IN THE INCOME TAX APPELLATE TRIBUNAL …itatonline.org/archives/wp-content/files/UPSIDC_CASS.pdf4...

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IN THE INCOME TAX APPELLATE TRIBUNALLUCKNOW BENCH “A”, LUCKNOW

BEFORE SHRI SUNIL KUMAR YADAV, JUDICIAL MEMBERAND SHRI A.K. GARODIA, ACCOUNTANT MEMBER

ITA No.448/LKW/2012Assessment year:2007-08

U.P. State Industrial DevelopmentCorporation Ltd. (UPSIDC)A-1/4, Lakhanpur,Kanpur.PAN:AAACU1759K

Vs. Dy.C.I.T.-6,Kanpur.

(Appellant) (Respondent)

Appellant by Shri S. K. Garg, AdvocateRespondent by Shri Manoj Kumar Gupta, CIT, D.R.Date of hearing 11/07/2014Date of pronouncement 05/09/2014

O R D E R

PER A. K. GARODIA, A.M.

This is an assessee’s appeal directed against the order passed bylearned CIT(A)-I, Kanpur dated 27/03/2012 for the assessment year 2007-2008.

2. Ground No. 1 & 2 are inter connected, which read as under:

“1. BECAUSE the "CIT(A)" has erred in law and on facts inholding that "there is no legal requirement that beforeissuing notice under Clause (ii) of section 143(2), it wasincumbent upon the Assessing Officer to form reason tobelieve" or to record such reasons in writing and inupholding the validity of notice issued under section143(2) and thereby that of the assessment order dated31,12.2009 (passed in pursuance of the said notice).

2. BECAUSE the view taken by the "CIT(A)" in the matter ofissuance and service of notice under section 143(2), is

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based on misconception /non-appreciation of theprovisions of law as came to be interpreted in largenumber of case laws and on a due consideration of correctposition of law, it deserves to be held that notice undersection 143(2) not being issued in accordance with theprovisions of law, the assessment order dated 31.12.2009captioned as order under section 143(3) is wholly withoutjurisdiction.”

3. It was submitted by Learned A.R. of the assessee that in the presentcase, the case was selected for scrutiny as per computer selection and therewas no application of mind by the Assessing Officer as required u/s 143(2)(i)of the Act and hence, the notice issued by the Assessing Officer u/s 143(2) iswholly without jurisdiction. In support of this contention, reliance was placed

on the following judicial pronouncements:

(i) Commissioner of Income-tax Vs Rajeev Sharma [2011] 336ITR 678 (All)

(ii) Commissioner of Income-tax Vs Sunderlal (Late) [1974] 96ITR 310 (All)

(iii) Sirpur Paper Mill Ltd. Vs Commissioner of Wealth-tax [1970]77 ITR 6 (SC)

(iv) Income-tax Officer Vs Eastern Scales (Pvt.) Ltd. [1978] 115ITR 323 (Cal)

(v) Gordhandas Desai P. Ltd. Vs V.B. Kulkarni, ITO [1981] 129ITR 495 (Bom)

(vi) Gujarat Gas Co. Ltd. Vs Joint Commissioner of Income-tax(Assessment) [2000] 245 ITR 84 (Guj)

(vii) Orient Paper Mills Ltd. vs. Union of India [1969] AIR 48.(viii) Union of India Vs Sheo Shanker Sitaram [1974] 95 ITR 523

(All)

4. As against this, Learned D.R. of the Revenue supported the orders ofthe authorities below.

5. We have considered the rival submissions. We do not find any force inthis contention of Learned A.R. of the assessee that if the case is selected forscrutiny with the aid of computer then there is no application of mind by the


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Assessing Officer as required u/s 143(2)(i) of the Act. Now we examine theapplicability of various judgments cited by Learned A.R. of the assessee.

5.1 The first judgment cited by Learned A.R. of the assessee is thejudgment of Hon'ble Allahabad High Court rendered in the case of RajeevSharma (supra). In this case, the questions of law before Hon’ble High Courtare available in Para 13 of this judgment and the same are reproduced below

for the sake of ready reference:

"(a) Whether notice under section 143(2) of the Act issued afterthe assessee proclaimed his original return 'as true and correct'is not a valid notice just because it was not issued with referenceto a pending return ?

(c) Whether on the facts and in the circumstances of the casethe learned Income-tax Appellate Tribunal was justified inholding that non-issuance of notice under section 143(2) of theAct has vitiated the assessment order and ignoring thatissuance of such notice is a machinery provision and does notgo to the root of the assessment, more so when the assesseewas afforded and he availed of full opportunity ?

(d) Whether notice under section 143(2) of the Act is amachinery provision and as per the wording of section 148(1)'so far as may be' provisions of section 143(2) with reference toreassessment proceedings under section 148 need not beapplied into but only to the extent possible?

(e) Whether the assessee has discharged his onus by furnishingthe name, confirmation letter, copy of the NRE bank accountand passport of the NRI donor even though the identity of thedonor could not be established what to talk about proving hiscreditworthiness and the genuineness of the transaction ?"

5.1.1 In this case, it was held that issuance of notice u/s 143(2) is mandatoryand omission on the part of the Assessing Authority to issue notice u/s 143(2)cannot be a procedural irregularity and the same is not curable. In thepresent case, it is not the case of the assessee that the notice u/s 143(2) was


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not issued and served on the assessee. This judgment is not rendering anyhelp to the assessee.

5.2 The next judgment cited by Learned A.R. of the assessee is thejudgment of Hon'ble Allahabad High Court rendered in the case of Sunderlal(Late) (supra). In this case, the dispute before Hon'ble Allahabad High Courtwas that as to whether CIT should give reasons for passing order of revision.

In that case, the facts were that the CIT had authorized for filing of appealagainst the order of AAC for assessment year 1960-61 and thereafter, heinitiated revision proceedings u/s 33B of Indian Income Tax Act, 1922 relyingsolely on the order of AAC. It was held in that case that having authorized tofile the appeal against the order of AAC for the same assessment year, itcannot be accepted that the CIT was having reasons that the order of theAssessing Officer is erroneous and prejudicial to the interest of the Revenue

because if that would have been the case, the CIT could not have authorizedthe Assessing Officer to file an appeal against the order of the AAC. Hence, itis noted in that case that the materials were on record to establish that theorder of revision passed by CIT was without reasons whereas in the presentcase, the only objection is that since the selection for scrutiny was made bythe Assessing Officer with the help of the computer and therefore, there is noapplication of mind. In fact in the present case, apart from applying his own

mind, the Assessing Officer took the help of computer also and therefore, itcannot be said that in the present case, the case of the assessee was selectedfor scrutiny without application of mind. Therefore, this judgment is also notrendering any help to the assessee.

5.3 The next judgment cited by Learned A.R. of the assessee is thejudgment of Hon'ble Apex Court rendered in the case of Sirpur Paper Mill Ltd.(Supra). In that case, it was held that in exercise of power u/s 25 of the Act,the Commissioner must bring to bear an unbiased mind, consider impartially


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the objections raised by the aggrieved party and decide the dispute accordingto procedure consistent with the principles of natural justice. It was also heldthat the Commissioner cannot permit his judgment to be influenced bymatters not disclosed to the assessee. In the present case, the facts are

totally different. Nothing has been brought on record by the Learned A.R. ofthe assessee that any dispute was raised or could have been raised before theAssessing Officer justifying non selection of the assessee’s case for scrutinyand therefore, this judgment is not applicable.

5.4 The next judgment cited by Learned A.R. of the assessee is thejudgment of Hon'ble Calcutta High Court rendered in the case Eastern Scales(Pvt.) Ltd. (supra). In that case, the issue in dispute was the rectificationorder passed by the Assessing Officer u/s 154 of the Act according to thedirection of the Addl. CIT and under these facts, it was held that the Income

Tax Officer had to act judicially or quasi-judicially in the assessmentproceedings and any direction by any higher authority as to the manner inwhich such proceedings are to be disposed of would be interference with thejudicial or quasi-judicial functions of the Income Tax Officer. In the presentcase, it is not the case of the assessee that the Assessing Officer has acted inaccordance with any such specific direction of the superior officer that thecase of the assessee must be elected for scrutiny and therefore, this judgment

is also not applicable in the present case.

5.5 The next judgment cited by Learned A.R. of the assessee is thejudgment of Hon'ble Bombay High Court rendered in the case of GordhandasDesai (supra). In this case, it was held that the Assessing Officer should passorder for rectification ignoring the decision of the Commissioner and thefurther letters of the CBDT and the Govt. of India which must not influencehis determination. There is no quarrel on this aspect but in the present case,there is no such dispute that the decision of the Assessing Officer is on the


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direction of any other authority. This judgment is also not rendering any helpto the assessee in the present case.

5.6 The next judgment cited by Learned A.R. of the assessee is thejudgment of Hon'ble Gujarat High Court rendered in the case of Gujarat GasCo. Ltd. (supra). In this case, it was held that the proceedings before theAssessing Officer are judicial proceedings and therefore, all the incidents of

such judicial proceedings have to be observed before the result is arrived at.In that case, the assessee asked to inspect the relevant records anddocuments before leading evidence in rebuttal which was denied and it washeld that no such direction can be issued by Board u/s 139(1) which shouldinterfere in the judicial function of the Assessing Officer. In the present case,this is not in dispute that any such direction was issued to Assessing Officerfor selecting the case of the assessee for scrutiny. The decision of the

Assessing Officer for selecting the case is his own decision although he tookthe help of computer in this regard. In our considered opinion, this judgmentis also not rendering any help to the assessee in the present case.

