Asst.. Comm. of Income-tax,, Pune v. Serum Institute of India Ltd.,, Pune

ITA 17/PUN/2012 | 2007-2008
Pronouncement Date: 10-04-2014 | Result: Dismissed

Appeal Details

RSA Number 1724514 RSA 2012
Assessee PAN AABCS4225M
Bench Pune
Appeal Number ITA 17/PUN/2012
Duration Of Justice 2 year(s) 3 month(s) 4 day(s)
Appellant Asst.. Comm. of Income-tax,, Pune
Respondent Serum Institute of India Ltd.,, Pune
Appeal Type Income Tax Appeal
Pronouncement Date 10-04-2014
Appeal Filed By Department
Order Result Dismissed
Bench Allotted A
Tribunal Order Date 10-04-2014
Date Of Final Hearing 02-04-2014
Next Hearing Date 02-04-2014
Assessment Year 2007-2008
Appeal Filed On 05-01-2012
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH A PUNE BEFORE SHRI SHAILENDRA KUMAR YADAV JUDICIAL MEMBER AND SHRI R.K. PANDA ACCOUNTANT MEMBER ITA NO.17/PN/2012 (ASST.YEAR: 2007-08) ACIT CENTRAL CIRCLE-1(1) PUNE .. APPELLANT VS. SERUM INSTITUTE OF INDIA LTD. 212/2 PUNE SOLAPUR ROAD HADAPSAR PUNE-411028 .. RESPONDENT PAN NO.AABCS4225M ITA NO.102/PN/2012 (ASST.YEAR: 2007-08) SERUM INSTITUTE OF INDIA LTD. 16-B/1 AMBEDKAR ROAD PUNE-411001 .. APPELLANT PAN NO.AABCS4225M VS. ADDL.CIT RANGE-6 PUNE .. RESPONDENT ITA NO.1575/PN/2012 (ASST.YEAR: 2006-07) SERUM INSTITUTE OF INDIA LTD. 16-B/1 AMBEDKAR ROAD PUNE-411001 .. APPELLANT PAN NO.AABCS4225M VS. ADDL.CIT RANGE-6 PUNE .. RESPONDENT ITA NO.1616/PN/2012 (ASST.YEAR: 2006-07) ACIT CENTRAL CIRCLE-1(1) PUNE .. APPELLANT VS. SERUM INSTITUTE OF INDIA LTD. 212/2 PUNE SOLAPUR ROAD HADAPSAR PUNE-411028 .. RESPONDENT PAN NO.AABCS4225M ASSESSEE BY : SHRI R.D. ONKAR REVENUE BY : SHRI P.L. PATHADE DATE OF HEARING : 04-04-2014 DATE OF PRONOUNCEMENT : 10-04-2014 2 ORDER PER R.K.PANDA AM : ITA NO.17/PN/2012 FILED BY THE REVENUE AND ITA NO.102/PN/2012 FILED BY THE ASSESSEE ARE CROSS APPE ALS AND ARE DIRECTED AGAINST THE ORDER DATED 25-1-2011 OF THE C IT(A)-III PUNE RELATING TO ASSESSMENT YEAR 2007-08. 2. ITA NO.1575/PN/2012 FILED BY THE ASSESSEE AND IT A NO.1616/PN/2012 FILED BY THE REVENUE ARE CROSS APPE ALS AND ARE DIRECTED AGAINST THE ORDER DATED 30-12-2011 OF THE CIT(A)-III PUNE RELATING TO ASSESSMENT YEAR 2006-07. FOR THE SAKE OF CONVENIENCE THESE APPEALS WERE HEARD TOGETHER AND ARE BEING DIS POSED OF BY THIS COMMON ORDER. ITA NO.17/PN/2012 (BY REVENUE) (A.Y. 2007-08) : 3. GROUNDS OF APPEAL NO.1 TO 4.2 BY THE REVENUE REA D AS UNDER : 01. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW THE LD CIT(A) ERRED IN ALLOWING RELIEF TO ASSESSEE WHEN AO MADE DISALLOWANCE ON ACCOUNT OF FREIGHT RS.32 69 97 710/- AND INSURANCE RS. 3 53 49 404/- WHICH WAS EXCLUDED IN TOTAL TURNOVE R BY THE ASSESSEE WHILE CALCULATING DEDUCTION U/S. 10B. 02. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE A ND IN LAW THE LD CIT(A) ERRED IN ALLOWING RELIEF TO ASSESSEE WHEN SE CTION 10B PROVIDES FOR EXCLUDING FREIGHT AND INSURANCE FROM THE 'EXPORT TURNOVER' HOWEVER NO SUCH PROVISION TO EXCLUDE THE SA ME FROM 'TOTAL TURNOVER'. 3.1 ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW THE LD CIT(A) ERRED IN RELYING ON DECISION IN CASE OF GEM S PLUS JEWELLERY INDIA LTD. 330 ITR 175 (BOM.) WHEN THE D ECISION WAS RENDERED BY HON'BLE HIGH COURT IN THE CONTEXT OF PR OVISIONS OF SECTION 10A AND THE ISSUE INVOLVED IN THE INSTANT CASE IS RELATED TO SECTION 10B. 3.2 WITHOUT PREJUDICE TO THE ABOVE THE DECISION OF T HE HIGH COURT AS REFERRED IN THE CASE OF GEMS PLUS JEWELLERY INDIA LTD. HAS NOT BEEN ACCEPTED AND SLP HAS BEEN FILED BY THE DEPARTMENT. 3 4.1 ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE A ND IN LAW THE LD CIT(A) ERRED IN RELYING ON DECISION IN CASE OF SAK SOFT LTD. (121 TTJ 865) WHEREIN THE HONBLE ITAT DEFINED THE TOTAL TURNOVER INTERPRETING SECTION 80HHE AND 80HHF WHEN ISSUE INVOL VED IN THIS CASE RELATES TO SEC.10B. 4.2 WITHOUT PREJUDICE TO THE ABOVE THE DECISION OF T HE ITAT AS REFERRED IN THE CASE OF M/S. SAK SOFT LTD. HAS NOT BEE N ACCEPTED AND APPEAL U/S.260A HAS BEEN FILED BY THE DEPARTMENT. 3.1 FACTS OF THE CASE IN BRIEF ARE THAT THE AO DU RING THE COURSE OF ASSESSMENT PROCEEDINGS OBSERVED THAT THE ASSESSE E HAS DEDUCTED FREIGHT CHARGES AMOUNTING TO RS.32 69 97 710/- AND INSURANCE CHARGES AMOUNTING TO RS.3 53 49 404/- FROM THE TOTA L TURNOVER AS WELL AS EXPORT TURNOVER. REJECTING THE VARIOUS EXP LANATIONS GIVEN BY THE ASSESSEE AND OBSERVING THAT IN VIEW OF EXPLA NATION 2 (III) TO SECTION 10B FREIGHT TELECOMMUNICATION CHARGES OR I NSURANCE ARE TO BE EXCLUDED FROM THE EXPORT TURNOVER AND NOT FRO M THE TOTAL TURNOVER THE AO ADDED BOTH THE ITEMS I.E. FREIGHT CHARGES AMOUNTING TO RS.32 69 97 710/- AND INSURANCE CHARGE S AMOUNTING TO RS.3 53 49 404/- TO THE TOTAL TURNOVER FOR THE P URPOSE OF WORKING OUT DEDUCTION U/S.10B OF THE INCOME TAX ACT. 3.2 IN APPEAL THE LD.CIT(A) RELYING ON VARIOUS DECI SIONS INCLUDING THE DECISION OF THE SPECIAL BENCH OF THE TRIBUNAL IN THE CASE OF SAK SOFT LTD. REPORTED IN 121 TTJ 865 AND T HE DECISION OF THE HONBLE BOMBAY HIGH COURT IN THE CASE OF GEMS P LUS JEWELLERY INDIA LTD. REPORTED IN 330 ITR 175 DIRECT ED THE AO TO EXCLUDE THE FREIGHT CHARGES OF RS.32 69 97 710/- AN D INSURANCE CHARGES OF RS.3 53 49 404/- FROM THE TOTAL TURNOVER FOR COMPUTING THE DEDUCTION ALLOWABLE U/S.10B OF THE I.T. ACT. 4 3.3 AGGRIEVED WITH SUCH ORDER OF THE CIT(A) THE REV ENUE IS IN APPEAL BEFORE US. 4. WE HAVE CONSIDERED THE RIVAL ARGUMENTS MADE BY B OTH THE SIDES PERUSED THE ORDERS OF THE AO AND THE CIT(A) AND THE PAPER BOOK FILED ON BEHALF OF THE ASSESSEE. WE FIND THE LD.CIT(A) WHILE DIRECTING THE AO TO EXCLUDE THE FREIGHT AND INSURAN CE CHARGES FROM THE TOTAL TURNOVER FOR COMPUTING DEDUCTION ALLOWABL E U/S.10B HAS OBSERVED AS UNDER : 3.3 THE SUBMISSIONS OF THE APPELLANT ARE CAREFULLY EXAM INED WITH REFERENCE TO THE LEGAL POSITION AS APPLICABLE TO THE YEAR . THE CONTENTION OF THE APPELLANT IS THAT RECEIPTS ON ACCOUNT OF 'FRE IGHT AND INSURANCE' ARE NOT TOWARDS THE SALE OF GOODS BUT IT IS THE MERE REIMBURSEMENT OF EXPENSES WHAT THE APPELLANT HAD EXPEND ED FOR DELIVERY OF GOODS. IT IS ARGUED THAT ONCE IT IS REIMBURS EMENT OF EXPENSES 'FREIGHT & INSURANCE RECEIVED' CANNOT BE THE PART O F TOTAL TURNOVER' AS INTENDED BY SEC. 10B FOR THE PURPOSE OF WORKING OF DEDUCTION. THE CASE OF THE ASSESSING OFFICER IS THAT THERE IS A SPECIFIC PROVISION TO EXCLUDE FREIGHT AND INSURANCE FROM THE E XPORT TURNOVER UNDER THE EXPLANATION 2(III) TO SEC. -10B BUT SIMILA R EXCLUSION IS NOT PROVIDED IN THE CASE OF 'TOTAL TURNOVER'. HOWEVER TH IS ISSUE IS SQUARELY COVERED IN FAVOUR OF THE APPELLANT BY THE DECISION OF THE SPECIAL BENCH IN THE CASE OF SAK SOFT LTD. ( 121 TT J 865) WHEREIN THE SPECIAL BENCH HELD THAT SUCH EXPENSES HAVE TO BE EXCLUDED BOTH FROM THE EXPORT TURNOVER AND TOTAL TURNOVER IN THE FORMULA PROV IDED IN SEC.10B(4). THIS VIEW WAS AFFIRMED BY BOMBAY HIGH COURT IN THE CASE OF GEM PLUS JEWELLERY INDIA LTD. REPORTED IN 330 ITR 175 WHEREIN IT IS OBSERVED AS UNDER: THE CONTENTION OF THE REVENUE WAS THAT WHILE FREIGH T AND INSURANCE CHARGES ARE LIABLE TO BE EXCLUDED IN COMPUTING EXPO RT TURNOVER A SIMILAR EXCLUSION HAS NOT BEEN PROVIDED FOR IN REGA RD TO TOTAL TURNOVER. THE SUBMISSION OF THE REVENUE HOWEVER MISSED THE POINT THAT THE EXPRESSION 'TOTAL TURNOVER' HAS NOT BEEN DEFINED AT ALL BY THE PARLIAMENT FOR THE PURPOSES OF SECTION 10A. HOWEVER THE EXPRESSION 'EXPORT TURNOVER' HAS BEEN DEFINED. THE DEFINITION OF 'EXPORT TURNOVER' EXCLUDES FREIGHT AND INSURANCE. SINCE EXPORT TURNOV ER HAS BEEN DEFINED BY THE PARLIAMENT AND THERE IS A SPECIFIC EXCLUSION OF FREIGHT AND INSURANCE CHARGES THE EXPRESSION 'EXPORT TURNOVER' CANNOT HAVE A DIFFERENT MEANING WHEN IT FORMS A CONSTITUENT PART OF THE TOTAL TURNOVER FOR THE PURPOSES OF THE APPLICATION OF THE FORMULA. UNDOUBTEDLY IT WAS OPEN TO THE PARLIAMENT TO MAKE A PROVISION TO THE CONTRARY. HOWEVER NO SUCH PROVISION HAVING BEE N MADE THE PRINCIPLE WHICH HAS BEEN ENUNCIATED EARLIER MUST PR EVAIL AS A MATTER OF CORRECT STATUTORY INTERPRETATION. ANY OTHER INTE RPRETATION WOULD LEAD TO AN ABSURDITY. IF THE CONTENTION OF THE REVE NUE WAS TO BE ACCEPTED THE SAME EXPRESSION VIZ. 'EXPORT TURNOVER' WOULD HAVE A DIFFERENT CONNOTATION IN THE APPLICATION OF THE SAM E FORMULA. THE 5 SUBMISSION OF THE REVENUE WOULD LEAD TO A SITUATION WHERE FREIGHT AND INSURANCE THOUGH THEY HAVE BEEN SPECIFICALLY EXCLUD ED FROM 'EXPORT TURNOVER' FOR THE PURPOSES OF THE NUMERATOR WOULD B E BROUGHT IN AS PART OF THE 'EXPORT TURNOVER' WHEN IT FORMS AN ELEM ENT OF THE TOTAL TURNOVER AS A DENOMINATOR IN THE FORMULA. A CONSTRU CTION OF A STATUTORY PROVISION WHICH LEADS TO AN ABSURDITY MUST BE AVOID ED [PARA 7] MOREOVER A RECEIPT SUCH AS FREIGHT AND INSURANCE C HARGES WHICH DO NOT HAVE ANY ELEMENT OF PROFIT CANNOT BE INCLUDED IN T HE TOTAL TURNOVER. [PARA 9] FREIGHT AND INSURANCE DO NOT HAVE AN ELEMENT OF TUR NOVER. FOR THAT REASON IN ADDITION THESE TWO ITEMS WOULD HAVE TO B E EXCLUDED FROM THE TOTAL TURNOVER PARTICULARLY IN THE ABSENCE OF A LE GISLATIVE PRESCRIPTION TO THE CONTRARY. THEREFORE THE TRIBUNAL WAS JUSTIFIED IN HOLDING THAT THE EXEMPTION UNDER SECTION 10A SHOULD BE COMPUTED AFTE R EXCLUDING FREIGHT AND INSURANCE CHARGES FROM THE TOTAL TURNOVER THOUGH THE ABOVE DECISION WAS RENDERED IN THE CONTEXT OF PROVISIONS OF SEC. 10A THE PRINCIPLE LAID DOWN BY THE JURISDICTIONAL HIGH COURT IS EQUALLY APPLICABLE TO THE PROVISIONS OF SEC. 10B WHERE THE DEFINITION OF 'TOTAL TURNOVER' IS NOT PROV IDED AS IN THE CASE OF SEC. 10A. THE COMPUTATION FORMULA PROVIDED UN DER SUB- SECTION (4) IS SIMILAR IN BOTH THE SECTIONS. IN VIEW OF THE DECISION OF THE BOMBAY HIGH COURT AND THE SPECIAL BENCH ON T HE ISSUE THE ASSESSING OFFICER IS DIRECTED TO EXCLUDE THE FR EIGHT OF RS. 32 69 97 710/- AND INSURANCE OF RS. 3 53 49 404/- F ROM THE TOTAL TURNOVER ALSO AND RE-COMPUTE THE DEDUCTION AL LOWABLE UNDER SEC.10B. 4.1 SINCE THE LD.CIT(A) WHILE DIRECTING THE AO TO E XCLUDE THE FREIGHT AND INSURANCE CHARGES FROM THE TOTAL TURNOV ER HAS FOLLOWED THE DECISION OF THE HONBLE JURISDICTIONAL HIGH COU RT IN THE CASE OF GEMS PLUS JEWELLERY INDIA LTD (SUPRA) AND THE DECIS ION OF THE SPECIAL BENCH OF THE TRIBUNAL IN THE CASE OF SAK SO FT LTD. (SUPRA) THEREFORE RESPECTFULLY FOLLOWING THE ABOVE DECISIO NS AND IN ABSENCE OF ANY CONTRARY MATERIAL BROUGHT TO OUR NOTICE WE FIND NO INFIRMITY IN THE ORDER OF THE CIT(A). MERELY BECAUSE THE REV ENUE HAS NOT ACCEPTED THE ABOVE DECISION OF THE HONBLE HIGH COU RT AND HAS FILED APPEAL AGAINST THE SAID DECISION WILL NOT BE A GROUND TO TAKE A CONTRARY VIEW THAN THE VIEW TAKEN BY THE HONBLE HI GH COURT UNLESS AND UNTIL THE SAME IS REVERSED. IN THIS VIE W OF THE MATTER AND IN VIEW OF THE DETAILED REASONING GIVEN BY THE LD.C IT(A) DIRECTING THE AO TO EXCLUDE THE FREIGHT AND INSURANCE CHARGES FROM THE TOTAL 6 TURNOVER FOR COMPUTING DEDUCTION U/S.10B WE FIND NO INFIRMITY IN THE SAME. ACCORDINGLY THE ORDER OF THE CIT(A) ON THIS ISSUE IS UPHELD AND THE GROUNDS RAISED BY THE REVENUE ARE DI SMISSED. 5. GROUNDS OF APPEAL NO.5 AND 6 BY THE REVENUE ARE AS UNDER : 05. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE AND IN LAW THE LD CIT(A) ERRED IN DIRECTING THE ASSESSING OFFICER TO SEGREGATE THE FURNITURE INTO TWO CATEGORIES ONE FA LLING UNDER FURNITURE ELIGIBLE FOR DEPRECIATION @ 10% AND THE OTHER ITEMS WHICH WERE USED FOR CARRYING PRODUCTS FROM TH E LABORATORY TO STORE UNDER THE HEAD 'PLANT AND MACHI NERY ELIGIBLE FOR DEPRECIATION @ 15% AND TO ALLOW DEPRE CIATION ACCORDINGLY. 06. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW THE LD CIT(A) ERRED IN NOT APPRECIATING THAT T HE ASSESSING OFFICER HAD CORRECTLY CLASSIFIED THE ASSE TS UNDER THE HEAD 'FURNITURE' AND HAD ALLOWED DEPRECIATION A S PER LAW @ 10% AND IN CONSONANCE WITH THE DECISION OF THE HON'BLE BOMBAY HIGH COURT IN THE CASE OF SIEMENS IN DIA PVT. LTD. 217 ITR 622 (BOM.). 