Deputy Commissioner of Income-tax,, v. Serum Institute of India Ltd.,, Pune

ITA 1537/PUN/2015 | 2008-2009
Pronouncement Date: 28-11-2017 | Result: Dismissed

Appeal Details

RSA Number 153724514 RSA 2015
Assessee PAN AABCS4225M
Bench Pune
Appeal Number ITA 1537/PUN/2015
Duration Of Justice 2 year(s) 2 day(s)
Appellant Deputy Commissioner of Income-tax,,
Respondent Serum Institute of India Ltd.,, Pune
Appeal Type Income Tax Appeal
Pronouncement Date 28-11-2017
Appeal Filed By Department
Tags No record found
Order Result Dismissed
Bench Allotted A
Tribunal Order Date 28-11-2017
Date Of Final Hearing 03-11-2017
Next Hearing Date 03-11-2017
Last Hearing Date 26-10-2017
First Hearing Date 27-07-2017
Assessment Year 2008-2009
Appeal Filed On 26-11-2015
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH A PUNE . BEFORE SHRI D.KARUNAKARA RAO AM AND SHRI VIKAS AWASTHY JM . / ITA NO.1183/PUN/2015 / ASSESSMENT YEAR : 2008-09 SERUM INSTITUTE OF INDIA LTD. SAROSH BHAVAN 16-B/1 DR. AMBEDKAR ROAD PUNE 411 001 PAN : AABCS4225M . /APPELLANT VS. DCIT CENTRAL CIRCLE-1(1) PUNE . / RESPONDENT . / ITA NO.1537/PUN/2015 / ASSESSMENT YEAR : 2008-09 DCIT CENTRAL CIRCLE-1(1) PUNE . /APPELLANT VS. SERUM INSTITUTE OF INDIA LTD. 212/2 HADAPSAR PUNE 411 028 PAN : AABCS4225M . / RESPONDENT ASSESSEE BY : SHRI R.S. ABHYANKAR REVENUE BY : SHRI RAJEEV KUMAR CIT DR / DATE OF HEARING : 17.11.2017 / DATE OF PRONOUNCEMENT: 28.11.2017 / ORDER PER D. KARUNAKARA RAO AM : THESE ARE THE CROSS APPEALS FILED BY THE ASSESSEE A ND THE REVENUE INVOLVING A.Y. 2008-09. THESE APPEALS ARE FILED AGAINST THE ORDERS OF CIT(A)-11 PUNE DATED 28-11-2014. 2. BRIEFLY STATED RELEVANT FACTS ARE THAT THE ASSES SEE IS A COMPANY ENGAGED IN THE BUSINESS OF MANUFACTURING OF VACCINES ANTI SER A PLASMA HORMONE PRODUCTS ITA NO.1183/PUN/2015 & & ITA NO. 1537/PUN/2015 SERUM INSTITUTE OF INDIA LTD. 2 ETC. THERE WAS SEARCH ACTION ON THE ASSESSEE U/S.13 2 OF THE ACT ON 21-06-2011 IN THE POONAWALLA GROUP OF CASES. THE CASES OF POONAW ALLA GROUP INCLUDE TWO SUB- GROUPS. ONE SUB-GROUP INCLUDES FAMILY MEMBERS OF S HRI CYRUS SOLI POONAWALLA (IN SHORT CSP) AND THE GROUP CONCERNS UNDER HIS CONTR OL AND MANAGEMENT WITH M/S. SERUM INSTITUTE OF INDIA LTD. AS THE FLAGSHIP COMP ANY. THE OTHER SUB-GROUP INCLUDES FAMILY MEMBERS OF SHRI ZAVAREH SOLI POONAW ALLA (IN SHORT ZSP). ASSESSMENTS WERE COMPLETED U/S.153A R.W.S. 143(3) O F THE ACT. ASSESSEE DECLARED UNDISCLOSED INCOME DURING THE SEARCH