M/s. BHARAT PETROLEUM CORPN. LTD., MUMBAI V. ADDL.C IT. Rg. - 2(1), MUMBAI

ITA 4286/MUM/2005

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 3835 (ITAT-MUMBAI)
• Duration Of Justice: 10 year(s) 10 month(s) 28 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 06-05-2016
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: A
• Next Hearing Date: 15-02-2016
• Assessment Year: 2001-2002
• Appeal Filed On: 08-06-2005
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Assessee Lawyers: J D MISTRY
• Keywords: Earning of tax free income; Question of law
• Section: 80IB

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH A , MUMBAI , , BEFORE SHRI AMIT SHUKLA , JUDICIAL MEMBER AND SHRI RA JESH KUMAR , ACCOUNTA NT MEMBER ITA NO S . : 4286 /MUM/20 05 , AY 2004 - 05 BHARAT PETROLEUM CORPORATION LTD , TAXATION SECTION, 3 RD FLOOR, BHARAT BHAVAN 2, 4 & 6 CURRIMBHOY ROAD, BALLARD ESTATE, MUMBAI - 400 0 01 .: PAN: AA ACB 2902 M V S ADDL. CIT - RANGE 2(1), R. NO. 5 5 1 , AAYAKAR BHAVAN, M K ROAD, MUMBAI - 400 020 (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI J D MISTR Y RESPONDENT BY : SHRI RAJESH KUMAR /DATE OF HEARING : 15 - 0 2 - 201 6 / DATE OF PRONOUNCEMENT : 06 - 0 5 - 201 6 ORDER , . : - PER AMIT SHUKLA, J. M. : T HE AFORESAID APPEAL HA S BEEN FILED BY THE ASSESSEE AGAINST IMPUGNED ORDER DATED 17.03.2005 PASSED BY CIT(A) - 2, MUMBAI FOR THE QUANTUM OF ASSESSMENT PASSED UNDER SECTION 143( 3 ) FOR THE ASSESSMENT YEAR 2001 - 02. IN THE GROUNDS OF APPEAL, FOLLOWING GROUNDS HAVE BEEN RAISED: - 1. ON THE FACTS AND IN THE CIRCUM STANCES OF THE CASE AND IN LAW, THE LEARNED COMMISSIONER OF INCOME - TAX (APPEALS) (CIT(A)), ERRED IN REJECTING THE CLAIM OF THE APPELLANT FOR THE DEDUCTION UNDER SECTION 80IB OF THE INCOME TAX ACT, BHARAT PETROLEUM CORPORATION LTD ITA NOS. : 4286 /MUM/20 05 2 1961 (THE ACT) ON LPG PLANTS, ON THE GROUND THAT THE ACTI VITY OF FILLING THE GAS INTO THE CYLINDERS DOES NOT CONSTITUTE MANUFACTURING AND THE LPG BOTTLING PLANTS ARE PART OF THE REFINING ACTIVITIES AND CANNOT BE CONSIDERED AS INDEPENDENT INDUSTRIAL UNDERTAKINGS TO BE ELIGIBLE FOR THE DEDUCTIONS UNDER SECTION 80I B OF THE ACT. 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LEARNED CIT(A) ERRED IN REJECTING THE CLAIM OF THE APPELLANT FOR THE DEDUCTION UNDER SECTION 80IB OF THE ACT ON ITS SPECIAL CUT NAPTHA (SCN) PLANT AND C3C4 PLANT, ON THE GR OUND THAT THE SEPARATE WORKING OF PROFIT OF THE PLANTS WERE NOT FURNISHED BY THE APPELLANTS. 3. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LEARNED CIT(A) ERRED IN REJECTING THE CLAIM OF THE APPELLANT FOR DEDUCTION OF EXPENDITURE MA DE TOWARDS LONG TERM SETTLEMENT ARREARS RELATING TO CLERICAL STAFF/WORKERS. 4. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LEARNED CIT(A) ERRED IN REJECTING THE CONTENTION OF THE APPELLANT THAT NO EXPENDITURE HAS BEEN INCURRED FOR E ARNING THE EXEMPT INCOME. 2. AT THE OUTSET THE LD. SENIOR COUNSEL, SHRI J D MISTR Y , SUBMITTED THAT GROUND NO.3 AND 4 ARE NOT PRESSED AND ACCORDINGLY SAME ARE DISMISSED AS NOT PRESSED. 3. ON THE ISSUE RAISED IN GROUND NO.1, MR. J D MISTRY SUBMITTED THAT THIS PRECISE MATTER IS COVERED BY THE DECISION OF HONBLE BOMBAY HIGH COURT IN THE CASE OF BHARAT PETROLEUM CORPORATION LTD. (BPCL) AND ALSO IN THE CASE OF HINDUSTAN PETROLEUM CORPORATION LTD. (HPCL). THE COPY OF THE HIGH COURT BHARAT PETROLEUM CORPORATION LTD ITA NOS. : 4286 /MUM/20 05 3 DECISIONS ALONG WITH THE RE SPECTIVE TRIBUNAL ORDERS WERE FILED BEFORE US, IN SEPARATE COMPILATION. 4. LD. DR ALSO ADMITTED THAT GROUND NO. 1 IS COVERED IN FAVOUR OF THE ASSESSEE BY THE DECISION OF THE HONBLE JURISDICTIONAL HIGH COURT. 5. FACTS IN BRIEF ARE THAT, THE ASSESSEE IN THE COMPUTATION OF INCOME HAS CLAIMED DEDUCTION UNDER SECTION 80IB OF RS.2,46,74,117/ - , THE DETAILS OF WHICH WERE AS UNDER: - DETAIL OF PLANTS AMOUNT IN RS. URAN LPG PLANT (PHASEII) U/S 80IB 1,56,17,431 HARIYALA LPG PLANT U/S 80IB 39,36,329 UDAIPUR LPG PLANT U/S 80IB 33,66,612 SULTANPUR LPG PLANT U/S 80IB 17,53,745 2,46,74,117 IN SUPPORT OF THE CLAIM, THE ASSESSEE HAS FILED DETAILED SUBMISSION AND REFERRED TO VARIOUS DECISIONS WHICH HAVE BE EN INCORPORATED BY THE AO FROM PAGES 4 TO 7 OF THE ASSESSMENT ORDER. THE LD. AO HELD THAT ACTIVITY OF FILING GAS INTO THE CYLINDERS DOES NOT CONSTITUTE MANUFACTURING AND THAT LPG BOTTLING PLANTS ARE PART OF REFINING ACTIVITIES ONLY . THE LD. CIT(A) TOO FOLLOWING THE EARLIER DECISION OF THE CIT(A) FOR AYS 1996 - 97 TO AY 2001 - 02 DECIDED TH IS ISSUE AGAINST THE ASSESSEE. 6. NOW, WE FIND THAT THIS ISSUE HAS BEEN DECIDED BY THE HIGH COURT IN THE CASE OF HPCL & BPCL ( SUPRA ) WHEREIN, IT HAS BEEN HELD THAT, THE ASSESSEE S ARE ENTITLED FOR DEDUCTION UNDER SECTION 80IA IN RESPECT OF FILING OF LPG BOTTLING PLANTS. THE HONBLE BOMBAY HIGH COURT IN THE CASE OF CIT VS. HPCL IN INCOME - TAX APPEAL NO. 2131 TO 2135 OF 2012 VIDE JUDGMENT AND ORDER DATED 