Income Tax Appellate Tribunal - Pune
Aquapharm Chemicals Pvt. Ltd.,, Pune vs Assessee on 27 April, 2016
आयकर अपील�य अ�धकरण पुणे �यायपीठ "ए" पुणे म�
IN THE INCOME TAX APPELLATE TRIBUNAL
PUNE BENCH "A", PUNE
सु�ी सुषमा चावला, �या�यक सद�य एवं �ी �द�प कुमार के�डया, लेखा सद�य के सम�
BEFORE MS. SUSHMA CHOWLA, JM AND SHRI PRADIP KUMAR KEDIA, AM
आयकर अपील सं. / ITA No. 904/PN/2015
�नधा�रण वष� / Assessment Year : 2007-08
Acquapharm Chemicals Pvt. Ltd.,
Khandelwal Jain & Associates,
Alankar Cinema Building,
1st Floor, Above United Bank,
Pune - 411001 .... अपीलाथ�/Appellant
PAN: AAECA7014R
Vs.
The Dy. Commissioner of Income Tax,
Circle 8, Pune .... ��यथ� / Respondent
अपीलाथ� क� ओर से / Appellant by : Shri R.G. Nahar
��यथ� क� ओर से / Respondent by : Shri S.K. Rastogi, CIT
सुनवाई क� तार�ख / घोषणा क� तार�ख /
Date of Hearing : 12.04.2016 Date of Pronouncement: 27.04.2016
आदे श / ORDER
PER SUSHMA CHOWLA, JM:
This appeal filed by the assessee is against the order of CIT(A)-6, Pune, dated 07.04.2015 relating to assessment year 2007-08 against order passed under section 143(3) r.w.s. 147 of the Income-tax Act, 1961 (in short 'the Act').
2. The assessee has raised the following grounds of appeal:-
1. On the facts and circumstances prevailing in the case and as per provisions & scheme of the Act it be held that, notice issued u/s. 148 for re-opening of the assessment u/s. 147 is without satisfying the conditions prescribed in the section and therefore such re-
opening proceedings are unlawful, unwarranted, not tenable in law and not in accordance with the provisions of the Act. The assessment framed thereunder is therefore be declared as null and void. Just and proper relief be granted to the appellant on this score.
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Acquapharm Chemicals Pvt. Ltd.
2. Assuming without admitting that the proceedings of reopening are lawful and tenable in law, on facts and circumstances prevailing in the case and as per provisions & scheme of the Act it be held that deduction u/s. 10B claimed in respect of its Mahad Unit is to be allowed before setting off the unabsorbed depreciation / losses as per the provisions & scheme of the Act and the judicial pronouncements made in this behalf. The deduction u/s. 10B be allowed as claimed by the appellant before setting off the unabsorbed depreciation. Just and proper relief be granted to the appellant on this score.
3. The learned Authorized Representative for the assessee at the outset pointed out that the issue raised in the present appeal is in respect of claim of deduction under section 10B of the Act to be allowed before setting off of unabsorbed depreciation / losses, is squarely covered by the order of Tribunal in the case of M/s. Vishay Components India Pvt. Ltd. Vs. Addl.CIT in ITA No.551/PN/2014 and Addl.CIT Vs. M/s. Vishay Components India Pvt. Ltd. in ITA No.736/PN/2014, relating to assessment year 2005 -06, order dated 08.10.2015. Further, the learned Authorized Representative for the assessee also referred to the decision of Hon'ble Bombay High Court in CIT Vs. Black & Veatch Consulting (P.) Ltd. (2012) 348 ITR 72 (Bom) and it was pointed out that the Tribunal allowed the claim of assessee following the said ratio laid down by the Hon'ble Bombay High Court.
4. The learned Departmental Representative for the Revenue on the other hand, placed reliance on the order of Hon'ble Delhi High Court in CIT Vs. KEI Industries Ltd. (2015) 373 ITR 574 (Del).
