FRIGORIFICO ALLANA LTD, MUMBAI V. ITO 1(1)(1), MUMBAI

ITA 4137/MUM/2011

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 2252 (ITAT-MUMBAI)
• Duration Of Justice: 5 year(s) 2 month(s) 8 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 27-07-2016
• Appeal Filed By: Assessee
• Bench Allotted: F
• Next Hearing Date: 08-08-2012
• Assessment Year: 2004-2005
• Appeal Filed On: 19-05-2011
• Court: TRIBUNAL
• Department Lawyers: P J PARDIWALLA
• Assessee Lawyers: E SHREEDHAR
• Keywords: Retrospective amendment; Difference of opinion; Reason to believe; Change of opinion; Reassessment proceedings
• Section: 40A(3); 143(3); 80HHC; 14A; 80IB; 148

Judgement Text

, , F , IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES F, MUMBAI , , , BEFORE SHRI AMIT SHUKLA, JUDICIAL MEMBER, AND SHRI ASHWANI TANEJA, ACCOUNTANT MEMBER ITA NO.5513/MUM/2011 ASSESSMENT YEAR: 2002-03 & ITA NO.5532/MUM/2011 ASSESSMENT YEAR: 2003-04 & ITA NO.5514/MUM/2011 ASSESSMENT YEAR: 2004-05 A CIT, CIRCLE - 1(1) AAYAKAR BHAVAN, 5 TH FLOOR, M.K. ROAD, MUMBAI-20 / VS. FRIGORIFICO ALLANA LIMITED, ALLANA HOUSE, ALLANA ROAD, COLABA, MUMBAI-400001 ( REVENUE ) (RE SPONDENT ) P.A. NO. AAACF0861F ITA NO.4078/MUM/2011 ASSESSMENT YEAR: 2002-03 & ITA NO.4167/MUM/2011 ASSESSMENT YEAR: 2003-04 & ITA NO.4137/MUM/2011 ASSESSMENT YEAR: 2004-05 GRIGORIFICO & GRIGARIO 2 FRIGORIFICO ALLANA LIMITED, ALLANA HOUSE, ALLANA ROAD, COLABA, MUMBAI-400001 / VS. A CIT, CIRCLE - 1(1) AAYAKAR BHAVAN, 5 TH FLOOR, M.K. ROAD, MUMBAI-20 (APPELLANT ) (REVENUE) P.A. NO. AAACF0861F ITA NO.5528/MUM/2011 ASSESSMENT YEAR: 2000-01 & ITA NO.5529/MUM/2011 ASSESSMENT YEAR: 2001-02 & ITA NO.5530/MUM/2011 ASSESSMENT YEAR: 2002-03 & ITA NO.5531/MUM/2011 ASSESSMENT YEAR:2003-04 & ITA NO.5516/MUM/2011 ASSESSMENT YEAR: 2004-05 ACIT, CIRCLE - 1(1), R.NO.579, AAYAKAR BHAVAN, MUMBAI-20 / VS. FRIGERIO CONSERVA A LLANA LTD., ALLANA HOUSE, 4 JA ALLANA ROAD, COLABA, MUMBAI-400001 (REVENUE ) (RESPONDENT) P.A. NO. AACCF0522B ITA NO.4195/MUM/2011 ASSESSMENT YEAR: 2000-01 & ITA NO.4214/MUM/2011 ASSESSMENT YEAR: 2001-02 & ITA NO.4225/MUM/2011 ASSESSMENT YEAR: 2002-03 & ITA NO.4286/MUM/2011 ASSESSMENT YEAR:2003-04 & GRIGORIFICO & GRIGARIO 3 ITA NO.4057/MUM/2011 ASSESSMENT YEAR: 2004-05 FRIGERIO CONSERVA ALLANA LTD., ALLANA HOUSE, 4 JA ALLANA ROAD, COLABA, MUMBAI-400001 / VS. ITO - 1(1)(3), AAYAKAR BHAVAN, 5 TH FLOOR, M.K. RD. MUMBAI-20 (APPELLANT ) (REVENUE) REVENUE BY SHRI G.M. DOSS & SHRI E. SHREEDHAR (DR) RESPONDENT BY SHRI P.J. PA R DIWALLA & VASANTI PATEL (AR) / DATE OF HEARING: 04/07/2016 / DATE OF ORDER: 27/07/2016 / O R D E R PER BENCH: THESE APPEALS BELONG TO DIFFERENT ASSESSEES OF SAME GROUP ARISING IN DIFFERENT ASSESSMENT YEARS INVOLVI NG IDENTICAL ISSUES AND THEREFORE THESE WERE HEARD TOGETHER AND BEING DISPOSED BY THIS COMMON ORDER. 