5.1 FACTS OF THE CASE IN BRIEF ARE THAT THE ASSES SEE HAD SHOWN ADDITIONS TO PLANT & MACHINERY TO THE TUNE OF RS.8 76 45 866/- IN THE DEPRECIATION CHART AS PART OF THE AUDIT REPORT FURNISHED ALONG WITH THE RETURN OF INCOME. DURING THE ASSESSMENT PR OCEEDINGS IT WAS CLARIFIED BEFORE THE ASSESSING OFFICER THAT STA INLESS STOOLS AND CHAIRS USED BY THE EMPLOYEES DURING THE PROCESS OF MANUFACTURING WERE CLASSIFIED AS PLANT & MACHINERY AND DEPRECIATI ON WAS CLAIMED ACCORDINGLY. THE JUSTIFICATION PUT FORTH BY THE ASS ESSEE WAS THAT SINCE WOODEN CHAIRS/STOOLS COULD NOT BE USED IN THE MANUFACTURING PROCESS OF VACCINES FOR HYGIENIC REASON STAINLESS STEEL ITEMS WERE BEING USED AND BY APPLYING THE FUNCTIONAL TEST THE SAME HAS TO BE TREATED AS PLANT AND MACHINERY AND NOT FURNITURE. H OWEVER THE ASSESSING OFFICER WAS OF THE OPINION THAT THE SAID ITEMS WERE NOTHING BUT FURNITURE AS WAS REVEALED FROM THE RELE VANT 7 BILLS/VOUCHERS AND DEPRECIATION WAS ALLOWABLE @ 10% AS APPLICABLE TO FURNITURE AND NOT AT 15% APPLICABLE TO PLANT & M ACHINERY AS CLAIMED BY THE ASSESSEE. ON BEING ASKED TO CLARIFY IN THIS REGARD THE ASSESSEE INSISTED ON THE ASPECT OF FUNCTIONAL TEST CLAIMING THAT THE ITEMS WERE SPECIALLY USED FOR THE MANUFACTURING PRO CESS AND THEREFORE THE SAME FITS INTO CLASSIFICATION OF PLA NT & MACHINERY. HOWEVER OBSERVING THAT THE STOOLS/CHAIRS ARE USED BY THE PERSONNEL FOR SITTING AND KEEPING THE MATERIAL ON THEM THE A SSESSING OFFICER CONCLUDED THAT THESE ARE IN THE CATEGORY OF FURNITU RE AND CANNOT BE CLASSIFIED AS PLANT & MACHINERY. ACCORDINGLY HE RE CASTED THE DEPRECIATION ALLOWANCE IN RESPECT OF THE DTA UNIT A ND DISALLOWED THE EXCESS CLAIM OF DEPRECIATION AMOUNTING TO RS.10 67 069/-. 5.2 IN APPEAL THE LD.CIT(A) FOLLOWING THE ORDER OF HIS PREDECESSOR IN ASSESSEES OWN CASE AND VARIOUS OTHE R DECISIONS DIRECTED THE AO TO ALLOW DEPRECIATION @15% AS AGAIN ST 10% DETERMINED BY THE AO. 5.3 AGGRIEVED WITH SUCH ORDER OF THE CIT(A) THE REV ENUE IS IN APPEAL BEFORE US. 6. AFTER HEARING BOTH THE SIDES WE FIND THE ABOVE ISSUE STANDS DECIDED IN FAVOUR OF THE ASSESSEE BY THE DECISION O F THE TRIBUNAL IN ASSESSEES OWN CASE FOR A.Y. 2005-06 AND 2006-07. WE FIND THE TRIBUNAL IN THE CONSOLIDATED ORDER DATED 22-02-2013 FOR A.Y. 2005- 06 AND 2006-07 WHILE DECIDING THE ISSUE FOR A.Y. 20 05-06 AT PARA 5 OF THE ORDER HAS OBSERVED AS UNDER : 8 5. THE NEXT ISSUE RELATES TO DISALLOWANCE OF DEPRECIAT ION AMOUNTING TO RS.54 213/- BY CLASSIFYING CERTAIN ITEMS O F FIXED ASSETS LOCATED IN MANUFACTURING UNIT AS FURNITURE AND FIXTURES AND NOT AS PLANT AND MACHINERY AS CONTENDED BY THE ASSESSE E. SIMILAR ISSUE CAME UP FOR CONSIDERATION BEFORE CO-ORDINATE BEN CH OF THE TRIBUNAL IN ASSESSEES OWN CASE FOR THE ASSESSMENT YEAR 2001- 02 VIDE ITA NO.948/PN/2005 DATED 18-1-2012. IN THIS VI EW OF THE MATTER THE ASSESSING OFFICER IS DIRECTED TO ADJUDICATE THE ISSUE AND GRANT THE ENTITLED RELIEF TO THE ASSESSEE AS PER DIRECTI ONS CONTAINED IN THE ORDER OF THE TRIBUNAL PERTAINING TO A.Y. 200 1-02 (SUPRA). ON THIS ISSUE THE ASSESSEE SUCCEEDS. 6.1 SIMILARLY THE TRIBUNAL WHILE DECIDING THE ISSU E FOR A.Y. 2006-07 AT PARA 27 OF THE ORDER HAS OBSERVED AS UND ER : 27. THE NEXT ISSUE RELATES TO PARTIAL DISALLOWANCE OF DEPRECIATION BY CLASSIFYING CERTAIN ITEMS OF FIXED ASSETS COSTING RS.8 8 2 555/- LOCATED IN MANUFACTURING UNIT AS FURNITURE AND FIX TURES AND NOT AS PLANT AND MACHINERY AS CONTENDED BY THE ASSESSEE. S IMILAR ISSUE CAME UP FOR CONSIDERATION BEFORE CO-ORDINATE BEN CH OF THE TRIBUNAL IN ASSESSEES OWN CASE FOR THE ASSESSMENT YEAR 2001- 02 VIDE ITA NO.948/PN/2005 DATED 18-1-2012. IN THIS VI EW OF THE MATTER THE ASSESSING OFFICER IS DIRECTED TO ADJUDICATE THE ISSUE AND GRANT THE ENTITLED RELIEF TO THE ASSESSEE AS PER DIRECTI ONS CONTAINED IN THE ORDER OF THE TRIBUNAL PERTAINING TO A.Y. 200 1-02 (SUPRA). ON THIS ISSUE THE ASSESSEE SUCCEEDS. 6.2 RESPECTFULLY FOLLOWING THE DECISION OF THE TRIB UNAL IN ASSESSEES OWN CASE IN THE PRECEDING YEARS AND IN A BSENCE OF ANY CONTRARY MATERIAL BROUGHT TO OUR NOTICE WE FIND NO INFIRMITY IN THE ORDER OF THE CIT(A) DIRECTING THE AO TO ALLOW DEPRE CIATION @15%. ACCORDINGLY THE SAME IS UPHELD AND THE GROUNDS RAI SED BY THE REVENUE ARE DISMISSED. ITA NO.102/PN/2012 (BY ASSESSEE) (A.Y. 2007-08) : 7. GROUNDS OF APPEAL NO.1 BY THE ASSESSEE READS AS UNDER : ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW THE LD.CIT(A) ERRED IN CONFIRMING THE DISALLOWANCE OF DE DUCTION U/S.10B WITH REFERENCE TO EXPORT INVOICE OF RS.7 19 934/- FOR WANT OF EXTENSION LETTER IN SPITE OF SUBSEQUENT REALIZATIO N OF EXPORT PROCEEDS. 9 7.1 FACTS OF THE CASE IN BRIEF ARE THAT THE ASSES SING OFFICER WHILE COMPUTING THE DEDUCTION ALLOWABLE U/S.10B HA S EXCLUDED EXPORT TURNOVER OF RS.7 19 934/- FROM THE TOTAL EXP ORT TURNOVER ON THE GROUND THAT THE SALE PROCEEDS WERE NOT RECEIVED IN CONVERTIBLE FOREIGN EXCHANGE WITHIN A PERIOD OF SIX MONTHS FROM THE END OF THE PREVIOUS YEAR. THE A.O. OBSERVED THAT THESE SALE PR OCEEDS WERE REALIZED ON 24.12.2007 WHICH IS BEYOND THE TIME LI MIT AND ALSO NO EXTENSION WAS OBTAINED FROM RBI. BEFORE CIT(A) IT WAS ARGUED THAT THE ASSESSING OFFICER HAS NOT CONSIDERED THE S TATUS OF 'EXPORT HOUSE' ACCORDED TO IT BY THE MINISTRY OF COMMERCE WHICH CONFERS A PRIVILEGE OF NORMAL REPATRIATION PERIOD OF 180 TO 360 DAYS. HOWEVER THE LD.CIT(A) OBSERVED THAT THE ARGUMENTS ADVANCED BY THE ASSESSEE ARE NOT LEGALLY SUSTAINABLE. HE OBSERV ED FROM THE INVOICE THAT THE IMPUGNED EXPORT WAS MADE ON 09.05. 