7 TH MARCH , 2013 HAVE DECIDED THIS ISSUE IN THE FOLLOWING MANNER: - 2) THE BASIC DISPUTE IN THESE APPEALS IS WHETHER THE ACTIVITY OF BOTTLING LPG GAS AMOUNTS TO PRODUCTION OR MANUFACTURING ACTIVITY FOR THE PURPOSE OF DEDUCTION UNDER BHARAT PETROLEUM CORPORATION LTD ITA NOS. : 4286 /MUM/20 05 4 SECTION 80HHC, 80I AND 80IA OF TH E INCOME TAX ACT, 1961. THE TRIBUNAL BY THE IMPUGNED ORDER HELD THAT SUBJECT ACTIVITY AMOUNTS TO PRODUCTION/MANUFACTURING FOR THE PURPOSE OF SECTION 80HHC, 80I AND 80IA OF THE INCOME TAX ACT, 1961 BY RELYING UPON THE DECISION OF THIS COURT IN WRIT PETITION NO.9455 OF 2011 DATED 19/1/2012 IN THE MATTER OF M/S HINDUSTAN PETROLEUM CORPORATION LTD. VS MAHARASHTRA STATE ELECTRICITY DISTRIBUTION CO LTD. AND OTHERS AND THE CONSEQUENT ORDER PASSED BY THE ELECTRICITY OMBUDSMAN DATED 26/3/2012. BESIDES A RELIANCE WAS ALSO PLACED UPON THE DECISION OF THE GUJARAT HIGH COURT DATED 6/5/2010 IN THE MATTER OF BHARAT PETROLEUM CORPORATION LTD VS STATE OF GUJARAT WHEREIN IT WAS HELD THAT BOTTLING OF LPG GAS AMOUNTS TO MANUFACTURING ACTIVITY. 3) THE GRIEVANCE OF THE REVENUE IS THAT THE AFORESAID ACTIVITY WOULD NOT AMOUNT TO MANUFACTURING/PRODUCTION ACTIVITY AND FOR THAT PURPOSE RELIANCE IS PLACED ON THE JUDGMENT OF THE GUJARAT HIGH COURT DATED 20/1/1993 IN THE MATTER OF STATE OF GUJARAT V. KOSAN GAS CO. (SALES TAX MATTER) WHE RE ACTIVITY OF BOTTLING THE GAS WAS NOT CONSIDERED AS MANUFACTURING ACTIVITY UNDER THE GUJARAT SALES TAX ACT, 1969. 4) SINCE THE TRIBUNAL IN THE IMPUGNED ORDER HAS RELIED UPON THE DECISION OF THIS COURT AND THE CONSEQUENT ORDER OF THE ELECTRICITY OMBUDSMA N TO HOLD THAT THE ACTIVITY OF BOTTLING LPG IS A VERY SPECIALIZED PROCESS AND THE SAME IS CONSIDERED TO BE AN ACTIVITY OF MANUFACTURE. THE TRIBUNAL IN THE IMPUGNED ORDER HAD OBSERVED TO THE EFFECT THAT THE WORD USED IN SECTION 80HH, 80I/80IA OF THE ACT IS MANUFACTURING OR PRODUCTION. THEREFORE, EVERY ACTIVITY WHICH BRING INTO EXISTENCE A NEW PRODUCT WOULD CONSTITUTE PRODUCTION. THE IMPUGNED ORDER RECORDS A FINDING OF FACT THAT THE PROCESS OF BOTTLING THE LPG GAS INTO CYLINDER MAKES THE SAME MARKETABLE ON EX ECUTION OF BHARAT PETROLEUM CORPORATION LTD ITA NOS. : 4286 /MUM/20 05 5 THE PROCESS. IT THEREFORE FOLLOWS THAT A NEW PRODUCT COMES INTO EXISTENCE. THE FACT THAT THE DECISION OF THIS COURT IN HPL (SUPRA) AND THE GUJARAT HIGH COURT DATED 6/5/2010 ARE RENDERED KEEPING IN VIEW OF THE FACT THAT GAS CYLINDER RULES 1984 WH ICH