2. DURING THE COURSE OF HEARING, ARGUMENTS WERE MADE B Y SHRI P.J. PARDIWALLA & MS. VASANTI PATEL, AUTHORISE D REPRESENTATIVES (ARS) ON BEHALF OF THE ASSESSEE AND BY SHRI G.M. DOSS & SHRI E. SHREEDHAR, DEPARTMENTAL REPRESE NTATIVES (DRS) ON BEHALF OF THE REVENUE. FIRST WE SHALL TAKE UP APPEALS OF THE ASSESSEE & RE VENUE IN THE CASE OF FRIGERIO CONSERVA ALLANA LTD IN ITA GRIGORIFICO & GRIGARIO 4 NO.4195/MUM/2011 & ITA NO. 5528/MUM/2011, RESPECTIVELY, FOR A.Y. 2000-01: 3. GROUND NOS 1 & 2 OF ASSESSEES APPEAL AND GROUND NO.2 OF REVENUES APPEAL INVOLVE IDENTICAL ISSUE WITH REGAR D TO DENIAL OF DEDUCTION U/S 80HHC TO THE ASSESSEE ON THE GROUN D THAT DEDUCTION U/S 80HHC WAS DENIED TO THE MAIN EXPORTER ALSO, TO WHOM THE ASSESSEE (A SUPPORTING MANUFACTURER) HAD S OLD ITS GOODS. 3.1. WE HAVE HEARD BOTH THE PARTIES ON THIS ISSUE IN DE TAIL AND ALSO GONE THROUGH THE ORDERS OF THE LOWER AUTHORITI ES AS WELL AS COPIES OF JUDGMENT PLACED BEFORE US. THE BRIEF BACK GROUND OF THIS CASE IS THAT ASSESSEE IS SUPPORTING MANUFACTUR ER, SELLING ITS GOODS TO THE EXPORT HOUSE NAMELY M/S. ALLANA SO NS LTD, WHO HAD ISSUED DISCLAIMER CERTIFICATE IN FAVOUR OF THE ASSESSEE U/S 80HHC AND ACCORDINGLY, THE ASSESSEE CLAIMED BEN EFIT OF DEDUCTION U/S 80HHC ON THE AMOUNT OF TURNOVER MADE BY THE ASSESSEE TO THE EXPORT COMPANY. DURING THE COURSE O F REASSESSMENT PROCEEDINGS, THE AO NOTED THAT THE SAI D EXPORT HOUSE HAS BEEN DENIED THE BENEFIT OF DEDUCTION U/S 80HHC ON THE GROUND THAT THE SAID EXPORT HOUSE COMPANY NAMEL Y M/S. ALLANA SONS LTD. (HERE IN AFTER REFERRED TO AS AS L IN SHORT) HAD INCURRED LOSS IN CASE THE AMOUNT OF INCENTIVE I S NOT INCLUDED IN ITS EXPORT PROFITS. ACCORDINGLY, THE AO OF THE ASSESSEE WITHDREW THE BENEFIT OF CLAIM OF DEDUCTION U/S 80HHC IN THE CASE OF PRESENT ASSESSEE ALSO SOLELY O N THE GROUND WHEN THE MAIN EXPORTER I.E. ASL AS ITSELF BE ING DENIED THE BENEFIT OF DEDUCTION U/S 80HHC, THEREFORE, CONS EQUENTLY, THE ASSESSEE SHOULD ALSO BE DENIED THE BENEFIT OF D EDUCTION GRIGORIFICO & GRIGARIO 5 U/S 80HHC. ACCORDINGLY, THE CLAIM MADE BY THE ASSES SEE U/S 80HHC FOR RS.16,87,12,722/- ON THE TURNOVER OF RS.97,59,61,941/-(DISCLAIMED BY ASL IN FAVOUR OF TH E ASSESSEE) WAS