5.7 The next judgment cited by Learned A.R. of the assessee is thejudgment of Hon'ble Apex Court rendered in the case of Orient Paper MillsLtd. (supra). In this case, this was the decision of Hon'ble Apex Court that ifthe power exercised by the Collector was a quasi judicial power, as has beenheld by Apex Court, that power cannot be controlled by the directions issued

by the Board. It was also held that no authority however high placed cancontrol the decision of a judicial or a quasi judicial authority. In the presentcase, the facts are different. In the present case, this is not the case of theassessee that any superior authority has controlled the action of the AssessingOfficer. The Assessing Officer selected the case on his own although he tookthe help of computer and therefore, this judgment is also not rendering anyhelp to the assessee in the present case.


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5.8 The next judgment cited by Learned A.R. of the assessee is thejudgment of Hon'ble Apex Court rendered in the case of Sheo ShankerSitaram (supra). In this case, it was the decision of Hon'ble Apex Court thatan officer or authority upon whom jurisdiction has been conferred to make anorder judicially has to act independently. In the present case, this is not thecase of the assessee that the Assessing Officer has not acted independently

and therefore, in our considered opinion, this judgment is also not renderingany help to the assessee in the present case.

6. As per the above discussion, we have seen that none of the judgmentsis rendering any help to the assessee. We have also seen that the case wasselected for scrutiny by Assessing Officer although he had taken help ofcomputer and it cannot be said that the action of the Assessing Officer is notvalid.6.1 Now we examine the issue from a different angle. This has to be

admitted that the entire juris prudence in respect of tax administration suchas principle of natural justice etc. are with the sole object of ensuring that thetax payer is not unduly harassed by the tax department having almightypower of state. In order to make tax administration and collection friendly totax payer, some steps have been taken by the tax administration/Governmentalthough much work is still to be done in this regard. Some of these steps arethat it is made a rule that tax returns can be filed in a paper less manner in

order to improve voluntary compliance by the tax payer and also to reducethe burden of filing voluminous documents along with the tax return. This isa big relief to the tax payer but this has to be ensured that there are somedeterring measures so that no undue advantage is taken by any tax payer ofthis liberal policy of the Government. Even these deterring measures are tobe such that they cause minimum harassment to the tax payer. Therefore,scheme had been devised that only very small percentage of total tax returns


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will be scrutinized by the department and generally it is about 2% to 3% ofthe total tax returns filed in a year. When it is seen that the return is to befiled by the assessee in paperless manner and still there has to be somedeterring measure to prohibit the taxpayer from adopting the habit of tax

evasion/avoidance, it was decided that there should be scrutiny in a smallnumber of cases. Since the returns filed are paper less, some system has tobe devised for selecting the case for scrutiny. When the return is filed withoutany paper, certain guidelines have to be formed for selecting some cases forscrutiny as deterring measure. These guidelines may be such that the personhaving income above a prescribed limit will be scrutinized in larger percentagecompared to small tax payers. It may be a policy that very small tax payers

will not be scrutinized at all. If such a system is devised by the Department ina general manner without targeting a particular assessee, it cannot be saidthat such system of selecting a case for scrutiny is interfering with theindependent decision of the Assessing Officer who is to select the case forscrutiny. Inspite of such guidelines, the ultimate decision is of the AssessingOfficer that a particular case is falling in such guideline and in this process, ifthe Assessing Officer is taking help of computer in analyzing data disclosed by

the tax payer in the return of income then it cannot be said that the decisionfor selecting the case for scrutiny is not independent decision of the AssessingOfficer. This is not the case of the assessee that there is any specific directionof any higher authority to select the case of this particular assessee forscrutiny. The guideline may be this as to what should be percentage of thecases to be selected for scrutiny in several different type of tax payers. Theguidelie may be that where search or survey has taken place, the number of

cases to be selected should be high in percentage. Similarly, the guidelinemay be that if the assessee is claiming exemption/deduction of certainamount then also the percentage may be higher compared to those assesseeswho are not claiming any exemption/deduction. Such guidelines formed by


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the Department as a whole in general manner for the assessees all over thecountry, it cannot be said that such guideline is interfering with theindependent decision of the Assessing Officer for deciding the cases to beselected for scrutiny. If this view is taken then the departmental

administration will be forced to adopt old system of selecting almost all casesfor scrutiny which was causing very undue harassment to all the tax payersand wastage of the energy and efforts of the Department also. In the presentsystem, the thrust is on voluntary compliance of the tax payer and byensuring that some deterring measures are taken that too in a taxpayerfriendly manner of promoting the assessee to file returns without attachingany paper and then selecting only very small number of cases for scrutiny

with the aid of computer and certain generally formed guidelines. In ourconsidered opinion, it cannot be said that the decision of the Assessing Officerto select the case for scrutiny in this system is not an independent decision ofthe Assessing Officer. From this angle also, we came to the same conclusionthat various contentions raised by the assessee are devoid of any merit.Accordingly, these grounds are rejected.

7. Ground No. 3 is as under:

“3. BECAUSE there was no "accrual" or "receipt" of anyincome chargeable to tax, out of premia received /receivable from the entrepreneurs at the time of allotmentof industrial sites and sheds to them and the Authoritiesbelow have erred in law and on facts in making/upholdingan addition of Rs.10,24,41,424/- as had been worked outby the Assessing Officer by applying a "measure of 5%" tothe aggregate of such premia.”

8. It was submitted by Learned A.R. of the assessee that Para 8 and 9 ofthe written submissions are relevant for deciding this issue which arereproduced below for the sake of ready reference:


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“8. Addition on account of leasing of industrial sites/plots,Rs.10,24,11424/-, (ground no.3): The issue has been dealt withby the Assessing Officer at page 5 (bottom) and page 6. The Ld.CIT(A) has decided this issue against the assessee/appellant videparas 3 and 3.1 of the appellate order by referring to the viewtaken in earlier years in the appellant's own case. It is candidlyadmitted that in the earlier years the matter stands decidedagainst the appellant even from the stage of the Hon'ble ITAT.At the same time, the appellant prays for "review" and"reconsideration" in view of the submissions made to the effectthat premia had been realized for leasing out the industrialsites/plots to the entrepreneurs for a specified period, whereasUPSIDC continued to retain its "ownership" over the same. Thepremia realized is refundable on the maturity of the agreement.In case there is a premature termination of the agreement, thentoo premia is refundable. Thus, it is like earnest money and nopart of the same can be subjected to assessment. The saidsubmission appears in paras 3, 4, 5, 6 and 7 of the writtensubmissions filed before the Ld. CIT(A), copy appears at pages135 to 145 and this issue has been discussed on pages 136 and137 of the PB, which are specifically referred to and relied upon.

9. In view of the factual matrix as contained in paras 3, 4, 5,6 & 7 of the written submissions (pages 136 and 137 of thepaper book, supra) it is prayed that the matter be reconsideredand the principles of res-judicata should not be held to beapplicable in view of the principles laid down by the Hon'bleSupreme Court in the case of CIT vs. Brij Lal Lohia & MahabirPrasad Khemka reported in (1972) 84 ITR 273, wherein theirlordships have observed and held as under:-

"The fact that in the earlier proceedings the Tribunal tooka different view of those deeds is not a conclusivecircumstance. The decision of the Tribunal reached duringthose proceedings does not operate as res-judicata. Asseen earlier there was a great deal more evidence beforethe Tribunal during the present proceedings, relating tothose gift deeds."

9. Learned D.R. of the Revenue supported the order of learned CIT(A).

10. We have considered the rival submissions. We find that it is admittedby Learned A.R. of the assessee also that this issue is squarely covered


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against the assessee by various Tribunal decisions in assessee’s own case. Inthis regard, we find that no material has been brought on record by theLearned A.R. of the assessee to convince us for taking a different view in thepresent year. Therefore, we do not find any reason to interfere in the order

of CIT(A) because the same is in line with the earlier Tribunal decision.

11. Ground Nos. 4, 5 & 6 are inter connected, which read as under:

“4. BECAUSE the "CIT(A)" has erred in law and on facts inupholding the disallowance of Rs.99,60,538/- representingthe contribution made to Life Insurance Corporation ofIndia under 'Group Gratuity Insurance Scheme' as hadbeen framed by it (LIC), on the grounds that the schemeof Group Gratuity Scheme has not been approved by theCommissioner of Income-tax.

5. BECAUSE Group Gratuity Insurance Scheme as formulatedby Life Insurance Corporation of India with generalapproval of the Government of India constituted anapproved fund and no further/separate approval by theCIT was needed, for the purposes of admissibility of thesame as deduction under section 40A(7) of the 'Act.

6. BECAUSE in any case actual payments made by LifeInsurance Corporation of India, by way of gratuity toretiring employees of the "appellant" (under the coverprovided by LIC in Group Gratuity Insurance Scheme)were liable to be allowed as deduction under section40A(7) read with section 37 of the Act.”

12. Regarding these grounds, it was submitted by Learned A.R. of theassessee that Para 10 to 14 of the written submissions filed by assessee arerelevant for deciding this issue and therefore, these paras are reproducedbelow:

“10. Payments to Life Insurance Corporation of India underGroup Gratuity Insurance Scheme, Rs.99,60,538/- (Ground nos.45 & 6): The Assessing Officer has discussed this issue on page 5,from which it would be seen that the disallowance has been


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made as per provisions contained in section 40A(7) of the Actwhich reads as under:-

"(7) (a) Subject to the provisions of clause (b), nodeduction shall be allowed in respect of any provision(whether called as such or by any other name) made bythe assessee for the payment of gratuity to his employeeson their retirement or on termination of their employmentfor any reason.