WERE NOT IN FORCE DURING THE RELEVANT ASSESSMENT YEAR WOULD NOT IN ANY WAY DETRACT FROM THE FINING OF FACT ARRIVED AT BY THE TRIBUNAL. IN THESE CIRCUMSTANCES, AS THE TRIBUNAL HAS RENDERED A FINDING OF FACT AND PLACED RELIANCE UPON THE DECISION OF THIS COURT AND ALSO GUJARAT HIGH COURT DATED 6/5/2010, WE SEE NO REASON TO ENTERTAIN THE PROPOSED QUESTION OF LAW. AGAIN, SIMILAR RATIO HAS BEEN REITERATED IN THE CASE OF BPCL IN INCOME - TAX APPEAL NO. 612 OF 2001 VIDE JUDGMENT AND ORDER DATED 3 RD MAY, 2013 WHEREIN, ON THE FOLLOWING QUESTION OF LAW: - I) WHETHER ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE TRIBUNAL ERRED IN LAW IN HOLDING THAT APPELLANT WAS NOT ENTITLED TO DEDUCTION UNDER SECTIONS 80HH AND 80I/80IA OF THE INCOME TAX ACT, 1961 IN RESPECT OF ITS LPG BOTTLING PLANTS? THE HIGH COURT FOLLOWED I T S EARLIER AFORESAID DECISION IN THE FOLLOWING MANNER: - 2. AT THE HEARING OF THESE APPEALS OUT ATTENTION HAS BEEN INVITED BY THE LEARNED COUNSEL FOR THE PARTIES TO THE JUDGMENT DATED 7 MARCH 2013 OF A DIVISION BENCH TO WHICH ONE OF US (M.S. SANKLECHA, J.) WAS A PARTY IN INCOME TAX APPEAL LODGING NO.2131 OF 2012 AND CONNECTED APPEALS. THE IDENTICAL QUESTION CENTERS AROUND THE BASIC DISPUTE IN WHETHER ACTIVITY OF BOTTLING LPG AS AMOUNTS TO PRODUCTION O R MANUFACTURING ACTIVITY OF BOTTLING LPG GAS AMOUNTS TO PRODUCTION OR MANUFACTURING ACTIVITY FOR THE PURPOSE OF DEDUCTION UNDER SECTION 80HH, 80I AND 80IA OF THE INCOME BHARAT PETROLEUM CORPORATION LTD ITA NOS. : 4286 /MUM/20 05 6 TAX ACT, 1961. THIS COURT GAVE FOLLOWING FINDING IN THE ABOVE JUDGMENT DATED 7 MARCH, 2 013: - SINCE THE TRIBUNAL IN THE IMPUGNED ORDER HAS RELIED UPON THE DECISION OF THIS COURT AND THE CONSEQUENT ORDER OF THE ELECTRICITY OMBUDSMAN TO HOLD THAT THE ACTIVITY OF BOTTLING LPG GAS IS A VERY SPECIALIZED PROCESS AND THE SAME IS CONSIDERED TO BE AN ACTIVITY OF MANUFACTURE. THE TRIBUNAL IN THE IMPUGNED ORDER HAD OBSERVED TO THE EFFECT THAT THE WORD USED IN SECTION 80HH, 80I/80IA OF THE ACT IS MANUFACTURING OR PRODUCTION. THE TERM PRODUCTION IS WIDER THAN THE WORD MANUFACTURE. THEREFORE, EVERY ACTIVIT Y WHICH BRING INTO EXISTENCE A NEW PRODUCT WOULD CONSTITUTE PRODUCTION. THE IMPUGNED ORDER RECORDS A FINDING OF FACT THAT THE PROCESS OF BOTTLING THE LPG GAS INTO CYLINDER MAKES THE SAME MARKETABLE ON EXECUTION OF THE PROCESS. IT THEREFORE FOLLOWS THAT A N EW PRODUCT COMES INTO EXISTENCE. FOR GIVING THE ABOVE FINDING THIS COURT