant has not furnished any evidence to support its claim - Held that:- It is for the assessee to concide as per its agreements and the law in force. However whether on facts, it was demanded over and above the normal discount agreed to as per agreements this claim if made by the assessee has to be demonstrated by some cogent evidence. The arguments advanced is that the payments were withheld on the said aspect there is n .....

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he does not want to place on record. In the present proceedings we are not required to address the reasons why M/s Sudhir Gensets Ltd. does not want to come forward and the assessee is reluctant to place any evidence from the so-called affected party. The assessee’s reluctance to address the same is a motive which we do not want to conjecture suffice it to conclude that the claim has rightly been rejected on facts.

Since the payments were withheld the assessee could have claimed as a .....

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I.T.A .No.-5581/Del/2010, I.T.A .No.-5826/Del/2010 - Dated:- 26-8-2015 - SMT DIVA SINGH AND SH. N.K.SAINI, JJ. For The Appellant : Dr. B.R.R.Kumar, Sr.DR For The Respondent : Anil Bhalla, CA ORDER PER DIVA SINGH, JM These are cross appeals filed by the Revenue and the assessee assailing the correctness of the order dated 19.10.2010 of CIT(A)-VII, New Delhi pertaining to 2003-04 assessment years. The grounds raised in assessee s appeal in ITA No.-5826/Del/2010 read as under :- 1. The learned Com .....

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ness of manufacturing of electrical and electronics goods claimed exemption u/s 80IB. Return declaring an income of ₹ 63,77,436/- was filed. The said return was processed u/s 143(1) and subsequently subjected to scrutiny assessment after issuance of notice u/s 143(2) etc. after giving various opportunities to the assessee to file the necessary details in support of its claims. Ultimately the AO made additions on the basis of information available on record. Thereby concluding the assessmen .....

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challenge posed to the addition made by way of a disallowance of additional discount claimed to have been paid to M/s Sudhir Gensets Ltd. amounting to ₹ 46 lacs which was confirmed in appeal by the CIT(A). Aggrieved by this, the assessee is in appeal before the Tribunal. 4. Ld. AR in support of the grounds raised by the assessee invited attention to the findings recorded by the AO which have been reproduced in para 3 by the CIT(A) submitted that the addition has been made consequent to no .....

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M/s Sudhir Gensets Ltd. in the books of the company for the period 01.04.1999 to 31.03.2000 at page 9; at pages 10-12 for the period April 2000 to March 2001; at pages 13-14 for the record April 2001 to March 2002; and at pages 15 for the period April 2002 to March 2003. Apart from that this it was submitted that the claim was further supported by the note of the Head of Finance & Accounts dated 28.10.2002, in regard to the accounts settlement with M/s Sudhir Gensets Ltd. at page 16. The sa .....

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f the impugned order it was his submission that the CIT(A) after confronting the same and taking the reply of the assessee still concluded the issue against the assessee. Referring to the finding arrived at in para 3.3, it was submitted that the reasoning adopted by the Ld. CIT(A) in upholding the addition was on the ground that the assessee has not been able to either furnish/adduce any evidence and has not been able to explain during the appellate proceedings as to how and why the expenses in .....

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Sudhir Gensets Ltd. The additional discount it was submitted has been incurred in regard to the claim made since earlier years by M/s Sudhir Gensets Ltd. on account of the cost incurred by them which as claimed by them resulted in marketing benefits for the assessee company as a result of sale of generators by M/s Sudhir Gensets Ltd. The claim of ₹ 46 lacs it was submitted allowed by the appellant company related to sales made during the year ended 31.03.2000, 31.03.2001 and 31.03.2002. I .....

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ntion to the arguments advanced before the CIT(A) which were relied upon in the present proceedings also and are placed at Paper Book pages 1-24 it was submitted that despite the facts and evidences available on record the CIT(A) disregarded the same. The evidence it was submitted was confronted to the AO and Remand Report was called for wherein the AO has merely repeated that additional discount has been allowed after a period of 3-4 years and business exigencies are not proved. In the said bac .....

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it was his submission that if an assessee can prove that the expenditure has been incurred for the purposes of business the existence of immediate benefit is not required to be proved. Similarly the allegation of the CIT(A) that the commercial necessity has not been explained, it was submitted that commercial necessity is for the businessman to decide, and is evident from the fact that the company settled the account and did not have to go through litigation and achieved harmonious business rel .....