WITHDRAWN BY THE AO. 3.2. BEING AGGRIEVED, THE ASSESSEE FILED AN APPEAL BEFO RE THE LD. CIT(A) AND MADE EXHAUSTIVE SUBMISSIONS ON VARIO US GROUNDS TO AGITATE THIS ADDITION. LD. CIT(A) ACCEPT ED THE SUBMISSIONS OF THE ASSESSEE IN PART AND ALLOWED THE BENEFIT OF DEDUCTION U/S 80HHC TO THE ASSESSEE ON THE GROUND T HAT THE ASSESSEE IS ENTITLED FOR BENEFIT OF DEDUCTION U/S 8 0HHC WITHOUT DEPENDING UPON ACTUAL ALLOWABILITY OF DEDUC TION U/S 80HHC IN THE HANDS OF EXPORT HOUSE AND HE FURTHER H ELD THAT IN ANY CASE THE EXPORT HOUSE HAS BEEN ACTUALLY ALLO WED THE DEDUCTION U/S 80HHC, AND THEREFORE, ON FACTS ALSO T HE ASSESSEE IS ENTITLED FOR DEDUCTION U/S 80HHC. 3.3. BEING AGGRIEVED, THE REVENUE FILED AN APPEAL BEFOR E THE TRIBUNAL ON THE GROUND THAT LD. CIT(A) OUGHT NOT TO HAVE ALLOWED THE BENEFIT OF DEDUCTION U/S 80HHC IN THE L IGHT OF JUDGMENT OF HONBLE SUPREME COURT IN THE CIT V. IPC A LABORATORIES LTD. 266 ITR 521 (SC) WHEREIN IT WAS H ELD THAT IN CASE THERE WAS LOSS FROM EXPORT ACTIVITIES, THEN TH E EXPORT HOUSE CANNOT PASS ON THE BENEFIT OF DEDUCTION U/S 8 0HHC BY WAY OF ISSUE OF DISCLAIMER CERTIFICATE U/S 80HHC (4 )(A) TO THE SUPPORTING MANUFACTURER. 3.4. BEFORE US, THE LD. COUNSEL OF THE ASSESSEE DEFENDE D AND JUSTIFIED THE ORDER OF LD. CIT(A) FOR ALLOWING DEDU CTION U/S 80HHC ON MANY GROUNDS. HIS FIRST ARGUMENT WAS THAT DEDUCTION HAS BEEN ACTUALLY ALLOWED TO THE EXPORT H OUSE I.E. GRIGORIFICO & GRIGARIO 6 ASL BY THE TRIBUNAL AND ORDER OF THE TRIBUNAL HAS B EEN UPHELD BY THE HONBLE BOMBAY HIGH COURT WHEREIN THE REOPENING DONE BY THE AO OF THE ASL HAS BEEN QUASHE D AND ON MERITS ALSO HONBLE HIGH COURT HAD FOUND THAT DE DUCTION U/S 80HHC WAS ALLOWABLE IN THE HANDS OF ASL AS PER LAW AND FACTS. THUS, THE WHOLE PREMISE ON WHICH THE DEDUCTI ON WAS DISALLOWED IN THE HANDS OF THE ASSESSEE CEASES TO E XIST AND THEREFORE THE DEDUCTION HAS TO BE ALLOWED TO THE AS SESSEE. SECOND ARGUMENT MADE BY THE ASSESSEE WAS THAT THIS CONTROVERSY HAS BEEN RESOLVED IN THE JUDGMENT OF HO NBLE BANGLORE BENCH IN THE CASE OF SHAMANUR KALLAPPA & S ONS VS. ACIT 23 DTR (BANG)(TRIB) 269 WHICH HAS BEEN SUBSEQU ENTLY UPHELD BY THE HONBLE KARNATAKA HIGH COURT BY VIDE ITS ORDER DATED 12 TH JANUARY 2015 IN ITA NO. 10/2009 BY HOLDING THAT DEDUCTION U/S 80HHC TO THE SUPPORTING MANUFACTURER IS ALLOWABLE INDEPENDENT OF ACTUAL ALLOWING OF DEDUCTI ON IN THE HANDS OF MAIN EXPORTER. THE THIRD ARGUMENT MADE BY THE LD. COUNSEL WAS THAT REOPENING WAS DONE IN THE CASE OF THE ASSESSEE BY THE AO ON THE ISSUE OF