ACTION FOR THE A.Y. 2008-09 THE ASSESSEE FILED THE RETURN OF INCOME DECLARING INCOME OF RS.4 4 04 56 248/-. ASSESSMENT WAS COMPLETED ON THE TOTAL INCOME OF RS.62 94 29 653/- AFTER GRANTING EXEMPTION U/S.10B OF THE ACT. CIT(A) GAVE PART RELIEF IN THE FIRST APPELLATE PROCEEDINGS AND ACCORDINGLY THE APPEAL OF THE ASSESSEE WAS PARTLY ALLOWED. AGAINST THE PART RELIEF GRANTED BY THE CIT(A) TO THE ASSESSEE THE REVENUE IS IN APPEAL BEFORE US. SIMILARLY AGGRIEVED WITH THE ADDITIONS CONFIRMED B Y THE CIT(A) THE ASSESSEE IS IN APPEAL BEFORE US. 3. WE SHALL TAKE UP THE REVENUES APPEAL FIRST. ITA NO.1537/PUN/2015 (BY REVENUE A.Y. 2008-09) 4. GROUND NOS. 1 AND 2 RAISED BY THE REVENUE RELATE S TO EXCLUSION OF FREIGHT AND INSURANCE FROM THE TOTAL TURNOVER FOR THE PURPO SE OF QUANTIFYING THE DEDUCTION U/S.10B OF THE ACT. 5. AFTER HEARING BOTH THE SIDES WE FIND THE ABOVE GROUNDS ARE IDENTICAL TO GROUND NOS. 1 AND 2 FILED BY THE REVENUE FOR A.Y. 2 006-07 AND GROUND NOS. 1 AND 2 FILED BY THE REVENUE FOR A.Y. 2007-08. WE HAVE A LREADY DECIDED THIS ISSUE AGAINST THE REVENUE AND IN FAVOUR OF THE ASSESSEE R ELYING ON THE DECISION OF THE TRIBUNAL IN ASSESSEES OWN CASE VIDE ITA NO.17/PN/2 012 FOR A.Y. 2007-08. ITA NO.1183/PUN/2015 & & ITA NO. 1537/PUN/2015 SERUM INSTITUTE OF INDIA LTD. 3 FOLLOWING THE SAME PARITY OF REASONING WE DISMISS THE GROUNDS NOS. 1 AND 2 RAISED BY THE REVENUE. 6. GROUND NO.3 RAISED BY THE REVENUE RELATES TO THE NATURE OF THE PRODUCT DEVELOPMENT EXPENDITURE CLAIMED BY THE ASSESSEE AS REVENUE EXPENDITURE. AO HELD THAT THE SAME CONSTITUTES CAPITAL IN NATURE. HOWEVER THE FIRST APPELLATE AUTHORITY GRANTED RELIEF TO THE ASSESSEE AS PER THE DISCUSSION GIVEN IN PARA NO.16 OF HIS ORDER. 7. BEFORE US LD. DR FOR THE REVENUE RELIED HEAVILY ON THE ORDER OF THE AO AND MENTIONED THAT THE SAME CONSTITUTES CAPITAL IN NATU RE. THEREFORE THE ORDER OF CIT(A) ON THIS ISSUE NEEDS REVERSAL. 8. ON THE OTHER HAND LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT AN IDENTICAL ISSUE CAME UP FOR ADJUDICATION IN THE ASSESSEES OW N CASE FOR THE SAME A.Y. 2008- 09 IN CONNECTION WITH REGULAR ASSESSMENT MADE BY TH E AO U/S.143(3) OF THE ACT. THE PRESENT ASSESSMENT IS MADE U/S.153A OF THE ACT. THE ABOVE SAID ASSESSMENT MADE U/S.143(3) OF THE ACT FOR THE A.Y. 2008-09 WHI CH CONTAINS SIMILAR DISALLOWANCE BY THE AO CAME TO THE TRIBUNAL FOR ADJUDICATION IF THE SAME CONSTITUTES REVENUE OR CAPITAL. AS PER THE DISCUSSION GIVEN IN PAGES 25 T O 32 OF THE SAID ORDER OF THE TRIBUNAL VIDE ITA NO.914/PUN/2013 FOR A.Y. 2008-09 THE ISSUE WAS DECIDED IN FAVOUR OF THE ASSESSEE. 