2006 AND PROCEEDS WERE REALIZED ON 24.12 2007 WHICH IS BEYO ND THE PERIOD SPECIFIED UNDER THE SECTION. THE ASSESSEE HAS ALSO NOT FURNISHED ANY APPROVAL FROM THE COMPETENT AUTHORITY GRANTING EXTE NSION OF TIME FOR REALIZATION OF EXPORT PROCEEDS BEYOND THE SPECI FIED PERIOD I.E. AFTER 30.09.2007. AS THE EXPORT PROCEEDS IN RESPECT OF THE SAID INVOICE WERE REALIZED BEYOND THE PRESCRIBED TIME LI MIT AND NO EXTENSION WAS GRANTED BY THE COMPETENT AUTHORITY T HE REALIZATION IN QUESTION DOES NOT QUALIFY FOR DEDUCTION. IN VIEW O F THE ABOVE THE LD.CIT(A) UPHELD THE ACTION OF THE AO ON THE GROUND THAT THE ASSESSEE COULD NOT FULFIL EVEN THE BASIC CONDITIONS FOR CLAIMING SUCH DEDUCTION AND THE EXPORT PROCEEDS OF RS.7 19 934/- WAS REALISED BEYOND THE PRESCRIBED TIME LIMIT. 10 7.2 AGGRIEVED WITH SUCH ORDER OF THE CIT(A) THE ASS ESSEE IS IN APPEAL BEFORE US. 8. THE LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE ASSESSEE HAS SET UP AN EXPORT ORIENTED UNDERTAKING (EOU) ENG AGED IN THE BUSINESS OF PRODUCTION AND EXPORTS OF VACCINES. PR OFITS FROM THE EXPORTS DERIVED BY THE EOU ARE ELIGIBLE FOR DEDUCTI ON U/S.10B. THE EXPORT PROCEEDS IN RESPECT OF ONE EXPORT INVOIC E RAISED BY THE EOU FOR RS.7 19 934/- WERE RECEIVED LATE VIZ. ON 24 TH DECEMBER 2007 I.E. AFTER 30-09-2007 FOR THE IMPUGNED A.Y. HE SUBMITTED THAT RESERVE BANK OF INDIA (RBI) IS THE COMPETENT A UTHORITY UNDER FEMA FOR EXTENSION OF TIME FOR RECEIPT OF EXPORT P ROCEEDS BEYOND A PERIOD OF SIX MONTHS FROM THE END OF THE RELEVANT PREVIOUS YEAR. FEMA UNDER LIBERALISED PROCEDURES ALLOWS SELF EXTEN SION OF TIME LIMIT PROVIDING FULL FLEXIBILITY TO ALL THE EXPORTE RS. HE SUBMITTED THAT THE PROVISIONS OF SECTION 10B(3) ARE IN PARI M ATERIA WITH 10A(3). SINCE RBI HAD NEITHER REJECTED NOR DECLINE D THE REQUEST OF THE ASSESSEE AND HAD TAKEN THE INWARD REMITTANCES O N RECORD THEREFORE THE EXTENSION WAS DEEMED TO HAVE BEEN GR ANTED. HE SUBMITTED THAT THE ISSUE IS SQUARELY COVERED IN FAV OUR OF THE ASSESSEE BY THE DECISION OF THE HONBLE BOMBAY HIGH COURT IN THE CASE OF MORGAN STANLEY ADVANTAGE SERVICES PVT. LTD. REPORTED IN 339 ITR 291 ON IDENTICAL FACTS AND CIRCUMSTANCES. 9. THE LD. DEPARTMENTAL REPRESENTATIVE ON THE OTHER HAND HEAVILY RELIED ON THE ORDER OF THE AO AND THE CIT(A ). 11 10. WE HAVE CONSIDERED THE RIVAL ARGUMENTS MADE BY BOTH THE SIDES PERUSED THE ORDERS OF THE AO AND THE CIT(A) AND THE PAPER BOOK FILED ON BEHALF OF THE ASSESSEE. FROM THE VAR IOUS DETAILS FURNISHED BY THE ASSESSEE WE FIND IN RESPECT OF ON E EXPORT INVOICE RAISED BY THE EOU FOR RS.7 19 934/- THE EXPORT PROC EEDS WERE RECEIVED ON 24-12-2007 I.E. AFTER 30-09-2007. THE SUBMISSION OF THE LD. COUNSEL FOR THE ASSESSEE IN THE WRITTEN SUB MISSION THAT THE COMPANY HAS BEEN ACCORDED THE STATUS OF EXPORT HOUS E BY THE MINISTRY OF COMMERCE FROM 01-04-2004 ONWARDS AND IT HAS GOT THE PRIVILEGE IN ENHANCEMENT OF NORMAL REPATRIATION PER IOD OF 180 TO 360 DAYS IN VIEW OF THE EXIM POLICY OF THE GOVT. OF INDIA COULD NOT BE CONTROVERTED BY THE LD. DEPARTMENTAL REPRESE NTATIVE. 10.1 WE FIND THE HONBLE BOMBAY HIGH COURT IN THE C ASE OF CIT VS. MORGAN STANLEY ADVANTAGE SERVICES PVT. LTD. REP ORTED IN 339 ITR 291 HAS OBSERVED AS UNDER (SHORT NOTES) : EXPORT PROCEEDS AMOUNTING TO RS. 2.20 CRORES HAVIN G NOT BEEN RECEIVED BY THE ASSESSEE WITHIN SIX MONTHS FROM THE END OF THE ASSESSMENT YEAR 2004-05 THE ASSESSEE SUBMITTED AN APPLICATION TO THE RESERVE BANK OF INDIA ON OCTOBER 7 2004 SEEK ING EXTENSION OF TIME FOR REALIZATION OF THE EXPORT PROCEEDS. THE R ESERVE BANK OF INDIA GRANTED ITS APPROVAL IN THE CONTEXT OF THE PRO VISIONS OF THE FOREIGN EXCHANGE MANAGEMENT ACT 1999 BUT DID NOT G RANT ANY FORMAL APPROVAL UNDER SECTION 10A OF THE INCOME-TAX ACT 1961 EVEN THOUGH AN APPLICATION HAD BEEN MADE BY THE ASSESSEE IN THAT BEHALF. THE ASSESSING OFFICER DENIED THE EXEMPTION UNDER SEC TION 10A BUT THE TRIBUNAL ALLOWED IT. ON APPEAL TO THE HIGH COURT: HELD DISMISSING THE APPEAL THAT THE RESERVE BANK OF INDIA IS THE COMPETENT AUTHORITY UNDER THE 1999 ACT. THUS WHAT SECTION 10A(3) OF THE ACT PROVIDES IS THAT THE BENEFITS UNDER SECT ION 10A(1) WOULD BE AVAILABLE IF THE EXPORT PROCEEDS ARE REALISED WITHI N THE TIME PRESCRIBED BY THE COMPETENT AUTHORITY UNDER THE 199 9 ACT. THE RESERVE BANK OF INDIA HAD GRANTED APPROVAL IN RESPE CT OF THE EXPORT PROCEEDS REALISED BY THE ASSESSEE TILL DECEMBER 20 04. THEREFORE THE APPROVAL GRANTED BY IT UNDER THE 1999 ACT WOULD MEE T THE REQUIREMENTS OF SECTION 10A OF THE ACT. MOREOVER T HE RESERVE BANK OF INDIA HAD NEITHER DECLINED NOR REJECTED THE APPLIC ATION MADE BY THE ASSESSEE SEEKING EXTENSION OF TIME UNDER SECTION I DA OF THE ACT. 12 THEREFORE THE DECISION OF THE TRIBUNAL HOLDING THA T THE APPROVAL GRANTED UNDER THE 1999 ACT CONSTITUTED DEEMED APPRO VAL GRANTED BY THE RESERVE BANK OF INDIA UNDER SECTION 10A(3) COUL D NOT BE FAULTED. THE ASSESSEE WAS ENTITLED TO EXEMPTION UNDER SECTION 10A 10.2 SINCE THE ASSESSEE IN THE INSTANT CASE HAS APP LIED FOR EXTENSION OF TIME BY THE PRESCRIBED AUTHORITY WHICH HAS NEITHER BEEN REJECTED NOR DECLINED AND THE RBI HAS TAKEN TH E INWARD REMITTANCES ON RECORD THEREFORE WE HOLD THAT THE CIT(A) IS NOT JUSTIFIED IN CURTAILING THE DEDUCTION U/S.10B BY EX CLUDING THE DELAYED RECEIPT OF EXPORT PROCEEDS OF RS.7 19 934/- FROM THE EXPORT TURNOVER. WE THEREFORE SET-ASIDE THE ORDER OF THE CIT(A) ON THIS ISSUE AND DIRECT THE AO TO ALLOW THE CLAIM OF THE A SSESSEE U/S.10B WITH RESPECT TO THE EXPORT INVOICE OF RS.9 19 934/- . GROUND RAISED BY THE ASSESSEE IS ACCORDINGLY ALLOWED. 