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iii) Due to different products lines at Mumbai unit, the average give away is much higher as compared to contract manufacturing units;

iv) Mumbai unit has a much higher production capacity as compared to contract manufacturing Parle Products Ltd.

units and due to sheer volume wastages are higher in Mumbai unit;

v) Since, the contract manufacturing units are receiving processing charges which in turn is directly proportionate to production they exercise a better control over the labour, machine and the processing methods;

10. In ground no.2, the Revenue has challenged the deletion of addition of ` 6.33 crore on account of suppression of production of confectionary in Mumbai Unit resulting in suppression of sales.

11. Facts relating to this issue are identical to the facts on which similar disallowance was made by the Assessing Officer in respect of production and sale of biscuits at Mumbai Unit which was the subject matter of dispute in ground no.1, herein before. The Assessing Officer noticing that the average yield of confectionary in CMUs is 98.90% inferred that the assessee has suppressed production resulting in suppression of sales. Accordingly, he worked out the quantum of Parle Products Ltd.

ii) S.C. Cambatta& Co. Pvt. Ltd. v/s Commissioner of Excess Profits Tax, [1961] 41 ITR 500 (SC); and

iii) Desu Venkata Subba Rao v/s WTO, [1983] 6 ITD 341 (Hyd.).

27. The learned Authorised Representative strongly relying upon the observations of learned Commissioner (Appeals) submitted, under identical agreements the assessee company along with its subsidiary Parle Biscuits Pvt. Ltd., transferred certain trademark used by them in respect of Oral Care and Oral Hygiene Products Business. In this Parle Products Ltd.

i) Voltas Ltd. v/s DCIT, [1998] 64 ITR 233 (Mum.);

ii) Kwality Biscuits Pvt. Ltd. v/s ACIT, [2012] 19 taxmann.com 106 (Bang.)(TM); and Parle Products Ltd.

iii) CIT v/s Fernhill Laboratories and Industrial Establishment, [2013] 33 taxmann.com 533 (Bom.);

28. We have considered rival submissions and perused the material on record. We have also applied our mind to the decisions relied upon. From the facts on record it is evident, on 26th March 1997, the assessee had entered into an asset purchase agreement with Oral-B Laboratories India Pvt. Ltd., an affiliate of GDOPL, under which certain assets and machinery capital of producing Tooth Paste, Gels, Tooth Brushes and Mouth Rinses were purchased from the assessee. Similarly, the assessee entered into an agreement with Gillette Co., Boston, for use of certain trademarks relating to Oral Care and Oral Hygiene products. Under the aforesaid agreement, the assessee had also agreed to not compete with either GDOPL or any of its affiliate in respect of oral care and oral hygiene products. For transfer of trademark, the assessee received certain consideration. Similarly, the assessee also received consideration towards non-compete fee. Similar agreements were also entered into by another affiliate of the assessee viz. Parle Biscuits Pvt. Ltd. with GDOPL on 26 th March 1997. Though, the assessee had claimed the amount received for trademark and towards non-compete fee as capital receipt not chargeable to tax,in view of the fact that the cost of acquisition of such assetsare unascertainable.however, the Assessing Officer by treating the amount Parle Products Ltd.