9. AFTER HEARING BOTH THE SIDES ON THIS ISSUE AND AFTER GOING THROUGH THE ORDER OF THE TRIBUNAL IN ASSESSEES OWN CASE IN ITA NO.91 4/PN/2013 ORDER DATED 22-07- 2016 WE FIND IT RELEVANT TO EXTRACT THE RELEVANT L INES OF THE ORDER OF THE TRIBUNAL. FOR THE SAKE OF COMPLETENESS OF THIS ORDER PARAGRA PH NO.39 TO 46 OF THE TRIBUNALS ORDER (SUPRA) WHERE THE ISSUE RELATING TO PRODUCT D EVELOPMENT EXPENDITURE WAS DECIDED IN FAVOUR OF THE ASSESSEE ARE REPRODUCED HE RE AS UNDER : ITA NO.1183/PUN/2015 & & ITA NO. 1537/PUN/2015 SERUM INSTITUTE OF INDIA LTD. 4 46. . . . . . . . . THUS IN VIEW OF THE FACTS OF THE CASE AND VARIOUS DECISIONS DISCUSSED ABOVE WE DO NOT FIND ANY INFIRMITY IN THE FINDINGS OF COM MISSIONER OF INCOME TAX (APPEALS) IN ACCEPTING THE PRODUCT DEVELOPMENT EXPE NDITURE AS REVENUE IN NATURE. ACCORDINGLY GROUND NOS. 1 AND 2 RAISED BY THE REVENUE IN ITS APPEAL ARE DISMISSED. 10. CONSIDERING THE ABOVE STATED POSITION WE FIND THERE IS NO CHANGE IN FACTS. ONLY DIFFERENCE IS THE TRIBUNAL ORDER (ITA NO.914/P N/2013) WAS DECIDED IN CONNECTION WITH THE REGULAR ASSESSMENT AND THE AO P ROCEEDED TO REPEAT THE SAME IN THE SEARCH ASSESSMENT ALSO. THE SAID ORDER OF T HE TRIBUNAL WAS NOT AVAILABLE TO THE AO WHO MADE THE PRESENT ASSESSMENT U/S.153A. C ONSIDERING THE SAME WE ARE OF THE VIEW THAT THE TRIBUNAL HAS ALREADY COME TO A N OPINION ON THIS ISSUE. THEREFORE FOR THIS REASON ALSO THE ORDER OF THE C IT(A) IS FAIR AND REASONABLE AND IT DOES NOT CALL FOR ANY INTERFERENCE. ACCORDINGLY G ROUND NO.3 RAISED BY THE REVENUE IS DISMISSED. 11. GROUND NO.4 BY THE REVENUE RELATES THE ALLOWABI LITY OF DEDUCTION PAID BY THE ASSESSEE TO THE COAST GUARD U/S.37(1) OF THE ACT. 12. AFTER HEARING BOTH THE SIDES WE FIND THIS ADDI TION IS ALSO A REPEAT OF THE ONE WHICH WAS ALREADY MADE BY THE AO DURING THE COURSE OF ASSESSMENT MADE U/S.143(3) OF THE ACT FOR THE A.Y. 2008-09. WHEN T HE SAID ISSUE REACHED THE TRIBUNAL IN ASSESSEES OWN CASE VIDE ITA NO.914/PUN /2013 ORDER DATED 22-07-2016 THE TRIBUNAL VIDE DISCUSSION GIVE N PARA NO.51 TO 53 OF THE ORDER GRANTED RELIEF TO THE ASSESSEE. FOR THE SAKE OF CO MPLETENESS RELEVANT PARA NO.52 53 ARE EXTRACTED AS UNDER : 52. THE LD AR SUBMITTED THAT THE ASSESSEE CONTRIB UTED RS.2 00 000/- TOWARDS CELEBRATION OF INDIAN COST GUARDS 31 YEARS OF SERV ICE TO THE NATION. THE