(b) Nothing in clause (a) shall apply in relation to anyprovision made by the assessee for the purpose ofpayment of a sum by way of any contribution towards anapproved gratuity fund, or for the purpose of payment ofany gratuity, that has become payable during the previousyear.

Explanation - For the removal of doubts, it is herebydeclared that where any provision made by the assesseefor the payment of gratuity to his employees on theirretirement or termination of their employment for anyreason has been allowed as a deduction in computing theincome of the assessee for any assessment year, any suchpaid out of such provision by way of contribution towardsan approved gratuity fund or by way of gratuity to anyemployee shall not be allowed as a deduction incomputing the income of the assessee of the previousyear in which the sum is so paid."

11. It is very significant to mention here that it is an actualpayment physically made to LIQ and it is not the provision madein the books of account which alone could be treated to be hit bythe provision of section 40A(7). The said sub-section as hasbeen reproduced in Para 9 above is preferable to a provision andnot to an expenditure actually made. Therefore, it is pleadedthat the premium paid to LIC for the purposes of makingpayment of gratuity is not hit by section 40A(7), but admissibilityof the same as deduction is governed by the omnibus section37(1) of the Act which reads as under:-

General.

37.(1) Any expenditure (not being expenditure of thenature described in sections 30 to 36 and not being in the


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nature of capital expenditure or personal expenses of theassessee), laid out or expended wholly and exclusively forthe purposes of the business or profession shall beallowed in computing the income chargeable under thehead "Profits and gains of business or profession".

[Explanation.—For the removal of doubts, it is herebydeclared that any expenditure incurred by an assessee forany purpose which is an offence or which is prohibited bylaw shall not be deemed to have been incurred for thepurpose of business or profession and no deduction orallowance shall be made in respect of such expenditure.]

12. The C1T(A) has decided this issue against theassessee/appellant vide paras 4 and 4.1 of the appellate orderby relying on the orders passed by the Hon'ble ITAT in theappellant's own case for the earlier assessment years". It isadmitted hat in pastthe issue has been decided against the appellant. Be it so, theappellant begs to put forth another view point and an alternatesubmission which is as follows:-

a) 'Group Gratuity Scheme' is a 'product' of LifeInsurance Corporation of India (LIC) which had beenconstituted by an Act of Parliament. This means that itcarries the approval of the Central Government, as such.Therefore, requirement to obtain approval of the CITshould be read down and the doctrine of "reading down"is the well laid principle of interpretation of law. Kindattention is invited to the decision of Hon'ble SupremeCourt in the case of Union of India & Anr. vs. A. SanyasiRao and others reported in (1996) 219 ITR 330 renderedin the context of provisions of section 44AC.

b) In any case the payment in question should betreated as expenditure simplicitor (other than theexpenses incurred on payment of gratuity) incurred by theappellant during the course of carrying on of business, inits capacity as businessman. Such payments, even if madevoluntarily, deserve to be allowed as deduction as per theprinciples laid down by the Hon'ble Apex Court in the caseof Sassoon J. David and Co. Pvt. Ltd. Vs. CIT reported in(1979) 118 ITR 261, wherein at page 273 their lordshipshave observed and held as under:-


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"In order to claim deduction under s.no(2)(xv) of the Act,an assessee has to shoe that the expenditure in question,(i) was not an allowance of the nature described in any ofthe els. (i) to (xiv) of s. 10(2), (ii) was not in the nature ofa capital expenditure or personal expenses of the assesseeand (iii) had been laid out or expended wholly andexclusively for the purposes of his business, profession orvocation. Even assuming that the motive behind thepayment of retrenchment compensation was that theterms of the agreement of the sale of shares should besatisfied, as long as the amount had been laid out orexpended wholly and exclusively for the purpose of thebusiness of the assessee, there appears to be no goodreason for denying the benefit of s. 10(2) (xv) of the Actto the company if there is no other impediment to do so."

13. In short the appellant's contention is that, even if it is heldthat Group Gratuity Scheme launched by LIC is not formallyapproved in the instant case by the jurisdictional Commissionerof Income Tax, although not admitted by the appellant in viewof the submissions made in Para 11 (a) hereinfore, it is pleadedthat sum in question should be allowed as a legitimate outgoingincidental to carrying on of business and the same is admissibleas deduction in view of the principles laid down by Hon'bleSupreme Court in the case of Sassoon J. David and Co. Pvt. Ltd.(supra).

14. Wholly without prejudice, to the submissions so made, it ispleaded that actual payment of gratuity made to the retiringemployees should be allowed as deduction. The modus operandifollowed by the LIC in the matter is that on the basis of datasupplied by UPSIDC, it (LIC) has the information about theretiring employees, year after year. On the basis of such data, itmakes available to UPSIDC the requisite amount of funds, out ofwhich disbursement of gratuity is made by UPSIDC. Thedisbursement so made is not charged to the Profit and LossAccount. Therefore, such a disbursement/payment should beallowed as deduction.”

13. Learned D.R. of the Revenue supported the orders of the authorities

below.


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14. We have considered the rival submissions. We find that this issue issquarely covered against the assessee by the earlier Tribunal decision as hasbeen admitted by Learned A.R. of the assessee in Para 12 of the writtensubmissions. Learned A.R. of the assessee is in fact making a case for review

or reconsideration of the earlier Tribunal decision but we find that no materialhas been brought on record to convince us for taking a contrary view in thepresent year. Hence, we decline to interfere in the order of CIT(A) becausehis decision is in line with the earlier Tribunal decision. These grounds arerejected.

15. Ground Nos. 7 to 10 are inter connected, which read as under:

“7. BECAUSE "CIT(A)" has erred in law and on facts in holdingthat receipts classified under the head "interest" by thethree units covered by the provisions of section 80IA ofthe Act, as per particulars given herein below:-

Sl.No.

Name of the project Receipts classifiedunder the headinterest (Rs.)

(i) Tronica City IndustrialModel Town

11,78,51,405

(ii) Export promotionindustrial park, GreaterNoida

4,24,92,416

(iii) Agra Export PromotionIndustrial Park

39,75,286

could not be treated as "income derived from eligible business"and in directing the Assessing Officer to exclude the same fromcomputation of "eligible profit."

8. BECAUSE the receipts classified under the head interestrepresented the income earned by and derived from theactivities carried on by the "appellant" through the said eligibleunits and the same being forming integral part of the incomefrom business derived from such units, qualify fully for deductionunder section 80IA.

9. BECAUSE the ''appellant's" claim for relief under section80IA, cannot be held to be defeated even by the decision of


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Hon'ble apex court in the case of CIT vs. Raja BahadurKamakhaya Narayan Singh reported in 16 ITR 325 as also byvarious other decisions of the Hon'ble apex court, as have beenreferred to and relied upon by the "CIT(A)" in his appellate orderfor the assessment years 2005-06 and 2006-07 (as referred to inthe appellate order which is subject matter of present appeal) asthe same had been delivered in an altogether different contextand on the facts dissimilar to that of the "appellant".

10. BECAUSE the direction to recompute the "eligible profit",after reducing the same by receipts "as referred to in ground no.7 hereinfore" amounted to enhancement of income and nonotice for enhancement having been given by the "CIT(A)", thesame is wholly erroneous.”

16. It was submitted by Learned A.R. of the assessee that on this issue,

Para No. 15 to 37 of the written submissions filed by assessee are relevant fordeciding this issue and therefore, these paras are reproduced below:

“15. Deduction under section 80IA, Rs.21,23,81,785/- (Groundsno.7, 8, 9 and 10):The Ld. Assessing Officer has discussed this issue on pages 2(later part), 3, 4, and 5 (earlier part). It is stated that the claimof Rs.21,23,81,785/- made by the appellant (which is anapproved financial corporation also) under section 80IA,represented the profits and gains derived from the"undertaking"/ "enterprises" namely Tronica City IndustrialModel Town, Loni, Export Promotion Industrial Park, Agra andGreater Noida Export Promotion Indl. Park, Kasna with referenceto audited statement of accounts as appearing on pages 59 to116 of the paper book. The statement showing computation ofrelief under section 80IA at Rs.21,23,81,785/- is reproducedhereunder:-

Particulars Tronica CityIndustrialModel TownLoni

Greater NoidaExportPromotionIndustrial Park

ExportPromotionIndustrial Park,Agra

UPSIDC otherschemes

Total

Net profit as per profit &loss accountAdd:(i)Depreciation debited in

Profit & loss account(ii)Diminution in the value of

Sharesiii)Loss on sale of fixed asset

Product:i) Divident income credited

165458336

-

-

-

44526637

-

-

-

2396812

-

-

-

577963181

31620444

1261000

10923

790344966

31620444

1261000

10923165458336

-

44526637

-

2396812

-

610855548

332369

823237333

332369


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in profit & loss accountii)Arrears of salary payable

as per recommendation ofRRC

iii)Depreciation admissible asper profit & loss account

as per chart attached(Annexure3CD)iv)Appreciation in the value

of sharesv)Profit on sale of fixed

assets

vi)Deduction admissible u/s36(i)(viii) of the I.T. Act

GROSS INCOMELess:Deduction u/s 80IA(restricted to the extent ofincome)

