ACIT CEN CIR 34, MUMBAI V. INDOCO REMEDIES LTD, MUMBAI

ITA 7371/MUM/2011

• Counselvise Citation: [2012] 119 COUNSELVISE.COM (IT) 8456 (ITAT-MUMBAI)
• Duration Of Justice: 11 month(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 23-10-2012
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: I
• Assessment Year: 2001-2002
• Appeal Filed On: 03-11-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: K G KUTTY
• Keywords: Gift; Block assessment
• Section: 143(3); 80HHC; 14A; 115JB; 80IB; 37(1); 37

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH I, MUMBAI BEFORE SHRI P.M.JAGTAP, ACCOUNTANT MEMBER AND SHRI AMIT SHUKLA, JUDICIAL MEMBER.. I.T.A. NO.7371,7372&7373 /MUM/2011. ASSESSMENT YEARS : 2001-02, 2002-03 & 2008-09. ASSTT. COMMISSIONER OF INCOME-TAX, M/S INDOCO REMEDIES LTD. CENTRAL CIRCLE-34, MUMBAI. VS. 166, C.S.T. ROAD, ANTACRUZ(E), MUMBAI 400 020. PAN AAACJ 0380C APPELLANT. RESPONDENT . APPELLANT BY : SHRI K.G . KUTTY. RESPO NDENT BY : SHRI JITENDRA JAIN. DATE OF HEARING : 11-10-2012 DATE OF PRONOUNCEMENT : 23-10-2012. O R D E R PER P.M. JAGTAP, A.M. : OUT OF THESE THREE APPEALS OF THE REVENUE, TWO APP EALS I.E. ITA NOS. 7371 AND 7372/MUM/2011 ARE PREFERRED AGAINST THE COMMON ORDER OF LEARNED CIT(APPEALS)-41, MUMBAI DATED 08-08-2011 WHILE THE THIRD APPEAL I.E. ITA NO. 7373/MUM/2011 IS PREFERRED AGAINST THE ORDER OF LEA RNED CIT(APPEALS)-41, MUMBAI DATED 08-08-2011 WHEREBY HE DELETED CERTAIN ADDITIONS MADE BY THE AO IN THE ASSESSMENT FOR ASSESSMENT YEAR 2008-09. 2. FIRST WE SHALL TAKE UP THE APPEALS OF THE ASSESS EE FOR ASSESSMENT YEARS 2001- 02 AND 2002-03 WHICH ARE DIRECTED AGAINST THE ORDER OF LEARNED CIT(APPEALS)-41, MUMBAI DATED 08-08-2011. 2 ITA NOS.7371,7372&7373/MUM/2011 3. THE ASSESSEE IN THE PRESENT CASE IS A COMPANY WH ICH IS ENGAGED IN THE BUSINESS OF MANUFACTURING AND TRADING OF PHARMACEUT ICAL FORMULATIONS AND BULK DRUGS. THE RETURNS OF INCOME FOR THE YEARS UNDER CO NSIDERATION WERE FILED BY THE ASSESSEE DECLARING TOTAL INCOME OF RS.1,52,74,577/- AND RS.3,35,34,532/- FOR ASSESSMENT YEARS 2001-02 AND 2002-03 RESPECTIVELY. BOOK PROFITS DECLARED BY THE ASSESSEE IN THE SAID RETURNS U/S 115JB WAS RS.12,67 ,26,080/- AND RS.16,19,05,671/- FOR ASSESSMENT YEARS 2001-02 AND 2002-03 RESPECTIVE LY. IN THE ASSESSMENTS COMPLETED BY THE AO U/S 143(3), THE TOTAL INCOME OF THE ASSESSEE WAS COMPUTED BY THE AO AT RS.1,89,46,090/- AND RS.4,66,28,140/- FOR ASSESSMENT YEARS 2001-02 AND 2002-03 RESPECTIVELY. HOWEVER, AS THE TAX PAYABLE B Y THE ASSESSEE ON BOOK PROFIT U/S 115JB WAS MORE THAN THE TAX PAYABLE ON INCOME S O COMPUTED UNDER THE NORMAL PROVISIONS, THE ASSESSEE WAS HELD TO BE LIABLE TO P AY TAX ON THE BOOK PROFITS FOR ASSESSMENT YEARS 2001-02 AND 2002-03. 