INTENTION OF CELEBRATING COST GUARD DAY IS TO SPREAD AWAREN ESS OF THE SERVICE WHICH OPERATES WITH INDIAN NAVY DURING EXTERNAL AGGRESSIO N AND INDEPENDENTLY GUARDS INDIAN COST LINE FROM INTRUDERS DURING PEACE. THE BUSINESS MOTIVE BEHIND CONTRIBUTING THE FUND WAS THE ASSESSEE HAS TAKEN GO DOWNS ON LEASE FROM M/S. SOVEREIGN PHARMA PVT. LTD. AT DAMAN FOR STORAGE OF VACCINES AND INDIAN COST GUARD HAS ITS HUGE BASE AT DAMAN. THE EXPENDITURE HAS BE EN INCURRED TOWARDS DISCHARGE OF CORPORATE SOCIAL RESPONSIBILITY. ITA NO.1183/PUN/2015 & & ITA NO. 1537/PUN/2015 SERUM INSTITUTE OF INDIA LTD. 5 53. THE LD. DR REPRESENTING THE DEPARTMENT HAS NOT BEEN ABLE TO SHOW ANY INFIRMITY IN THE ORDER OF COMMISSIONER OF INCOME TA X (APPEALS) IN ALLOWING THE EXPENDITURE. ACCORDINGLY GROUND NO.5 RAISED BY TH E DEPARTMENT IN APPEAL IS DISMISSED. 13. CONSIDERING THE FINDING OF FACT BY THE TRIBUNAL IN ASSESSEES OWN CASE FOR THE SAME A.Y. 2008-09 BUT FOR THE ASSESSMENT MADE U/S.1 43(3) OF THE ACT WE ARE OF THE OPINION THAT THE ORDER OF THE CIT(A) IS FAIR AN D REASONABLE AND IT DOES NOT CALL FOR ANY INTERFERENCE. ACCORDINGLY GROUND NO.4 RAI SED BY THE REVENUE IS DISMISSED. 14. GROUND NO.5 RAISED BY THE REVENUE RELATES TO TH E CLASSIFICATION OF CERTAIN STEEL MADE ITEMS WHICH WERE CLAIMED AS PLANT AND MA CHINERY FOR CLAIMING HIGHER DEPRECIATION U/S.32 OF THE ACT. 15. AFTER HEARING BOTH THE SIDES WE FIND THE SAID ISSUE WAS ALREADY ADJUDICATED BY THE TRIBUNAL IN THE ASSESSEES OWN CASE IN CONNE CTION WITH THE ASSESSMENT MADE U/S.143(3) OF THE ACT VIDE ITA NO.931/PN/2013 ORDER DATED 22-07-2016. CONTENTS OF PARA NO.35 AND 36 ARE RELEVANT AND THE SAME ARE EXTRACTED AS UNDER : 35. BOTH SIDES HEARD. FINDINGS OF AUTHORITIES BEL OW ON THE ISSUE EXAMINED. WE HAVE ALSO CONSIDERED THE DECISION OF COORDINATE BEN CH OF THE TRIBUNAL ON THIS ISSUE. WE FIND THAT THE ISSUE OF RECLASSIFICATION OF CERTA IN ASSETS WHICH WERE CLASSIFIED BY THE ASSESSEE AS PLANT AND MACHINERY AND HELD TO T HE FURNITURE AND FIXTURES BY THE REVENUE WAS CONSIDERED BY THE TRIBUNAL IN ASSESSMEN T YEAR 2001-02 IN ITA NO.948/PN/2005 (SUPRA). THE COORDINATE BENCH OF TH E TRIBUNAL AFTER CONSIDERING THE SUBMISSION OF THE ASSESSEE HELD AS UNDER : . . . . . . . . 36. THE LD. DR HAS NOT PLACED ON RECORD ANY MATERIA L TO CONTROVERT THE FINDINGS OF COORDINATE BENCH ON THIS ISSUE. RESPECTFULLY F OLLOWING THE DECISION OF COORDINATE BENCH WE ALLOW THIS GROUND OF APPEAL OF THE ASSESSEE. 