TOTAL INCOME

-

-

-

-

-

-

-

-

-

-

-

-

134182

37846370

260000

22121

134182

37846370

260000

22121

165458336 44526637 2396812 572260506313856916

784642291313856916

165458336 44526637 2396812 258403590 470785375

212381785

258403590

165458336 44526637 2396812 -

16. The deduction so claimed by the appellant as isattributable to the projects, as had been approved by the“prescribed authority”, receipts of which are as under:-

S.No

Head of income Tronica City Indl.Model Town, LoniGhaziabad

Greater NoidaExport PromotionIndl. Park, Kasna

Export PromotionIndl. Park, Agra

(A) INTEREST INCOMEInterest on premium 117659534 39729602 3682613Interest on maintenance charge 185256 - -Int. on advance to employees 5565 6711 -Corp. house rent recovery 1050 - -Lease rent - - 292673Interest on deposits - 492769 -Int. on service charges - 2552844 -Int. received on rent - 35754872 -Int. received on loan - 2043 -Int. received on others - - -Total (A) 117851405 42492416 3975286

(B) OTHER INCOMEProcessing fees 17058319 415306 146527Misc. receipt 3324148 - 5800Int. money & premium forfeiture 1000 - -Use & occupation charges 49470858 898973 -Rent received 108302 2520 -Time extension fee 4855168 - -Interest on FDR 1536656 - -Sub Letting charges 65450 - -Intt. On sewerage charges 7317 - -Sales of application forms/TEF etc - 5316491 -Rent received on Flattered factory - 2348983 -Total (B) 76427218 8982273 152327Total (A) + (B) 194278623 15474689 4127613

17. The Assessing Officer took a view on page 3 of theassessment order that the ‘other income’ other than ‘interestincome’, did not qualify for exemption under section 80IA and asper particulars given there (page 3 of the assessment order) hedisallowed sums aggregating Rs.8,54,09,491/-, restricted theclaim to Rs.12,69,72,294/. Later on at page 5 he held that eventhe said sum of Rs.12,69,72,294/- was not admissible as the


18

audit report in prescribed form had not been filed along with thereturn. Thus, the entire claim of Rs.21,23,81,785/- under section80IA had been disallowed at the assessment stage.

18. The assessee/ appellant felt aggrieved by such an'exclusion' (from the computation of eligible profit) and took thematter in 1st appeal before the Id. CIT(A). The Id. CIT(A) agreedwith the contention put forth by the appellant that mere latefiling of audit report cannot be a ground for disallowance ofdeduction under section 80 IA of the Act and observation part ofthe appellate order is reproduced hereunder:

"6.2 I agree with the contention of the Ld. A.R. that latefiling of the audit report in form No.10CCB could notbe a reason to deny the benefits u/s 801A of theAct. Reference is made to the decisions of variousHon'ble High Court this regard:

1. 209 ITR 63 (Bombay)2. 292ITR147(MP)3. 219 ITR 721 (Guj)4. 262 ITR 10 (Cat)5. 317 ITR 207 (Kar)"

19. As regards disallowance of deduction under section 80IAaggregating to Rs.8,54,09,491/- represented by the aggregate of'other income', Ld. CIT(A) following his order passed for earlierassessment years allowed the ground of the appellant holdingthat the' said 'receipts' have got direct nexus to the profits andgains of "eligible business" and therefore qualify for beingincluded in the quantum of eligible profit. The Ld. CIT(A) hasalso directed to consider the addition towards premia income(5% of the total collection made during the year as referred inPara 8 hereinfore) upheld by him as a part of "eligible profit" forthe purposes of deduction under section 80IA of the Act,relevant observation of the appellate order is as under;

"6.2.1. ......... In those orders, the Ld. CIT(A) had,however, allowed certain items of income (which had notbeen considered by the AO) to be considered as income"derived" from the eligible business. As the nature of theincome remains the same in this year too, the AO isdirected to follow my directions/findings given in myappellate orders for A. Y. 2005-06 & 2006-07 on this issue.


19

Before parting with the issue, I hereby direct the A.O. toconsider the 5% premium (corresponding to these threeindustrial parks) which was added by the AO to theincome of the assessee and which has been confirmed byme at ground No. 1 & 2 of this order as income derivedfrom the eligible business and to consider the same fordeduction u/s 80IA of the Act."

Thus, the disallowance of Rs.8,54,09,491/- as has been referredto in Para 17 hereinfore, was restored by the Id. CIT(A), to beenhanced further by the profit calculated @ 5% of the premia asreferred to in Para 8 hereinfore.

20. But before allowing the aforesaid 'reliefs', the CIT(A) wentfurther at his own and took a view that interest received fromthe allottees (break up of which has been discussed in Para 16above) could not be treated as "profits and gains" derived by an'undertaking'/ 'enterprise' as stipulated in section 80IA. Thediscussion appears in paras 6.2.1. of the appellate order readingas under:

"6.2.1 However, that is not the end of this matter, inrespect of deduction u/s 80IA. On perusal of the details ofincome earned by the eligible undertaking of the assesseecompany, namely Tronic City Industrial Model Town,Export Promotion Greater Noida Export PromotionIndustrial Park and Agra Export Promotion Industrial Park,it was seen that their main income was on account ofinterest earned Rs.11,78,51,405/- by Tronic,Rs.4,24,92,416/- by Greater Noida and Rs.39,75,286/- byAgra. This issue has been dealt with at great length in theassessee's own case in the appellate proceedings forearlier years wherein while passing an enhancementorder, it was held by the Ld. CIT(A) that such interestincome was not income "derived from" the eligiblebusiness of developing and operating or maintaining andoperating a notified Industrial Park. In those orders, theLd. CIT(A) had, however, allowed certain items of income(which had not been considered by the AO) to beconsidered as income "derived" from the eligible business.As the nature of the income remains the same in this yeartoo, the AO is directed to follow my directions/findingsgiven in my appellate orders for A.Y. 2005-06 & 2006-07on this issue. Before parting with the issue, I hereby direct


20

the A.O. to consider the 5% premium (corresponding tothese three industrial parks) which was added by the AOto the income of the assessee and which has beenconfirmed by me at ground No.l & 2 of this order asincome derived from the eligible business and to considerthe same for deduction u/s 80IA of the Act"

2.1 It is stated that true effect of the directions contained inPara 6.2.1 of the appellate order (which is subject matter ofpresent appeal) as has been reproduced in preceding paragraph20 is that the CIT(A) has made an enhancement. To elaborate, itis submitted that as far as component of interest forming part ofthe "profits and gains" derived from the "undertaking"/"enterprise" as per details given in Para 16 above, the AssessingOfficer held the same to be eligible for deduction under section80IA of the Act and there was no dispute in the appeal so far asappellant's eligibility for deduction on that score was concerned.The CIT(A) has held the same as "ineligible" for deduction undersection 80IA, which amounts to enhancement of income. For thereason that such an enhancement has been made withoutissuing any show cause notice and/or giving any opportunity ofbeing heard on this issue, in any other manner, the samedeserves to be knocked off and the appellant's claim fordeduction on interest income deserves to be restored.

22. Without causing in any manner any prejudice to thesubmissions made in the foregoing paragraphs (challenging theenhancement made by the Id. First Appellate Authority) it issubmitted that the view taken by the Ld. CIT(A) is whollyinconsistent with the facts of the instant case and law applicablethereof as have been discussed in the written submission dated26.03.2012 made before the Ld. CIT(A) during the course ofappellate proceedings. Kind attention of the Hon'ble Bench isspecifically invited to the information/ submission available onpage 209 to 223. It is evident from the saidinformation/submission that at the time of allotment andsubsequent execution of lease deed (in pursuance of such letterof allotment) the premium (as payable by the allottees toUPSIDC) is determined as per practice prevalent at the relevanttime. Wherever the entrepreneur is not in a position to pay theentire premium, the unpaid amount of the premium (whichcannot exceed 75% of the total premium due) is allowed to bepaid in ten half yearly installments, starting from a period aftersix months of execution of lease deed, falling in June or


21

December in each year. The relevant clauses of the allotmentletter are reproduced hereunder:-

"4. You shall deposit at this office an amount ofRs.66,875.00 towards reservation money (after adjustingregistration fee of Rs.25,000) which includes Rs.2,000towards earnest money in respect of the above plot latestby 11/11/2002. This amount (together with RegistrationFee/Earnest money) is approximately equal to 25.00percent of the total premium of the plot at the provisionalrate of Rs.700.00 per sq. mtr. and location charges @Rs.0.00 per sq. mtr. for first five acres and is subject toadjustment according to actual measurement of the plot.If the above amount falls short of the amount equal to25.00 percentage of the total premium according to actualmeasurement, the balance will be deposited by you withinseven days of the receipt of demand from us.

If the payments are not made as stipulated above thisallotment will stand automatically cancelled/and the wholeamount of Earnest Money deposited by you will standforfeited to this Corporation, even if the area of the ploteither exceeds or is less than the area applied for to theextent of 20% or less of the area applied for. However, ifthe area of the land allotted either exceeds the areaapplied for or falls short of the area applied for by an areamore than 20% of it, the Earnest Money will not beforfeited if this allotment is not accepted, provided anintimation is sent to us in this respect by the datestipulated above.

5(a). The remaining 75% of the provisional premium shallhave to be paid by you in 10 equal half yearly installmentseach of which will be due for payment on 1st day ofJanuary and 1st day of July each year. The first installmentwill fall due for payment on 01/01/2003. The second andsubsequent installments of premium will fall due on 1st dayof January and 1st day of July each year.