DISALLOWANCE U/S 40A(3) ONLY AND NO ISSUE WAS RAISED IN THE REASONS RECOR DED WITH RESPECT TO DEDUCTION U/S 80HHC. THE DISALLOWANCE MA DE U/S 40A(3) HAS BEEN DELETED BY THE LD. CIT(A) AGAINST W HICH REVENUE HAS NOT FILED ANY APPEAL. THUS, MAIN ISSUE ON WHICH REASONS WERE RECORDED HAS BEEN SETTLED AND THEREF ORE, NO OTHER DISALLOWANCE WOULD BE SUSTAINABLE AS REOPENIN G WOULD BECOME BAD IN LAW. 3.4. PER CONTRA, LD. DR RELIED UPON THE JUDGMENT OF HON BLE SUPREME COURT IN THE CASE OF IPCA LABORATORIES LTD. V. CIT GRIGORIFICO & GRIGARIO 7 (SUPRA) AND RELIED UPON THE ORDER OF THE AO. WE HAV E CONSIDERED THE ENTIRE MATRIX AND FACTS OF THIS CASE AND COPIES OF JUDGMENT PLACED BEFORE US. BEFORE GOING DEEPER I N DETAILS, IT HAS BEEN NOTED BY US AT THE OUTSET THAT DEDUCTION U /S 80HHC IN THE HANDS OF ASL (I.E. EXPORT HOUSE) HAS BEEN FO UND TO BE ALLOWABLE BY HONBLE BOMBAY HIGH COURT IN THE CASE OF M/S. ALLANA SONS LTD. V. DCIT WRIT PETITION NO.802 OF 20 05 DATED 22 ND JULY 2014 WHEREIN IT WAS HELD THAT REOPENING OF TH E ASSESSMENT IN THE HANDS OF M/S. ALLANA SONS LTD. WA S NOT VALID AS PER LAW AND THE SAME WAS QUASHED WITH FOLL OWING OBSERVATIONS: WE HAVE CONSIDERED THE RIVAL SUBMISSION. IT IS WEL L SETTLED THAT A NOTICE TO REOPEN THE ASSESSMENT UNDER SECTIO N 148 OF THE ACT CAN ONLY BE ISSUED IF THE ASSESSING OFFI CER HAS REASON TO BELIEVE THAT INCOME CHARGEABLE TO TAX HAS ESCAPED ASSESSMENT. THIS REASON TO BELIEVE ON THE P ART OF THE ASSESSING OFFICER HAS NOT TO BE ON THE BASIS OF CHANGE OF OPINION I.E. WHERE ASSESSING OFFICER HAS HAD OCC ASION TO CONSIDER AN ISSUE DURING THE ASSESSMENT PROCEEDING UNDER SECTION 143(3) OF THE ACT. IN THIS CASE, THE ASSESS ING OFFICER HAD DURING THE PROCEEDING UNDER SECTION 143(3) OF T HE ACT RAISED QUERIES TO THE PETITIONER SPECIFICALLY WITH REGARD TO PETITIONERS CLAIM FOR DEDUCTION UNDER SECTION 80HH C OF THE ACT AND THE PETITIONERS RESPONSE TO THE SAME W AS CONSIDERED BY THE ASSESSING OFFICER WHILE PASSING T HE ASSESSMENT ORDER. THEREFORE, THE IMPUGNED NOTICE AN D THE GROUNDS IN SUPPORT THEREOF ARE IN FACT A CHANGE OF PINION ON THE PART OF THE ASSESSING OFFICER. THEREFORE, ON THE GRIGORIFICO & GRIGARIO 8 AFORESAID GROUND ALONE IMPUGNED NOTICE IS NOT SUSTAINABLE. 