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IN THE INCOME TAX APPELLATE TRIBUNAL " J" BENCH, MUMBAI
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BEFORE SHRI VIJAY PAL RAO,JUDICIAL MEMBER &
SHRI N.K.BILLAIYA, ACCOUNTANT MEMBER
M.A.NO.282/MUM/2014
Arising out of I.T.A. No.5224/Mum/2012
Assessment Year :2000-2001
Shri Jagdishprasad M. Joshi, / The DCIT,
6 t h Floor, JMJ House, Central Circle11,
Vs.
Orchard Avenue, Old CGO Bldg. (Annex),
Hiranandani Gardens, Mumbai-400 020
Powai,
Mumbai-400 076
M.A.NO.283/MUM/2014
Arising out of I.T.A. No.5225/Mum/2012
Assessment Year :2002-03
Shri Jagdishprasad M. Joshi, / The DCIT,
6 t h Floor, JMJ House, Central Circle11,
Vs.
Orchard Avenue, Old CGO Bldg. (Annex),
Hiranandani Gardens, Mumbai-400 020
Powai,
Mumbai-400 076
M.A.NO.366/MUM/2014
Arising out of I.T.A. No.5082/Mum/2012
Assessment Year :2002-03
Shri Jagdishprasad M. Joshi, / The DCIT,
6 t h Floor, JMJ House, Central Circle11,
Vs.
Orchard Avenue, Old CGO Bldg. (Annex),
Hiranandani Gardens, Mumbai-400 020
Powai,
Mumbai-400 076
2 366-MA Jagdishprasad Joshi
MA NO.284/MUM/2014
Arising out of ITA No. 6631/Mum/2011
Assessment Year :2003-04
Shri Jagdishprasad M. Joshi, / The DCIT,
6 t h Floor, JMJ House, Central Circle11,
Vs.
Orchard Avenue, Old CGO Bldg. (Annex),
Hiranandani Gardens, Mumbai-400 020
Powai,
Mumbai-400 076
. / . / PAN/GIR No. : AAAPJ 5006B
Applicant .. Respondent)
Applicant by Shri Ravi Khandelwal /
Neelkant Khandelwal
Respondent by Shri Rudopl N. D'Souza
/ Date of Hearing :23/01/2015
/Date of Pronouncement :28/01/2015
/ O R D E R
PER N.K.BILLAIYA, J.M:
Miscellaneous Application Nos.282, 283, 284 & 366/Mum/2014
by the assessee are arising out of the very same order of the Tribunal in
ITA Nos. 5224/Mum/2012, ITA No.5225/Mum/2012, 5082/Mum/2012 &
6631/Mum/2011. All these Miscellaneous Applications were heard
together and disposed of by this common order for the sake of
convenience.
MA No.284/Mum/2014 (Arising out of ITA No.6631/Mum/2011):
3 366-MA Jagdishprasad Joshi
2. The assessee pointed out that while disposing of the appeal, the
Tribunal has not disposed of Ground No.2 of the appeal, which reads as
under:
"On the facts and in the circumstance of the case the Ld. CIT(A)
failed to appreciate that the transaction of sale and purchase was
entirely with M/s. Yogesh Perfumery And Essential Oil And M/s.
Sachin Perfumery Cosmetics being proprietary concern and thus,
between two arms of the same business of the assessee."
3. Before us the Ld. Counsel for the assessee stated that the issue
raised vide ground No.2 which remains to be decided is squarely
covered in favour of the assessee by the provisions of section 80 IB(13)
of the Act.
4. We have carefully perused the order of the Tribunal. We find force
in the contention of the assessee. Ground No.2 stated hereinabove was
not disposed of in ITA No.6631/Mum/2011. We accordingly, decide this
ground which will come after para-11 of the order of the Tribunal as para
-11(a).
Para-11(a): We have carefully perused the order of the
authorities below viz-a-viz ground taken by the Revenue. The issue
raised by this ground are dealt with in section 80IB (13) of the Act
which has to be read with 80 IA(8), which reads as under:
80IA "(8) Where any goods (or services) held for the
purposes of the eligible business are transferred to any other
business carried on by the assessee, or where any goods (or
services) held for the purposes of any other business carried on
by the assessee are transferred to the eligible business and, in
either case, the consideration, if any, for such transfer as
recorded in the accounts of the eligible business does not
correspond to the market value of such goods (or services) as on
the date of the transfer, then, for the purposes of the deduction
4 366-MA Jagdishprasad Joshi
under this section, the profits and gains of such eligible business
shall be computed as if the transfer, in either case, had been
made at the market value of such goods (or services) as on that
date:"
It is not the case of the Revenue that the transactions with
M/s.Yogesh Perfumery And Essential Oil & M/s. Sachin Perfumery
Cosmetics carried on by the assessee , the consideration for which
transfer as recorded in the accounts of the eligible business does not
correspond to the market value of such goods as on the date of the
transfer. We accordingly hold that the transactions with M/s.Yogesh
Perfumery And Essential Oil & M/s. Sachin Perfumery Cosmetics
are well covered by the provisions of section 80 IB(13). In the
result, ground No.2 raised by the Revenue is dismissed.