An interest @ 15% per annum shall be charged on theoutstanding (balance) premium with effect from the dateof allotment and will be payable along with installment ofpremium as stipulated in clause 3 above subject to arebate of 2.00% per annum on payment on or before the


22

prescribed date and if there are no arrears or dues. Theamount of the balance premium and the interest due on itfrom time to time shall remain first charge on the land andthe building and machinery erected thereon till it is (theyare) paid in full".

(P.B. 211& 212)

23. Further Para 9 & 10 of the said submission is alsorelevant, the same reads as under:-

"9. As per clause 5 as reproduced above, theinstallment plan forming part of the letter of allotment isalso reproduced hereunder :-

InstallmentNo.

Due date ofinstallment

Interestdue (Rs.)

Premiumdue (Rs.)

Total amount(Rs.)

1. 01.07.2003 22774.93 27562.50 50337.43

2. 01.01.2004 16256.59 27562.50 43819.09

3. 01.07.2004 14254.18 27562.50 41816.68

4. 01.01.2005 12609.47 27562.50 40171.97

5. 01.07.2005 10661.02 27562.50 38223.52

6. 01.01.2006 9031.44 27562.50 36593.94

7. 01.07.2006 7107.35 27562.50 34869.85

8. 01.01.2007 5418.86 27562.50 32981.36

9. 01.07.2007 3553.67 27562.50 31116.17

10. 01.01.2008 1806.29 27562.50 29368.79

(P.B. 212)

10. The lease deed executed in pursuance of the said"letter of allotment" specifically contains a narration to theeffect that the premium (as has been determined as perthe letter of allotment) has been allowed to be paid ininstallments, with a stipulation to carry interest and also of


23

rebate for timely payment of such installments. Clause (1)of such lease agreement is being reproduced:-

"1. In consideration of the payment by the Lessee of theprovisional premium ofRs.5,85,000/- (Rs. Five Lacs eightyfive thousand only) the receipt whereof the Lessor herebyacknowledges and of the outstanding amount ofprovisional premium of Rs. -— to be paid in ten half yearlyinstallments as follows along with interest @-—% perannum on the total outstanding premium.

1. Rs. —— on the 1st day of July -----2. Rs. —— on the 1st day of January -----3. Rs. ----- on the 1st day of July ——4. Rs. —— on the 1st day of January -----5. Rs. -— on the 1st day of July -----6. Rs. —— on the 1st day of January -----7. Rs. ----- on the 1st day of July ——8. Rs. —— on the 1st day of January -----9. Rs. —— on the 1st day of July -----10.Rs. —— on the 1st day of January -----

Provided that if the Lessee pays the installments and theinterest on the due date and there are no over dues, arebate will be admissible @ 2% per annum in the interest.

NOTE: (1) The interest shall be payable half-yearly on the1st day of January and 1st day of July each year, the firstof such payments to be made on the - day of——20——.

(2)Liability for payment of the premium in installments,including the interest referred to above, shall be deemedto have accrued from the date of the reservation/allotmentletter numbering 8459-50/SIDC/lA-TC/AllotPlotNo.E-85/A-5& 6 dated 29.01.2002.

(3)The payments made by the Lessee will be first adjustedtowards the interest due, if any, and thereafter towardsthe premium due, if any and the balance, if any, shall beappropriated towards the lease rent notwithstanding anydirections/request of the Lessee to the contrary."

(P.B. 212-213)


24

24. Thus, as an integral and inseparable part of the businessactivities carried on by the appellant, which involved realizationof premia in lieu of its business activity of allotment of industrialsites (along with infrastructure facilities) developed by it, theappellant has realized interest on so much of the premia whichhas been allowed to be paid in installments, by the allottees.

25. From the discussions made in the foregoing paragraphs, it isamply borne out that interest earned by the appellant is the partof 'profits and gains' derived from the "undertaking"/"enterprise", namely Tronica City project, EPIP of Greater Noidaand EPIP, Agra (on which exemption under section 80-IA isbeing claimed) as per particulars given in Para 15 hereinabove.The receipt/accruals in the form of interest, "sprung" directlyfrom the activities carried on by the "undertaking"/ "enterprise".Therefore, the same should be treated to have been derivedfrom the "first degree source", which is rule propounded by theHon'ble Apex Court in the case of Liberty India vs. CIT reportedin (2009) 317 ITR 218, to determine as to whether the 'income'in relation to which exemption or benefit of exemption fromtaxation is claimed has been derived from "eligible business".

26. In the said case, the question that came up forconsideration before the Hon'ble apex Court was whether DEPBcredit/duty drawback receipts is "first degree source" by itself soas to be eligible for relief under section 80 HHC. After analyzingfacts of the said case, the Hon'ble Apex Court arrived at aconclusion that DEPB credit/duty drawback receipts owe theirorigin to the incentive schemes formulated by the Government ofIndia and not to the export business as such. Thus incentivescheme being constituting the "first degree source" and not the'exports', the benefit admissible under section 80 HHC was notadmissible with reference to the receipts under the head DEPBaudit/duty drawn back receipts. Kind attention of your honour isinvited to the discussion appearing on pages 232, 233 and 234of the said report, which for the sake of instant reference isreproduced hereunder:-

"Analyzing Chapter VI-A, we find that section 80-IB/80-IAare a code by themselves as they contain both substantiveas well as procedural provisions. Therefore, we need toexamine what these provisions prescribe for 'computationof profits of the eligible business.' It is evident that section80-IB provides for allowing of deduction in respect of


25

profits and gains derived from the eligible business. Thewords "derived from" are narrower in connotation ascompared to the words 'attributable to'. In other words, byusing the expression 'derived from', Parliament intended tocover sources not beyond the first degree. In the presentbatch of cases, the controversy which arises fordetermination is whether the DEPB credit/duty drawbackreceipt comes within the first degree sources? Accordingto the assessee(s), DEPB credit/duty drawback receiptreduces the value of purchases (cost neutralization),hence, it comes within first degree source as it increasesthe net profit proportionately. On the other hand,according to the Department, DEPB credit/duty drawbackreceipts do not come within first degree source as the saidincentives flow from the incentive schemes enacted by theGovernment of India or from section 75 of the CustomsAct, 1962. Hence, according to the Department, in thepresent case, the first degree source is the incentivescheme/provisions of the Customs Act. In this connection,the Department places heavy reliance on the judgment ofthis court in Sterling Foods (1999) 237 ITR 579.Therefore, in the present cases, in which we are requiredto examine the eligible business of an industrialundertaken, we need to trace the source of the profits tomanufacture, (see CIT v. Kirloskar Oil Engines Ltd.reported in (1986) 157ITR 762).

Continuing our analysis of section 80-IA/80-IB it may bementioned that sub-section (13) of section 80-IB providesfor applicability of the provisions of sub-section (5) andsubsections (7) to (12) of section 80-IA, so far as may be,applicable to the eligible business under section 80-IB.Therefore, at the outset, we stated that one needs to readsections 80-1, 80-IA and 80-IB as having a commonscheme. On a perusal of sub-section (5) of section 80-IA,it is noticed that it provides for the manner of computationof profits of an eligible business. Accordingly, such profitsare to be computed as if such eligible business is the onlysource of income of the assessee. Therefore, the devicesadopted to reduce or inflate the profits of eligible businesshave got to be rejected in view of the overriding provisionsof sub-section (5) of section 80-IA, which are also requiredto be read into section 80-IB (see section 80-IB(13). Wemay reiterate that sections 80-1, 80-IA and 8Q-IB have a


26

common scheme and if so read it is clear that the saidsections provide for incentives in the form of deductions)which are linked to profits and not to investment On ananalysis of sections 80-IA and 80-IB it becomes clear thatany industrial undertaking, which becomes eligible onsatisfying sub-section (2), would be entitled to deductionunder sub-section (1) only to the extent of profits derivedfrom such industrial undertaking after specified date (s).Hence, apart from eligibility, sub-section (I) purports torestrict the quantum of deduction to a specifiedpercentage of profits. This is the importance of the words"derived from industrial undertaking" as against "profitsattributable to industrial undertaking".

DEPB is an incentive. It is given under the Duty ExemptionRemission Scheme. Essentially, it is an export incentive.No doubt, the object behind DEPB is to neutralize theincidence of customs duty payment on the import contentof export produce. This neutralization is provided for bycredit to customs duty against export product. UnderDEPB, an exporter may apply for credit as a percentage ofthe FIB value of exports made in freely convertiblecurrency. Credit is available only against the exportproduce and at rates specified by the DGFT for import ofraw materials, components, etc. DEPB credit under theScheme has to be calculated by taking into account thedeemed import content of the export product as per basiccustoms duty and special additional duty payable on suchdeemed imports. Therefore, in our view, DEPB/Dutydrawback are incentives which flow from the schemesframed by Central Government or from section 75 of theCustoms Act, 1962, hence, incentives profits are notprofits derived from the eligible business under section 80-IB. They belong to the category of ancillary profits of suchundertakings."

(emphasis added by the assessee)

27. In a subsequent decision in the case reported as TopmanExports vs. CIT reported in (2012) 342 ITR 49 the Hon'ble ApexCourt has advanced the 'theory' further, by holding that when areceipt has got a direct nexus with the eligible business, such"receipt" should be held to be the income derived from suchbusiness. This is evident out from the overall background of the


27

case of Topman Exports as per discussion as appearing in theparagraphs that follows.

