Jagdish Prasad M. Joshi , vs Assessee

सव[ौी ǒवजय पाल राव, Ûयाियक सदःय एवं , नरे Ûि कुमार ǒबãलैáया, लेखा सदःय के सम¢

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, बनाम The DCIT, बनाम/ 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, बनाम/ बनाम The DCIT, th 6 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, बनाम/ बनाम 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, बनाम The DCIT, बनाम/ 6 t h Floor, JMJ House, Central Circle11, Vs. Orchard Avenue, Old CGO Bldg. (Annex), Hiranandani Gardens, Mumbai-400 020 Powai, Mumbai-400 076

ःथायी ले खा सं . /जीआइआर सं . /PAN/GIR No. : AAAPJ 5006B Applicant .. Respondent)

Applicant by Shri Ravi Khandelwal / Neelkant Khandelwal

Respondent by Shri Rudopl N. D'Souza

सुनवाई कȧ तारȣख / Date of Hearing :23/01/2015 घोषणा कȧ तारȣख /Date of Pronouncement :28/01/2015

आदे श / 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) Ûयाियक सदःय/JUDICIAL MEMBER लेखा सदःय / ACCOUNTANT MEMBER मुंबई Mumbai; Ǒदनांक Dated 28/01/2015 व.िन.स./ RJ , Sr. PS

आदे श कȧ ूितिलǒप अमेǒषत/Copy षत of the Order forwarded to :

1. अपीलाथȸ / The Appellant

2. ू×यथȸ / The Respondent.

3. आयकर आयुƠ(अपील) / The CIT(A)-

4. आयकर आयुƠ / CIT

5. ǒवभागीय ूितिनिध, आयकर अपीलीय अिधकरण, मुंबई / DR, ITAT, Mumbai

6. गाड[ फाईल / Guard file.

आदे शानुसार/ ार BY ORDER, स×याǒपत ूित //True Copy// उप/सहायक उप सहायक पंजीकार (Dy./Asstt. Registrar) आयकर अपीलीय अिधकरण, अिधकरण मुंबई / ITAT, Mumbai