3.5. IT IS FURTHER NOTED BY US THAT, ON MERITS ALSO HON BLE HIGH COURT OBSERVED THAT DEDUCTION U/S 80HHC WAS ACTUALL Y ALLOWABLE TO THE SAID EXPORT HOUSE THE OBSERVATIONS OF THE HONBLE HIGH COURT ARE VERY USEFUL AND THESE ARE RE PRODUCED HEREUNDER FOR THE SAKE OF READY REFERENCE: IN ANY VIEW OF THE MATTER, THE STAND OF THE PETITI ONER ON MERITS WITH REGARD TO INTEREST INCOME BEING INCLUDE D WHILE COMPUTING THE CLAIM FOR DEDUCTION UNDER SECTION 80H HC OF THE ACT HAS BEEN UPHELD NOT ONLY BY THE CIT(A) BUT ALSO BY THE TRIBUNAL IN ITS ORDER DATED 22 NOVEMBER 2006. B ESIDES THE AMENDMENT TO SECTION 80HHC(3) OF THE ACT BY ADD ITION OF FIFTH PROVISO THERETO WITH RETROSPECTIVE EFFECT WILL WORK TO THE BENEFIT OF THE PETITIONER. IN THE ABOVE VIEW OF THE MATTER, ALLOWING REASSESSMENT PROCEEDINGS WOULD BE A MERE ACADEMIC EXERCISE ONLY BECAUSE THE ASSESSING OFFICER WOULD BE BOUND BY THE ORDERS OF THE TRIBUNA L. MOREOVER, THE VERY BASIS OF THE IMPUGNED NOTICE DAT ED 10 JANUARY 2005 WILL NOT BE SUSTAINABLE. IN VIEW OF AL L THE ABOVE REASONS, WE SET ASIDE THE IMPUGNED NOTICE DAT E 10 TH JANUARY 2005. 3.6. THUS, IT IS NOTED BY US THAT THE HONBLE HIGH COUR T HAS NOT ONLY QUASHED THE REASSESSMENT ORDER BUT ALSO HE LD THAT DEDUCTION U/S 80HHC IS ACTUALLY ALLOWABLE TO ASL. I T IS FURTHER NOTED BY US THAT IT HAS BEEN HELD BY HONBL E GUJARAT GRIGORIFICO & GRIGARIO 9 HIGH COURT IN THE CASE OF AVANI EXPORTS & OTHERS DA TED 02.07.2012 THAT THE AMENDMENT MADE BY TAXATION LAWS (AMENDMENT) ACT 2005 IN SECTION 80HHC TO CURTAIL TH E BENEFIT OF U/S 80HHC ON THE AMOUNT OF INCENTIVE RECEIVED BY THE MAIN EXPORTERS WOULD NOT OPERATE RETROSPECTIVE. THUS, IF WE CONSIDER ON FACTS THE CASE OF ASL ON MERITS ALSO, IT IS NOTE D THAT AFTER INCLUDING AMOUNT OF INCENTIVES THERE WOULD ARISE PO SITIVE AMOUNT OF PROFIT. THUS, VIEWED FROM ANY ANGLE, AND KEEPING IN VIEW THE FACT THAT WHEN DEDUCTION U/S 80HHC HAS BEE N ACTUALLY ALLOWED IN THE HANDS OF ASL I.E. EXPORT HO USE, THEREFORE, THE WHOLE PREMISES OF THE AO BASED UPON WHICH THE DEDUCTION WAS DENIED TO THE ASSESSEE, CEASES TO EXI ST. UNDER THESE FACTS AND CIRCUMSTANCES, WE FIND THAT LD. CIT (A) HAS RIGHTLY ALLOWED THE BENEFIT OF DEDUCTION U/S 80HHC TO THE ASSESSEE AND THEREFORE, WE FIND NOTHING WRONG IN TH E ORDER OF LD. CIT(A) AND THEREFORE, THE SAME IS UPHELD. SINCE , WE HAVE ALLOWED THE RELIEF TO THE ASSESSEE ON THE FIRST ARG UMENT ITSELF THEREFORE, WE TREAT OTHER ARGUMENTS AS ACADEMIC IN NATURE AND THEREFORE, WE ARE NOT DEALING WITH THE SAME AT THIS STAGE. AS A RESULT, GROUNDS RAISED BY THE REVENUE IN THIS APPEA L ARE DISMISSED AND GROUNDS RAISED BY THE ASSESSEE MAY BE TREATED AS ALLOWED. 