IN INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES D , MUMBAI BEFORE SHRI SANJAY GARG (JUDICIAL MEMBER) AND SHRI ASHWANI TANEJA (ACCOUNTANT MEMBER) I.T.A. No.6406/Mum/2014 (Assessment Year: 2010-11) Rusan Pharma Ltd vs ITO, 93)(4), Mumbai Rusan House 58-D, Govt. Industrial Estate Charkop, Kandivali (W) Mumbai-67 PAN : AABCR3179H (Appellant) (Respondent) Appellant by Shri Prakash Pandit Respondent by Shri B.S. Bist (CIT DR) Date of hearing : 29-09-2016 Date of pronouncement : 30 -09-2016 ORDER Per ASHWANI TANEJA, AM: This appeal is against order of Commissioner of Income-tax (Appeals)-20, Mumbai [hereinafter called CIT(A)] dated 03-07-2014 passed against assessment order dated 29-03-2012 for A.Y. 2010-11 on following grounds: In facts and circumstances of case and in law, learned CIT Appeals erred in confirming that income of Rs. 24, 550 /- o n acco unt of Sale of Scr ap does not quali fy for deduction u/s I0A/10B of IT Act, 1961. 2 I.T.A. No.6406/Mum/2014 Reasons given by CIT Appeals for confirming that income of Rs. 24,550/- on account of Sale of Scrap does not qualify for deduction u/s IOA/IOB of IT Act, 1961 are wrong, insufficient and contrary to facts and evidences on record 3 In facts d circumstances of case and i n law , learned CIT Appeals erred in confirming that amount of Rs. 11,21,155/- being sundry balances written off at Ankleshwar Unit & Kandla Unit does not qualify for deduction u/s IOA/IOB of IT Act, 1961. 4 Reasons given by CIT Appeals for confirming that amount o f Rs. 11,21,155/- being sundry balances written of fat Ankleshwar Unit & Kandla Unit does not qualify for deduction u/s IOA/IOB of IT Act, 1961 are wrong, insufficient and contrary to facts and evidences on record In facts and circumstances of case and in law, learned CIT Appeals erred in confirming disallowance of Rs. 14,78,358/- on account of Commission & Brokerage being amount not qualifying for deduction u/s 10A/10B of IT Act,1961. 6. Reasons given by CIT Appeals for confirming t h e disallowance of Rs. 14,78,358/- on account of Commission & Brokerage being amount not qualifying for deduction u/s I O / I O B o f t h e I T c t , 1 9 6 1 r e w r o n g , i n s u f f i c i e n t n d contrary to facts and evidences on record 7 In facts and circumstances of case and in l w , t h e learned CIT Appeals erred in confirming disallowance of Rs. 17,16,620/- on account of Exchange Variation Gain being amount not qualifying for deduction u/s IOAI10B of IT Act, 1961. 8 Reasons given by CIT Appeals for c o n f i r m i n g t h e disallowance of Rs. 17,16,620/- on c c o u n t o f E x c h n g e Variation Gain being amount not qualifying for deduction u/s IOA/10B of IT Act, 3 I.T.A. No.6406/Mum/2014 196 1, are wron g , insufficient d contrary to facts and evidences on record 9 In facts and circumstances of case and in l w , t h e l ea r ned C IT pp ea ls err e d in co nf irm ing t h t i nc ome of Rs. 9,68,789/- on account of DEPB Incentive pertaining to Kandla Unit does not qualify for deduction u/s IOA/IOB of IT Act, 1961. 1 0 R eas o ns g iv en b y th e C IT Ap pea ls f or c on fi rmi ng t ha t i nc ome of Rs. 9,68,789/- on account of DEPB Incentive pertaining to Kandla Unit does not qualify for deduction u/s IOA/IOB of IT Act, 1961 are wrong, insufficient and contrary to facts and evidences on record. 12 Reasons given by CIT Appeals for confirming that income o f R s . 1 7 , 1 6 . 6 2 0 / - o n c c o u n t o f mi s c e l l n e o u s r e c e ip t s pertaining to Kandla Unit does not qualify for deduction u/s I O / I O B o f t h e I T c t , 1 9 6 1 r e w r o n g , i n s u f f i c i e n t n d contrary to facts and evidences on record. 