4. THE ADDITIONS MADE TO ITS TOTAL INCOME IN THE AS SESSMENTS COMPLETED U/S 143(3) FOR ASSESSMENT YEARS 2001-2 AND 2002-03 WERE CHALLENGED BY THE ASSESSEE IN APPEAL INITIALLY BEFORE THE LEARNED CIT(APPEALS) AND THEREAFTER BEFORE THE TRIBUNAL. AFTER THE RELIEF GIVEN BY THE LEARNED CIT (APPEALS) AS WELL AS THE TRIBUNAL IN RESPECT OF THE SAID ADDITIONS, THE ADDITIONS FIN ALLY SUSTAINED FOR BOTH THE YEARS UNDER CONSIDERATION WERE AS UNDER : ADDITIONS/DISALLOWANCES AY 2001-02 AY 2002-03 DEDUCTION U/S 80-IB 1,36,27,088 27,69,302 DEDUCTION U/S 80-HHC 2,184 51,887 FOREIGN TRAVEL EXPENSES 66,196 42,44 9 DISALLOWANCE U/S 14A 3,34,736 3,34,736 3 ITA NOS.7371,7372&7373/MUM/2011 5. AS A RESULT OF SUSTENANCE OF THE ADDITIONS AS AB OVE IN THE QUANTUM PROCEEDINGS, NOTICES U/S 271(1)(C) WERE ISSUED BY T HE AO REQUIRING THE ASSESSEE TO SHOW AS TO WHY PENALTY SHOULD NOT BE IMPOSED IN RES PECT OF THE SAID ADDITIONS. IN REPLY, IT WAS SUBMITTED ON BEHALF OF THE ASSESSEE C OMPANY BEFORE THE AO THAT THE ADDITIONS SUSTAINED U/S 80IB, 80HHC AND 14A INVOLVE LEGAL ISSUES AND, THEREFORE, PENALTY U/S 271(1)(C) WAS NOT ATTRACTED IN RESPECT OF THE SAID ADDITIONS. 6. AS REGARDS THE DISALLOWANCE OUT OF FOREIGN TRAVE L EXPENSES, IT WAS SUBMITTED BY THE ASSESSEE THAT IT WAS MADE ON ADHOC BASIS AN D, THEREFORE, PENALTY U/S 271(1)(C) WAS NOT LEVIABLE IN RESPECT OF THE ADDITI ON BY WAY OF DISALLOWANCE OUT OF FOREIGN TRAVEL EXPENSES MADE ON ADHOC BASIS. THE AO DID NOT FIND THIS EXPLANATION OF THE ASSESSEE TO BE ACCEPTABLE AND PROCEEDED TO I MPOSE PENALTY OF RS.55,48,945/- AND RS.11,41,821/- FOR ASSESSMENT YEARS 2001-02 AND 2002-03 RESPECTIVELY HOLDING THAT THE ASSESSEE WAS GUILTY OF FURNISHING INACCURA TE PARTICULARS OF ITS INCOME. 