M/S. VITA BIO PHARMA PVT. LTD., V. DCIT CENT. 39,

MA 72/MUM/2011

• Counselvise Citation: [2011] 123 COUNSELVISE.COM (IT) 6688 (ITAT-MUMBAI)
• Duration Of Justice: 5 month(s) 24 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 29-07-2011
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: F
• Assessment Year: 2006-2007
• Appeal Filed On: 04-02-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ALESANDEL
• Assessee Lawyers: KIRAN PANCHOLI
• Keywords: Business income

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH F, MUMBAI BEFORE SHRI R.V. EASWAR, PRESIDENT AND SHRI P.M. JAGTAP, ACCOUNTANT MEMBER M.A. NO. 72/MUM/2011 (IN ITA NO. 2225/MUM/2010) A SSESSMENT YEAR : 2006-07. M/S VITA BIO PHARMA PVT. LTD., DY. CONTROLLER OF INCOME TAX, PLOT 109, OPP. SION FORT GARDEN, VS. CENTRAL-39, MUMBAI. SION (EAST), MUMBAI 400 022. PAN AABCV8454F. APPLICANT. RESPONDENT. APPLICANT BY : SHRI KIRAN PANCHOLI RESPO NDENT BY : SHRI ALESANDEL. O R D E R. PER P.M. JAGTAP, A.M. : AS RIGHTLY POINTED OUT BY THE ASSESSEE IN THIS MIS CELLANEOUS APPLICATION, THERE IS A MISTAKE OCCURRED IN THE ORDER OF THE TRI BUNAL DATED 31 ST DECEMBER, 2010 PASSED IN I.T.A. NO. 2225/MUM/2010 IN NOT ADJUDICAT ING UPON THE SPECIFIC ISSUE RAISED IN GROUND NO. 3 RELATING TO ASSESSEES ALTER NATIVE CLAIM THAT IF THE INCOME ON ACCOUNT OF SALE OF SCRAP IS HELD TO BE EXCLUDIBLE F ROM THE PROFITS ELIGIBLE FOR DEDUCTION U/S 80IB, ONLY THE NET INCOME FROM SALE O F SCRAP AFTER DEDUCTING COST THEREOF SHOULD BE EXCLUDED AND NOT THE ENTIRE PROCE EDS OF SALE OF SCRAP. SINCE THE SAID MISTAKE IS APPARENT FROM RECORD, WE RECTIFY TH E SAME BY ADJUDICATING UPON 2 M.A.NO. 72/MUM/2011. (IN ITA NO.2225/MUM/2010) ASSESSMENT YEAR :3006-07 GROUND NO. 3 VIDE PARAGRAPH NO. 6A AS FOLLOWS WHICH SHALL FORM PART OF THE ORDER OF THE TRIBUNAL DATED 31 ST DECEMBER, 2010: 6A. AS REGARDS THE ALTERNATIVE CONTENTION OF THE ASSESSEE THAT ONLY THE NET INCOME FROM SALE OF SCRAP SHOULD BE EXCLUDED AND NO T THE ENTIRE PROCEEDS OF SALE OF SCRAP, WE ARE UNABLE TO ACCEPT THE SAME. IN OUR OPINION, SCRAP SOLD BY THE ASSESSEE CANNOT BE SAID TO HAVE ANY COST AND TH ERE ARE NO EXPENSES WHICH CAN BE ATTRIBUTED TO THE INCOME EARNED BY THE ASSES SEE FROM THE SALE OF SCRAP. FOR INSTANCE, IF SCRAP PACKING MATERIAL IS GENERAT ED FROM THE PACKAGES OF RAW MATERIAL, THE COST OF SUCH PACKAGES WILL BE EM BEDDED IN THE RAW MATERIAL COST SEPARATELY CLAIMED BY THE ASSESSEE AG AINST ITS BUSINESS INCOME. SIMILARLY IF THE SCRAP OF PACKING MATERIAL IS GENER ATED BY THE ASSESSEE FROM MATERIAL PURCHASED BY IT FOR PACKING OF ITS OWN PRO DUCTS, THE COST THEREOF IS AGAIN SEPARATELY CLAIMED AGAINST ITS BUSINESS INCOM E. IT IS, THEREFORE, NOT POSSIBLE TO IDENTIFY ANY COST OR EXPENSES INCURRED BY THE ASSESSEE FOR GENERATING SCRAP AND THE INCOME EARNED BY THE ASSES SEE FROM SALE OF SCRAP BEING INCIDENTAL INCOME RECEIVED BY THE ASSESSEE WI THOUT INCURRING ANY COST OR EXPENSES SPECIFICALLY IN RELATION THERETO, WE AR E OF THE VIEW THAT THE ALTERNATIVE CLAIM OF THE ASSESSEE FOR EXCLUDING ONL Y NET INCOME FROM SALE OF SCRAP FROM THE PROFITS ELIGIBLE FOR DEDUCTION U/S 8 0IB CANNOT BE ACCEPTED. WE, THEREFORE, DISMISS GROUND NO. 3 OF THE ASSESSE ES APPEAL. 2. IN THE RESULT, THE MISCELLANEOUS APPLICATION OF THE ASSESSEE IS ALLOWED AND THE ORDER OF THE TRIBUNAL DATED 31 ST DECEMBER, 2011 IN ITA NO. 2225/MUM/2010 IS MODIFIED BY INSERTING PARAGRAPH NO. 6A AS ABOVE. . ORDER PRONOUNCED ON THIS 29 TH DAY OF JULY, 2011 SD/- SD/- (R.V. EASWAR) (P.M. JAGTAP) PRESIDENT. ACCOUNTANT MEMBER. MUMBAI, DATED: 29 TH JULY, 2011. 3 M.A.NO. 72/MUM/2011. (IN ITA NO.2225/MUM/2010) ASSESSMENT YEAR :3006-07 COPY TO : 1. APPLICANT. 2. RESPONDENT 3. C.I.T. 4. CIT(A) 5. DR, F-BENCH. (TRUE COPY ) BY ORDER ASSTT. REGISTRAR, ITAT, MUMBAI BEN CHES, MUMBA I. WAKODE