Sadhu Forging Ltd., New Delhi vs Assessee

ITA NO. 999/Del/2013

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH "G", NEW DELHI BEFORE SHRI H.S. SIDHU, JUDICIAL MEMBER AND SHRI J.S. REDDY, ACCOUNTANT MEMBER I.T.A. No. 999/DEL/2013 A.Y. : 2002-03 M/s Sadhu Forging Limited, Deputy Commissioner of 3 floor, K.C. House, 5/66, WEA VS. Income Tax, rd

Padam Singh Road, Circle 7(1), Karol Bagh, CR Building, New Delhi New Delhi - 110 005 PAN: AAACS0351F) (APPELLANT) (RESPONDENT)

Assessee by : Sh. R.K. Mehra, CA & Sh. Munish K. Adv. Department by : Sh. BRR Kumar, Sr. DR

Date of Hearing : 03-02-2015 Date of Order : 09-02-2015

ORDER

PER H.S. SIDHU : JM This appeal by the Assessee is directed against the Order of the Ld. Commissioner of Income Tax (Appeals)-X, New Delhi dated 05.12.2012 pertaining to assessment year 2002-03. The assessee has as many as 10 grounds of appeal, but in all the grounds the issue is common i.e. allocation of interest and expenditure on the basis of the utilization of loan amount among various units for the purpose of direction under section 80IA of the Income Tax Act, 1961.

2. The brief facts of the case are that the AO completed the original assessment on 18.03.2005 determining total taxable income at Rs.1,89,80,941/-. In the original assessment order, the Assessing Officer noticed from the consolidated financial statement that profit

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of the all the five units taken together was shown by assessee at Rs.2,87,53,475/- on the total sale and job work amounting to Rs.52,88,33,942/- giving a net profit of 5.4%. He also noted that total sale and job work of unit three was shown at Rs.13,24,07,383/- and profit declared was at Rs.1,23,71,140/- giving net profit of Rs.9.34%. As the net profit declared by the unit-Ill was substantially higher than the net profit all the five units taken together, the assessee was called upon by the AO to show cause as to why the allocation of administrative and financial expenses should not be done. After considering the reply filed by the assessee, AO noted that out of total interest expense of Rs.1,02,62,515/- only Rs.9,09,064/- was allocated to Unit-III i.e. 8.85% of interest expense as against its share of 25.02% in total turnover. The Assessing Officer has apportioned Rs.16,58,617/- to Unit-III and thereby restricted the claim for deduction u/s. 80IA of the Act. The Ld. CIT(A) has upheld the addition made by the AO and matter went upto ITAT. The ITAT has admitted the additional evidence filed by the assessee i.e. in the form of a Certificate issued by State Bank of Patiala on 12.10.2007 wherein showing the limits granted for various units for working capital and set aside the issue to the file of AO with the direction to decide the same afresh in the light of the additional evidence after giving the assessee an opportunity of being heard. In compliance of the ITAT's order dated 4.7.2008 passed in ITA NO. 4835/Del/2005 for the asstt. year in dispute, the AO issued a notice u/s. 142(1) dated 16.09.2009 to the assessee. In response to the same, Authorised Representative appeared from time to time and filed the details as required by the AO. After going through the details filed by the assessee, the AO did not accept the contention of the assessee and held at page 2 to 3 of his order, which is reproduced as under:-

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ITA NO. 999/Del/2013

"I have gone through certificate issued by the assessee and assessment record for A.Y. 2002-03 and unable to accept the contention of assessee. The certificate produced by the assessee only reflects the purpose for which loan was issued to Unit-III. However, the assessee could not discharge its onus either at the time of original assessment proceedings or during set aside proceedings that the amount so sanctioned by the bank was utilised for Unit-Ill wholly and exclusively. Since, the provisions related to deductions and exemptions are to be construed strictly and onus lies on assessee to substantiate the genuineness and correctness of deduction so claimed. In the instant matter assessee is unable to substantiate the claim of utilization of fund exclusively for Unit-III. Since, there are inter unit fund transfers also, therefore, the limit sanction for one unit cannot be exclusively used for that Unit only. I, therefore, disallow the claim of the assessee and added back the amount of Rs. 9,09,064/- as income of the assessee. Since, I am satisfied that assessee has furnished inaccurate particulars of its income, therefore, penalty proceedings u/s. 271(1)© are initiated separately."

3. Aggrieved by the assessment order dated 30.11.2009 passed by the AO, assessee filed an Appeal before the Ld. First Appellate Authority, who vide impugned order dated 5.12.2002 dismissed the Appeal filed by the assessee and upheld the finding given by the AO in the assessment order, as reproduced above.