7. THE PENALTY IMPOSED BY THE AO U/S 271(1)(C) FOR BOTH THE YEARS UNDER CONSIDERATION WAS CHALLENGED BY THE ASSESSEE IN THE APPEALS FILED BEFORE THE LEARNED CIT(APPEALS) AND AFTER CONSIDERING THE SUBMISSIONS MADE ON BEHALF OF THE ASSESSEE AS WELL AS MATERIAL AVAILABLE ON RECORD, THE LEARNE D CIT(APPEALS) CANCELLED THE PENALTY IMPOSED BY THE AO U/S 271(1)(C) FOR BOTH TH E YEARS UNDER CONSIDERATION. HE HELD THAT ALTHOUGH THE ADDITIONS MADE TO THE TOT AL INCOME OF THE ASSESSEE WERE SUSTAINED BY THE TRIBUNAL IN THE QUANTUM PROCEEDING S, IT WAS NOT A CASE WHERE THE ASSESSEE HAD CONCEALED THE PARTICULARS OF ITS INCOM E OR FURNISHED INACCURATE PARTICULARS OF ITS INCOME. ACCORDINGLY, RELYING ON THE DECISION OF HONBLE SUPREME COURT IN THE CASE OF RELIANCE PETRO PRODUCT S P. LTD. 322 ITR 158, HE CANCELLED THE PENALTY IMPOSED BY THE AO U/S 271(1)( C) FOR BOTH THE YEARS UNDER CONSIDERATION. AGGRIEVED BY THE ORDER OF THE LEARNE D CIT(APPEALS), THE REVENUE HAS PREFERRED THESE APPEALS BEFORE THE TRIBUNAL. 4 ITA NOS.7371,7372&7373/MUM/2011 8. WE HAVE HEARD THE ARGUMENTS OF BOTH THE SIDES AN D ALSO PERUSED THE RELEVANT MATERIAL ON RECORD. AS POINTED OUT BY THE LEARNED C OUNSEL FOR THE ASSESSEE FROM THE RELEVANT ORDERS OF THE AO GIVING EFFECT TO THE ORDE RS OF THE TRIBUNAL PASSED IN THE QUANTUM PROCEEDINGS, THE TAX PAYABLE BY THE ASSESSE E ON BOOK PROFIT U/S 115JB IS MORE THAN THE TAX ON TOTAL INCOME AS FINALLY COMPUT ED UNDER THE NORMAL PROVISIONS FOR BOTH THE YEARS UNDER CONSIDERATION. THE ASSESSE E, THEREFORE, IS HELD TO BE LIABLE TO PAY TAX ON THE BOOK PROFITS FOR BOTH THE YEARS U NDER CONSIDERATION. IN THE CASE OF CIT VS. NALWA SONS INVESTMENT LTD. (ITA NO. 1420/20 09 DATED AUGUST 3, 2010) HONBLE DELHI HIGH COURT HAS HELD THAT WHEN THE TAX PAYABLE ON BOOK PROFIT U/S 115JB OF THE ACT IS MORE THAN THE TAX PAYABLE ON TH E TOTAL INCOME AS COMPUTED UNDER THE NORMAL PROVISIONS, THE BOOK PROFIT BECOME S THE BASIS OF ASSESSMENT AND THE ADDITIONS MADE IN COMPUTING THE TOTAL INCOME UN DER THE NORMAL PROVISIONS OF THE ACT BECOME TOTALLY IRRELEVANT IN THE CONTEXT OF PENALTY U/S 271(1)(C) AS THE SAID ADDITIONS TREATED AS CONCEALMENT DO NOT LEAD TO ANY TAX EVASION AT ALL. IT WAS HELD THAT NO PENALTY U/S 271(1)(C), THEREFORE, CAN BE IM POSED IN RESPECT OF SUCH ADDITIONS. AS SUBMITTED BY THE LEARNED COUNSEL FOR THE ASSESSEE, THE SLP FILED BY THE DEPARTMENT AGAINST THE DECISION OF HONBLE DELH I HIGH COURT IN THE CASE OF NALWA SONS INVESTMENT LTD. (SUPRA) IS DISMISSED BY THE HONBLE SUPREME COURT BY AN ORDER DATED 04-05-2012. RESPECTIVELY FOLLOWING T HE SAID JUDICIAL PRONOUNCEMENT, WE UPHOLD THE IMPUGNED ORDER OF THE LEARNED CIT(APPEALS) CANCELLING THE PENALTY IMPOSED BY THE AO FOR ASSESS MENT YEARS 2001-02 AND 2002- 03 ALTHOUGH ON DIFFERENT GROUND AND DISMISS THE APP EALS OF THE REVENUE. 