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d infact the CIT(A) it was submitted had not been able to understand the trading relation between the expenditure and the business. It was his submission that by way of copy of accounts, it was explained that when a customer is not clearing its dues fully for the reason that it was claiming the cost of indirect benefit by the company in the year ended 31.03.2000 and 31.03.2001 which are at Paper Book pages 9, 10 & 12 and the dues were not being cleared so much so there was an amount of ͅ .....

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to coordinate the negotiation between the Directors and marketing heads. Against the claim of ₹ 49.09 lacs, it was submitted the amount of ₹ 46 lacs was negotiated. The relevant documents it was submitted were available at pages 16-17, 24 & 15 as pursuant to this settlement, the customer paid the dues. The additional discount it was submitted was necessary keeping in view the demands of commercial expediency, based upon ordinary principles of commercial trading, so as to settle d .....

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as submitted that the immediate benefit to the assessee was settlement of account, and the indirect benefit derived by the assessee was to have harmonious business relationship. The nature of the relation between the expenditure and business it was submitted stands proved as the benefit was near not remote; immediate and not prospective; and real and not imaginary. The facts as explained it was submitted show that the assessee company took a commercial decision to settle the dispute and applied .....

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ate body subject to tax. It is not a case of payment of a discount to some individual but is adjustment out of amount due from the party. 4.6. It was submitted that the AO s main objection was that this amount does not pertain to the year under consideration. This objection it was submitted is incorrect on facts as the liability crystallized in the year under consideration as dispute was resolved in the relevant previous year. The assessee company it was submitted followed a mercantile system of .....

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d out wholly and exclusively for the purposes of trading and business and business purposes it was submitted is a term of wide amplitude and the business purposes cannot be for earning profits but for purposes of the business and it is for the businessman to decide the need for incurring the expenditure. For the said purpose, reliance was placed upon the following decisions:- 1. Malayalam Plantations 53 ITR 140, 150 (SC); 2. Madhav Prasad Jatia 118 ITR 200, 208 (SC); 3. SA Builders 288 ITR 1 (SC .....

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at in the eventuality, the arguments advanced do not find favour then the assessee would want to argue the issue without prejudice to the above taking the alternative argument of looking at it from the perspective of bad debt. It was his submission that if the amount had not been settled by way of amicable negotiations then the amount under dispute not recovered would have been written off as a bad debt and as per the provisions of section 36(1)(vii) the claim would have to be allowed against th .....

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n these arguments and facts and the legal proposition it was his submission that the appellant company has been able to explain with facts that the impugned expenses by way of additional discount were incurred out of commercial necessity of business settlement, the expenditure was real, was incidental to carrying on trade, was based upon ordinary principles of commercial trading and that the benefit obtained by way of settlement of account and creation of an undisputed, harmonious commercial rel .....

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o be upheld. Addressing the issue now raised of bad debt it was submitted that the record would show more than sufficient opportunities were given by the AO and no such claim is made by the assessee and the facts have not been looked into as such the alternate arguments at this stage it was his submission should not be accepted. 5.1. Inviting attention to the main argument advanced it was his submission that the so-called evidences filed are internal self created documents in the absence of the .....

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at best could have been relied upon in support of some basic document establishing a dispute. The crucial independent evidence of third party evidences capable of demonstrating a dispute have never been placed on record. It was his submission that it is not the claim of the assessee that the evidences can be brought on record and by over sight were not made available to the AO. It was emphasized that no such claim has been made by the assessee at any stage of existence of any independent evidenc .....

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proposition that existence of an agreement cannot establish that there is a dispute, it was submitted is of no help, as no doubt agreement can not show the existence of a dispute but atleast the reference to the parties agreeing to resolve the dispute would reflect that the M/s Sudhir Gensets atleast accepts the position that there was a dispute. In the facts of the present case, it was his submission that the evidence to demonstrate that there was a dispute has never been referred to by the ass .....

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e arises of allowability of expenditure then the Tax Department is fully within its right to consider its allowability as per settled legal principles. In the facts of the present case, it was his submission nothing has been placed on record to show that there was any claim by the M/s Sudhir Gensets Ltd. before the assessee. Merely repeating without evidence that the expenditure was for business purposes is not sufficient requirement under law. For what purpose, the so-called adjustment was made .....

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as impacted the engine manufacturer and is called upon to give a discount to it. It was his submission that even if such a strange claim is made than atleast some evidence would necessarily have to be brought on record to demonstrate that there was a dispute it cannot be left to conjecture and surmises a criticism normally labeled on the Revenue. In the facts of the present case, it was submitted the assessee would want to conjecture and surmise in the absence of hard independent evidence to dem .....

