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TMI Blog2016 (3) TMI 1115X X X X Extracts X X X X X X X X Extracts X X X X ..... e of Metallic powders and filed Return of income on 12.10.2010 with total income of Rs. 20,26,75,167/- and return was processed u/s.143(1) and granted refund. Subsequently, the case was selected for scrutiny under CASS and notice u/s.143(2) of the Act was issued. In compliance to notice, the ld. Authorised Representative of the assessee appeared from time to time and furnished information. The ld. Assessing Officer found that assessee has claimed deduction u/s.80IB of the Act were the assessee is having two units (i) Aluminum Alloy Ingot Plant (ii) Aluminum Paste Unit VI and while claiming deduction u/s.80IB of the Act the assessee has not set off loss of Aluminum alloy Ingot plant and claimed deduction on positive income but the ld. Assessing Officer found that as per the earlier order of assessee's own case for assessment year 2006-07, the aggregate of two units has to be considered for claiming deduction u/s.80IB of the Act and relied on the Commissioner of Income Tax (Appeals) order, and made disallowance of Rs. 1,10,37,553/-. The Assessing Officer found that the company had paid foreign agency commission in foreign currency to foreign agent without deduction of tax on Rs. 47,3 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ase before us, assessee had positive gross total income. Therefore, each undertaking had to be considered separately for working out deduction u/s.80IA of the Act, since, the gross total income was positive. We are of the opinion that the CIT(A) was justified in giving such directions. 5.3 Thus the issue is squarely covered by the above order of Hon'ble ITAT in Appellants own case for earlier years which is in its favour. The addition is deleted''. Following the above decisions, the Commissioner of Income Tax (Appeals) has deleted the addition. Aggrieved by the Commissioner of Income Tax (Appeals) order, the Revenue assailed an appeal before the Tribunal. 5. Before us, the ld. Departmental Representative vehemently argued that the ld. Commissioner of Income Tax (Appeals) erred in deleting the addition without considering the facts and the decision of Apex Court. The gross total income shall be arrived after adjustment of loss of other division against profit derived from industrial undertaking and prayed for allowing the appeal . 6. The ld. Authorised Representative of the assessee submitted in assessee's own case, the Tribunal has allowed the deductions in ITA Nos.782, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... osses and after setting off brought forward losses and unabsorbed depreciation. Only if resultant gross total income was positive, an assessee was entitled for deduction under Chapter VIA of the Act. However, where assessee is having more than one unit, where one unit is eligible for deduction and other unit or units are not eligible for deduction and if the gross total income is positive, despite the loss in one of such units, decisions of Hon'ble Apex Court in the case of IPCA Laboratories Ltd. (supra) and Synco Industries Ltd. (supra) would have not much applicability. In such cases, where an assessee is carrying on various activities, even if centralized accounts are maintained, so long as interlacing, interconnectivity or interdependence of various units was not there, various activities have to be treated as separate and distinct, as held by Hon'ble Apex Court in the case of Water Fall Estates Ltd. v. CIT (219 ITR 563). Hon'ble Apex Court in the case of L.M. Chhabda & Sons. v. CIT (65 ITR 638) has also held that where an assessee carried on business ventures at different places, there was no general principle that they should all be considered as part of single bu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a Plana Spain 1600.00 77,984.00 Aug, 09 Bowin Success Company, Kawloon Flat C 4/F, 946 Canton Road, Kawloon, Hongkong 570.00 27,898.50 Aug, 09 Percept General Trading Co LIC Sharagh P.O.Box 26475 Sharagh UAE 42113.83 2,052,627.59 Sep. 09 Aurn K. Chotopadyay 4206, Harpers Cross, Lang horn pa 19047, USA 7721.76 380,050.59 Dec. 09 Quimialmel, S.A. Spain CL san Roque, 15 Castelloon De La Plana Spain 1,600.00 75,008.00 Dec. 09 Percept General Trading Co LIC Sharagh P.O.Box 26475 Sharagh UAE 16496.80 775,349.00 Dec. 09 Louis T. Leonaowens, Thailand Ltd 177/1, But building, 10th floor, Surawongse Road, Bangrak, Bankok, Thailand, 804.00 37,691.52 Dec. 09 Calus JD Souza Kuwait. P.O.Box No.9805, Salmia 22099, Kuwait. 3301.50 153,255,63.00 Total 4,736,181,92/- The ld. Commissioner of Income Tax (Appeals) considered the Supreme Court decision and Jurisdictional High Court decision and relied on the Co-ordinate Bench Tribunal decision of ITO vs. Faizan Shoes (P) Ltd (2013) 34 taxmann.com 79 and deleted the addition of the Assessing Officer. 9. Before us, the ld. Departmental Representative vehementl ..... X X X X Extracts X X X X X X X X Extracts X X X X
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