4. GROUND NO.3.1: IN THIS GROUND THE ASSESSEE HAS CHALLENGED THE ACTION OF LOWER AUTHORITIES WHEREIN IT WAS HELD THAT IF THE ASSESSEE IS ALLOWED U/S 80HHC THEN IT CANNOT BE ALL OWED DEDUCTION U/S 80IB. DURING THE COURSE OF HEARING BE FORE US IT HAS BEEN FAIRLY SUBMITTED BY THE LD. COUNSEL THAT A GGREGATE GRIGORIFICO & GRIGARIO 10 AMOUNT OF DEDUCTION ALLOWABLE TO THE ASSESSEE U/S 8 0HHC AS WELL AS U/S 80IB SHOULD NOT EXCEED THE AMOUNT OF PR OFITS EARNED. THE RELIANCE HAS BEEN PLACED IN THIS REGARD ON THE JUDGMENT OF HONBLE BOMBAY HIGH COURT IN THE CASE ASSOCIATED CAPSULES PVT LTD VS. DCIT 322 ITR 42. 4.1. PER CONTRA LD. DR RELIED UPON THE ORDER OF THE LOW ER AUTHORITIES. WE HAVE GONE THROUGH THE ORDERS PASSE D BY THE LOWER AUTHORITIES AS WELL AS JUDGMENT OF HONBLE BO MBAY HIGH COURT IN THE CASE OF ASSOCIATED CAPSULES PVT LTD (S UPRA). IN VIEW OF JUDGMENT OF HONBLE BOMBAY HIGH COURT, WE S END THIS ISSUE BACK TO THE FILE OF THE AO WHO SHALL EXAMINE THE FACTS AND ALLOW THE DEDUCTION TO THE ASSESSEE U/S 80HHC A S WELL AS U/S 80IB SO LONG AS THE AGGREGATE AMOUNT OF DEDUCTI ON DOES NOT EXCEED THE AMOUNT OF PROFITS. THUS, THE TOTAL A MOUNT OF DEDUCTION ALLOWABLE TO THE ASSESSEE UNDER BOTH OF T HESE SECTIONS SHOULD BE RESTRICTED TO THE AMOUNT OF PROF ITS. THUS, THIS GROUND MAY BE TREATED AS PARTLY ALLOWED FOR ST ATISTICAL PURPOSES. 4.2. AS A RESULT, APPEAL OF THE ASSESSEE IS PARTLY ALLO WED AND APPEAL OF THE REVENUE IS DISMISSED. NOW WE SHALL TAKE UP APPEALS OF THE ASSESSEE & REVE NUE IN THE CASE OF FRIGERIO CONSERVA ALLANA LTD IN ITA NO.4214/MUM/2011 & ITA NO. 5529/MUM/2011 FOR A.Y. 2001-02 5 . IT IS NOTED THAT GROUND NOS. 1 & 2 OF ASSESSEES APPEAL AND GROUND NO.1 OF REVENUES APPEAL ARE IDENTICAL TO A. Y. 2000-01 GRIGORIFICO & GRIGARIO 11 AND AND SINCE NO DISTINCTION IN FACTS OR LEGAL POSI TION HAS BEEN BROUGHT OUT BY EITHER PARTY BEFORE US, THEREFORE, A O IS DIRECTED TO FOLLOW OUR ORDER FOR A.Y. 2000-01. THUS, GROUNDS 1 & 2 OF ASSESSEES APPEAL ARE TREATED AS ALLOWED AND SOLE G ROUND RAISED BY THE REVENUE IS DISMISSED. 6. GROUND NO.3.1. THIS GROUND IS ALSO IDENTICAL TO GROUND NO. 3.1. OF ASSESSEES APPEAL IN A.Y. 2000-01, AND ACCO RDINGLY AO IS DIRECTED TO FOLLOW OUR ORDER A.Y. 2000-01. THIS GROUND MAY BE TREATED AS PARTLY ALLOWED FOR STATISTICAL PURPOS ES. 7 . AS A RESULT, APPEAL OF THE ASSESSEE IS PARTLY ALL OWED AND APPEAL OF THE REVENUE IS DISMISSED. NOW WE SHALL TAKE UP APPEALS OF THE ASSESSEE & REVE NUE IN THE CASE OF FRIGERIO CONSERVA ALLANA LTD IN ITA NO.4225/MUM/2011 & ITA NO. 5530/MUM/2011 FOR A.Y. 2002-03 8. IT IS NOTED THAT GROUNDS RAISED IN THOSE APPEALS A RE IDENTICAL TO GROUNDS RAISED IN A.Y. 2000-01. NO DISTINCTION H AS BEEN BROUGHT OUT BY OTHER PARTY BEFORE US. THUS, GROUND NOS. 1 & 2 OF ASSESSEES APPEAL ARE ALLOWED AND GROUND NO.3 OF ASSESSEES APPEAL IS SENT BACK TO THE FILE OF THE AO WITH THE DIRECTION AS GIVEN ABOVE AND SOLITARY GROUND RAISED BY THE REVEN UE IS DISMISSED. THE AO IS DIRECTED TO FOLLOW OUR ORDER F OR A.Y. 2000-01. 