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e details clearly state that the assessee company was given sufficient time, a number of opportunities to file details and clarifications on certain issues. In these circumstances, I have no alternative but to decide the case on the basis of information available on record. The detail of Additional discount and Rate difference filed and placed at page 33 & 35 of letter dated 22.11.2005 reveals that the assessee has debited and claimed an amount of ₹ 46,00,000/- with the narration Addl. .....

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promoted the sale of the company s alternators by using the same with the Generator sets sold by M/s. Sudhir Gensets Ltd. We enclose statement of sales generated by Sudhir Gensets in the last three years for the assessee company. In view of the volume of business generated by the said party, it was decided by the company to give them additional discount which were approved by the Board of directors vide its resolution dated 08.11.2002. (Emphasis provided) 6.1. A perusal of the said order further .....

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e has furnished a copy of Resolution and a copy of Account settlement, which reveals that Assessee has paid additional discount of ₹ 20,40,017/- for the year 1999-2000 and ₹ 22,57,370/- for the year 2000-01 and ₹ 6,11,192/- for the year 2001-02. Assessee has not furnished the copy of agreement to show that there was any clause of payment of additional discount payable on the sales transactions made with the party. Sales price and Discount payable there on are settled at the tim .....

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of Discount on the sales transactions made with Sudhir Industries Gensets Ltd. in earlier years. Thus the claim of an amount oJRs.46,00,000/- on account of Discount allowed to Sudhir Gensets Ltd. is rejected and added to the income for the year under consideration. (Emphasis provided) 6.2. The record shows that the assessee filed fresh evidences before the CIT(A which were accepted and remanded to the AO and considering the evidences the Remand Report and the arguments of the assessee the CIT(A .....

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/s. Sudhir Gensets Ltd. to settle the outstanding payments of ₹ 1,23,33,601/- as the company was not paying the balance as they were claiming compensation against the cost incurred for indirect marketing of the company s alternates while marketing their Gensets to the ultimate customers through their marketing network. The Assessing Officer disallowed the claim of the assessee holding that the transactions were made in earlier years and the compensation was paid during the year and the ass .....

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allowed the additional discount to settle the matter amicably for smooth running of business and for recovery of the amount due with the party. The additional discount was approved through a resolution passed by the Board of Director s of AVK-SEG and Controls (India) Ltd. (now known as Leroy Some & Controls Ltd.) by circulation on 8th November, 2002. After this settlement the party M/s. Sudhir Gensets made the payment of balance amount. During the course of assessment as well as during the c .....

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years. In the year ended 31st March 2000 (Refer page 1) a sum of ₹ 1,23,33,601/- was outstanding. The party was not paying the balance as they were claiming compensation against the cost incurred for indirect marketing of the company s alternatives while marketing their Gen sets to the ultimate customers through their marketing network. The party Sudhir Gensets Ltd. was claiming additional discount in lieu of the indirect marketing which they stated that they had achieved and were able to .....

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claimed was due to them. In view of the exigencies of business the finance head was asked to pursue the matter and give his recommendation. To settle the matter amicably the head of finance recommended that through the efforts of the marketing heads and the directors of the two companies the amount of claim of ₹ 49. 09 lacs was negotiated to ₹ 46.00 lacs on the condition that the balance would be paid by Sudhir Gensets Ltd. Copy of the note of the head of finance is enclosed at page .....

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of the Board resolution is enclosed at page 15. The AO had an objection that the amount of additional discount, because it pertain to earlier years, therefore had been debited to the expense account as an after thought and therefore is not allowed the deduction of ₹ 46,00,000/-. The important point to be noted is that the expenditure of ₹ 46,00,000/- though computed on the basis of turnover of earlier years crystallized in the year under assessment i. E. A.Y. 2003-04 as the dispute .....

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o the following decisions: Swadeshi Cotton & Flour Mills (P) Ltd. 53 ITR 134 (SC). Phalton Sugar Works Ltd 162 ITR 622 (Bom.) Alembic Chemical Works Ltd. 266 ITR 47 (Guj.) State Bank of Saurashtra 93 ITD 662 (Ahd.) We plead that in view of our submissions the claim of ₹ 46,00,000/-on account of additional discount towards the benefit of indirect marketing achieved by the company from the customer be allowed. 3.3 I have carefully gone through the assessment order, the written and oral s .....