16. CONSIDERING THE ABOVE STATED POSITION AND THE D ECISION OF THE TRIBUNAL ON SAME FACTS IN THE ASSESSEES OWN CASE FOR SAME A.Y. 2008-09 WE ARE OF THE OPINION THAT THE ORDER OF CIT(A) FOR THIS REASON ALSO DO NO T CALL FOR ANY INTERFERENCE. ACCORDINGLY GROUND NO.5 RAISED BY THE REVENUE IN T HIS REGARD IS DISMISSED. ITA NO.1183/PUN/2015 & & ITA NO. 1537/PUN/2015 SERUM INSTITUTE OF INDIA LTD. 6 ITA NO.1183/PUN/2015 (BY ASSESSEE - A.Y. 2008-09) 17. GROUND NO. 1(A) TO (C) RELATES TO DISALLOWANCE U/S.14A OF THE ACT R.W. RULE 8D(II) OF THE I.T. RULES 1961. IN THE ASSESSMENT MADE U/S.153A OF THE ACT THE AO QUANTIFIED THE SAID DISALLOWANCE UNDER THE SAID SEC TION/RULES AT RS.1.40 CRORES (ROUNDED OFF). CIT(A) CONFIRMED THE SAME. WHILE E XPLAINING THE FACTS LD. COUNSEL BROUGHT OUR ATTENTION TO THE BACKGROUND FACTS AND S UBMITTED THAT THE ASSESSMENT WAS ORIGINALLY MADE IN THIS CASE BY THE AO U/S.143( 3) OF THE ACT AND THE DISALLOWANCE WAS ORIGINALLY DETERMINED AT RS.4.11 C RORES (ROUNDED OFF). ON FINDING THE MISTAKES THE AO RECTIFIED HIS ORDER AND PASSED A RECTIFICATION ORDER DATED 04-02-2011 REVISING THE DISALLOWANCE TO ONLY RS.64 03 323/- UNDER CLAUSE (II) AND (III) OF 8D OF THE I.T. RULES. 18. IN THE FIRST APPELLATE PROCEEDINGS BEFORE THE T RIBUNAL THE TRIBUNAL VIDE ITA NO.914/PN/2013 THE DISALLOWANCE MADE UNDER CLAUSE ( II) WAS REMANDED TO THE FILE OF AO AND THE DISALLOWANCE MADE UNDER CLAUSE (III) WAS NOT PRESSED BY THE ASSESSEE AND THEREFORE THE SAME STANDS CONFIRMED. THE ORDER OF THE AO FOR GIVING EFFECT TO THE DIRECTION OF THE TRIBUNAL IN CONNECTI ON WITH CLAUSE (II) OF RULE 8D IS STILL PENDING AS ON DATE. 19. IN THE BACKGROUND FACTS OF THE ABOVE LD. COUNS EL FOR THE ASSESSEE SUBMITTED THAT THERE IS NO JURISDICTION FOR THE AO IN THE ASSESSMENT PROCEEDINGS U/S.153A OF THE ACT. THE ADDITION MADE U/S.14A OF THE ACT IS NOT VALID AS THE DEPARTMENT DID NOT HAVE THE BENEFIT OF ANY SEIZED P APERS/INCRIMINATING MATERIAL TO SUGGEST GRANTING JURISDICTION TO THE AO IN THE ABAT ED ASSESSMENT LIKE THIS. FOR THIS PROPOSITION LD. COUNSEL FOR THE ASSESSEE RELIED ON VARIOUS BINDING DECISIONS SUCH AS ALL CARGO GLOBAL LOGISTICS LTD. VS. DCIT 147 TTJ 51 3 (MUM) (SB) CIT VS. CONTINENTAL WAREHOUSING CORPORATION (NHAVA SHEVA) L TD. 58 TAXMANN.COM 78. ON THIS ISSUE LD. COUNSEL BROUGHT OUR ATTENTION TO GR OUND NO. RAISED BY THE ASSESSEE ITA NO.1183/PUN/2015 & & ITA NO. 1537/PUN/2015 SERUM INSTITUTE OF INDIA LTD. 7 IN ITA NO.985/PUN/2015 FOR THE A.Y. 2006-07 AND SUB MITTED THAT THE DECISION THAT IS TAKEN BY THE TRIBUNAL ON SIMILAR ISSUE APPLIES S QUARELY TO THE PRESENT ISSUE IN GROUND NO. 1(A) TO (C) OF THE PRESENT APPEAL. 