9. NOW WE SHALL TAKE UP THE APPEAL OF THE REVENUE F OR ASSESSMENT YEAR 2008- 09 WHICH INVOLVE THE FOLLOWING GROUNDS : 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E AND IN LAW, THE HONBLE LD. CIT(A) WAS NOT CORRECT IN ALLOWING THE DEDUCTION ON 5 ITA NOS.7371,7372&7373/MUM/2011 ACCOUNT OF PERSONAL GIFTS MADE TO THE DOCTORS AND M EDICAL PRACTIONERS WITHOUT APPRECIATING THE FACT THAT SUCH EXPENSES AR E IN CONTRAVENTION OF CLAUSE 6.4.1 OF CHAPTER 6 OF THE INDIAN MEDICAL COUNCIL REGULATION WHEREIN IT HAS BEEN STIPULATED THAT MAKING SUCH PER SONAL GIFTS TO THE DOCTORS IS AN UNETHICAL ACT AND RECEIPTS OF SUCH GI FTS BY PROFESSIONALS IS BARRED UNDER THE REGULATION OF INDIAN MEDICAL CO UNCIL. 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E AND IN LAW, THE LD. CIT(A) ERRED IN DELETING THE ADDITION BEING THE AMO UNT OF UNDER ALLOCATION OF OVERHEAD EXPENSES ON ACCOUNT OF REALL OCATION OF OVERHEAD EXPENSES MADE BY THE ASSESSING OFFICER BET WEEN THE BADDU UNIT ENTITLED TO DEDUCTION U/S 80IC AND THE HEAD OF FICE, RELYING ON THE DECISION OF THE ITAT FOR A.Y. 2003-04, WITHOUT APPRECIATING THE FACT THAT ON SIMILAR FACTS & CIRCUMSTANCES, THE CLA IM OF THE ASSESSEE PERTAINING TO THIS ISSUE WAS FOUND INCORRECT DURING THE BLOCK ASSESSMENT PROCEEDINGS AND FURTHER THE AFOREMENTION ED EXPENSES HAVE NOT BEEN APPORTIONED ON PRO-RATE BASIS AND THE ASSE SSEE ON ITS OWN ACCEPTED THAT IT IS NOT POSSIBLE TO APPORTION ON AN Y ACTUAL BASIS AND CONSEQUENTLY THE APPORTIONMENT ON THE BASIS OF PERC ENTAGE OF SALES WOULD HAVE BEEN THE PROPER ALTERNATIVE. 10. WE HAVE HEARD THE ARGUMENTS OF BOTH THE SIDES A ND ALSO PERUSED THE RELEVANT MATERIAL ON RECORD. AS REGARDS THE ISSUE RAISED IN GROUND NO.1, IT IS OBSERVED THAT THE EXPENDITURE INCURRED BY THE ASSESSEE ON THE ART ICLES PRESENTED TO DOCTORS WAS DISALLOWED BY THE AO BY INVOKING EXPLANATION TO SEC TION 37(1) BEING THE PAYMENTS IN CONTRAVENTION TO RULE OF INDIAN MEDICAL COUNCIL. ON APPEAL, THE LEARNED CIT(APPEALS) DELETED THE SAID DISALLOWANCE FOLLOWING THE ORDER OF THE TRIBUNAL IN ASSESSEES OWN CASE FOR THE EARLIER YEA RS DELETING THE ADDITIONS MADE ON A SIMILAR ISSUE. A COPY OF THE ORDER OF THE TRIBUNA L DATED 11 TH SEPT., 2009 PASSED FOR ASSESSMENT YEARS 2001-02 TO 2004-05 IN ASSESSEE S OWN CASE