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2017 (5) TMI 1492 - HC - Income TaxDeduction under Section 80IC(2)(a)(iii) on excise duty refund - refund of excise duty is not an income derived from industrial undertaking - Held that - The basic object of establishing factory in north-east part of the country is a Hercules task and is established only with a public motive of taking benefits of taxation therefore the establishment of a factory in north-east parts with all hurdles is required to be viewed in right prospective and the object of the government is to promote industries in the backward area of north-east area. When with all difficulties the assessee has established a factory in the north-east part of the country the taxes which are paid is required to be considered under the taxation statute and whenever there are two views it is well settled that the views which are in favour of the assessee is required to be adopted. No doubt issue is now squarely covered by the decision of Delhi High Court in CIT vs. Dharampal Prem Chand Ltd. (2008 (11) TMI 231 - DELHI HIGH COURT) whereby the Delhi High Court has considered the rebate of excise duty. In that view of the matter in our considered opinion the view taken by the Delhi High Court is to be accepted by this Court and we accept the same. No doubt the counsel for the department has contended that the two views are taken by the Gujarat High Court while considering the duty draw back but this will not fall within the duty as held by the tribunal and in view of judgment of Supreme Court in Meghalaya Steel (2016 (3) TMI 375 - SUPREME COURT). - Decided in favour of the assessee and against the department. Rejection of books of accounts under Section 145 (3) - Held that - Questions regarding 145 (3) in our considered opinion when the assessee was required to maintain all books of accounts for excise duty the rejection of books of accounts under Section 145(3) followed only on the ground of 99 % sale made to the sister concerned. Merely because this is made to the sister concerned is not a ground of rejection of books of accounts under Section 145 (3). Decided in favour of the assessee. Whether the payment is made duty tax and it is reflected in the books of accounts what is the profit and loss is absolutely prerogative of the assessee - Held that - In view of the observations made by the Supreme Court in S.A. Builder s 2006 (12) TMI 82 - SUPREME COURT the A.O. has to step into the shoes of assessee and has to assess. It is for the assessee to assess on what ground he has to adjust to the market condition. In that view of the matter even in second appeal all issues are answered in favour of the assessee.
Issues Involved:
1. Deduction under Section 80IC(2)(a)(iii) on excise duty refund. 2. Deduction under Section 80IC(2)(a)(iii) on declared profits. 3. Rejection of books of accounts under Section 145(3) and estimation of gross profit. 4. Over-billing and suppression of expenses. 5. Addition under Section 69C of the Act. Detailed Analysis: 1. Deduction under Section 80IC(2)(a)(iii) on Excise Duty Refund: The primary issue was whether the excise duty refund could be considered as income derived from the industrial undertaking under Section 80IC(2)(a)(iii). The department argued that excise duty refunds do not have a direct nexus with the industrial undertaking and thus should not qualify for the deduction. They cited various judgments, including CIT vs. Sterling Foods (237 ITR 579) and Liberty India Vs. CIT (2009) 317 ITR 218, which emphasized that income must have a direct and clear nexus with the industrial undertaking to qualify for such deductions. The Tribunal, however, allowed the deduction, reasoning that the refund is neutralized in the Profit & Loss Account and does not give rise to additional income. The Tribunal relied on the decision in ACIT vs. Dharampal Premchand, where it was held that such refunds do not constitute income. 2. Deduction under Section 80IC(2)(a)(iii) on Declared Profits: The second issue was whether the Tribunal was justified in allowing a higher deduction under Section 80IC(2)(a)(iii) than what was determined by the Assessing Officer. The Tribunal allowed the deduction of ?3,32,89,399/- as claimed by the assessee, rejecting the AO's lower estimate. The Tribunal found that the AO had not provided sufficient material evidence to support the suppression of expenses or over-billing claims. The Tribunal's decision was supported by the Delhi High Court's decision in CIT vs. Dharampal Premchand Ltd. (2009) 317 ITR 353, which upheld similar deductions. 3. Rejection of Books of Accounts under Section 145(3) and Estimation of Gross Profit: The department contended that the books of accounts should be rejected under Section 145(3) due to over-billing and suppression of expenses. The Tribunal, however, found no material evidence to support these claims and held that the mere fact that 99% of sales were made to a sister concern at higher rates was not sufficient ground for rejection. The Tribunal's decision was upheld, emphasizing that the AO must provide concrete evidence to reject the books of accounts. 4. Over-Billing and Suppression of Expenses: The AO argued that the assessee indulged in over-billing and suppression of expenses to show higher profits, which should lead to the rejection of books of accounts and estimation of gross profit. The Tribunal found no substantial evidence to support these allegations and directed the deletion of the additions made by the AO on this account. The Tribunal's findings were based on the lack of material evidence and the proper maintenance of books of accounts by the assessee. 5. Addition under Section 69C of the Act: The department also challenged the Tribunal's decision not to restore the addition of ?25,00,000/- made under Section 69C, considering the alleged over-billing and suppression of expenses. The Tribunal found no evidence to support the AO's claims and directed the deletion of the addition. The Tribunal emphasized that in the absence of concrete evidence, such additions could not be justified. Conclusion: The High Court upheld the Tribunal's decision, emphasizing that the excise duty refund does not constitute income derived from the industrial undertaking for the purpose of Section 80IC(2)(a)(iii). The court also supported the Tribunal's findings that the AO had not provided sufficient evidence to justify the rejection of books of accounts or the estimation of gross profit. The court reiterated that the burden of proof lies with the department to substantiate claims of over-billing and suppression of expenses. The appeals were dismissed, and the Tribunal's order was upheld.
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