20. LD. DR FOR THE REVENUE ON THE OTHER RELIED HEAV ILY ON THE ARGUMENTS AND SUBMISSIONS MADE BY HIM IN CONNECTION WITH THE SAID APPEAL FOR A.Y. 2006-07. 21. ON HEARING BOTH THE PARTIES AND PERUSING THE FA CTS OF THE PRESENT CASE TO THAT OF THE ISSUE IN GROUND NO.2 OF THE APPEAL OF T HE ASSESSEE FOR A.Y. 2006-07 WE FIND THE TRIBUNAL HAS ALREADY TAKEN A DECISION IN F AVOUR OF THE ASSESSEE AND AGAINST THE REVENUE. THEREFORE WE HOLD THAT AO HAS NO JUR ISDICTION OVER THE ASSESSEE SINCE HE DOES NOT HAVE ANY INCRIMINATING MATERIAL I N HIS POSSESSION FOR GRANTING JURISDICTION TO MAKE ADDITION U/S.14A OF THE ACT. FOR THE SAKE OF COMPLETENESS WE REPRODUCE THE OPERATIONAL PARA NO.16 AS UNDER : 16. BOTH SIDES HEARD. THE MAIN CONTENTION OF THE LD. AR IS THAT FOR MAKING INVESTMENTS OWN INTEREST FREE FUNDS HAVE BEEN USED ALTHOUGH THERE ARE BORROWINGS AS WELL BUT THE SAME WERE NOT DIVERTED FOR MAKING INVESTMENTS. THE LD. AR HAS ALSO DRAWN OUR ATTENTION TO THE SUMMARY OF INVESTME NTS AT PAGE 146 OF THE PAPER BOOK AND THE WORKING OF DISALLOWANCE AT PAGE 144 OF THE PAPER BOOK. WE ARE OF THE CONSIDERED VIEW THAT THIS ISSUE NEEDS A REVISIT TO THE FILE OF AO FOR THE LIMITED PURPOSE TO VERIFY WHETHER THE INTEREST BEARING FUN DS WERE DIVERTED BY THE ASSESSEE FOR MAKING INVESTMENTS. THE ASSESSING OFFICER AFTE R MAKING NECESSARY VERIFICATION SHALL DECIDE THIS ISSUE IN ACCORDANCE WITH LAW AND IN THE LIGHT OF THE DECISION OF HONBLE BOMBAY HIGH COURT IN THE CASE OF COMMISSION ER OF INCOME-TAX V. RELIANCE UTILITIES AND POWER LTD. REPORTED AS 313 ITR 340 (B OM.). ACCORDINGLY GROUND NO.3 RAISED BY THE ASSESSEE IN ITS APPEAL IS ALLOWED FOR STATISTICAL PURPOSE. 22. CONSIDERING THE ABOVE WE ARE OF THE OPINION TH AT THESE ISSUES ARE NOT ONLY COVERED IN FAVOUR OF THE ASSESSEE VIDE THE ORDER OF THE TRIBUNAL IN ASSESSEES OWN CASE IN ITA NO.1074/PN/2014 DATED 30-11-2016 AND AL SO IN VIEW OF THE THAT THERE IS NO SEIZED MATERIAL LINKED TO THESE ISSUES. ACCOR DINGLY GROUND 1(A) TO (C) ARE ALLOWED AS ABOVE. 