9911796707
TMI Blog2013 (1) TMI 20X X X X Extracts X X X X X X X X Extracts X X X X ..... aim of Rs.16,60,364/- On appeal the ld. CIT(A) partly allowed the said claim of the assessee. On further appeal before the Tribunal, the Tribunal in ITA No.7073/Mum/2004 for the same assessment year vide order dtd. 28-8-2008 has restored the matter to the file of the A.O. vide finding recorded in para 16 of the order which is reproduced as under:- "We have heard both the sides and perused the record of the case. We find that Ld. CIT(A) has relied on the working filed by the assessee which was without prejudice to its submissions made before the Ld. CIT(A) regarding allocation of expenses based on actual working. These submissions [reproduced by Ld. CIT(A)] have not been considered and, therefore, we set aside the order of ld. CIT(A) on this issue and restore the matter back to the file of the AO to consider the submissions made before Ld. CIT(A) and then to decide the electricity expenses allocable to DVC plant. This ground is also allowed for statistical purposes." Pursuant to the order of the Tribunal, the A.O. provided opportunity to the assessee and asked the asssessee to furnish details to substantiate the claim. The assessee vide letter dtd. 16-9-2009 fur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assessment order is appearing at pages 80 to 84 of the assessee's paper book. He further submits that in the subsequent A.Y. 2001-02 the assessee after including the amount of power Rs. 3406/- has made a claim of Rs. 10,60,854/- u/s 80IB appearing at page 85 of the assessee's paper book and the A.O. has allowed the same in the assessment order appearing at pages 86 to 98 of the assessee's paper book. In the light of the above, he submits that since no addition/disallowance was made in the preceding assessment years and in subsequent year, therefore, the A.O. and the ld. CIT(A) on the similar sets of facts have erred in not accepting the claim of the assessee i.e. to restrict the electricity expenses in respect of DVC plant to Rs.3600/- only and to allow deduction u/s 80IA of the Act accordingly in the year under consideration. 5. On the other hand, the ld. D.R. supports the order of the A.O. and the ld. CIT(A). 6. We have carefully considered the submissions of the rival parties and perused the material available on record. We find that the facts are not in dispute inasmuch as it is also not in dispute that before the ld. CIT(A) the assessee, without prejudice to its claim, has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... acture and installation (i.e. application of DVC lining on the large furnaces). d) The production of DVC depends upon the requirement of customers depending upon the type of furnace/kiln used by the customers. e) It is a product which is manufactured for specific orders since it is a specialized and high value product and not meant as an "off the shelf" item. f) The right mix of raw materials i.e. the accurate chemistry of mix and the perfect lining on the furnace walls is the success and trade secret of this business. Each order value is large and there are strict parameters/conditions specified by the customers, as this product and the lining needs to withstand the heat generated upto 1600 C temperature. g) The business can be divided into two activities, i.e. manufacture in factory premises and furnace lining at customer's factories where the usage of electricity is onsite at customer's factory. The furnace lining is done by the assessee with the supervision of its own engineers. h) The assessee encloses herewith a statement showing the major raw materials required for manufacture ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the absence of any contrary material placed on record by the Revenue to show that the working given by the assessee is not based on the correct facts and also keeping in view that in the preceding assessment years no such disallowance was made inasmuch as in the subsequent assessment year i.e. in A.Y. 2001-02, the A.O. has accepted the cost of the power Rs. 3406/- while allowing the deduction u/s 80IB of the Act on the DVC plant Rs. 10,60,854/- as claimed by the assessee vide assessment order dtd. 30-1-2004 passed u/s 143(3) of the Act, we are of the view that the disallowance made by the A.O. in this regard and partly sustained by the ld. CIT(A) is not sustainable in law and accordingly we direct the A.O. to consider cost of power Rs. 3600/- only pertaining to DVC plant and work out the deduction u/s 80IA accordingly. The grounds taken by the assessee are, therefore, allowed as indicated above. 8. Grounds No. 5 & 6 read as under:- "5) The learned Commissioner of Income-tax (Appeals) erred in not cancelling the allocation of interest of Rs. 76,66,624/- to the earning of dividend income for computing disallowance u/s 14A. 6) The learned Co ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