9. AS A RESULT, ASSESSEES APPEAL IS PARTLY ALLOWED A ND REVENUES APPEAL IS DISMISSED. GRIGORIFICO & GRIGARIO 12 NOW WE SHALL TAKE UP APPEALS OF THE ASSESSEE & REVE NUE IN THE CASE OF FRIGERIO CONSERVA ALLANA LTD IN ITA NO.4186/MUM/2011 & ITA NO. 5531/MUM/2011 FOR A.Y. 2003-04 10. IT IS NOTED THAT GROUNDS RAISED IN THESE APPEALS A RE IDENTICAL TO GROUNDS RAISED IN A.Y. 2000-01. NO DIS TINCTION HAS BEEN BROUGHT OUT IN FACTS OR LEGAL POSITION BY EITH ER PARTY BEFORE US AND THEREFORE GROUND NO.1 AS WELL AS ADDI TIONAL GROUND OF ASSESSEES APPEAL ARE ALLOWED AND SOLITAR Y GROUND RAISED BY THE REVENUE IS DISMISSED. 11. AS A RESULT, ASSESSEES APPEAL IS ALLOWED AND REVE NUES APPEAL IS DISMISSED. NOW WE SHALL TAKE UP APPEALS OF THE ASSESSEE & REVE NUE IN THE CASE OF FRIGERIO CONSERVA ALLANA LTD IN ITA NO.4057/MUM/2011 & ITA NO. 5516/MUM/2011 FOR A.Y. 2004-05 12. IT IS NOTED THAT IN THIS YEAR ALSO GROUNDS RAISED BY THE ASSESSEE IN ASSESSEES APPEAL AND GROUND NO.1 OF RE VENUES APPEAL ARE IDENTICAL TO AY 2000-01. THE AO IS DIREC TED TO FOLLOW OUR ORDER FOR A.Y. 2000-01. CONSEQUENTLY, GR OUND NO.1 OF ASSESSEES APPEAL IS ALLOWED AND GROUND NO.1 OF REVENUES APPEAL IS DISMISSED. 12.1. GROUND NO.2 THE REVENUE HAS CHALLENGED THE ACTION OF LD. CIT(A) IN RESTORING THE ISSUE OF DISALLOWANCE O F RS.5,000/- U/S 14A AS PER RULE 8D TO THE AO. IT IS NOTED THAT LD. CIT(A) HAS SENT THIS ISSUE BACK TO THE FILE OF THE AO. WE DO NOT FIND GRIGORIFICO & GRIGARIO 13 ANYTHING WRONG IN THE ORDER OF LD. CIT(A) AND THERE FORE, NO INTERFERENCE IS CALLED FOR IN THE ORDER OF LD. CIT( A) AND THE SAME IS UPHELD. 13 . AS A RESULT, ASSESSEES APPEAL IS ALLOWED AND REV ENUES APPEAL IS DISMISSED. NOW WE SHALL TAKE UP APPEALS OF THE ASSESSEE & REVE NUE IN THE CASE OF FRIGORIFICO ALLANA LIMITED IN ITA NO.4078/MUM/2011 & ITA NO.5513/MUM/2011 FOR A.Y. 2002-03: 14. IT IS NOTED THAT IN THIS CASE THE ISSUES RAISED AR E ABSOLUTELY IDENTICAL. THE EXPORT HOUSE IS SAME I.E. M/S. ALLANASONS LTD. NO DISTINCTION HAS BEEN BROUGHT OUT BY THE EITHER PARTY ON THE FACTS OR POSITION OF LAW AND TH EREFORE, IN VIEW OF DETAILED DISCUSSION MADE BY US IN THE ORDER FOR A.Y. 2000-01 