28. Owing to sharp cleavage of judicial opinion on the issue asto "Whether the entire amount received on sale of DEPBentitlements represents profit chargeable under section 28(iiib)of the Income-tax Act or the profit referred to therein requiresany artificial cost to be interpolated?", a Special Bench of theITAT, Bombay was constituted in the cases of Topman ExportsVs. ITO, Kalpataru Colours & Chemicals Vs. Additional CIT andOthers. It was undisputed from both the sides that DEPB is a"cash assistance" allowed to exporters under Export PromotionScheme framed by the Government. However, the partiesdiffered on the issue of taxability of sale proceeds of DEPB. Theassessee's contention was DEPB is directly connected withexports and accordingly taxable under clause (iiib) of section 28of the Act as profits of export business. On the contrary, theRevenue's plea was that the entire sale proceeds of DEPB(including face value thereof) constitute a separate source ofincome independent from income from business of export. Thecontroversy was resolved by the Hon'ble Special Bench of theITAT vide its judgment and order dated 11.08.2009, [sincereported in (2009) 318 ITR (AT) 87 (Bom)(SB)] by holding thatface value of DEPB at the point of accrual thereof is connectedwith exports and taxable in the year of accrual under clause (iiib)of section 28 of the Act. Thereafter, proceeds realized on sale ofDEPB, adjusted by the face value thereof, constituted separatesource of income and assessable as profits of business, whollyunconnected with export business under clause (iiid) of section28 of the Act. Consequently, it was further held that profitsrealized on sale of DEPB, as arrived at after adjustment of facevalue of DEPB benefit of section 80HHC shall be denied. Inshort, the view taken by Special Bench of the Hon'ble ITAT (SB)was that face value of DEPB is the Income from Export businessas per clause (iiib) of section 28 eligible for benefit under section80 HHC and any surplus arising therefrom on sale of DEPB is theincome from trading in DEPB taxable as independent source ofincome, wholly unconnected with the export business, underclaim (iiid) of the Act. Relevant Para from the said judgment ofSpecial Bench is reproduced hereunder:-

“Rationale behind section 28(iiid) and (iiie):


28

It is noticed above that export incentive is provided byway of the face value of DEPB. It is this value, which hasrelation with the export business. The subsequent sale ofDEPB is a step divorced from export. The relation betweenthe act of exporting goods and DEPB exists only upto thestage of its acquisition and not thereafter. Once the DEPBis acquired pursuant to exports, the subsequent events ofits utilization for self consumption or making imports forresale or the sale of DEPB as such, are independenttransactions unrelated to export. Section 80HHC providesdeduction in respect of income from export business.Considering the text of section 80HHC and the manner ofcomputation of deduction it has been noticed above thatthough the face value of DEPB is profit from exportbusiness, but the profit on sale of DEPB is not coveredwithin the scheme of this section inasmuch as the DEPBhas only a local market from the point of view of its sale.When DEPB is sold, the sale proceeds will form part oftotal turnover but not export turnover for the reason thatthe sale proceeds are not received in or brought into Indiain convertible foreign exchange. In that situation the saleproceeds of DEPB will be included in the total turnover butnot the export turnover and resultantly the deduction tothe extent of profit on sale of DEPB will be automaticallydenied when the profits of business are proportionatelyreduced in the ratio of export turnover to total turnover."

(Emphasis added)

29. The Revenue felt aggrieved by the said judgment passedby special bench of the ITAT and preferred an appeal undersection 260A before the Hon'ble Bombay High Court. Thequestions formulated were as under:-

"(a) Whether the Tribunal is justified in holding that theentire amount received on the sale of the duty entitlementpassbook does not represent profits chargeable undersection 28(Hid) of the Income-tax Act, 1961, and that theface value of the duty entitlement passbook shall bededucted from the sale proceeds?

(b) Whether the Tribunal is justified in holding that theface value of the duty entitlement passbook is chargeableto tax under section 28(iiib) at the time of accrual ofincome, i.e. when the application for duty entitlement


29

passbook is filed with the competent authority pursuant tothe exports made and that the profits on the sale of dutyentitlement passbook representing the excess of the saleproceeds over the face value is liable to be consideredunder section 28(iiid) at the time of sale ?”

30. That the Hon'ble Bombay High Court decided the samevide judgment and order dated 28/29 June, 2010 reported in(2010) 328 ITR 451 in the name of CIT Vs. Kalpataru Coloursand Chemicals. In terms of the said judgment, the decision ofHon'ble Special Bench of the ITAT, Bombay was reversed.Relevant passage from the said judgment is reproducedhereunder:-

"The submission that prior to the insertion of clause (Hid)in section 28, the face value of the DEPB credit realized onthe transfer of such credit constituted export profits, butnot the amount realized in excess of the face value of theDEPB is similarly without any basis. This is because (i) theobject of the DEPB was to furnish an incentive toexporters so as to adjust the credit against the customsduty payable on any goods imported into India. However,where an exporter instead of utilizing the credit transfersthe credit at a premium, it cannot be said that theexporter has utilized the credit; (ii) the Legislatureconsiders that the customs duty and excise duty paid onraw materials used in the export product, when repaid orrepayable as duty drawback, would not constitute exportprofit. Similarly, when the DEPB credit is not utilized in thebusiness but is transferred for value, the amount receivedon the transfer would be business profits and not exportprofits irrespective of whether the amount which isrealized is equal to, larger than or less than the face valueof the DEPB credit. Parliament has considered that theentirety of the amount received on the transfer of theDEPB shall constitute profits of business under section28(iiid). Since such profits are not export profitsParliament directed that ninety per cent of those profitswould be excluded while computing the deductionunder section 80HHC; (Hi) Parliament considered thatan exporter who instead of utilizing the DEPB credit forpaying customs duty on imported goods makes a profit bytransferring the DEPB, would form a separate class andseeks to tax the receipts on the transfer of the DEPB


30

would form a separate class and seeks to tax the receiptson the transfer of the DEPB credit and make a profitcannot be placed on part with those exporters who utilizethe credit for paying the customs duty on the importedgoods; (iv) the fact that Parliament did not consider theamount received on the transfer of the DEPB to be exportprofit cannot be a ground to hold that the receipts on thetransfer of DEPB credit are not business profits. Counselappearing on behalf of the assessee submits that theentire amount received on the transfer of the DEPB creditis business profit, but it was contended that what isincluded in section 28(iiid) is the amount received on thetransfer of the DEPB credit in excess of the face value ofthe DEPB and the amount received to the extent of theface value of the DEPB would be covered under section28(iiib). There is no merit in this contention because, (a)the DEPB credit was not in existence when section 28(iiib)was inserted by the Finance Act of 1990. DEPB credit wasintroduced with effect from April 1, 1997 which was afterthe insertion of clause (iiib) in section 28; (b) section28(iiib) refers to cash assistance (by whatever namecalled) received by the assessee from the Governmentpursuant to a scheme of the Government. The amountreceived on the transfer of the DEPB credit is not receivedby the assessee from the Government pursuant to ascheme of the Government within the meaning of clause(iiic); and (c) when section 28(iiid) specifically deals withprofits realized on the transfer of the DEPB credit, it wouldbe impermissible as a matter of first principle to bifurcatethe face value of the DEPB and the amount received inexcess of the face value of the DEPB.

For all these reasons, we have come to theconclusion that the view of the Tribunal on the twoquestions of law formulated by the Revenue isunsustainable. In the circumstances, we allow the appealby answering the first question of law as formulated in thenegative."

(emphasis added)31. Thereafter, "Topman Exports" and other assessees' whowere affected by the said judgment of Hon'ble Bombay HighCourt in the case of Kalpataru Colours and Chemicals (Supra)took the matter before the Hon'ble Supreme Court. The leadcase was that of Topman Exports. The issue involved was, in the


31

context of relief under section 80 HHC, as to whether value ofDEPB, Duty draw back and other export inventive, could be heldto be the income derived from export business so as to beeligible for relief under section 80 HHC. The matter was decidedby their lordships vide judgment and order dated 08.02.2012[since reported in (2012) 342 ITR 49].

32. In the later part of the said judgment, their lordships ofthe Hon'ble apex court referred to the arguments advanced byrival parties, as reproduced hereunder :-

(a) Arguments from the side of the assessee, before theHon'ble Supreme Court :-

".........They submitted that the DEPB was, therefore,chargeable to income-tax under the head "Profits andgains of business or profession" under clause (iiib) ofsection 28 of the Act. They submitted that the contentionof the Revenue that the DEPB would be incomechargeable to tax only on transfer and would be coveredunder clause (Hid) of section 28 of the Act is not correct.They submitted that it will be clear from differentprovisions of the DEPB Scheme that the object of grantingthe DEPB to an exporter is to neutralize the incidence ofcustom duties which has been incurred on the importcomponent of the export product and this neutralization isachieved by grant of duty credit of the amount specified inthe DEPB Scheme. They submitted that the Tribunal,therefore, was right in coming to the conclusion that therewas a direct relation between the DEPB and the cost ofinputs imported for manufacture of the export product."