5. In rejoinder, the learned Authorized Representative for the assessee pointed out that the said decision referred to the earlier provisions of the Act. It was further pointed out by the learned Authorized Representative for the assessee that the ground of appeal No.1 against reopening of assessment under section 147 of the Act would become academic in case the ground of appeal No.2 is decided in favour of the assessee.
3ITA No.904/PN/2015
Acquapharm Chemicals Pvt. Ltd.
6. We have heard the rival contentions and perused the record. The assessee was engaged in the manufacturing and processing of chemical and had claimed deduction under section 10B of the Act of Mahad Unit, which was 100% EOU. The Assessing Officer noted that the assessee had not considered the brought forward depreciation of Mahad unit while computing eligible profits for claiming deduction under section 10B of the Act. The Assessing Officer was of the view that set off of brought forward depreciation being not charged to the profits of Mahad unit, resulted in excess claim of deduction under section 10B of the Act. Accordingly, reasons were recorded for reopening the assessment under section 147 of the Act and notice under section 148 of the Act was issued. In response thereto, the assessee submitted a letter stating that its return earlier filed may be treated as filed in response to notice under section 148 of the Act. The assessee had claimed the deduction under section 10B of the Act of Mahad unit at Rs.5,70,24,286/-. The Assessing Officer noted that Mahad unit had started its operations from assessment year 2003-04. However, the assessee had claimed deduction under section 10B of the Act in the instant assessment year for the first time. The Assessing Officer was of the view that if profits of Mahad unit were considered as only unit of company, then the entire depreciation of Rs.6,87,56,091/- which relates to the said unit should have been first adjusted against the profits of said unit and thereafter, deduction under section 10B of the Act should have been allowed on the balance profits of Mahad unit. The assessee argued that since section 10B of the Act was covered in Chapter II of the Act, provisions of Chapter VA(c) should not be applied in the case. Reliance was placed on the ratios laid down by the Hon'ble Bombay High Court in CIT Vs. Black & Veatch Consulting (P.) Ltd. (supra) and in Hindustan Unilever Ltd. Vs. DCIT (2010) 325 ITR 102 (Bom). The Assessing Officer was of the view that the facts of the case before the Hon'ble Bombay High Court 4 ITA No.904/PN/2015 Acquapharm Chemicals Pvt. Ltd.
were different as the decision related to the claim of deduction under section 10A of the Act. Another distinction drawn by the Assessing Officer was that in the case before him, the deduction under section 10B of the Act was claimed without setting off of brought forward depreciation of said unit itself. The Assessing Officer in turn, relied on the ratio laid down by the Hon'ble Karnataka High Court in CIT Vs. Himatasingike Seide Ltd. (2006-TIOL-448-HC-KAR-IT) and also Delhi Bench of Tribunal in Global Vantedge Pvt. Ltd. Vs. DCIT (2010- TIOL-24-ITAT -DEL). The Assessing Officer thus, held that brought forward depreciation of Rs.6.87 crores is to be set off from the income of Mahad unit at Rs.7.31 crores for the year under consideration and the assessee was eligible to claim deduction under section 10B of the Act on the balance income of Rs.43,88,461/-. The CIT(A) upheld the reopening of assessment under section 148 of the Act and also upheld the re-working of deduction under section 10B of the Act. The CIT(A) also noted that the assessee had three units i.e. one at Mahad, two units at Pirangut, one of which is 100% EOU and Bhosari unit which was primarily administrative office and R&D centre in deciding the issue against the assessee.