11. GROUNDS OF APPEAL NO.2 BY THE ASSESSEE READS AS UNDER : ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW THE LD.CIT(A) ERRED IN REFUSING TO TREAT PMS FEES PAID OF RS.34 63 969/- AS PART OF EITHER OF COST OF ACQUISITION /IMPROVEMENT OR AS COST OF TRANSFER FOR WORKING INCOME FROM CAPIT AL GAIN. IN ANY EVENT HE OUGHT TO HAVE ACCEPTED THE ALTERNA TE CONTENTION OF THE APPELLANT THAT THERE WAS TO THAT EXTENT TRANSFE R BY OVERRIDING TITLE OF CONSIDERATION/INCOME ARISING ON SUCH SALE. 11.1 FACTS OF THE CASE IN BRIEF ARE THAT THE ASSE SSING OFFICER OBSERVED THAT THE ASSESSEE HAS CLAIMED DEDUCTION OF PORTFOLIO MANAGEMENT SCHEME FEES AMOUNTING TO RS.32 49 729/- OUT OF THE CAPITAL GAINS DERIVED ON SALE OF SHARES/SECURITIES. ON BEING ASKED AS TO WHY SUCH EXPENDITURE SHOULD NOT BE DISALLOWED WH ILE WORKING OUT THE RESULTANT CAPITAL GAINS THE ASSESSEE SUBMI TTED THAT THE SAID EXPENDITURE HAVING BEEN INCURRED FOR MANAGING THE I NVESTMENT PORTFOLIO OF THE ASSESSEE BY EXPERTS IN THE FIELD W AS NOTHING BUT COST 13 ASSOCIATED WITH BUYING OF GOOD SCRIPS AND SELLING T HE SAME AT RIGHT TIME AND THEREFORE IT CONSTITUTED COST OF INVESTME NT. HOWEVER THE ASSESSING OFFICER DID NOT FIND ANY MERIT IN THE CON TENTION OF THE ASSESSEE. HE OBSERVED THAT AS PER SEC.48 ONLY SUC H EXPENSES ARE DEDUCTIBLE FROM THE SALE CONSIDERATION OF AN ASSET WHICH ARE WHOLLY AND EXCLUSIVELY INCURRED IN CONNECTION WITH THE TRA NSFER OF THE ASSET. ACCORDING TO THE ASSESSING OFFICER PORTFOLI O MANAGEMENT CONSULTANTS ARE SERVICE INTERMEDIARIES WHO CARRY OU T THE RESEARCH AND ANALYSIS ABOUT THE PROFITABILITY OF THE SCRIPS OF VARIOUS COMPANIES AND KEEP TRACK ON THE MARKET CONDITIONS A ND THE FEES PAID BY THE ASSESSEE TO SUCH PROFESSIONAL MANAGERS COULD NOT BE SAID TO HAVE BEEN INCURRED WHOLLY AND EXCLUSIVELY F OR THE PURPOSE OF TRANSFER OF THE ASSET. HOLDING SO THE PMS FEES CLAIMED BY THE ASSESSEE AT RS.34 63 969/- FROM THE COST OF INVESTM ENT WAS DISALLOWED BY HIM WHILE COMPUTING THE CAPITAL GAINS . 11.2 IN APPEAL THE LD.CIT(A) UPHELD THE ACTION OF T HE AO BY HOLDING THAT THE EXPENDITURE ON ACCOUNT OF PMS FE ES IS NEITHER COST OF ACQUISITION OF THE SHARES IN QUESTION NOR C OST OF IMPROVEMENT THERE OF NOR INCURRED WHOLLY AND EXCLUS IVELY IN CONNECTION WITH THE TRANSFER OF ASSETS AND THEREFOR E THE AO IS JUSTIFIED IN REJECTING THE CLAIM OF DEDUCTION OF TH E FEES OF RS.34 63 969/- WHILE COMPUTING THE CAPITAL GAIN. 11.3 AGGRIEVED WITH SUCH ORDER OF THE CIT(A) THE AS SESSEE IS IN APPEAL BEFORE US. 12. AFTER HEARING BOTH THE SIDES WE FIND AN IDENTIC AL ISSUE HAD COME UP BEFORE THE COORDINATE BENCH OF THE TRIBUNA L IN THE CASE OF 14 KRA HOLDING AND TRADING INVESTMENT PVT. LTD. VS. DC IT. WE FIND THE TRIBUNAL VIDE ITA NO.703/PN/2012 ORDER DAT ED 19-09- 2013 FOR A.Y. 2008-09 WHILE DECIDING AN IDENTICAL I SSUE HAS OBSERVED AS UNDER : 9. IN THE APPEAL OF THE ASSESSEE THE SOLITARY ISSUE IS WI TH REGARD TO THE ACTION OF THE CIT(A) IN CONFIRMING TH E STAND OF THE ASSESSING OFFICER THAT FEES PAID TO ENAM ASSET MANAGEMENT COMPANY PVT. LTD. WAS NOT AN ALLOWABLE EXPENDITURE I N COMPUTING APPELLANTS INCOME WHETHER UNDER THE HEAD BUSINESS OR UNDER THE HEAD CAPITAL GAINS. 10. IN THIS REGARD THE ASSESSING OFFICER NOTICED THAT ASSESSEE HAD INCURRED EXPENDITURE OF RS.2 79 31 009/- REPRESEN TING PAYMENTS TO ENAM ASSET MANAGEMENT COMPANY PVT. LTD. AS PORTFOLIO MANAGEMENT FEES IN TERMS OF AN INVESTMENT MA NAGEMENT AGREEMENT DATED 01.01.2005. FOLLOWING HIS DECISION FO R THE EARLIER ASSESSMENT YEARS I.E. ASSESSMENT YEAR 2004-05 TO 2007-08 TH E ASSESSING OFFICER DISALLOWED THE EXPENSE AGAINST WHICH ASSES SEE WENT IN APPEAL BEFORE THE CIT(A). THE CIT(A) NOTED THAT SIMILAR ISSUE FOR ASSESSMENT YEARS 2004-05 TO 2006-07 WAS ADJUDICAT ED BY THE TRIBUNAL IN THE ASSESSEES OWN CASE IN FAVOUR OF THE ASSESSEE AND AGAINST THE REVENUE VIDE ORDER DATED 31 ST MAY 2011 (SUPRA). HOWEVER THE CIT(A) NOTICED THAT SUBSEQUENTLY MUMBAI BENCH OF THE TRIBUNAL IN THE CASE OF ONE SHRI HOMI K. BHABHA VS. ITO IN ITA NO. 3287/MUM/2009 DECIDED A SIMILAR ISSUE AGAINST THE A SSESSEE AND THEREFORE HE HELD THE ISSUE AGAINST THE ASSESSEE. IN VIEW OF THE AFORESAID ASSESSEE IS IN FURTHER APPEAL BEFORE US. 11. AT THE TIME OF HEARING THE LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED THAT SIMILAR STAND OF THE CIT(A) IN THE ASSESSEE S OWN CASE FOR ASSESSMENT YEAR 2007-08 CAME UP BEFORE THE TRIB UNAL IN ITA NO. 356 & 240/PN/2011 DATED 25.07.2012 AND AFTE R CONSIDERING THE DIVERGENT VIEW OF THE MUMBAI BENCH O F THE TRIBUNAL IN THE CASE OF SHRI HOMI K. BHABHA (SUPRA) WHICH HAS BEEN RELIED UPON BY THE CIT(A) THE ISSUE HAS BEEN DECIDED IN FAVOUR OF THE ASSESSEE. IT WAS THEREFORE CONTENDED THAT THE ISSUE IS ACCORDINGLY LIABLE TO BE DECIDED IN FAVOUR OF THE A SSESSEE. 12. THE LEARNED CIT(DR) APPEARING FOR THE REVENUE H AS NOT CONTROVERTED THE FACTUAL MATRIX BROUGHT OUT BY THE LEARNED COUNSEL SO HOWEVER SHE HAS RELIED UPON THE ORDER OF THE CIT(A) IN SUPPORT OF THE CASE OF THE REVENUE. 13. WE HAVE CAREFULLY CONSIDERED THE RIVAL SUBMISSIONS AND ALSO THE PRECEDENT IN THE ASSESSEES OWN CASE BY WAY OF THE OR DER OF THE TRIBUNAL DATED 25.07.2012 (SUPRA). IN THE SAID CASE T HE TRIBUNAL CONSIDERED THE ALLOWABILITY OF EXPENDITURE INCURRED BY WAY OF PAYMENT OF FEES OF ENAM ASSET MANAGEMENT COMPANY PVT. LTD. IN TERMS OF THE INVESTMENT AGREEMENT DATED 01.01.2005 W HICH IS PRECISELY THE ISSUE BEFORE US ALSO. THE TRIBUNAL REFERRE D TO ITS EARLIER DECISION IN THE ASSESSEES OWN CASE FOR ASSESSMENT YE AR 2004-05 VIDE ORDER DATED 31 ST MAY 2011 (SUPRA) AND NOTICED THAT THE ISSUE HAS BEEN DECIDED IN FAVOUR OF THE ASSESSEE. THE REAFTER THE TRIBUNAL NOTED THAT AGAINST THE DECISION OF THE TRIBU NAL DATED 31 ST MAY 2011 (SUPRA) REVENUE PREFERRED AN APPEAL BEFO RE THE HONBLE SUPREME COURT ONLY ON THE ISSUE TREATMENT OF INCOME F ROM THE SALE 15 OF SHARES AS CAPITAL GAIN OR BUSINESS INCOME AND THAT THE REVENUE HAD NOT PREFERRED ANY APPEAL AGAINST THE ORDER OF TH E TRIBUNAL ALLOWING THE CLAIM OF DEDUCTION OF EXPENDITURE BY W AY OF PORTFOLIO MANAGEMENT FEE REPRESENTING PAYMENTS TO ENAM ASSET MANAGEMENT COMPANY PVT. LTD. WHILE COMPUTING THE IN COME UNDER THE HEAD CAPITAL GAINS. AFTER NOTICING THE AFORESAI D THE TRIBUNAL CONCLUDED AS UNDER IN PARA 11 OF ITS