2. During course of hearing, it was stated at very outset by Ld. Counsel that most of grounds are covered by order of Tribunal passed in assessee s own case for A.Y. 2007-08 AND 2008-09 (ITA Nos 59 & 8703/Mum/2011 & 1063 & 8691/Mum/2011 dated 16-01-2014) and also order for A.Y.2009-10 in ITA No.6802/Mum/2012 dated 03-12-2014 and requested to follow same. 3. Per contra, Ld. DR did not make any distinction on facts or law. 4. Therefore, after hearing both parties, we decide all grounds as under:- 4.1 Grounds 1 & 2 are not pressed by assessee, therefore, these are dismissed. 4.2 Grounds, 3, 4, 5, 6 7 & 8 : With regard to these grounds, it was submitted by Ld. Counsel that similar issues were involved in earlier years wherein Tribunal has sent these issues back to file of Assessing Officer with direction to re-adjudicate same as per directions given by Tribunal. Ld. 4 I.T.A. No.6406/Mum/2014 DR did not raise any objection in this regard. 4.3 We have gone through orders of Tribunal for earlier years and find argument of Ld. Counsel to be correct. Accordingly, we send these grounds back to file of Assessing Officer for fresh adjudication after giving opportunity of hearing to assessee. Assessing Officer is directed to follow aforesaid orders of Tribunal in assessee s own case for earlier years. These grounds may be treated as allowed for statistical purposes. 4.4 Grounds 9 & 10: In these grounds, assessee has challenged action of lower authorities in not granting benefit of deduction u/s 10A/10B on amount of DEPB incentive pertaining to Kandla unit. It was submitted that this issue was decided by Tribunal for earlier years in favour of assessee. Ld. DR did not raise any objection in this regard. It is noted by us that Tribunal in earlier years orders has decided this issue in favour of assessee by relying upon decision of Hon ble Bombay High Court in case of Arts & Crafts Exports Ltd vs ITO 246 CTR 463 (Bom). Therefore, respectfully following decision of Tribunal for earlier years, we decide this issue in favour of assessee and direct Assessing Officer to follow order of Tribunal for earlier years on this issue also. Accordingly, these grounds are allowed. 4.5 Grounds 11 & 12: In these grounds, assessee has contested that there is no proper application of mind by lower authorities, and therefore, these grounds need fresh adjudication. Per contra, Ld. DR did not raise any objection in this regard. 4.6 We have gone through orders of lower authorities and find that Assessing Officer had not applied his mind on this issue specifically. Deduction u/s 10A / 10B was denied at threshold. benefit was denied as part of total miscellaneous receipts without making any specific discussion with regard to impugned amount. other issues have also been sent back to file of Assessing Officer and therefore, in interest of justice, we deem it appropriate to send this issue also back to file of Assessing Officer for fresh adjudication. Assessing Officer shall decide this issue in proper manner, after giving adequate 5 I.T.A. No.6406/Mum/2014 opportunity of hearing to assessee. 5. In result, appeal may be treated as partly allowed for statistical purpose. Order pronounced in court on this 30th day of September, 2016. Sd/- Sd/- (SANJAY GARG) (ASHWANI TANEJA) JUDICIAL MEMBER ACCOUNTANT MEMBER Mumbai, Dt : 30th September, 2016 Pk/- Copy to: 1. appellant 2. respondent 3. CIT(A) 4. CIT 5. Ld. Departmental Representative for Revenue, D-Bench (True copy) By order ASSTT.REGISTRAR, ITAT, MUMBAI BENCHES Rusan Pharma Ltd. v. ITO, 93)(4), Mumbai