ALSO RELIED UPON THE DECISION OF THIS COURT IN WRIT PETITION NO.9455 OF 2011 IN THE MATTER OF M/S.HINDUSTAN PETROLEUM CORPORATION LTD. V. MAHARASHTRA STATE ELECTRICITY DISTRIBUTION CO. LTD. AND ORS AND ALSO A DECISION DATED 6 MAY 2010 OF THE GUJARAT HIGH COURT IN BHARAT PETROLEUM CORPORATION LTD. VS. STATE OF GUJARAT & ORS HOLDING THAT BOTTLING LPG GAS IS MANUFACTURING ACTIVITY. 3. WE MAY ALSO NOTE THAT THE LEARNED COUNSEL FOR THE REVENUE DOES NOT DISPUTE THE QUESTIONS RAISED IN THESE APPEALS ARE COVERED BY THE DECISION DATED 7 MARCH 2013. THUS, I N VIEW OF THE AFORESAID BINDING JUDICIAL PRECEDENCE, WE DECIDE THIS ISSUE IN FAVOUR OF THE ASSESSEE. ACCORDINGLY, WE HOLD THAT ASSES SEE IS ENTITLED F O R CLAIM OF DEDUCTION UNDER SECTION 80IB IN RESPECT OF LGP BOTTLING PLANTS. 7 . IN GROUND NO.2 THE ASSESSEE HAS RAISED DISALLOWANCE OF CLAIM OF DEDUCTION UNDER SECTION 80IB OF RS.17,31,82,180/ - (16,57,09,930 + 74,72,250) . T HE SAID DEDUCTI ON WAS CLAIMED IN BHARAT PETROLEUM CORPORATION LTD ITA NOS. : 4286 /MUM/20 05 7 RESPECT OF C3 AND C4 PLANTS IN RESPECT OF SPECI A L CUT NAPTHA (SCN) PLANT. THE ASSESSEES SUBMISSION BEFORE THE AO IN RESPONSE TO THE SHOW CAUSE NOTICE W ERE AS UNDER: 7.4 THE ASSESSEE COMPANY WAS ASKED TO JUSTIFY AS TO HOW THEY ARE ELIG IBLE FOR DEDUCTION U/S 80IB FOR THE ABOVE SAID UNITS. THE ASSESSEE VIDE THEIR LETTER DTD. 05.09.2003 FILED THEIR SUBMISSIONS AS UNDER: - ( A ) OIL INDUSTRY IS WORKING UNDER THE ADMINISTERED PRICING MECHANISM (APM), WHEREIN THE OIL MARKETING MARGINS AND REFINING C OMPANIES ARE ENTITLED TO FIXED MARGINS. FOR EACH OF THE OIL COMPANY, MARKETING MARGINS HAVE BEEN FIXED ON THE BASIS OF MODERATED COSTS INCURRED BY THEM PLUS 12% POST TAX RETURN ON CAPITAL COMPRISED OF ASSETS AND WORKING CAPITAL. TO ENSURE UNIFORM SELLING P RICES IN THE MARKET, A UNIFORM AMOUNT TOWARDS MARKETING MARGINS (BEING A WEIGHTED AVERAGE OF THE INDUSTRY) IS INCLUDED IN THE PRICE BUILT UP. IN ADDITION TO THE ABOVE THERE IS A COMPENSATION BUILT IN THE RETENTION PRICE TOWARDS STORAGE AND WORKING LOSS UND ER THE HEAD SPECIFIC COSTS. THE SPECIFICS ARE ALLOWED TO THE INDUSTRY UNIFORMLY ON NORMATIVE BASIS AND NOT ON RETENTION BASIS. ( B ) PRODUCTS MANUFACTURED BY THE REFINERY ARE SOLD EITHER DIRECTLY TO THE CUSTOMERS (INDUSTRIAL) OR TO THE PUBLIC IN GENERAL THROUG H RETAIL OUTLETS AND DISTRIBUTORS. IN CASE OF RETAIL OUTLETS, THE OIL MARKETING COMPANIES HAVE TO PROVIDE VARIOUS ASSETS LIKE LAND, BUILDINGS, PUMPS