IS PLACED ON RECORD BEFORE US AND A PERUSAL OF THE SAME SHOWS TH AT A SIMILAR ISSUE HAS BEEN 6 ITA NOS.7371,7372&7373/MUM/2011 DECIDED BY THE TRIBUNAL IN FAVOUR OF THE ASSESSEE F OR THE FOLLOWING REASONS GIVEN IN PARAGRAPH NO. 40 TO 42 : 40. GROUND 2 RELATES TO ADDITION OF RS.3,75,865/- ON ACCOUNT OF PERSONAL GIFTS MADE TO THE DOCTORS AND MEDICAL PRACTITIONERS . THE REVENUE HAS ARGUED STATING THAT THE SAID IS PERSONAL IN NATURE. THEREF ORE THE SAME SHOULD BE DISALLOWED U/S 37 OF THE ACT, THE COUNSEL HAS STATE D THAT THE IDENTICAL ISSUE HAS COME FOR CONSIDERATION IN THE CASE OF WARREN PH ARMA IN TIA NO.6357/M/2006 FOR THE A.Y.2003-04 IN THIS REGARD H E MENTIONED PAGE 8 OF THE PAPER BOOK WHERE GROUND NO.1 RELATING TO ISSUE OF GIFTS TO THE DOCTORS. IN THIS REGARD, THE COUNSEL READ OUT PARAS 3 TO 6 OF T HE SAID ORDER AND STATED THAT THE APPEAL OF THE REVENUE WAS DISMISSED UPHOLDING T HE ORDER OF THE CIT(A). 41. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE ORDERS OF THE REVENUE AS THE TRIBUNAL ORDERS FOR THE AY 2002-03 AND 2003- 04.THE ISSUE OF GIFTS TO DOCTORS IS A SETTLED ISSUE BY THE ABOVE REFERRED DE CISIONS OF THE TRIBUNAL ORDERS IN TIA NO.6375/M/2006(AY 2003- 04) AND ITANO .4316/M/2005(AY 2002-03). PARA 3 TO 6 OF THE TRIBUNAL FOR A.Y. 2003 -04 ARE RELEVANT AND SAME ARE REPRODUCED AS UNDER: 3. THE AO DISALLOWED AN AMOUNT OF RS.2,29,164 OUT OF PERSONALIZED SALES PROMOTION EXPENSES AND RS.21,18,011 ON ACCOUNT OF D OCTORS GIFTS ON THE GROUND THAT BOTH THESE EXPENSES WERE HIT BY EXPLANA TION TO SECTION 3791) OF THE ACT AND THE ITEMS GIFTED WERE IN THE NATURE OF PERSONAL GIFTS AND HAD NO RELEVANT TO THE ADVT. OF THE PRODUCT OF THE ASSESSE E COMPANY BY OBSERVING THAT UNDER THE REGULATIONS OF MEDICAL ASSOCIATION, THE MEDICAL PRACTITIONERS ARE BARRED FROM ACCEPTING GIFTS, THEREFORE, CANNOT BE ALLOWED AS DEDUCTION UNDER THE ACT. 4. ON APPEAL, THE CIT(A) FOLLOWED THE EARLIER ORDER FOR A.Y. 2002-03 WHEREIN THE CIT(A) HAS DELETED THE DISALLOWANCE. HO WEVER, IN THE CASE UNDER CONSIDERATION, THE CIT(A) RESTRICTED THE DISA LLOWANCE TO 25% FOR PSP EXPENSES AND 15% FOR DOCTORS GIFTS ON THE GROUND TH AT THE ASSESSEE FAILED TO SUPPLY PROPER FACTUAL DETAILS. THE REVENUE IS IN AP PEAL BEFORE US AGAINST THE RESTRICTION OF DISALLOWANCE BY THE CIT(A). 