7. The issue of adjustment of brought forward unabsorbed depreciation while claiming the deduction under section 10B of the Act arose before the Tribunal in M/s. Vishay Components India Pvt. Ltd. Vs. Addl.CIT (supra) and it was held as under:-
"27. We have heard the rival contentions and perused the record. The issue arising vide ground of appeal No.3 is in relation to the computation of deduction under section 10B of the Act after the amendment to section w.e.f. 01.04.2001. The persons invoking the said provisions are entitled to a deduction under the Act, as compared to the pre-amended provisions of the section, under which the income comprising under the said section was exempt from the total income. The issue arising before us is whether while computing deduction under section 10B of the Act, in cases where the assessee has unabsorbed losses or depreciation, brought forward from earlier years, then whether the said unabsorbed business losses / depreciation are to be adjusted from the gross total income before allowing the deduction under section 10B of the Act or the said losses or the deduction under section 10B of the Act is to be 5 ITA No.904/PN/2015 Acquapharm Chemicals Pvt. Ltd.
allowed in the hands of the assessee without considering the brought forward unabsorbed losses / depreciation, which can be set off against the other income of assessee. Both the authorities below had denied the claim to the assessee, in view of the ratio laid down by the Hon'ble Supreme Court in Himasingka Seide Ltd. Vs. CIT (supra). The perusal of the judgment of Hon'ble Karnataka High Court in the said case reflects that the years under appeal related to assessment years 1988-89 to 1990-91 i.e. the years where the benefit under section 10B of the Act was for being exempt from total income. However, the year under appeal before us is assessment year 2005-06, wherein the said section has been amended and the deduction now is allowable to the assessee as against the said income being exempt in the earlier years. The issue is settled by the Hon'ble Bombay High Court in CIT Vs. Black & Veatch Consulting Pvt. Ltd. (2012) 348 ITR 72 (Bom), wherein it was held as under:-
"The deduction under s. 10A, has to be given effect to at the stage of computing the profits and gains of business. This is anterior to the application of the provisions of s.72 which deals with the carry forward and set off of business losses. A distinction has been made by the Legislature while incorporating the provisions of Chapter VI-A. Section 80A(1) stipulates that in computing the total income of an assessee, there shall be allowed from his gross total income, in accordance with and subject to the provisions of the Chapter, the deductions specified in ss.80C to 80U. S.80B(5) defines for the purpose of Chapter VI-A "gross total income" to mean the total income computed in accordance with the provisions of the Act, before making any deduction under the Chapter. What the Revenue in essence seeks to attain is to telescope the provisions of Chapter VI-A in the content of the deduction which is allowable under s.10A, which would not be permissible unless a specific statutory provision to that effect were to be made. In the absence thereof, such an approach cannot be accepted. Thus ITAT was correct in holding that the brought forward unabsorbed depreciation and losses of the unit the Income which is not eligible for deduction under s.10A of the Act cannot be set off against the current profit of the eligible unit for computing the deduction under s.10A of the IT Act."
28. The said proposition of law has further been applied by the Hon'ble Bombay High Court in CIT Vs. M/s. Ganesh Polychem Ltd. in Income Tax Appeal No.2083 of 2012, order dated 25.02.2013 and in CIT Vs. Schmetz India Pvt. Ltd. (2012) 79 DTR (Bom) 356 and also by the Hon'ble High Court of Gujarat in CIT Vs. Ace Software Exports Ltd. in Tax Appeal No.687 of 2012, order dated 18.02.2013. The Mumbai Bench of Tribunal has also applied the said proposition in various cases.
29. The learned Departmental Representative for the Revenue on the other hand, placed reliance on the ratio laid down by the Hon'ble Supreme Court in Synco Industries Ltd. Vs. AO, (2008) 299 ITR 444 (SC), wherein the issue was whether while computing the quantum of deduction under section 80I(6) of the Act, the Assessing Officer has to treat the profits derived from an industrial undertaking as only source of income in order to arrive at deduction under Chapter VI-A. The Hon'ble Supreme Court held that the gross total income under section 80B(5) of the Act, which is also referred to in section 80I(1) of the Act, was required to be computed in manner provided under the Act, which pre- supposes that gross total income shall be arrived at after adjusting losses of other division against profits derived from an industrial undertaking. The issue before the Hon'ble Supreme Court is at variance with the issue before us and the said ratio is not applicable to the facts of the present case. The issue in the present appeal is squarely covered by the ratio laid down by the Hon'ble Bombay High Court in CIT Vs. Black & Veatch Consulting Pvt. Ltd. (supra), wherein deduction under section 10A of the Act was to be computed in the hands of assessee and the same was whether the brought forward losses had 6 ITA No.904/PN/2015 Acquapharm Chemicals Pvt. Ltd.