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been able to either furnish/adduce any evidence or explain during the appellate proceedings also as to how and why the expenses in question were helpful in promoting its business and the benefit that the business of the company acquired therefrom. In order to claim a deduction on account of expenditure for purposes of business the onus lies on the assessee to prove that the expenditure was incurred for the purposes of business and was not of a capital nature. Merely because a businessman books .....

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at provision, he must satisfy the Assessing Officer of the purpose for which the amount is spent. It is true that the taxing authorities are not entitled to go into the reasonableness of the expenses, but they are certainly entitled to be satisfied as to the commercial necessity of expending that amount. The question will always be as to the nature of the relation between the expenditure and the business, whether the benefit is remote or near, prospective or immediate, imaginary or real and so f .....

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0/-. Is justified. As a result, the addition of ₹ 46,00,000/- is confirmed and Ground of appeal no. l is dismissed. (Emphasis provided) 6.3. On a consideration of the above-mentioned peculiar facts and circumstances which we have already discussed in elaborate detail in the earlier part of this order, we find considering the arguments on facts and law and the evidences relied upon by the assessee in support of its claim we uphold the conclusion arrived at by the tax authorities. The eviden .....

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queries to show even at this stage if there was any such evidence available. Neither there is any demand letter nor demand notice addressed by M/s Sudhir Gensets ltd. to the assessee. Infact even the so-called evidence of settlement is a unilateral document where no reference is made to any person authorized to negotiate on behalf of M/s Sudhir Gensets. It is seen that despite pointed queries by the Bench, no explanation was given as to how the assessee is considering itself bound by a unilater .....

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sed on these evidences has rightly been rejected and does not inspire any confidence whatsoever either on in its authenticity nor on its genuineness. 6.4. The Ld. AR has also taken the plea that the issue is decided on wrong facts as the AO has erred in holding that the amounts were paid to M/s Sudhir Gensets Ltd. whereas it was an adjustment. We find that even if this plea is accepted which on facts we find cannot be accepted for reasons to be addressed later we hold that it is not this error w .....

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ssee who led the AO to commit such an error as would be evident from the assessee s reply dated 07.02.2006 extracted at page 3 of the assessment order wherein the assessee itself says that As regards to explain the nature of expenses of ₹ 46,00,000/ claimed under the head Discount (alternator), we submit that the same was paid to M/s. Sudhir Gensets Ltd. who were manufacturers of Diesel Generator sets which required alternators manufactured by the assessee company. The said purchaser was a .....

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. 6.5. The decisions relied upon by the Ld. AR it has been seen are not applicable as herein the genuineness of the expenditure itself is not proved despite repeated queries from the Bench. Consequently in the absence of relevant evidences the selectively picking up of various propositions of law on facts which are not pari-materia with the facts of the present case would be of no help to the assessee. The material fact that there was such a claim as per the assessee s version is to be inferred .....

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ear under consideration itself has been disbelieved the assessee has failed to cross the first threshold i. E. the requirement to demonstrate that there was a dispute. The unilaterally signing of a paper does not convert it into an Agreement as there is no reference therein as to who participated if at all for M/s Sudhir Gensets. Even orally Ld. AR has stated his inability to make any statement thereon. Ld. AR was unable to address the issue and also did not even once state that he may be given .....

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oposition that it is for the assessee to decide whether any expenditure should be incurred for the business is misplaced on facts as it is nobodies case that the Revenue can suggest what expenditure is to be incurred. Similarly it is nobodies case that the Revenue can dictate whether the discount is reasonable or necessary. It is for the assessee to concide as per its agreements and the law in force. However whether on facts, it was demanded over and above the normal discount agreed to as per ag .....

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nference without any independent evidence which the assessee would want to press for. It is for the assessee to know the actual facts which for reasons best known to the assessee he does not want to place on record. In the present proceedings we are not required to address the reasons why M/s Sudhir Gensets Ltd. does not want to come forward and the assessee is reluctant to place any evidence from the so-called affected party. The assessee s reluctance to address the same is a motive which we do .....

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y come as an afterthought deserve to be accepted. Since the so called dispute itself is not established before us we find that the claim put forth as an aftherthough has to be rejected as the evidence does not inspire any confidence. 7. In the result the appeal of the assessee is rejected. 8. Addressing the grounds raised by the Revenue, wherein Ground No.-1 & Ground No.-5 are general in nature. We find that the grounds which require adjudication are Ground No-2 to 4 which read as under:- 01 .....