(b) Argument on behalf of the Revenue :

"Learned counsel for the Revenue, on the other hand,supported the impugned judgment and orders of the HighCourt and submitted that profit on transfer of the DEPBwould represent the entire sale value realized by theassessee on transfer of the DEPB. He submitted that theHigh Court has rightly held that the assessee does notincur any cost in obtaining the DEPB. He argued that theDEPB is an export incentive granted by the Governmentunder the DEPB Scheme and it has no direct relation withthe cost of purchases made by the assessee and,


32

therefore, the assessee is not entitled to deduct the facevalue of the DEPB from the sale proceeds for determiningthe profit arising on transfer of the DEPB and the entiresale proceeds of the DEPB represent the profits earned bythe assessee on transfer of the DEPB. He argued that thefindings of the Tribunal that there is a direct relationbetween the DEPB and the costs incurred by the assesseefor importing inputs for manufacture of export products is,therefore, not correct and the High Court was right insetting aside the findings of the Tribunal and incoming tothe conclusion that the entire sale proceeds of the DEPBrepresent the profits on transfer of the DEPB within themeaning of clause (Hid) of section 28 of the act."

33. That after considering the whole gamut of law and thearguments advanced by the rival parties (as referred to above)the larger bench of the apex court (constituted by three Hon'blejudges) decided the issue vide judgment and order dated08.02.2012 in the following manner :-

Finding of the Hon'ble Apex Court:

"On a reading of the aforesaid paragraphs of the HandBook on the DEPB and the Export and Import Policy of theGovernment of India, 1997-2002, it is clear that theobjective of the DEPB Scheme is to neutralize theincidence of customs duty on the import content of theexport products. Hence, it has direct nexus with the costof the imports made by an exporter for manufacturing theexport products. The neutralization of the cost of customsduty under the DEPB scheme, however, is by granting aduty credit against the export product and this credit canbe utilized for paying customs duty on any item which isfreely importable. DEPB is issued against the exports tothe exporter and is transferable by the exporter."

34. That in consequence of the said finding, the judgment ofthe Hon'ble Bombay High Court in the case of Kalapataru (supra)was set-aside and the appeals were allowed. Thus, the judgmentof the Hon'ble Special Bench of the ITAT in the case of TopmanExports (supra) got affirmed. The gist of the said judgment ofthe Special Bench of the Tribunal is that at the point of accrual,the face value of DEPB is related to export business as it is givenby the Government to neutralize the cost of imports, which are


33

used in the goods manufactured and supplied to exports.Subsequent sale of such DEPB constitutes a different businessand accordingly the excess of sales proceeds of DEPB asadjusted by face value thereof, is the business whollyunconnected with export business.

Decision in the case of Meghalaya Steels Ltd.

35. The test of "first degree source" as has been laid down bythe Hon'ble Apex Court in 'Liberty India' case to determine as towhether a particular receipt is the "income derived" from theundertaking/enterprise stand fully satisfied in the instant case,looking to the nature of receipt under the head "interest" as hasbeen discussed at length hereinfore. The said rule of "firstdegree source" as has been laid down by the Hon'ble Apex Courtin the case of 'Liberty India' has been specifically applied by theHon'ble Gauhati High Court in the case of CIT vs. MeghalayaSteels Ltd. reported in (2013) 356 ITR 235, copy of whichappear at pages 304 to 354 of the compilation already placed onrecord. The said judgment has been delivered by the Hon'bleGauhati High Court, specifically in the context of computation ofincome under section 80IB and 80IC of the Act and is applicablein the appellant's case.

36. Other case laws on this issue as appearing in thecompilation are listed herein below:-(i) CIT vs. Govinda Choudhury & Sons reported in (1993) 203

ITR 881 (SC) copy appearing at pages 294 to 298 of thepaper book)

(ii) CIT vs. Vidyut Corporation reported in (2010)324 ITR 221(Bombay) (copy appearing at pages 298 to303 of the paper book).

(iii) Jagdishprasad M. Joshi vs. DCIT reported in (2005) 97 TTJ924 (copy appearing at pages 355 to 358)

(iv) ACIT vs. Maxcare Laboratories Ltd. reported in (2005) 92ITD 11 (copy appearing at pages 359 to 370)

wherein the case of Jagdishprasad (supra) has been followed.

37. While giving directions for exclusion of interest as perdetails given in Para.... hereinfore, from computation of eligibleprofit under section 80IA, the Ld. CIT(A) has referred to hisorders for earlier assessment years wherein various case lawshad been cited. The said case laws have duly been dealt with in


34

paras 15,16,17,18,19 and 20 of the written submissions dated26.03.2012 filed before the Id. CIT(A), copy appearing at pages209 to 225 of the paper book, relevant passages appearing atpages 217 to 223 thereof. Further reliance is specifically placedon the submissions dated 26.03.2012 as made before the Id.CIT(A)-I, Kanpur during the course of hearing of appeal (copyappearing at pages 209 to 225 of the paper book).”

18. Learned D.R. of the Revenue supported the orders of the authorities

below.

19. We have considered the rival submissions. We find that it is settledposition of law that for the purpose of allowing deduction u/s 80IA, only those

income are to be considered which are derived from the eligible activity andnot those income which are in relation to the eligible activity. As per thedetails brought on record by Learned A.R. of the assessee in Para 16 of thewritten submissions as reproduced above, it is seen that it includes Processingfees, Misc. receipt, Interest money & premium forfeiture, Use & occupationcharges, Rent received, time extension fee, Interest on FDR, sub Lettingcharges, Interest on sewerage charges, sales of application forms/TEF etc,

rent received on Flattered factory etc. The deduction u/s 80IA has beenclaimed by the assessee in respect of developing infrastructure facility as persub section (4) of section 80IA. Now the question is whether these receiptsof the assessee can be said to be income derived from this activity of theassessee company. In our considered opinion, it cannot be said that thesereceipts are derived from the activity of the assessee company regardingdevelopment of infrastructure facility. At the best, it can be said that these

receipts are in relation to this activity of the assessee company but it cannotbe accepted that these receipts are derived from this activity of the assesseecompany regarding development of infrastructure facility. Therefore, thesereceipts are not eligible for deduction u/s 80IA. Various judgments cited bythe learned AR in his written submissions are not applicable for this reasonthat these receipts are not income derived from the activity of the assessee


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company regarding development of infrastructure facility. Hence, in ourconsidered opinion, no interference is called for in the order of CIT(A) on thisissue. These grounds of the assessee are rejected.

20. Ground Nos. 11 & 12 of the appeal are also inter connected, which readas under:

“11. BECAUSE the expenditure classified under the head "priorperiod expenses" accrued as a liability in the year under appealand the same stood fully supported by relevant bills andvouchers and directions as aforesaid are wholly vitiated.

12. BECAUSE all such details as were necessary and relevantfor the purposes of allowing deduction for sums aggregatingRs.90,12,343/- as stood classified under the head "adjustmentrelating to previous year" being available on record, the "CIT(A)"himself should have allowed the same in exercise of his appellatejurisdiction.”

21. It was submitted by Learned A.R. of the assessee that on this issue,

Para No. 38 to 39 of the written submissions filed by assessee are relevant fordeciding this issue and therefore, these paras are reproduced below:

“38. Prior period expenses (grounds no.ll & 12): Reliance in thisrespect is specifically placed on paras 15 and 16 of the writtensubmissions dated 07.03.2012 (copy appearing at pages 135 to145) as had been made before the Id. CIT(A) during the courseof hearing, the same are reproduced hereunder:-

"15. Ground No.7 (Adjustment relating to previous year -Rs.90,12,342/-. The disallowance in question is made upmainly of the following items:-

(Rs.)(i)Interest accrued written back 80,84,933

(ii)Water charges payable to Jal Sansthan 5,92,000

As regards (i) above, it is in the nature of 'bad debts'written off and as per the law of bad debts as amended


36

with effect from 1.4.1989, it is admissible as deduction onthe basis of "write off". The point at issue is covered bythe decision of Special Bench of Hon'ble ITAT in the caseof Dy. CIT vs. Oman International Bank reported in 100ITD 285. In the appellant's own case also, similar write-offhad been allowed from the stage of the Hon'ble ITAT inthe assessment year 2001-02. A copy of the order passedby the Hon'ble ITAT is enclosed.

16. Similarly, liability on account of payment of 'watercharges,' arose in the year under appeal itself, as a resultof demand created by Jal Sansthan, Kanpur. Therefore,even though it was shown under the head "Prior PeriodExpenses", to meet the requirement of drawing of AnnualStatement of Account as per Schedule-VI of theCompanies Act and Part II and III thereof, it is admissibleas deduction in this year itself as per the Income-taxLaw." (page 142 of the PB)

39. Further, on the issue of accrual of expenses, althoughlegitimate to prior period and admissibility thereof in the yearunder appeal, reliance is placed on the decision of Hon'ble DelhiHigh Court in the case of Krishak Bharati Cooperative Ltd. vs.CIT & Anr reported in (2013) 96 DTR (Del) 13, wherein theirlordships have observe and held as under:-

"Conclusion: When, by their letter dt. 20th APRIL, 1988,the Government of India converted a part of their equityshare capital amounting to Rs.16 crores into a loan withretrospective effect: Rs.6 crores from 26th Dec., 1983 andRs.10 crores from 20th Jan., 1984, claim for deductionunder section 36(l)(iii) was not allowable in asst, yrs.1987-88 and 1988-89, liability having been accrued andcrystalised after end of previous years ending on 30th

June, 1986 and 30th June, 1987 respectively."

A copy of the said judgment is enclosed as Annexure - II hereto,(pages 34 to 42)

22. Learned D.R. of the Revenue supported the orders of the authoritiesbelow.


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23. We have considered the rival submissions. In this regard, we find thatthis issue was decided by CIT(A) as per Para 7.2 & 7.2.1 of his order, whichare reproduced below for the sake of ready reference:

“7.2 Decision

The impugned interest income had accrued to theassessee in earlier years and had also been offered to tax inthose years. During the year, as per the norms (detailed in theasstt. order), the assessee company wrote off this interestamount during the year as not recoverable. The question iswhether the assessee company had written off such amountseven in the ledger account of the respective allottees. There areno such details on the record. I hereby direct the A.O. to call forthe relevant details and in case, these amount have been writtenoff in the accounts of the respective allottees, the same wouldstand allowed.

