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2011 (11) TMI 514 - AT - Income TaxAdjustment made by AO u/s 10A(7) r.w.s. 80IA(10) - Diversion of profit - assessee engaged in the business of manufacturing and export of diamonds studded gold jewelery, declared nil income for the AY 2004-05 after claiming deduction u/s 10A - increase in GP rate - lower average purchase price - alleged transfer of profits from group concern M/s. Sanghvi Exports - Held that - Assessee was not able to satisfactorily explain reason for sudden increase in GP rate, substantial increase in purchases from M/s. Sanghvi Exports, and purchase rate from the sister concern to be lower than the average sale rate of that concern. Hence authorities will, therefore, be justified in working out the shifting of the profit from M/s. Sanghvi Exports to assessee - Decided against the assessee. Transfer of profit on account of Labour charges - employee cost gone up by about 20%, but labour charges declined steeply from Rs. 73.00 lacs to only Rs. 15.00 lacs though raw material consumption has declined only by 20% - employees of the assessee also working in group concern of the assessee - Held that - It is quite reasonable to conclude that the assessee had transferred the services of employees to the group concerns. The value of such transfer of services has to be computed on the basis of consumption of raw material. Therefore, transfer value is adopted at Rs. 40.00 lacs. Accordingly, we confirm the adjustment of Rs. 40.00 lacs to the profit on account of labour charges - Decided against the assessee. Dis-allowance in respect of delayed payment of employees contribution - PF/ESIC - Held that - If employees contribution is paid within grace period allowed, deduction has to be allowed u/s 36(va) Deduction u/s 10A denied on income added by way of dis-allowance of expenses - Held that - If any addition has been made to the profit of business by way of dis-allowance of expenses, the amount added will very much form part of the profit of the business and therefore, it has to be considered while working out deduction u/s 10A - Decided in favor of assessee. Netting of Interest Income - Gross Interest taken into account by Revenue - Held that - It is settled legal position that in case some expenses have been incurred for earning of interest income, deduction has to be allowed u/s 57(iii). We, therefore, restore the matter to file of AO to examine and and allow the expenses having nexus with earning of interest - Decided in favor of assessee for statistical purposes.
Issues Involved
1. Adjustment under section 10A(7) read with section 80IA(10). 2. Disallowance of delayed payment of PF/ESIC. 3. Non-adjustment of profit by disallowed expenses under sections 43B, 40A(7), and 37(1). 4. Reduction of rewinding charges from the profit of the business. 5. Treatment of interest on deposits as income from other sources. Detailed Analysis 1. Adjustment under section 10A(7) read with section 80IA(10) The major contention was regarding the adjustment made by the Assessing Officer (AO) under section 10A(7) read with section 80IA(10). The assessee, engaged in the business of manufacturing and exporting diamond-studded gold jewelry, declared nil income for the assessment year 2004-05 after claiming deduction under section 10A. The AO observed an abnormal increase in the Gross Profit (GP) rate and a significant decline in the average purchase price per carat of diamonds. The AO noted substantial purchases from a related party, M/s. Sanghvi Exports, leading to the suspicion of profit shifting due to close connections. The AO made an adjustment, reducing the profit by Rs. 5,58,18,823/-. The CIT(A) confirmed the adjustment related to purchases from the sister concern to the extent of Rs. 41,72,623/- and partially upheld the disallowance of Rs. 20,00,000/- out of Rs. 60,00,000/- on account of labor charges. Both parties appealed to the Tribunal. The Tribunal upheld the AO's adjustment of Rs. 4,98,18,823/- under section 10A(7) read with section 80IA(10), noting the unexplained sharp rise in GP rate and the substantial increase in purchases from the related party at a lower rate. The Tribunal also confirmed an adjustment of Rs. 40,00,000/- on account of labor charges, concluding that the assessee had transferred services to group concerns. 2. Disallowance of delayed payment of PF/ESIC The AO disallowed Rs. 85,447/- for delayed payment of PF/ESIC. The CIT(A) allowed the deduction for payments made within the grace period. The Tribunal upheld the CIT(A)'s decision, stating that employees' contributions paid within the grace period should be allowed as deductions under section 36(va). 3. Non-adjustment of profit by disallowed expenses under sections 43B, 40A(7), and 37(1) The AO disallowed certain expenses but did not consider these for the purpose of section 10A. The CIT(A) upheld the AO's decision, stating that the additions were not derived from exports. However, the Tribunal disagreed, stating that any addition to the profit of the business due to disallowance of expenses should be considered while computing deduction under section 10A. The Tribunal set aside the CIT(A)'s order and allowed the assessee's claim. 4. Reduction of rewinding charges from the profit of the business The assessee did not press this ground during the hearing. Consequently, the Tribunal dismissed this ground as not pressed. 5. Treatment of interest on deposits as income from other sources The AO treated the interest income on deposits as income from other sources, which the CIT(A) confirmed. The assessee's grievance was regarding the netting of interest income. The Tribunal restored the issue to the AO to examine and allow expenses incurred for earning the interest income under section 57(iii). Conclusion Both the appeals were partly allowed. The Tribunal upheld significant adjustments under section 10A(7) read with section 80IA(10) and confirmed the deletion of the disallowance for delayed payment of PF/ESIC. It allowed the assessee's claim for considering disallowed expenses while computing deduction under section 10A and remanded the issue of netting interest income to the AO for further examination.
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