5. With the above amendment to the order of the Tribunal in ITA
No.6631/Mum/2011, the Miscellaneous Application No.284/Mum/2014
is allowed.
MA NO.366/MUM/2014(Arising out ITA No.5082/Mum/2012):
6. With this Miscellaneous Application the assessee brings to the
notice of the Tribunal that while deciding the appeal the Tribunal has
considered ground No.2 for assessment years 2001-02 and 2002-03 as
identical , whereas for assessment year 2002-03 the assessee's ground of
appeal reads as under:
"On the facts and circumstances of the case and in law he has erred
in denying the deduction u/s.80IA/80IB in respect of income from
job work (which is part of manufacturing activities) holding that
the same has no nexus with the industrial undertaking. Inter-alia
the assessee has claimed deduction under section 80 IB on interest
income/other income/job work income."
5 366-MA Jagdishprasad Joshi
7 Before us the Ld. Counsel for the assessee pointed out that though
the claim of deduction u/s.80IB is common in A.Y 2000-01 and 2002-03,
however, for income tax assessment year 2002-03, the ground of appeal
also included income from job work and other income.
8. We have carefully perused the order of the Tribunal viz-a-viz
orders of the authorities below. We find force in the contention of the
Ld. Counsel in assessment year 2002-03. The assessee has also claimed
deduction u/s.80 IB in respect of other income and job work charges.
We have also carefully perused the assessment order. Undoubtedly, the
job work charges are directly related with the business of the assessee,
hence, eligible for deduction u/s. 80 IB of the Act. We order
accordingly. However, in respect of the claim of other income which
relates to sundry balances written back, we find that the sundry balances
written back relates to the purchases/expenses made in the earlier years.
However, this fact needs to be verified by the AO. We, therefore, restore
this issue to the file of the AO for the limited purpose of verification of
the written back amount relating to the purchases/expenses of earlier
years. The AO is directed to verify and if found to be related with the
purchases /expenses of earlier years, the same has to be treated as
eligible for deduction u/s. 80IB of the Act. With these modifications to
the order of the Tribunal in ITA No.5082/Mum/2012, MA
No.366/Mum/2014 is treated as allowed for statistical purposes.
MA NO.282 & 283/MUM/2014 (Arising out of ITA Nos. 5224 &
5225/Mum/2012):
9. The common grievance raised by these two Miscellaneous
Applications relate to the findings given by the Tribunal for ground No.2
6 366-MA Jagdishprasad Joshi
of the appeal filed by the Revenue for Assessment Years 2000-01 and
2002-03.
10. Before us, the Ld. Counsel for the assessee pointed out that the
Tribunal at para -13 on page -8 of its order has considered the issues
raised by the Revenue as mentioned on para-12 at page-8 of its order and
after considering the facts and the submissions at para-18 the Tribunal
has dismissed the Revenue's appeal.
11. It is the say of the Ld. Counsel that at the time of hearing itself it
was brought to the notice of the Tribunal that the Revenue's ground
relates to bogus and fabricated purchase and sale with two arms of
the same business of the assessee which means that the grievance of the
Revenue only related to the sale made by one concern of the assessee to
another concern of the assessee.
12. We have carefully perused the order of the Tribunal viz-a-viz
ground No.2 of the Revenue in assessment year 2000-2001 and 2002-03.
We find force in the contention of the Ld. Counsel. It is an undisputed
fact that there is no issue/dispute in relation to third party sales, whereas
the Tribunal has considered and accepted the genuineness of the sales
made to : (i) M/s. Suryavinayak Aromatics (ii) Laveesha Enterprises (iii)
Jaywant Industries Ltd. & (iv) Jaywant Products Ltd.
13. After para -17 of the Tribunal's order following para -17(a) is to be
inserted which reads as under:
"Para-17(a) :To complete the adjudication we have considered
the sales made to aforementioned parties though the sale made
to these parties is not the issue raised by the Revenue in its
ground."
7 366-MA Jagdishprasad Joshi
14. With the above observations, MA Nos.282 & 283/Mum/2014 are
allowed.
15. In the result, Miscellaneous Applications Nos.284, 282 &
283/Mum/2014 are allowed and MA No.366/Mum/2014 is allowed for
statistical purpose for limited purpose.
Order pronounced in the Open Court on 28th January, 2015
Sd/- Sd/-
(VIJAY PAL RAO ) (N.K. BILLAIYA)
Û /JUDICIAL MEMBER / ACCOUNTANT MEMBER
Mumbai; Dated 28/01/2015
.../ RJ , Sr. PS
/Copy of the Order forwarded to :
1. / The Appellant
2. × / The Respondent.
3. () / The CIT(A)-
4. / CIT
5. , ,
/ DR, ITAT, Mumbai
6. [ / Guard file.
/ BY ORDER,
× //True Copy//
/
(Dy./Asstt. Registrar)
, / ITAT, Mumbai
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