AND TANKS TO DEALERS APPOINTED BY MINISTRY OF PETROLEUM AND NATURAL GAS (MOP & NG) ON ACCOUNT OF THE PECULI AR NATURE OF PRODUCTS AND CAREFUL HANDLING REQUIRED FOR THE PRODUCTS WHICH HAS TO BE SUPERVISED BY THE OIL COMPANIES ON CONTINUOUS BASIS. THE ABOVE SAID FACILITIES AND THE EXPENSES INCURRED ARE BUILT INTO A COMPENSATION GIVEN TO BHARAT PETROLEUM CORPORATION LTD ITA NOS. : 4286 /MUM/20 05 8 EACH OIL COMPANY BASED ON A PERIODICAL AUDIT OF THEIR BOOKS BY OIL COORDINATION COMMITTEE (OCC). THESE ARE CALLED RETENTION MARGINS. THESE MARGINS ARE AVERAGED AND BUILT INTO THE SELLING PRICE AND EXCESS/OTHER COLLECTIONS (WHICH IS MONITORED BY THE MOP & NG) IS ADJUSTED THROUGH THE POOL ACCOUNT MECHANISM CONTROLLED BY OCC. ( C ) THUS NO OIL COMPANY MAKES ANY SURPLUS INCOME OTHER THAN ITS RETENTION MARGINS FIXED BY MOP & NG. VICE - VERSA, ANY EXCESS EXPENDITURE IN THE BUSINESS IS COMPENSATED THROUGH THIS MECHANISM. 7.5 THE ASSESSEE COMPANY HAS ALSO CONTENDED THAT THERE IS NO REQUIREMENT IN THE INCOME - TAX ACT FOR MAINTAINING SEPARATE ACCOUNT FOR CLAIMING DEDUCTION UNDER SECTION 80IB. THEY HAVE STATED THAT A PROFIT FROM SCN PLANT HAVE BEEN WORKED ON THE IMPORT PARITY PRINCIPLE IN RESPECT OF RA W MATERIAL/FIELD COST, REFINERY OVERHEADS AND REALIZATION ON SALES BASED ON ACTUAL. HOWEVER, THE LD. AO DENIED THE ASSESSEES CLAIM MAINLY ON THE GROUND THAT, ASSESSEE HAD FAILED TO FURNISH THE WORKING OF SEPARATE PROFIT OF THE INDUSTRIAL UNDER TAKING AND THAT THE DEDUCTION WAS CLAIMED ON THE BASIS OF PRO - RATA RATE OF THE PROFITS OF THE UNITS WORKED OUT IN PROPORTION OF THE CAPITAL EMPLOYED IN SUCH UNITS TO THE CAPITAL OF THE ASSESSEE. THE AO HELD THAT, SUCH A PROFIT OF THE INDUSTRIAL UNIT HAS NO T BEEN CORRECTLY COMPUTED. THE LD. CIT(A) TOO HAS UPHELD THE ACTION OF THE AO THAT A PROFIT FROM SCN PLANT C3 & C4 IS IN ACCORDANCE WITH THE PROVISIONS OF THE LAW. 8 . B EF ORE US, LD. SENIOR COUNSEL , MR. J D MISTRY, SUBMITTED THAT, RIGHT FROM ASSESSMENT YEA RS 1992 - 93 UPTO ASSESSMENT YEAR 1997 - 98, THE AMOUNT OF DEDUCTION UNDER SECTION 80IA CLAIMED BY THE ASSESSEE HAS BEEN ALLOWED. HOWEVER, POST AY 1998 - 99 , THE GOVERNMENT OF INDIA PARTIALLY DEREGULATE D THE OIL SECTOR AND UNDER THE NEW REGULATION P RICING M ECHA NISM FOR THE REFINERIES AND THE BHARAT PETROLEUM CORPORATION LTD ITA NOS. : 4286 /MUM/20 05 9 PRICE CONTROLS ON INDUSTRIAL BULK PRODUCTS PRODUCED THEREIN HA VE BEEN A B O L I SH ED. THE PRICES OF CRUDE