23. WITH REGARD TO GROUND NOS.2 TO 8 RAISED BY THE ASSESSEE WE FIND THESE ARE THE ISSUES WHERE THE AO MADE SIMILAR ADDITIONS IN T HE REGULAR ASSESSMENT MADE U/S.143(3) OF THE ACT. FURTHER ALL THE ISSUES RAI SED ABOVE HAVE BEEN ADJUDICATED ITA NO.1183/PUN/2015 & & ITA NO. 1537/PUN/2015 SERUM INSTITUTE OF INDIA LTD. 8 BY THE TRIBUNAL IN THE PRECEDING ASSESSMENT YEARS A ND THEY ATTAINED THE FINALITY. SOME ISSUES WERE DECIDED IN FAVOUR OF THE ASSESSEE AND SOME ARE AGAINST THE ASSESSEE. THE ISSUES RAISED WITH REGARD TO FOREIGN TRAVEL EXPENSES (GROUND NO.2) RECEIPTS FROM M/S. AKORN INC. USA (GROUND NO.4) AN D PROVISION FOR LEAVE ENCASHMENT (GROUND NO.5) ARE DECIDED AGAINST THE AS SESSEE AND REST OF THE ABOVE ISSUES ARE DECIDED IN FAVOUR OF THE ASSESSEE. HOW EVER REPEATING THE ADDITIONS MADE BY THE AO IN THE REGULAR ASSESSMENT U/S.143(3) IN THE ASSESSMENT MADE U/S.153A FOR THE SAME ASSESSMENT YEAR AND FOR THE S AME ISSUES AMOUNTS TO DOUBLE ADDITION AND ARE UNSUSTAINABLE IN LAW. WITH REFERENCE TO THE CONFIRMED ADDITIONS I.E. FOR EIGN TRAVEL EXPENSES RECEIPTS FROM M/S. AKORN INC. USA AND PROVISION FO R LEAVE ENCASHMENT THE GROUNDS RAISED BY THE ASSESSEE IN THIS APPEALS HAVE TO BE DISMISSED AS INFRUCTUOUS AS THEY WERE ALREADY DECIDED AGAINST THE ASSESSEE. ACCORDINGLY GROUND NOS. 2 4 AND 5 RAISED BY THE ASSESSEE ARE DISMISSED. WITH REGARD TO THE ISSUES RAISED IN (1) GROUND NO.3 RELATING TO CLASSIFICATION OF STAINLESS STEEL ITEMS AS FURNITURE AND FIXTURES INSTEAD OF PLANT AND MACHINERY (2) GROUND NO.6 RELATING TO PMS FEES PAID AMOUNTING TO RS75 08 253/- AS PART OF EITHER OF COST OF ACQUISITION/IMPROVEMENT OR AS COS T OF TRANSFER FOR COMPUTATION OF INCOME FROM CAPITAL GAINS (3) GROUND NO.7 RELATING TO EXPENDITURE OF RS.3 31 22 598/- INCURRED ON REPAIRS RENOVATION ET C. OF BUNGALOW LOCATED AT 70 KOREGAON PARK PUNE TAKEN ON LEASE AND (4) GROUND N O.8 RELATING TO CONTRIBUTION OF RS.15 LAKHS TOWARDS MANJARI GRAM PANCHAYAT FOR SUPP LY OF DRINKING WATER WE FIND THE ISSUES RAISED BY THE ASSESSEE IN GROUND NOS.3 6 AND 8 WERE DECIDED IN FAVOUR OF THE ASSESSEE BY VIRTUE OF THE ORDER OF THE TRIBU NAL IN ASSESSEES OWN CASE VIDE ITA NO.931/PN/2013 RELATING TO A.Y. 2008-09 ORDER D ATED 22-07-2016. THE ISSUE RAISED IN GROUND NO.7 WAS ALSO DECIDED IN FAVOUR OF THE ASSESSEE BY THE ORDER OF ITA NO.1183/PUN/2015 & & ITA NO. 1537/PUN/2015 SERUM INSTITUTE OF INDIA LTD. 9 THE TRIBUNAL VIDE ITA NO.1703/PN/2014 RELATING TO A .Y. 2005-06 ORDER DATED 30-11- 2016. ACCORDINGLY GROUND NOS. 3 6 7 AND 8 RAISED BY THE ASSESSEE ARE ALLOWED. 