7.2.1 As regards the water charges payable to Jal Sansthan, theA.O. is directed to verify the demand raised by the Jal Sansthan.In case it is found that such demand was raised during the yearunder reference, the impugned amount would stand allowed asdeduction.”

23.1 From the above paras from the order of CIT(A), we find that a clear

finding is given by CIT(A) that the assessee has not established that it haswritten off alleged interest in the ledger account of the respective allottees.Before us also, no evidence has been brought on record to establish that thisinterest receivable having been accrued in the earlier year has been writtenoff in the books of account. Regarding the second aspect of this matter i.e.water charges payable to Jal Sansthan, we find that CIT(A) has directed theAssessing Officer to verify the demand raised by Jal Sansthan and in case it is

found that such demand was raised during the year under reference, theimpugned amount would stand allowed as deduction. In view of thesefindings of CIT(A), which could not be controverted by Learned A.R. of the


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assessee, we do not find any infirmity in the order passed by learned CIT(A).These grounds are also rejected.

24. Ground No. 13 of the appeal is as under:

“13. BECAUSE the "CIT(A)" after having accepted, that theprovisions of section 14A read with Rule 8D were not applicablein the year under appeal, has grossly erred in upholding anadhoc disallowance of Rs.1,00,000/- out of expenditure claimedby the "appellant".

25. It was submitted by Learned A.R. of the assessee that on this issue,Para No. 40 to 42 of the written submissions filed by assessee are relevant fordeciding this issue and therefore, these paras are reproduced below:

“40. Ad hoc disallowance under section 14A (Ground no.13): Itis a matter of record that dividend income has been earned fromshares in which investment had been made by UPSIDC in earlieryears (out of its equity and other surplus funds) as a part of itsactivities related to long term finance. No borrowed funds havebeen invested and looking to the nature of business carried onby the appellant, no other expenditure also was incurred or evenrequired to be incurred in earning the dividend income. It issignificant that there is no finding by the Assessing Officer thatany expenditure had been incurred by the appellant, in earningthe said income.

41. More over the income from dividend is Rs.3,32,369/- only,whereas disallowance has been made for sum of Rs.6,44,865/-,by applying Rule 8D. The Ld. CIT(A) has categorically held thatthe said rule was not applicable in this year (assessment year2007-08), yet he has sustained an ad hoc disallowance ofRs.1.00 lacs, which is wholly illegal, unsustainable both on factsas well as in law. A reference is also made, in this respect, to thedecision of Hon'ble Supreme Court in the case of CIT vs. WalfortShare and Stock Brokers P. Ltd. reported in (2010) 326 ITR 1(SC), wherein at page 17 the following principles has been laiddown:-

"Therefore, one needs to read the words "expenditureincurred" in section 14A in the context of the scheme of


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the Act and, if so read, it is clear that it disallows certainexpenditure incurred to earn exempt income from beingdeducted from other income which is includible in the"total income" for the purpose of chargeability to tax."

42. Further reliance is also placed on the decision of Hon'bleDelhi High Court in the case of CIT vs. Hero ManagementService Ltd. reported in (2014) 360 ITR 68 and also an earlierdecision dated 28.02.2012 passed by Hon'ble Karnataka HighCourt in the case of CCI Ltd. vs. JCIT in ITA No.359 of 2011.”

26. Learned D.R. of the Revenue supported the orders of authorities below.

27. We have considered the rival submissions. we find that the assessmentyear involved is 2007-08 whereas Rule 8D has been made applicable from

next year i.e. assessment year 2008-09 and therefore, Rule 8D is notapplicable. This issue was decided by CIT(A) as per Para 8.1 of his orderwhich is reproduced below for the sake of ready reference:

“8.1 Discussion/Decision:

I have gone through the findings given by the A.O. andalso the submissions made by the Ld. A.R. In view of the of thedecision of the Hon'ble Bombay High Court in the case of Godrej& Boyce Manufacturing Co. Ltd. vs DCIT (328 ITR 81), it has tobe held that Rule 8D could not be invoked by the A.O. for theA.Y. 2007-08, however, there is no embargo on the A.O. incomputing the disallowance under Sec. 14A on a reasonable andfair basis. This issue also came before the undersigned in theappeal proceedings for earlier years (in assessee's own case),wherein it was decided that a L.S. disallowance of Rs. 1 lacwould meet the end of justice. Ordered accordingly.”

27.1 We find that CIT(A) has confirmed the disallowance of Rs. 1 lac in line

with his decision on this issue in earlier years. This is not the case of theassessee that such decision of CIT(A) in earlier year has been reversed by theTribunal. Otherwise also, in our considered opinion, Rs. 1 lac disallowance isreasonable in the facts of the present case because the disallowance worked


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out by the Assessing Officer as per Rule 8D was Rs.5,90,760/- being 0.5% ofaverage investment. As against this, CIT(A) has confirmed the disallowanceof Rs. 1 lac out of administrative expenses and no disallowance has beenconfirmed out of interest expenditure for which, disallowance was made by

the Assessing Officer as per Rule 8D. Considering all these facts, we do notfind any reason to interfere in the order of CIT(A). Accordingly, this ground isrejected.

28. Ground Nos. 14 and 15 are also inter connected which read as under:

“14. BECAUSE "CIT(A)" has erred in law and on facts in issuing"notice of enhancement" and in pursuance of such "notice ofenhancement", holding that the "appellant" was not entitled todeduction under section 36(1)(viii) of the Act.

15. BECAUSE on the facts and circumstances of the case, the"appellant" was liable to be held and treated as a companyengaged in the business of "providing long-term finance" asenvisaged in section 36(1)(viii) of the Act and its claim fordeduction there under (as had duly been allowed by theAssessing Officer while making scrutiny assessment) wasdeserved to be upheld and direction given by the CIT(A) forwithdrawal of the same is wholly illegal.”

29. It was submitted by Learned A.R. of the assessee that Para No. 43 to48 of the written submissions are relevant for deciding the issue. He also

submitted that this claim was allowed in earlier years and therefore, the sameshould be allowed in the present year also. He placed reliance on theTribunal decision in assessee’s own case in I.T.A. No.642/Lkw/2010 dated23/12/2008 available on page No. 281 to 291. He also submitted that therelevant pages are page No. 286 to 288 of the paper book.

30. As against this, it was submitted by Learned D.R. of the Revenue thatres judicata is not applicable in income-tax proceedings. He also submittedthat in the present case, there is no loan or advance given by the assessee.


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Hence, the provisions of section 36(1)(viii) are not applicable in the presentcase. He also submitted that on page No. 260 to 272 of the paper book is asample copy of lease deed executed by the assessee company in favour ofallottees and in particular our attention was drawn to page No. 262 of the

paper book and it was pointed out that as per the this, last installment ispayable on 01/07/2009 and the lease deed is dated 27/12/2004. Hesubmitted that hence it has to be accepted that total installments are to bepaid by the allottees before completion of five years from the date ofexecution of lease deed and even if it is considered loan, the same is not longterm loan or advance as required as per clause (h) of explanation to section36(1)(viii) of the Act. He placed reliance on a judgment of Hon'ble Apex

Court rendered in the case of 1 SCC 236. He also placed reliance on aTribunal decision rendered in the case of Tamilnadu Power Finance &Infrastructure Development Corpn. Ltd. vs. ACIT [2013] 143 ITD 147.

31. We have considered the rival submissions. We find that in a paperbook of 381 pages submitted by the assessee, only one sample lease deedexecuted by the assessee in favour of the allottees is made available on pageNo. 260 to 272 of the paper book. This lease deed is dated 27/12/2004 andas per clause (1) of this lease deed, the outstanding premium ofRs.12,71,250/- was to be repaid by the allottee in 10 equal installments of

Rs.1,27,125/- each and the last installment is payable on 01/07/2009 alongwith the interest @15% per annum. Hence, as per the facts of this leasedeed available in the paper book, it is seen that even if it is accepted thatallowing installment facility to the allottee of lease by the assessee company isgiving loans and advances then also, this is not a long term finance as perclause (h) of explanation to section 36(1)(viii) because as per this explanation,long term advance has been defined as any loan or advance where the terms

under which moneys are loaned or advanced provide for repayment alongwith interest thereof during a period of not less than five years. In the


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present case, the repayment is to be made in a period less than five yearsand therefore, this cannot be accepted as long term finance. Since only asample copy of only one lease deed is made available to us, we accept that allother lease deeds are similar. In the light of these facts, we have no

hesitation in holding that the assessee is not eligible for deduction u/s36(1)(viii) of the Act. Accordingly, ground No. 14 & 15 are rejected.

32. In the result, the appeal of the assessee stands dismissed.

(Order was pronounced in the open court on the date mentioned on the captionpage)

Sd/. Sd/.(SUNIL KUMAR YADAV) ( A. K. GARODIA )

Judicial Member Accountant Member

Dated: 05/09/2014.*C.L.Singh

Copy of the order forwarded to :1. The Appellant2. The Respondent.3. Concerned CIT4. The CIT(A)5. D.R., I.T.A.T., Lucknow Asstt. Registrar


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