OIL AND PRODUCTS ARE NOW BASED ON IMPORT PARITY PRINCIPLES. NOW IN THE WAKE OF THIS, THE PROFIT EQUIVALENT TO A SPECIFIED PERCENTAGE OF AN ASSET HA S BEEN WORKED OUT BY WAY OF FOLLOWING FORMULA: - COST OF THE PROJECT X CORPORATIONS PROFITS X PERCENTAGE SPECIFIED FROM THE BUSINESS U/S 80IA OF THE ACT ---------------------------- OPENING GROSS BLOCK OF THE CORPORATION ALONG WITH THIS, HE ALSO FILED WORKING OF THE DEDUCTION FOR THE SCN PLANT S . HE SUBMITTED THAT, NOW IN THE LIGHT OF THIS WORKING AND FORMULA WHICH HAS BEEN ACCEPTED IN THE PAST BY THE DEPARTMENT, THE AO MAY BE DIRECTED TO DECIDE TH IS ISSUE ACCORDINGLY. 8. LD. DR ON THE OTHER HAND, STRONGLY RELIED UPON THE ORDER OF THE AO AND SUBMITTED THAT, IN CASE THE MATTER IS BEING SET ASIDE THEN IT SHOULD BE DECIDED AFRESH AND IN ACCORDANCE WITH THE LAW. 9. AFTER CONSIDERING THE RELEVANT FIND ING GIVEN IN THE IMPUGNED ORDER AND THE SUBMISSIONS MADE BY THE PARTIES, WE FIND THAT THE YEAR OF COMMISSION OF C3 & C4 SCN PLANT IS 1991 - 92. THIS IS THE 10 TH YEAR CLAIM OF DEDUCTION. IN THE EARLIER YEAR, THE REVENUE HAS ALLOWED THE DEDUCTION BASED ON PROF IT FORMULA BY TAKING THE COST OF THE PROJECT INTO THE BUSINESS PROFIT INTO PERCENTAGE SPECIFIED U/S 80IA OF THE ACT UPON OPENING GROSS BLOCK OF THE CORPORATION , THAT IS, COST OF THE PROJECTS X BUSINESS PROFIT X 30% OPENING GROSS BLOCK OF THE CORPOR ATION THE ASSESSEE HAS ALSO GIVEN WORKING OF THE COMPUTATION OF DEDUCTION ON THE BASIS OF THE SAME F ORMULA. ONCE ON A PARTICULAR FORMULA , A DEDUCTION HAS BEEN ALLOWED THEN SAME SHOULD HAVE BEEN UNIFORMLY FOLLOWED FOR THE LAST YEAR ALSO. ACCORDINGLY, WE DIRECT THE AO TO EXAMINE THE WORKING OF THE ASSESSEE CORPORATION BHARAT PETROLEUM CORPORATION LTD ITA NOS. : 4286 /MUM/20 05 10 AND WORK OUT THE ALLOWABLE DEDUCTION UNDER SECTION 80IA TO THE ASSESSEE. THUS, GROUND NO. 2 IS PARTLY ALLOWED FOR STATISTICAL PURPOSES. 10. IN THE RESULT, APPEAL OF THE ASSESSEE IS PARTLY A LLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 6 TH MAY , 201 6. SD/ - SD/ - ( ) ( ) ( RAJESH KUMAR ) ( AMIT SHUKLA ) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI, DATE: 6 TH MAY , 2016 / COPY TO: - 1 ) / THE APPELLANT. 2 ) / THE RESPONDENT. 3) THE CIT (A) - 38 , MUM BAI . 4 ) THE COMMISSIONER OF INCOME TAX - CENTRAL IV , MUMBAI . 5 ) , , / THE D.R. A BENCH, MUMBAI. 6 ) \ COPY TO GUARD FILE. / BY ORDER / / TRUE COPY / / / , DY. / ASSTT. R EGISTRAR I.T.A.T., MUMBAI * . . *CHAVAN, SR.PS