to be adjusted before computing deduction under section 10A of the Act. It may be pointed out that the provisions of section 10A and 10B of the Act are at parametria. Following the ratio laid down by the Hon'ble Bombay High Court, we hold that the deduction under section 10B of the Act is to be computed in the hands of the assessee before adjusting brought forward unabsorbed losses/depreciation. The ground of appeal No.3 raised by the assessee is thus, allowed."
8. The perusal of the order of Tribunal at para 27 would reflect that the Tribunal had considered the ratio laid down by the Hon'ble Supreme Court in Himasingka Seide Ltd. Vs. CIT in Civil Appeal No.1501 of 2008, judgment dated 19.09.2013 and it was noted that the judgment in the case related to assessment years 1988-89 to 1990-91 i.e. the years where the benefit under section 10B of the Act was for being exempt from the total tax. However, in the later years, the said section 10B of the Act has been amended and now provides deduction under the said section. The year under appeal before us is assessment year 2007-08 i.e. after the amendment of section 10B of the Act, hence, the ratio laid down by the Hon'ble Supreme Court in Himasingka Seide Ltd. Vs. CIT (supra) is not applicable to the issue before us and the issue is settled by the ratio laid down in M/s. Vishay Components India Pvt. Ltd. Vs. Addl.CIT (supra) which in turn applied by the Hon'ble Bombay High Court in CIT Vs. M/s. Ganesh Polychem Ltd. in Income Tax Appeal No.2083 of 2012, judgment dated 25.02.2013.
9. Now, coming to the reliance placed upon by the learned Departmental Representative for the Revenue on the ratio laid down by the Hon'ble Delhi High Court in CIT Vs. KEI Industries Ltd. (supra). It may be pointed out that in view of the ratio laid down by the jurisdictional High court, we are bound by the same and we find no merit in the reliance placed upon by the learned Departmental Representative for the Revenue on the ratio laid down by non- jurisdictional High Court. Accordingly, we hold that the assessee is entitled to the claim of deduction under section 10B of the Act before setting off of brought 7 ITA No.904/PN/2015 Acquapharm Chemicals Pvt. Ltd.
forward depreciation losses. The Assessing Officer is directed to compute the said deduction under section 10B of the Act, accordingly. The ground of appeal No.2 raised by the assessee is thus, allowed.
10. The issue in ground of appeal No.1 raised by the assessee is against reopening of assessment under section 147 of the Act and in view of our order in allowing the claim of assessee, the said issue becomes academic and hence, the same is dismissed.
11. In the result, the appeal of the assessee is partly allowed.
Order pronounced on this 27th day of April, 2016.
Sd/- Sd/-
(PRADIP KUMAR KEDIA) (SUSHMA CHOWLA)
लेखा सद�य / ACCOUNTANT MEMBER �या�यक सद�य / JUDICIAL MEMBER
पुणे / Pune; �दनांक Dated : 27th April, 2016.
GCVSR
आदे श क� ��त�ल�प अ�े�षत/Copy of the Order is forwarded to :
1. अपीलाथ� / The Appellant;
2. ��यथ� / The Respondent;
3. आयकर आयु�त(अपील) / The CIT(A)-6, Pune;
4. आयकर आयु�त / The Prl.CIT-5, Pune;
5. �वभागीय ��त�न�ध, आयकर अपील�य अ�धकरण, पुणे "ए" / DR 'A', ITAT, Pune;
6. गाड� फाईल / Guard file.
आदे शानुसार/ BY ORDER, स�या�पत ��त //True Copy // व�र�ठ �नजी स�चव / Sr. Private Secretary आयकर अपील�य अ�धकरण ,पुणे / ITAT, Pune