ORDER DATED 25.0 7.2012 :- 11. THE DECISION OF THE MUMBAI BENCH OF THE TRIBUN AL IN THE CASE OF HOMI K. BHABHA VS. ITO WAS BROUGHT TO OUR NOTICE BY THE LEARNED DR WHEREIN IT WAS HELD THAT PORTFOLIO MANAGEMENT SC HEME FEES IS NOT DEDUCTIBLE AGAINST CAPITAL GAINS. THE DECISION OF T HE PUNE BENCH OF THE TRIBUNAL IN THE CASE OF KRA HOLDING & TRADING W AS NOT FOLLOWED BY THE MUMBAI BENCH IN THE ABOVE CITED DECISION. TH E MUMBAI BENCH FOLLOWING OTHER DECISIONS OF THE COORDINATE BENCHES OF THE TRIBUNAL DECLINED TO FOLLOW THE DECISION IN THE CASE OF KRA HOLDING & TRADING (SUPRA). IT IS THE SETTLED PROPOSITION OF LAW THAT WHEN TWO VIEW ARE POSSIBLE ON THE SAME ISSUE THE VIEW WHICH IS FAVOUR ABLE TO THE ASSESSEE HAS TO BE FOLLOWED. [CIT VS. VEGETABLE PRO DUCTS 88 ITR 192 (SC)]. FURTHER IN THE INSTANT CASE THE TRIBUNAL IN ASSESSEES OWN CASE HAS ALREADY TAKEN A VIEW IN FAVOUR OF THE ASSESSEE. SINCE THE AO & CIT(A) HAVE FOLLOWED THE ORDER FOR EARLIER YEAR IN THE CASE OF THE ASSESSEE AND SINCE THE ORDER OF CIT(A) FOR EARLIER YEAR HAS BEEN REVERSED BY THE TRIBUNAL THEREFORE UNLESS AND UNT IL THE DECISION OF THE TRIBUNAL IS REVERSED BY A HIGHER COURT THE SAM E IN OUR OPINION SHOULD BE FOLLOWED. IN THIS VIEW OF THE MATTER WE RESPECTFULLY FOLLOWING THE ORDER OF THE TRIBUNAL IN ASSESSEES O WN CASE FOR A.Y. 2004-05 ALLOW THE CLAIM OF THE PORTFOLIO MANAGEMENT FEES AS AN ALLOWABLE EXPENDITURE. THE GROUND RAISED BY THE ASS ESSEE IS ACCORDINGLY ALLOWED. 14. FOLLOWING THE AFORESAID PRECEDENT WHICH HAS CONSI DERED THE SIMILAR OBJECTIONS OF THE CIT(A) IN OUR CONSIDERED OP INION THE ORDER OF THE CIT(A) IN THE PRESENT CASE IS UNTENABLE AND WE ACCORDINGLY SET-ASIDE THE SAME AND DIRECT THE ASSESSING OF FICER TO DELETE THE IMPUGNED ADDITION. 12.1 RESPECTFULLY FOLLOWING THE DECISION OF THE TRI BUNAL IN THE CASE OF KRA HOLDING AND TRADING PVT. LTD. (SUPRA) W E HOLD THAT THE PMS FEES PAID BY THE ASSESSEE IS AN ALLOWABLE DEDUCTION FROM THE CAPITAL GAINS. GROUND APPEAL NO.2 BY THE ASSES SEE IS ACCORDINGLY ALLOWED 13. GROUNDS OF APPEAL NO.3 BY THE ASSESSEE READS AS UNDER : ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW THE LD.CIT(A) ERRED IN CONFIRMING THE DISALLOWANCE OF TH E PROVISION FOR LEAVE ENCASHMENT AMOUNTING TO RS.11 40 849/- PERTAIN ING TO DTA UNIT ASCERTAINED ON THE BASIS OF ACTUARIAL VALUA TION FOR THE ELIGIBLE EMPLOYEES OF THE SAID DTA UNIT OF THE APPELL ANT COMPANY.. 16 13.1 THE LD. COUNSEL FOR THE ASSESSEE FAIRLY CONCED ED THAT THE ABOVE ISSUE STANDS DECIDED AGAINST THE ASSESSEE BY THE DECISION OF THE TRIBUNAL IN ASSESSEES OWN CASE FOR A.Y.2005-06 AND 2006-07. IN VIEW OF THE ABOVE SUBMISSION OF THE LD. COUNSEL FOR THE ASSESSEE AND IN ABSENCE OF ANY OBJECTION FROM THE LD. DEPART MENTAL REPRESENTATIVE THE ABOVE GROUND BY THE ASSESSEE IS DISMISSED. 14. GROUNDS OF APPEAL NO.4 BY THE ASSESSEE READS AS UNDER : ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW THE LD.CIT(A) ERRED IN CONFIRMING THE DISALLOWANCE AS CA PITAL EXPENDITURE OF FOREIGN EXPENSES OF EMPLOYEES AMOUNTIN G TO RS.18 47 548/- WHO TRAVELLED ABROAD. 14.1 THE LD. COUNSEL FOR THE ASSESSEE FAIRLY CONCED ED THAT THE ABOVE GROUND IS DECIDED AGAINST THE ASSESSEE BY TH E DECISION OF THE TRIBUNAL IN ASSESSEES NOW CASE FOR A.Y. 2006-07. IN VIEW OF THE ABOVE SUBMISSION BY THE LD. COUNSEL FOR THE ASSESSE E AND IN ABSENCE OF ANY OBJECTION BY THE LD. DEPARTMENTAL RE PRESENTATIVE THE ABOVE GROUND BY THE ASSESSEE IS DISMISSED. 15. GROUNDS OF APPEAL NO.5(A) WAS NOT PRESSED BY TH E ASSESSEE FOR WHICH THE LD. DEPARTMENTAL REPRESENTATIVE HAS N O OBJECTION. ACCORDINGLY GROUND OF APPEAL NO.5(A) IS DISMISSED AS NOT PRESSED. 16. GROUNDS OF APPEAL NO.5(B) BY THE ASSESSEE READS AS UNDER : WITHOUT PREJUDICE TO GROUND A ABOVE) NOT ALLOWIN G DEPRECIATION AT THE RATE OF 80% ON SMF BATTERIES (ASSUMING IT I S CAPITAL EXPENDITURE) AS APPLICABLE TO MACHINERY & PLANT AS PE R SECTION 32 OF THE INCOME TAX ACT R.W. RULE 5 & APPENDIX-I OF I NCOME TAX RULES PARTICULARLY PART-III (8)(B)(IX) BEING THE RATE APP LICABLE TO ENERGY SAVING DEVICES BEING INSTRUMENTATION AND MONITORING SY STEM FOR MONITORING ENERGY FLOWS INSTEAD OF ALLOWING THE SAME @ 15% I.E. THE RATE APPLICABLE TO PLANT AND MACHINERY. 17 16.1 FACTS OF THE CASE IN BRIEF ARE THAT THE ASSE SSING OFFICER NOTED THAT THE ASSESSEE HAD DEBITED AN AMOUNT OF RS .67 79 712/- (DTA UNIT- RS.21 03 205/- EOU - RS.45 05 534/- AND SEZ UNIT- RS.1 70 972/-) AS EDP (ELECTRONIC DATA PROCESSING E XPENSES) UNDER THE HEAD 'MISCELLANEOUS EXPENSES' OUT OF WHICH AN AMOUNT OF RS.1 92 000/- FOUND TO HAVE BEEN PERTAINING TO DTA UNIT ON ACCOUNT OF PURCHASE OF SEALED MAINTENANCE FREE (SMF ) BATTERIES. ON BEING ASKED TO EXPLAIN AS TO WHY THE SAID EXPENDITU RE ON ACCOUNT OF PURCHASE OF SMF BATTERIES SHOULD NOT BE TREATED AS CAPITAL EXPENDITURE IT WAS CONTENDED THAT THE SAID SMF BAT TERIES HAVE A LIMITED LIFE SPAN. THOUGH IT IS DESIGNED TO BE USE D FOR A MAXIMUM OF 48 MONTHS DUE TO INCREASED USAGE OWING TO CONST ANT POWER FAILURES IT HAS A SHORT SPAN OF LIFE. THE ASSESSEE ACCORDINGLY JUSTIFIED TREATING THE EXPENDITURE AS OF REVENUE NA TURE. ALTERNATIVELY IT WAS CLAIMED THAT THE SAID BATTERI ES WERE IN THE NATURE OF ENERGY SAVING DEVICE AND THEREFORE THEY ARE ELIGIBLE FOR HIGHER DEPRECIATION @ 80%. HOWEVER THE ASSESSING OFFICER DID NOT FIND THE ARGUMENT OF THE ASSESSEE ACCEPTABLE. ACCOR DING TO THE AO THE FACT THAT THE SAID BATTERIES COULD BE USED UP T O 48 MONTHS ITSELF PROVED THAT THE ASSESSEE DERIVED BENEFIT OF ENDURIN G NATURE AND THEREFORE THESE ARE CAPITAL ASSETS IN NATURE. ACCO RDINGLY THE SAID ITEMS WERE TREATED AS CAPITAL ASSETS AND DEPRECIATI ON @15% WAS ALLOWED ONLY TREATING THE SAME AS PLANT & MACHINERY . 16.2 IN APPEAL THE LD.CIT(A) UPHELD THE ACTION OF T HE AO IN ALLOWING DEPRECIATION @15% IN RESPECT OF SMF BATTER IES TREATING 18 THE SAME AS CAPITAL EXPENDITURE AND THEN NORMAL PLA NT AND MACHINERY. 16.3 AGGRIEVED WITH SUCH ORDER OF THE CIT(A) THE AS SESSEE IS IN APPEAL BEFORE US. 17. WE HAVE CONSIDERED THE RIVAL ARGUMENTS MADE BY BOTH THE SIDES. WE FIND MERIT IN THE SUBMISSION OF THE LD. COUNSEL FOR THE ASSESSEE THAT SMF BATTERIES ARE DESIGNED TO OFFER R ELIABLE CONSISTENT AND LOW MAINTENANCE POWER FOR UPS APPLICATIONS. TH E UPS SEGMENTS CALL FOR THE USE OF A RELIABLE AND POWER B ATTERY SYSTEM SUCH AS SMF BATTERIES. THEREFORE FUNCTIONS OF SMF BATTERIES ARE INTEGRATED WITH UPS AND USED WITH IT. WE FIND THE MUMBAI BENCH OF THE TRIBUNAL IN THE CASE OF GODFREY PHILLIPS IND IA LTD. VS. DCIT VIDE ITA NO.7682/MUM/2010 FOR A.Y. 2006-07 AND ITA NO.8549/MUM/2010 FOR A.Y. 2007-08 ORDER DATED 22-10 -2012 HELD THAT UPS IS AUTOMATIC VOLTAGE CONTROLLER AND COVERE D UNDER ENERGY SAVING DEVICE ELIGIBLE FOR HIGHER RATE OF DEPRECIAT ION @80%. THE RELEVANT OBSERVATION OF THE TRIBUNAL READS AS UNDER : 5. GROUND NO.1 OF ASSESSEE'S APPEAL FOR THE ASSESSMENT YEA R 2006-07 AND 2007- 08 IS REGARDING DEPRECIATION ON UP S BEING ENERGY SAVING DEVICE. IT IS THE CASE OF THE ASSESSEE THAT THE UPS EMPLOYED BY IT BEING AN ENERGY SAVING DEVICE IS ENTIT LED FOR HIGHER DEPRECIATION @ 80% AS AGAINST THE CLAIM OF THE REVENU E THAT THE SAME IS NOT AN ENERGY SAVING DEVICE; BUT AN ENERGY SUPP LY DEVICE. THE IMPACT OF THIS DISALLOWANCE IS THE LESSER DEPRECIAT ION OF ` 5 74 579/- AND FOR ASSESSMENT YEAR 2007- 08 THE SAID A MOUNT IS ` 4 72 596/-. IT IS THE CASE OF THE LD AR THAT THIS ISSU E IS COVERED BY THE DECISION OF THE TRIBUNAL IN ASSESSEE'S OWN CASE FOR T HE ASSESSMENT YEAR 2002-03 IN ITA NO. 2792/M/2006; FOR ASSESSMENT YEAR 2003-04 IN ITA NO.1071/M/2007; FOR ASSESSME NT YEAR 2004-05 IN ITA NO.5569/M/2007 AND FOR ASSESSMENT Y EAR 2005-06 IN ITA NO.6964/M/2008 COPIES OF THESE ORDERS ARE ENCLOSED IN THE PAPER BOOK AT PAGES 1 TO 22; 23 TO 4 7 AND 48 TO 67 RESPECTIVELY. FOR THE SAKE OF CONVENIENCE THE OBSERV ATIONS OF THE TRIBUNAL IN RESPECT OF THE ASSESSMENT YEAR 2002-03 DECID ING THE ISSUE ARE REPRODUCED BELOW: 19 '13. WE HAVE HEARD THE RIVAL CONTENTIONS. SHORT QU ESTION IS WHETHER UPS IS A AUTOMATIC VOLTAGE CONTROLLER' FALLI NG WITHIN THE HEADING OF ENERGY SAVING DEVICE IN THE APPENDIX TO T HE INCOME TAX RULES 1962 GIVING DEPREDATION RATES. LEGISLATURE IN I TS WISDOM HAS CHOSEN TO SHOW AN AUTOMATIC VOLTAGE CONTROLLER' AS AN ELECTRICAL EQUIPMENT ELIGIBLE FOR 100% DEPRECIATION FALLING U NDER THE BROADER HEAD OF ENERGY SAVING DEVICES. ONCE LEGISLATUR E DEEMED THAT AN 'AUTOMATIC VOLTAGE CONTROLLER' IS A SPECIE FA LLING WITHIN ENERGY SAVING DEVICE IT IS NOT FOR THE ASSESSING OFFICER OR LD CIT(A) TO FURTHER ANALYSE WHETHER SUCH AN ITEM WOULD INDEED AN ENERGY SAVING DEVICE. IN FACT IT IS BEYOND THEIR POWERS. HENC E THE ONLY QUESTION TO ANSWER IN OUR OPINION IS WHETHER AN UPS I S AN AUTOMATIC VOLTAGE CONTROLLER'. IT IS MENTIONED IN TH E PRODUCT BROCHURE (PAPER BOOK PAGE 64) THAT THE UPS AUTOMATI CALLY CORRECTED LOW AND HIGH VOLTAGE CONDITIONS AND STEPPED UP LOW VOLTAGE TO SAFE OUTPUT LEVELS. THUS IN OUR OPINION THE RE CANNOT BE A QUARREL THAT UPS WAS DOING THE JOB OF VOLTAGE CONTRO LLING AUTOMATICALLY. EVEN WHEN IT WAS SUPPLYING ELECTRICITY AT THE TIME OF POWER VOLTAGE THE OUTAGES REMAINED CONTROLLED. THER EFORE IN OUR OPINION A UPS WOULD DEFINITELY FALL UNDER THE HEAD OF' AUTOMATIC VOLTAGE CONTROLLER'. WE ARE FORTIFIED IN TAKING THI S VIEW BY THE DECISION OF JODHPUR BENCH IN THE CASE OF SURFACE FINI SHING EQUIPMENT (SUPRA) AS FOR THE DECISION OF DELHI BENCH IN THE CASE OF NESTLE INDIA LTD. (SUPRA) REFERRED BY THE LD DR THER E THE QUESTION WAS WHETHER UPS COULD BE CONSIDERED AS 'COMPUTER' FOR DEPRECIATION RATE OF 60%. THERE WAS NO ISSUE OR QUESTI ON WHETHER FT COULD BE CONSIDERED AS AN AUTOMATIC VOLTAGE CONTRO LLER' AND HENCE IN OUR OPINION THAT CASE WOULD NOT HELP THE RE VENUE HERE. THEREFORE WE ARE OF THE OPINION THAT ASSESSEE WAS ELIGI BLE FOR CLAIMING 100% DEPREDATION ON UPS. DISALLOWANCE OF RS. 6 82 443/- THEREFORE STANDS DELETED. GROUND NUMBER 3 IS ALLOWED.' FOR OTHER YEARS THE ABOVE DECISION WAS FOLLOWED BY THE TRIBUNAL. 6. AFTER HEARING BOTH THE PARTIES RESPECTFULLY FOLL OWING THE ABOVE MENTIONED DECISIONS OF THE TRIBUNAL IN ASSESSEE'S OW N CASE WE DECIDE THIS ISSUE IN FAVOUR OF THE ASSESSEE AND ALLOW T HE GROUND NO.1 OF BOTH THE APPEALS FILED BY THE ASSESSEE. 17.1 SINCE SMF BATTERIES ARE INTEGRATED WITH UPS AN D USED WITH IT THEREFORE RESPECTFULLY FOLLOWING THE DECISION OF THE MUMBAI BENCH OF THE TRIBUNAL IN THE CASE CITED (SUPRA) AND IN ABSENCE OF ANY CONTRARY MATERIAL BROUGHT TO OUR NOTICE WE HOLD THAT THE ASSESSEE IS ENTITLED TO HIGHER RATE OF DEPRECIATION ON SMF BATTERIES. GROUND RAISED BY THE ASSESSEE IS ACCORDINGLY ALLOWE D. 18. GROUNDS OF APPEAL NO.6(A) AND 6(B) BY THE ASSES SEE READ AS UNDER : 20 ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW THE LD.CIT(A) ERRED IN CONFIRMING THE CLASSIFICATION OF I TEMS OF FIXED ASSETS OF RS.9 86 959/- LIKE STAINLESS STEEL TABLES STOOLS R ACKS ETC. LOCATED IN MANUFACTURING UNIT BY CONSIDERING THEM AS FURNITURE AND FIXTURES AND NOT AS PLANT AND MACHINERY. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW THE LD.CIT(A) ERRED IN NOT APPLYING CORRECTLY THE FUNCT IONAL TEST TO THE FACTS OF THE CASE WHILE DECIDING WHETHER CERTAIN ITEM S LIKE STAINLESS STEEL TABLE STOOLS TROLLEYS ETC. CONSTITUTED PLANT OR NOT. 18.1 FACTS OF THE CASE IN BRIEF ARE THAT THE ASS ESSEE HAD SHOWN ADDITIONS TO PLANT & MACHINERY TO THE TUNE OF RS.8 76 45 866/- IN THE DEPRECIATION CHART AS PART OF THE AUDIT REPORT FURNISHED ALONG WITH THE RETURN OF INCOME. DURING THE ASSESSMENT PR OCEEDINGS IT WAS CLARIFIED BEFORE THE ASSESSING OFFICER THAT STA INLESS STOOLS AND CHAIRS USED BY THE EMPLOYEES DURING THE PROCESS OF MANUFACTURING WERE CLASSIFIED AS PLANT & MACHINERY AND DEPRECIATI ON WAS CLAIMED ACCORDINGLY. THE JUSTIFICATION PUT FORTH BY THE ASS ESSEE WAS THAT SINCE WOODEN CHAIRS/STOOLS COULD NOT BE USED IN THE MANUFACTURING PROCESS OF VACCINES FOR HYGIENIC REASON STAINLESS STEEL ITEMS WERE BEING USED AND BY APPLYING THE FUNCTIONAL TEST THE SAME HAS TO BE TREATED AS PLANT AND MACHINERY AND NOT FURNITURE. H OWEVER THE ASSESSING OFFICER WAS OF THE OPINION THAT THE SAID ITEMS WERE NOTHING BUT FURNITURE REVEALED FROM THE RELEVANT BI LLS/VOUCHERS AND DEPRECIATION WAS ALLOWABLE @ 10% AS APPLICABLE TO FURNITURE AND NOT AT 15% APPLICABLE TO PLANT & MACHINERY AS CLAIM ED BY THE ASSESSEE. ON BEING ASKED TO CLARIFY IN THIS REGARD THE ASSESSEE INSISTED ON THE ASPECT OF FUNCTIONAL TEST CLAIMING THAT THE ITEMS WERE SPECIALLY USED FOR THE MANUFACTURING PROCESS AND TH EREFORE THE SAME FITS INTO CLASSIFICATION OF PLANT & MACHINERY. HOWEVER OBSERVING THAT THE STOOLS/CHAIRS ARE USED BY THE PE RSONNEL FOR SITTING 21 AND KEEPING THE MATERIAL ON THEM THE ASSESSING OFF ICER CONCLUDED THAT THESE ARE IN THE CATEGORY OF FURNITURE AND CAN NOT BE CLASSIFIED AS PLANT & MACHINERY. ACCORDINGLY HE REJECTED THE DEP RECIATION ALLOWANCE IN RESPECT OF THE DTA UNIT DISALLOWING T HE EXCESS CLAIM OF DEPRECIATION AMOUNTING TO RS.10 67 069/-. 18.2 IN APPEAL THE LD.CIT(A) FOLLOWING THE ORDER OF HIS PREDECESSOR IN ASSESSEES OWN CASE FOR EARLIER YEAR S DIRECTED THE AO TO SEGREGATE THE ASSETS INTO TWO CATEGORIES I.E. O NE FALLING UNDER THE HEAD FURNITURE ELIGIBLE FOR DEPRECIATION @10% SUC H AS TOOLS TABLES RACKS ETC. AND THE OTHER ITEMS WHICH WERE B EING USED FOR CARRYING OUT PRODUCTS OF THE ASSESSEE FROM LABORATO RY TO STORE AND FALLING UNDER THE HEAD PLANT AND MACHINERY ELIGIB LE FOR DEPRECIATION @15% LIKE TROLLEYS ETC. 18.3 AGGRIEVED WITH SUCH ORDER OF THE CIT(A) THE AS SESSEE IS IN APPEAL BEFORE US. 19. WE HAVE CONSIDERED THE RIVAL ARGUMENTS MADE BY BOTH THE SIDES. WE FIND AN IDENTICAL ISSUE HAD COME UP BEFO RE THE TRIBUNAL IN ASSESSEES OWN CASE FOR A.Y. 2005-06 AND 2006-07 . WE FIND THE TRIBUNAL AT PARA 10 AND 11 HAS OBSERVED AS UNDER : 10. THE FIRST ISSUE RELATES TO THE ACTION OF THE CIT(A ) IN DIRECTING THE ASSESSING OFFICER TO APPLY THE FUNCTIONAL TEST AND T O SEGREGATE THE FURNITURE INTO TWO CATEGORIES ONE FALLING UNDER FURNITURE ELIGIBLE FOR DEPRECIATION AT 15% AND THE OTHER WHICH ARE USED FOR CARRYING PRODUCTS FROM THE LABORATORIES TO THE STORE ROOM ELIG IBLE FOR DEPRECIATION @25% AND TO ALLOW DEPRECIATION ON FURN ITURE ACCORDINGLY. 11. ON THIS ASPECT IT WAS A COMMON GROUND BETWEEN TH E PARTIES THAT THE DIRECTIONS OF THE CIT(A) ARE IN LINE WITH T HE DECISION OF THE TRIBUNAL IN THE ASSESSEES OWN CASE FOR ASSESSMENT YEAR 2001- 02 VIDE ITA NO.948/PN/2005 DATED 18-01-2012. SINCE TH E FACTS AND CIRCUMSTANCES IN THIS YEAR ARE SIMILAR FOLLOWING THE PRECEDENT THE ORDER OF THE CIT(A) IS APPROVED AND THE REVENUE FAIL S. 22 19.1 RESPECTFULLY FOLLOWING THE DECISION OF THE TRI BUNAL IN ASSESSEES OWN CASE IN THE PRECEDING YEARS THE ABOV E GROUNDS BY THE ASSESSEE ARE ALLOWED. ITA NO.1616/PN/2012 (BY REVENUE) (A.Y. 2006-07) : 20. GROUNDS OF APPEAL NO.1 & 2 BY THE REVENUE ARE A S UNDER : 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE THE CIT(A) IS NOT JUSTIFIED IN EXCLUDING FREIGHT OF RS.39 15 34 2 52/- AND INSURANCE OF RS.3 14 16 456/- FROM THE TOTAL TURNOVER TO COMPUTE THE DEDUCTION U/S.10B OF THE ACT. 2. THE CIT(A) HAS ERRED IN EXCLUDING FREIGHT AND INSU RANCE CLAIM OF THE ASSESSEE FROM THE TOTAL TURNOVER FOR COMPU TING DEDUCTION U/S.10B WHEN THERE IS NO PROVISION TO EXCLU DE FREIGHT AND INSURANCE FROM THE TOTAL TURNOVER IGNORING THE F ACT THAT UNLIKE SECTION 80HHC AND 80HHE THE TERM TOTAL TURNOVER IS N OT DEFINED IN SECTION 10B AND HENCE TOTAL TURNOVER AS APPLICABLE T O SECTION 80HHC CANNOT BE APPLIED TO SECTION 10B. 20.1 AFTER HEARING BOTH THE SIDES WE FIND THE ABOV E GROUNDS ARE IDENTICAL TO THE GROUNDS OF APPEAL BY THE REVENUE I N ITA NO.17/PN/2012. WE HAVE ALREADY DECIDED THE ISSUE A ND THE GROUNDS RAISED BY THE REVENUE HAVE BEEN DISMISSED. FOLLOWING THE SAME RATIO THE ABOVE GROUNDS BY THE REVENUE ARE DIS MISSED. ITA NO.1575/PN/2012 (BY ASSESSEE) (A.Y. 2006-07) : 21. GROUNDS OF APPEAL NO.1 BY THE ASSESSEE RELATES TO THE VALIDITY OF THE REOPENING OF THE ASSESSMENT U/S.147 OF THE I NCOME TAX ACT. THE LD. COUNSEL FOR THE ASSESSEE DID NOT PRESS THE ABOVE GROUND FOR WHICH THE LD. DEPARTMENTAL REPRESENTATIVE HAS NO OB JECTION. ACCORDINGLY THE FIRST GROUND BY THE ASSESSEE IS DI SMISSED AS NOT PRESSED. 23 22. GROUND OF APPEAL NO.2 BY THE ASSESSEE READS AS UNDER : 2. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN L AW THE LD.CIT(A) ERRED IN CONFIRMING THE ACTION OF THE ASSESSI NG OFFICER OF NOT TREATING EXPORT PROCEEDS OF RS.7 89 434/- AS PART OF EXPORT TURNOVER FOR DEDUCTION U/S.10B FOR THE REASON THAT THE PROCEEDS WERE REALIZED BEYOND THE PRESCRIBED TIME LIMIT THOUG H BEFORE THE DATE OF PASSING OF ASSESSMENT ORDER U/S.143(3). 22.1 AFTER HEARING BOTH THE SIDES WE FIND THE ABOV E GROUND IS IDENTICAL TO GROUND OF APPEAL NO.1 BY THE ASSESSEE FOR A.Y. 2007- 08. WE HAVE ALREADY DECIDED THE ISSUE AND THE GROU ND RAISED BY THE ASSESSEE HAS BEEN ALLOWED. FOLLOWING THE SAME RATI O THE ABOVE GROUND BY THE ASSESSEE IS ALLOWED. 23. IN THE RESULT THE APPEALS FILED BY THE REVENUE FOR BOTH THE YEARS ARE DISMISSED AND THE APPEALS FILED BY THE AS SESSEE FOR BOTH THE ASSESSMENT YEARS ARE PARTLY ALLOWED. PRONOUNCED IN THE OPEN COURT ON 10-04-2014. SD/- SD/- (SHAILENDRA KUMAR YADAV) (R.K. PANDA) JUDICIAL MEMBER ACCOUNTANT MEMB ER SATISH PUNE DATED : 10 TH APRIL 2014. COPY OF THE ORDER FORWARDED TO : 1. ASSESSEE 2. DEPARTMENT 3. CIT(A)-III PUNE 4. CIT-III PUNE 5. THE D.R A PUNE BENCH 6. GUARD FILE BY ORDER // TRUE COPY // SENIOR PRIVATE SECR ETARY ITAT PUNE BENCHES PUNE