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4. Now the assessee has filed the present Appeal against the

impugned order dated 5.12.2012 passed by the Ld. CIT(A). At the

time of hearing, Ld. Counsel of the assessee stated that the issue in

dispute is squarely covered by the decision of the ITAT, Delhi 'G'

Bench passed in assessee's own case vide ITA No. 238/D/2008 (A.Y.

2004-05) and ITA No. 425/D/2008 (A.T. 2004-05) in the case of ACIT

vs. M/s Sadhu Forging Ltd. vide order dated 30.4.2010. Assessee

has filed a copy of the aforesaid order with the Paper Book which

containing pages 1 to 63 in which he has attached various

documentary evidences including the order of ITAT as aforesaid and

the order dated 31.1.2007 passed by the Ld. CIT(A) on the same

issue in the assessee's own case for the asstt. year 2003-04. He

further stated that Ld. CIT(A) has not followed the order of the ITAT

in assessee's own case for the asstt. year 2004-05 (against which

the Revenue has not filed any appeal before the High Court) which

was brought to the notice of the Ld. CIT(A) at the time of appellate

proceedings. Assessee has also brought to the notice of the Ld.

CIT(A), the order of his predecessor dated 31.1.2007 for the asstt.

year 2003-04 on the same issue which has been decided in favor of

the assessee (against which the Revenue has not filed any appeal

before the Tribunal). He requested that the issue of allocation of

interest expenditure on the basis of utilization of loan amount

among various units for the purpose of deduction u/s. 80IA of the I.T.

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Act has already been decided in favor of the assessee by the

Tribunal as well as by the Ld. CIT(A). Therefore, he requested that

the appeal filed by the assesee may be allowed, in view of the order

passed by the Tribunal as aforesaid.

5. Ld. DR controverted the arguments advanced by the Ld. Counsel of the assessee and relied upon the order passed by the Tribunal.

6. We have heard both the parties and perused the relevant

records available with us, specially the orders passed by the

authorities below alongwith the order of the Tribunal dated

30.4.2010 for the asstt. year 2004-05 in assessee's own case on the

same issue. After perusing the Tribunal order dated 30.4.2010, we

are of the view that Ld. CIT(A) has not followed the order dated

30.4.2010 of this Tribunal passed in assessee's own case for the

asstt. year 2004-05 in which the similar issue has been adjudicated

and decided in favor of the assessee. For the sake of convenience,

the relevant findings given by the Tribunal from para 4 to 5 at pages

5 to 6 in its order dated 30.4.2010 passed in assessee's own case in

ITA No. 238/D/2008 (A.Y. 2004-05) and ITA No. 425/D/2008 (A.Y.

2004-05) in the case of ACIT vs. M/s Sadhu Forging Ltd. is

reproduced as below:-

"4. We have considered the rival contentions, gone through the orders of the authorities below

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and found from the record that assessee was having four industrial units located at different sites. Unit-'-III situated at Faridabad was eligible for claim of deduction u/s 80IB. While computing eligible profit for claim of deduction u/s 80IB, the AO reduced the profit by amount of financial charges of RS.ll.43 lakhs, scrap sale and job work receipt of Rs.33.64 lakhs. As per AO, the assessee had shown financial charges in Unit-Ill only of Rs.20.26 lakhs which included interest on other loans of RS.I0.36 lakhs and discounting and bank charges at Rs.9.90 lakhs. Total financial charges claimed by the assessee was to the tune of Rs.1,53,16,997/-which includes interest on term loan of Rs.5,62,847/-, interest on other loans of Rs.95,26,591/- and discounting and bank charges at Rs.52,27,559/-. It was also noticed by the AO that regarding eligible Unit III the financial Charges have been shown at 13.23% of total financial charges as against profit of 40.29% and turnover of 22.88% of Unit Ill. It was also noticed by the AO that the assessee had taken all the loans in Unit I in respect of Units I, Il and III and the assessee company had distributed financial charges of different units in proportion of sales. It was noted that there was no term loan shown in eligible Unit Ill, discounting and bank charges have been accounted for on unit basis. However, other interest charges charged to Unit III were only Rs.10,36,077/- while total other interest charges were Rs.95,26,591/-. It was explained by the assessee before the AO that interest and financial 6 ITA NO. 999/Del/2013

charges are being spread over to Unit II & III on the basis of sale, and the interest paid for unit IV was in respect of loan taken for unit IV only, therefore there is no reason for spreading the interest on loan of Unit IV, over other units including the Unit III which is eligible for claim of exemption u/s 80IB. It was noted that sale of Unit III is 22.88% of the gross sales. Therefore, the AO concluded that the total other interest should be spread over uniformly to all units in the proportion of gross sale. Accordingly, he calculated other interest charges allocable to eligible Unit III at Rs.21,79,684/- (22.88% of Rs.95,26,591/-). The assessee company had assigned other interest at Rs. 10,36,077/-. Therefore, the AO had reduced the profit of Unit Ill, by Rs. 11,43,607/- (Rs. 21,79,684/- - Rs. 10,36,077) and considered the same for computation of deduction u/s. 80IB and accordingly, the deduction was reduced by this amount.