24. GROUND NO.9 RELATES TO THE ALLOWABILITY OF DEDU CTION WITH REFERENCE TO THE WEALTH TAX PAID BY THE ASSESSEE FOR THE PURPOSE OF COMPUTING BOOK PROFITS U/S.115JB OF THE ACT. AO CONSIDERED THE SAID TAX P AYMENT AS NOT AN ALLOWABLE DEDUCTION. ACCORDINGLY AO DID NOT ALLOW THE DEDUC TION OF BOOK PROFITS TO THAT EXTENT. CIT(A) CONFIRMED THE SAME. 25. BEFORE US IN SUPPORT OF HIS CLAIM FOR DEDUCTIO N OUT OF BOOK PROFITS U/S.115JB OF THE ACT LD. COUNSEL BROUGHT OUR ATTENTION TO TH E DECISION OF KOLKATA BENCH OF THE TRIBUNAL IN THE CASE OF USHA MARTIN INDUSTRIES LTD. VS. JCIT REPORTED IN 81 TTJ 518 AND SUBMITTED THAT THE CLAIM IS ALLOWABLE. HOW EVER HE SUBMITTED THAT SUCH ADDITIONS ARE NOT ALLOWED UNDER THE PROVISIONS OF S ECTION 153A OF THE ACT IN THE ABSENCE OF ANY INCRIMINATING MATERIAL FOUND DURING THE SEARCH ACTION. 26. ON HEARING BOTH THE PARTIES ON THIS ISSUE WE F IND THE DECISION IN THE CASE OF USHA MARTIN INDUSTRIES LTD. (SUPRA) HELPS THE ASSES SEE. FOR THE SAKE OF COMPLETENESS WE PERUSED THE SAID DECISION OF THE T RIBUNAL AND FIND THE DISCUSSION GIVEN IN PARA NOS. 7 & 8 ARE RELEVANT. THE TRIBUNA L CONSIDERED THE RELEVANT PROVISIONS OF SECTION 115JA(2) OF THE ACT AND HELD THE PROVISIONS OF WEALTH TAX CONSTITUTES AN ASCERTAINED LIABILITY. THE RELEVANT PORTION OF THE TRIBUNAL ORDER IS EXTRACTED AS UNDER : 7. . . . . . . . . . . .WE AGREE WITH THE CONTENTI ON OF THE LEARNED AUTHORISED REPRESENTATIVE OF THE ASSESSEE THAT A PROVISION MAD E FOR WEALTH-TAX CANNOT BE EQUATED TO ANY LIABILITY TOWARDS INCOME-TAX AND ACC ORDINGLY CANNOT BE DISALLOWED WHILE COMPUTING THE BOOK PROFIT BY INVOKING CLAUSE (A) OF THE EXPLANATION TO SECTION 115JA(2) OF THE ACT. 27. IN ANY CASE THIS IS THE CASE WHERE NO INCRIMIN ATING MATERIAL WAS SEIZED BY THE REVENUE DURING THE SEARCH ACTION CONNECTING TO THE DISALLOWABILITY OF WEALTH TAX PAYMENT QUA THE BOOK PROFITS COMPUTATION. THER EFORE ON BOTH COUNTS THE ITA NO.1183/PUN/2015 & & ITA NO. 1537/PUN/2015 SERUM INSTITUTE OF INDIA LTD. 10 ASSESSEE IS ENTITLED TO RELIEF. ACCORDINGLY GROUN D NO.9 RAISED BY THE ASSESSEE IS ALLOWED. 28. IN THE RESULT APPEAL OF THE ASSESSEE IS PARTLY ALLOWED. 29. TO SUM UP APPEAL OF THE ASSESSEE IS PARTLY ALL OWED AND THE APPEAL OF THE REVENUE IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 28 TH DAY OF NOVEMBER 2017. SD/- SD/- (VIKAS AWASTHY) (D. KARUNAKARA RAO) /JUDICIAL MEMBER / ACCOUNTANT MEMBER PUNE; DATED : 28 TH NOVEMBER 2017. COPY OF THE ORDER FORWARDED TO : BY ORDER // TRUE COPY // SENIOR PRIVATE SECRETARY / ITAT PUNE THE APPELLANT THE RESPONDENT THE CIT(A) - 11 PUNE CIT (A) - 11 PUNE % A BENCH PUNE; GUARD FILE.