5. AT THE OUTSET THE LD AR HAS SUBMITTED THAT THE I SSUE IS COVERED IN FAVOUR OF THE ASSESSEE BY THE DECISION OF ITAT IN ASSESSEES OWN CASE IN TIA NO.4316/M/05 FOR A.Y. 2002-03 (APPEAL FILED BY THE REVENUE) DT.24.3.08 7 ITA NOS.7371,7372&7373/MUM/2011 WHEREIN, THE ITAT HAS CONFIRMED THE ORDER OF THE CI T(A) WHO HAD DELETED THE DISALLOWANCES MADE BY THE AO ON ACCOUNT OF PERS ONALIZED SALES PROMOTION EXPENSES AND EXPENSES FOR DOCTORS GIFTS. 6. AFTER HEARING THE LD D.R. AND AFTER CONSIDERING THE FACTS OF THE CASE AS WELL AS KEEPING IN VIEW OF THE DECISION OF THE ITAT IN ASSESSEES OWN CASE FOR A.Y. 2002-03, WE ALSO IN PRINCIPLE, HEREBY CONF IRM THE ORDER OF CIT(A). HOWEVER, THE CIT(A) RESTRICTED THE DISALLOWANCE TO 25% IN PERSONALIZED SALES PROMOTION EXPENSES AND 15% IN GIFTS TO DOCTOR S ON ACCOUNT OF PROPER VERIFICATION OF MATERIAL, WE FIND THAT THE O RDER OF CIT(A) IS A REASONABLE ORDER BASED ON MATERIAL, THEREFORE, THE SAME IS CONFIRMED,. 42. FROM THE ABOVE, IT IS EVIDENT THAT THE DISALLO WANCE OF 15% ON GIFTS TO THE DOCTORS SHOULD BE DISALLOWED ON ACCOUNT OF PROP ER VERIFICATION OF MATERIAL. WE FIND NO REASON TO INTERFERE WITH THE A BOVE SETTLED POSITION IN THE ASSESSEES CASE. THUS GROUND 2 OF THE REVENUE IS DI SMISSED. AS THE ISSUE INVOLVED IN THE YEAR UNDER CONSIDERATI ON AS WELL AS ALL THE MATERIAL FACTS RELEVANT THERETO ARE SIMILAR TO ASSESSMENT YE ARS 2001-02 TO 2004-05, WE RESPECTFULLY FOLLOW THE ORDER OF THE TRIBUNAL FOR T HE SAID YEARS AND SUSTAIN THE DISALLOWANCE MADE BY THE AO ON THIS ISSUE TO THE EX TENT OF 25% IN RESPECT OF PERSONALIZED SALES PROMOTION EXPENSES AND 15% IN RE SPECT OF GIFTS TO DOCTORS ON ACCOUNT OF UNVERIFIABLE AND UNVOUCHED ELEMENT INVOL VED IN THE SAID EXPENSES. THE IMPUGNED ORDER OF THE LEARNED CIT(APPEALS) IS ACCOR DINGLY MODIFIED TO THAT EXTENT AND GROUND NO. 1 OF HE REVENUES APPEAL IS PARTLY A LLOWED. 11. AS REGARDS THE ISSUE RAISED IN GROUND NO.2 RELA TING TO ALLOCATION OF OVERHEAD EXPENSES TO BADDI UNIT ENTITLED FOR DEDUCTION U/S 8 0IC, IT IS OBSERVED THAT THE BASIS ADOPTED BY THE ASSESSEE FOR APPORTIONMENT OF HO AND OTHER COMMON EXPENSES OF BADDI UNIT WAS NOT FOUND TO BE ACCEPTABLE BY THE AO . ACCORDING TO HIM, THE COMMON EXPENSES SHOULD BE APPORTIONED ON PRORATE B ASIS IN THE RATIO OF SALES AND ACCORDINGLY ADOPTING THE SAID BASIS, ADDITIONAL EXP ENSES ATTRIBUTABLE TO THE BADDI 8 ITA NOS.7371,7372&7373/MUM/2011 UNIT WERE WORKED OUT BY THE AO AT RS.5,63,14,836/- AND THE CLAIM OF THE ASSESSEE FOR DEDUCTION