TMI Blog2021 (3) TMI 1406X X X X Extracts X X X X X X X X Extracts X X X X ..... y evidences, including, the MoU between the Government of Maharashtra and M M - assessee is also required to meet the allegation of learned DRP that various documentary evidences were not furnished to support its claim. The assessee is also required to properly explain the impact of the observations made in Annexure-C to the eligibility certificate regarding eligibility of the assessee for payment of IPS. Since, all these aspects have not been considered properly for whatever may be the reason, we are inclined to restore this issue to the file of the Assessing Officer for de novo adjudication after providing reasonable opportunity of being heard to the assessee. The assessee is at liberty to furnish further evidences, if required, to prove its claim. The Assessing Officer must consider not only the evidences filed but also the submissions made by the assessee while deciding the issue. Thus we restore the issue back to the file of the assessing officer, for fresh adjudication, keeping in view the directions of the Tribunal in the order referred to above and only after due opportunity of being heard to the assessee. This ground is allowed, for statistical purpose. - I.T.A. No.7 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o the AO for fresh adjudication with certain directions. Therefore, he has submitted that the issue has to be restored to the assessing officer for the impugned assessment year, as well. 5. Having considered rival submissions, we find that while deciding identical issue in assessee s own case in A.Y. 2010-11 in ITA No.605/Mum/2015 dated 31-05-2019, the co-ordinate bench has restored the issue back to the assessing officer for fresh adjudication with certain directions. Following the aforesaid order, the Tribunal, while deciding identical issue in assessee s own case in assessment years 2011-12 and 2013-14, vide order in ITA Nos 827/Mum/2016 and 7190/Mum/2017 dated 16-01-2020, has restored the issue to the assessing officer for fresh adjudication, observing as under:- 6. After considering the rival submissions and having perused the material on record, we find that identical dispute relating to the determination of arm's length price of royalty paid to the AE arose in assessment year 2010-11 and the Transfer Pricing Officer, on more or less on similar reasoning, has determined the arm's length price of royalty paid to the AE at nil. When the dispute ultimately came u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in assessee s own case, as referred to above, we restore the issue to the assessing officer for fresh adjudication keeping in view the directions of the Tribunal for the earlier years. Grounds are allowed, for statistical purpose. 7. In ground 6, the assessee has challenged the decision of the departmental authorities in not treating the industrial promotion subsidy received under the Government of Maharahstra Tech Scheme of Incentives 2007, as a capital receipt. 8. At the time of hearing, Ld.counsels appearing for the parties have agreed before us that while deciding identical issue in assessee s own case for assessment years 2011-12 and 2013-14, the Tribunal has restored the issue back to the file of the assessing officer for fresh adjudication with certain directions. Thus, it was submitted, the issue has to be restored back to the assessing officer for fresh adjudication in the impugned assessment year, as well. 9. Having considered rival submissions, we find that while deciding identical issue in assessee s own case for AYs 2011-12 and 2013-14 in ITA Nos.827/Mum/2016 and 7190/Mum/2017 dated 16-01-2020, the co-ordinate bench has restored the issue to the assessing off ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... available to all companies, including the assessee, forming the consortium. On a perusal of the MoU as well as the eligibility certificate, the aforesaid claim of the assessee to some extent appears to be acceptable. Therefore, merely because the eligibility certificate has been issued in the name of the SPV, it cannot be said that the entire eligible investment has been made by the SPV. In fact, a reference to Annexure-B to of the eligibility certificate, a copy of which is placed at Page-536 of the paper book, would reveal that it lists the details of investment made by the SPV (MVML) as well as other companies including the assessee for the project. Therefore, assessee's claim that it is also eligible for Sales Tax refund / subsidy under IPS carries some strength. If the assessee as a part of consortium has invested in the project, it is eligible for grant of incentive / subsidiary as permissible under the IPS. 14. However, at this stage, it is necessary to consider the submissions of learned Departmental Representative that Annexure-C to the eligibility certificate does not provide for any subsidy to the assessee. On a reference to Annexure-C of the eligibility certif ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rom the aforesaid observations of learned DRP it becomes clear that rejection of assessee's claim was also due to lack of supporting evidence. Though, the paper book submitted before us contains agreements between the assessee and MNVL for sharing of IPS, however, it does not contain the MoU between the Government of Maharashtra and M M. Though, a copy of the aforesaid MoU was filed before us in the course of hearing, however, we are not sure whether it was filed before the Departmental Authorities as it has not been referred to either by the Assessing Officer or by learned DRP. After carefully perusing the orders of the Departmental Authorities and considering the submissions of the parties, we are of the view that various documentary evidences which are part of record before us were either not available before the Departmental Authorities or even if available, were not considered by them. Since, learned DRP has made a categorical observation that various evidences were not furnished by the assessee to support its claim, we are of the view that the entire issue relating to assessee's claim of Sales Tax refund / subsidy being a capital receipt requires fresh consideration ..... X X X X Extracts X X X X X X X X Extracts X X X X
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