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nd in law, the Ld. CIT (Appeals) has erred in deleting the addition of ₹ 27,28,194/- made by the AO by disallowing the deduction under section 80IB. 3.1. The Ld. CIT (A) ignored the fact that the assessee could not file necessary evidence in support of its claim during assessment proceedings. 04. The Ld. CIT (A) has erred in accepting and relying of the additional evidences as the comment of the AO in the remand report are confirmatory in nature and not acceptance of the additional evidenc .....

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by the assessee. Reliance was also placed upon Syshayee Paper & Boards Ltd. vs. CIT {1998} 145 CTR Madras 498, 503. 9.1. Assailing the said action in appeal, the assessee submitted that the provision for the discount was made during the 2001-02 assessment year and it was credited to the account of M/s Controls & Switchgears Co. Ltd. and thereafter paid to the party. 9.2. It is seen that the said position was accepted by the AO in the remand proceedings as per para 1.4 of the CIT(A). Cons .....

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any concrete evidence of payments if, made to the assessee or not. The Assessing Officer disallowed the same holding that this was a mere provision and not an ascertained liability………. During the appellate proceeding the assessee has submitted that the provision for discount was made during the year 2001-02 and credited to the account of M/s Controls & Swicthgears Co. Ltd. and thereafter paid to the party. The assessee has submitted the copy of ledger account of Control .....

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and the facts on record. I find that the Assessing Officer has, in all fairness, admitted in the remand report that the amount of ₹ 6,71,415/- on account of additional discount payable for the year 2001-02 stands explained as the impugned expenditure firstly has not been debited to the expense account in the year ended 31st March 2003 and further the amount has been paid off in the year ended 31st March 2003. Under the circumstances stated above, the Assessing Officer is directed to delet .....

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the Revenue. For readyreference they are extracted hereunder:- 03. On the facts and in the circumstances of the case and in law, the Ld. CIT (Appeals) has erred in deleting the addition of ₹ 27,28,194/- made by the AO by disallowing the deduction under section 80IB. 3.1. The Ld. CIT (A) ignored the fact that the assessee could not file necessary evidence in support of its claim during assessment proceedings. 13. Considering the facts, the AO came to the following conclusion:- I have caref .....

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quests. Further there is no evidence whether Assessee got registration for the subsequent period as the registration was only for the period of three years. Assessee company is engaged in the business of manufacturing of electrical & electronic goods namely Alternators, Protection Relays, Current Transformer etc. Assessee is eligible for deduction u/s 80IBon the profits earning from the manufacture and sales of Protection Relays. As per Audit report on Form 10CCB, the deduction u/s 80IB has .....

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e u/s 50B of the Act. Sub-section 12 of Section 80IB provides Where any undertaking of an Indian company which entitled to the deduction under this section is transferred, before the expiry of the period specified in this section, to another India company in a scheme of amalgamation or demerger - a) no deductions shall be admissible under this section to the amalgamating or the demerged company for the previous year in which the amalgamation or the demerger takes place : The transfer of tins uni .....

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ct. The relevant portion of the remand report on the issue is reproduced below:- During the course of assessment, it was noticed that the assessee had claimed deduction under section 80IB @ 30% of the profit ₹ 27,28,194/- on verification of the certificate issued the Department of Industrial Development secretariat for industrial approvals that the certificate so issued was valid for a period of three years from the date of issue of the letter. The letter further says that if, commercial p .....

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essee company started commercial production of its products on 01.09.1993 which is within the time limit allowed by the Government. Hence, the deduction under section 80lB is allowable to the assessee. In support of its claim the assessee has submitted the assessment order passed by the DCIT, Special Range - 28 for A.Y 1994-95. The allowability of the deduction under section 80IB may be considered accordingly. 5.1. I have carefully considered the submissions made on behalf of the appellant, the .....

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f appeal No. 3 is allowed. 15. Aggrieved by this also, the Revenue is in appeal before the Tribunal. 16. The Ld. Sr. DR, Sh. B.R. R. Kumar inviting attention to paras 4.1 & 4.2 qua the first issue (reproduced in the earlier part of this order) and paras 5 & 5.1 qua the second issue (also reproduced in the earlier part of this order) submitted that the relief has been granted considering the Remand Report of the AO. Accordingly he stated that he had nothing further to state. The Ld. Sr. D .....

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