U/S 80IC WAS RESTRICTED BY HIM. ON AP PEAL, THE LEARNED CIT(APPEALS) ACCEPTED THE BASIS ADOPTED BY THE ASSESSEE FOR APPO RTIONMENT OF COMMON EXPENSES TO BADDI UNIT FOLLOWING THE ORDER OF HIS PREDECESSO R IN ASSESSEES OWN CASE FOR ASSESSMENT YEA 2007-08 AS WELL AS THE ORDER OF THE TRIBUNAL IN ASSESSEES OWN CASE FOR ASSESSMENT YEAR 2003-04 ON A SIMILAR ISSUE. 12. AT THE TIME OF HEARING BEFORE US, THE LEARNED C OUNSEL FOR HE ASSESSEE HAS FILED A COPY OF THE ORDER OF THE TRIBUNAL DATED 11 TH SEPT., 2009 PASSED IN ASSESSEES OWN CASE FOR ASSESSMENT YEARS 2001-02 TO 2004-05 AND A PERUSAL OF THE SAME SHOWS THAT A SIMILAR ISSUE WAS CONSIDERED AND DECIDED BY THE T RIBUNAL IN PARAGRAPH NO. 45 OF THE SAID ORDER. AS NOTED BY THE TRIBUNAL THEREIN, T HE REALLOCATION OF EXPENSES WAS MADE BY THE AO FOR THE REASONS STATED IN THE BLOCK ASSESSMENT COMPLETED IN THE CASE OF THE ASSESSEE ON 27-02-2004. AS FURTHER NOTE D BY THE TRIBUNAL, THE SAID BASIS ADOPTED BY THE AO IN THE BLOCK ASSESSMENT FOR ALLOC ATION OF EXPENSES, HOWEVER, WAS NOT ACCEPTED BY THE LEARNED CIT(APPEALS) WHILE DISPOSING OF THE APPEAL FILED BY THE ASSESSEE AGAINST THE BLOCK ASSESSMENT ORDER AND THE ADDITION MADE BY THE AO BY RESTRICTING THE CLAIM OF THE ASSESSEE FOR DED UCTION U/S 80IB WAS DELETED. SINCE THE SAID ORDER OF THE LEARNED CIT(APPEALS) GI VING RELIEF TO THE ASSESSEE ON THIS ISSUE WAS NOT CHALLENGED BY THE REVENUE AND HA D BECOME FINAL, THE TRIBUNAL ACCEPTED THE BASIS OF ALLOCATION ADOPTED BY THE ASS ESSEE AND DECIDED THE SIMILAR ISSUE IN FAVOUR OF THE ASSESSEE. AS THE ISSUE INVOL VED IN THE YEAR UNDER CONSIDERATION AS WELL AS ALL THE MATERIAL FACTS REL EVANT THERETO ARE SIMILAR TO THAT OF THE EARLIER YEARS DECIDED BY THE TRIBUNAL VIDE ITS ORDER DATED 11 TH SEPT., 2009, WE RESPECTFULLY FOLLOW THE SAID ORDER AND UPHOLD THE I MPUGNED ORDER OF THE LEARNED CIT(APPEALS) GIVING RELIEF TO THE ASSESSEE ON THIS ISSUE. 9 ITA NOS.7371,7372&7373/MUM/2011 13. IN THE RESULT, THE APPEALS FOR ASSESSMENT YEARS 2001-02 AND 2002-03 ARE DISMISSED WHEREAS THE APPEAL FOR ASSESSMENT YEAR 20 08-09 IS PARTLY ALLOWED. ORDER PRONOUNCED ON THIS 23 RD DAY OF OCT. , 2012. (AMIT SHUKLA) (P.M. JAGTAP) JUDICIAL MEMBER ACCO UNTANT MEMBER MUMBAI, DATED: OCT., 2012. COPY TO : 1. APPELLANT 2. RESPONDENT 3. C.I.T. 4. CIT(A) 5. DR, I-BENCH. (TRUE COPY) BY ORD ER ASSTT. REGI STRAR, ITAT, MUMBAI BENC HES, WAKODE MUMBAI.