IN THE HANDS OF M/S FRIGORIO CONSERVA ALLAN A LTD, WE ALLOW THE GROUND RAISED IN ASSESSEES APPEAL IN TER MS OF OUR DIRECTION AS GIVEN IN THE SAID ORDER AND DISMISS TH E GROUNDS RAISED BY THE REVENUE. THE AO IS DIRECTED TO FOLLOW OUR ORDER FOR A.Y. 2000-01 IN THE HANDS OF ABOVE SAID ASSESSE E. 15. AS A RESULT, APPEAL FILED BY THE ASSESSEE IS PARTL Y ALLOWED FOR IDENTICAL PURPOSES AND APPEAL FILED BY THE REVE NUE IS DISMISSED. NOW WE SHALL TAKE UP APPEALS OF THE ASSESSEE & REVE NUE IN THE CASE OF FRIGORIFICO ALLANA LIMITED IN ITA NO.4167/MUM/2011 & ITA NO.5532/MUM/2011 FOR A.Y. 2003-04 GRIGORIFICO & GRIGARIO 14 16. IN THIS CASE ISSUES INVOLVED ARE IDENTICAL AS IN A .Y.2002- 03. NO DISTINCTION HAS BEEN MADE OUT IN FACTS OR IN LEGAL POSITION AND THEREFORE, ASSESSEES APPEAL IS ALLOWE D AND APPEAL FILED BY THE REVENUE IS DISMISSED. NOW WE SHALL TAKE UP APPEALS OF THE ASSESSEE & REVE NUE IN THE CASE OF FRIGORIFICO ALLANA LIMITED IN ITA NO.4537/MUM/2011 & ITA NO.5514/MUM/2011 FOR A.Y. 2004-05: 17. IT IS NOTED THAT GROUND NO.1 OF ASSESSEES APPEAL AND GROUND NO.1 OF REVENUES APPEAL INVOLVE IDENTICAL I SSUE OF DEDUCTION U/S 80HHC. NO DISTINCTION IN FACTS OR LEG AL POINT HAS BEEN POINTED OUT BEFORE US AND EITHER PARTY AND THEREFORE, AO IS DIRECTED TO FOLLOW OUR ORDER IN A.Y. 2002-03. GROUNDS RAISED BY THE ASSESSEE ARE ALLOWED AND GROUND NO.1 OF REVENUES APPEAL IS DISMISSED. 18. IN GROUND NO.2 THE REVENUE HAS AGITATED THE ACTIO N OF LD. CIT(A) FOR RESTORING THE ISSUE OF DISALLOWANCE OF R S. 50,000/- U/S 14A TO THE AO. IT IS NOTED THAT LD. CIT(A) HAS RIGHTLY SENT BACK THIS ISSUE TO THE FILE OF THE AO FOR ITS RE-AD JUDICATION. NOTHING WRONG HAS BEEN POINTED BY US AND THEREFORE RESPECTFULLY FOLLOWING OUR EARLIER ORDER, WE UPHOLD THE ORDER OF LD. CIT(A) AND DISMISS THIS GROUND. 18.1. AS A RESULT, ASSESSEES APPEAL IS ALLOWED AND REVE NUES APPEAL IS DISMISSED. GRIGORIFICO & GRIGARIO 15 19 . AS A RESULT, APPEALS OF THE ASSESSEE ARE PARTLY A LLOWED AND APPEALS OF THE REVENUE ARE DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 27 TH JULY, 2016. SD/- (AMIT SHUKLA ) SD/- (ASHWANI TANEJA) ! / JUDICIAL MEMBER ' ! / ACCOUNTANT MEMBER MUMBAI; # DATED : 27/07/2016 CTX? P.S/. .. #$%&'(')% / COPY OF THE ORDER FORWARDED TO : 1. % &' / THE APPELLANT 2. ()&' / THE RESPONDENT. 3. * * ( % ) / THE CIT, MUMBAI. 4. * * / CIT(A)- , MUMBAI 5. -. / (01 , * % 012 , / DR, ITAT, MUMBAI 6. / 34 5 / GUARD FILE. / BY ORDER, ) -% ( //TRUE COPY// / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI