The Commissioner Of Income Tax Central –Iii, Mumbai v. M/S. Indoco Remedies Ltd

IN THE HIGH COURT OF JUDICATURE AT BOMBAYORDINARY ORIGINAL CIVIL JURISDICTION INCOME TAX APPEAL NO. 3890 OF 2010 The Commissioner of Income Tax Central –III, Mumbai ..... Appellant Vs. M/s. Indoco Remedies Ltd. ..... Respondent Mr.Vimal Gupta, i/b. Ms.Padma Divakar for the Appellant. Mr.Jitendra Jain with Mr.B.D.Damodar, i/b. Kanga & Co. for the Respondent. CORAM : DR.D.Y.CHANDRACHUD &R.D. DHANUKA, JJ. P.C.: DATE : APRIL 25, 2012 This appeal arises from a decision of the Income Tax Appellate Tribunal dated 18 January 2010. The Assessment Year to which the appeal relates is A.Y. 2005 – 06. The revenue has raised the following questions of law :- (i)Whether, on the facts and in the circumstances of the case, the Hon’ble Tribunal, in law, was right in allowing inclusion of sundry receipts relating to exchange gain of Rs.8,12,950/- in the profits derived by Goa Unit I from the Industrial Undertaking for the purpose of computation of deduction u/s. 801B without appreciating the fact that assessee could not be able to establish the nexus between the said receipt and Goa Unit, and without appreciating the fact that the Hon’ble Tribunal upheld the order of the revenue authorities in exclusion of the said receipt from the profits derived by Goa Unit in assessee’s own case in ITA No. 3780/M/05 for A Y 2001 – 2002 ?. (ii)Whether, on the facts and in the circumstances of the case, the Hon’ble Tribunal, in law, was right in allowing inclusion of sundry receipts relating to sales tax refund of Rs.19,115/- in the profits derived by Goa Unit 1 from the Industrial Undertaking for the purpose of computation of deduction u/s. 801B without appreciating the fact that the assessee could not be able to establish the nexus between the said receipt and the Goa Unit and without appreciating the fact that the Hon’ble ITAT upheld the order of the revenue authorities in exclusion of the said receipt from the profits derived by Goa Unit in assessee’s own case in ITA No. 3780/M/05 for A Y 2001 – 2002 ? (iii)Whether, on the facts and in the circumstances of the case, the Hon’ble Tribunal, in law, was right in deleting the addition of Rs.34,86,169/- being the amount of under allocation of overhead expenses on account of reallocation of overhead expenses made by the AO between the Goa Unit 1 entitled to deduction u/s. 801B and the Head Office, relying on the decision of the ITAT for A.Y. 2003-04, without appreciating the fact that the claim of the assessee pertaining to this issue was found incorrect during the Block Assessment Proceedings? 2.The Learned Counsel appearing on behalf of the Revenue states that questions (i) and (ii) will not survive since on those questions, the Miscellaneous Application preferred by the Revenue was allowed by the Tribunal by its order dated 4 November 2010. ITXA3890_10 3.As regard question (iii), the Tribunal has observed in para (24) of its order that a similar addition relating to under allocation of overhead expenses was deleted in the course of the assessment proceedings for A.Y. 2003 – 04 by the CIT (A) and which was upheld by the Tribunal. Moreover, in the course of the block assessment proceedings, the addition was similarly deleted by the CIT(A). It is agreed before us that order of the CIT (A) has attained finality. In the circumstances, there being no change in the fundamental basis, we do not consider the approach of the Tribunal to be in error. Consequently, no substantial question of law will arise. The Appeal is dismissed. DR.D.Y.CHANDRACHUD, J. R.D. DHANUKA, J.