5. From the record, we found that assessee was maintaining separate books of account for each unit and same have been produced before the AO. The interest paid in respect of Unit IV which was engaged in the manufacturing of gears, was taken only for the purpose of Unit IV, there was no reason for spreading over the interest expenditure of unit IV which is a separate unit over the other units on the basis of sales. We found that unit IV was sanctioned bank loan separately which was utilized for unit IV only. In respect of other borrowings from

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the bank, the assessee has spread over expenditure of interest over unit I, II and III on the basis of their sales which is the recognized method of allocation of interest. The assessee has also filed certificate from State Bank of Patiala certifying that cash credit of Rs.500 lakhs of which there was a separate CC account, was in respect of gear division unit of the company. Thus, on the basis of interest actually paid by the assessee in respect of loan, taken for unit IV, after recording detailed finding at para 4.3 and 4.4, the CIT(A) has deleted the reallocation of interest and financial expenditure to unit Ill; Which has not been controverted by the learned DR. Since the working capital limit of Rs.500 lakhs sanctioned for unit IV was exclusively utilized for its gear division, there was no reason for spreading interest ofRs.63,08 lakhs over other units. In respect of other interest on working capital loan of RS.23.43 Iakhs, the assessee itself has on allocated the same to Unit I, II and III based on sales figure. Similarly, interest on unsecured loans was also allocated to all units as per utilization of funds. Accordingly, we do not find any infirmity in the order of CIT(A) for deleting the reduction of eligible profit of Unit III by the amount of interest of Rs. 11.43 lakhs, while computing claim of deduction u/s 80IB. It is pertinent to mention here that in the AY 2003-04, against the order of AO for reducing profit of unit III by the amount of interest and financial charges of Unit IV, the assessee filed appeal before CIT(A) who allowed the same in favour of the assessee and the 8 ITA NO. 999/Del/2013

Revenue did not go in further appeal before the Tribunal.

6. In view of the above discussion, we do not find any infirmity in the order of CIT(A) for directing the AO not to reduce interest and financial charges of Unit IV, from the eligible profit of unit III while computing deduction u/s 80IB."

7. Similarly, the Ld. CIT(A) has also passed the order dated

31.1.2007 in assessee's own case for the asstt. year 2003-04

adjudicated and decided the issue in dispute in favor of the

assessee. We fail to understand why the Ld. CIT(A) in impugned

order has not followed the ITAT direction given in order dated

30.4.2010 as well as the order dated 31.1.2007 passed by his

predecessor, in spite of the fact the Department has not filed any

appeal against the orders of the Tribunal as well as the Ld. CIT(A)

before the higher authority. This treatment given by the Ld. CIT(A)

while adjudicating the issue in dispute, in spite of the availability of

both the orders are not appreciated, which he has to follow, being

the subordinate to the tribunal.

8. Keeping in view of the facts and circumstances as explained

above, we are of the considered view that the issue regarding

allocation of interest expenditure on the basis of the utilization of

loan amount among various units for the purpose of deduction u/s.

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ITA NO. 999/Del/2013

80IA is squarely covered by the decision of the ITAT, Delhi 'G'

Bench passed in assessee's own case vide ITA No. 238/D/2008 (A.Y.

2004-05) and ITA No. 425/D/2008 (A.T. 2004-05) in the case of ACIT

vs. M/s Sadhu Forging Ltd. vide order dated 30.4.2010.

Respectfully, following the order of the Tribunal as aforesaid, we

allow the appeal of the assessee on the similar lines and the

impugned order is cancelled.

9. In the result, the Appeal filed by the Assessee stands allowed.

Order pronounced in the Open Court on 09/2/2015.

Sd/- Sd/- [J.S. REDDY] [H.S. SIDHU] ACCOUNTANT MEMBER JUDICIAL MEMBER

Date 09/2/2015 "SRBHATNAGAR" Copy forwarded to: - 1. Appellant - 2. Respondent 3. CIT 4. CIT (A) 5. DR, ITAT

TRUE COPY By Order,

Assistant Registrar, ITAT, Delhi Benches

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