M/S HEG LIMITED MANDIDEEP, v. THE ACIT 1 (1),

ITA 869/IND/2005 | 1999-2000
Pronouncement Date: 27-01-2010 | Result: Partly Allowed

Appeal Details

RSA Number 86922714 RSA 2005
Assessee PAN AAACH6184K
Bench Indore
Appeal Number ITA 869/IND/2005
Duration Of Justice 4 year(s) 2 month(s) 4 day(s)
Appellant M/S HEG LIMITED MANDIDEEP,
Respondent THE ACIT 1 (1),
Appeal Type Income Tax Appeal
Pronouncement Date 27-01-2010
Appeal Filed By Assessee
Order Result Partly Allowed
Bench Allotted DB
Tribunal Order Date 27-01-2010
Date Of Final Hearing 21-01-2010
Next Hearing Date 21-01-2010
Assessment Year 1999-2000
Appeal Filed On 23-11-2005
Judgment Text
PAGE 1 OF 14 - I.T.A.NOS. 878 & 869/IND/2005 H.E.G. LIMITED LIMITED - IN THE INCOME TAX APPELLATE TRIBUNAL INDORE BENCH : INDORE BEFORE SHRI JOGINDER SINGH JUDICIAL MEMBER AND SHRI V.K. GUPTA ACCOUNTANT MEMBER PAN NO. : AAACH6184K I.T.A.NO.878/IND/2005 A.Y. : 1999-2000 ACIT M/S. H.E.G. LIMITED 1(1) VS MANDIDEEP. BHOPAL. APPELLANT RESPONDENT PAN NO. : AAACH6184K I.T.A.NO.869/IND/2005 A.Y. : 1999-2000 M/S. H.E.G. LIMITED ACIT MANDIDEEP. VS 1(1) BHOPAL. APPELLANT RESPONDENT DEPARTMENT BY : SHRI K.K.SINGH CIT DR ASSESSEE BY : SHRI M. C. MEHTA C. A. AND SHRI HITESH CHIMNANI C.A. DATE OF HEARING : 21.01.2010. PAGE 2 OF 14 - I.T.A.NOS. 878 & 869/IND/2005 H.E.G. LIMITED LIMITED - O R D E R PER BENCH THESE CROSS APPEALS ARISE OUT OF THE ORDER OF LD. CIT(A) DATED 23.09.2005 FOR THE ASSESSMENT YEAR 1999-2000. 2. WE HAVE HEARD BOTH THE PARTIES AND HAVE ALSO PERUSE D THE MATERIAL AVAILABLE ON RECORD. 3. FIRST WE SHALL TAKE UP THE REVENUES APPEAL IN I.T .A.NO. 878/IND/2005. 4. GROUND NOS. 1 & 2 READ AS UNDER :- 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE THE LD. CIT(A) HAS ERRED IN DELETING DISALLOWANCE U/S 4 3B AMOUNTING TO RS. 1 34 03 230/- BEING THE AMOUNT OF DEFERRED SALES TAX OF SPONGE IRON DIVISION. 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E THE LD. CIT(A) HAS ERRED IN ALLOWING DEDUCTION U/S 80IA AMOUNTING TO RS. 14 70 71 310/-. 5. THE LEARNED COUNSEL FOR THE ASSESSEE AT THE OUT-SE T STATED THAT THE ISSUES RAISED ABOVE WERE COVERED AND DECIDED AG AINST THE DEPARTMENT BY THE ORDER OF I.T.A.T. DATED 23.01.2009 FOR THE A SSESSMENT YEAR 2002- 03 IN THE CASE OF THE ASSESSEE ITSELF IN I.T.A.NO. 870 & 860/IND /2005 FOR PAGE 3 OF 14 - I.T.A.NOS. 878 & 869/IND/2005 H.E.G. LIMITED LIMITED - THE ASSESSMENT YEAR 2002-03. THE LD. DEPARTMENTAL R EPRESENTATIVE ALSO AGREED. HENCE BOTH THE GROUNDS ARE DISMISSED. 6. GROUND NO. 3 READS AS UNDER :- ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE THE LD. CIT(A) HAS ERRED IN COMPUTING THE DEDUCTION U /S 80HHC. 7. AS REGARDS THIS GROUND THE LEARNED COUNSEL SUBMITT ED THAT VIDE GROUND NOS. 4 & 5 A SPECIFIC ISSUE REGARDING EXCLU SION OF EXCISE DUTY FROM THE TOTAL TURNOVER HAD BEEN RAISED BY THE REV ENUE AND IN RESPECT OF OTHER ISSUES RELATING TO COMPUTATION OF DEDUCTION U /S 80HHC THE ASSESSEE WAS AGGRIEVED AS THE LD. CIT(A) HAD DECIDED THOSE I SSUES AGAINST THE ASSESSEE AND THEREFORE RELEVANT GROUNDS HAD BEEN RAISED ON THE ASSESSEES APPEAL. HENCE THIS GROUND OF THE REVENU E WAS OF GENERAL NATURE AND VAGUE HENCE TO BE DISMISSED. 8. THE LD. CIT DR FOR THE REVENUE COULD NOT CONTROVERT THIS CLAIM OF THE ASSESSEE. 9. ACCORDINGLY WE DISMISS THIS GROUND OF THE REVENUE AS OF GENERAL NATURE. 10. GROUND NOS. 4 & 5 READ AS UNDER :- 4. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE THE LD. CIT(A) HAS ERRED IN DIRECTING THE A.O. TO EXCLU DE EXCISE PAGE 4 OF 14 - I.T.A.NOS. 878 & 869/IND/2005 H.E.G. LIMITED LIMITED - DUTY OF RS. 25 12 71 309/- FROM TOTAL TURNOVER FOR COMPUTING DEDUCTION U/S 80HHC. 5. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E THE LD. CIT(A) HAS ERRED IN DIRECTING TO EXCLUDE EXCISE DUTY OF RS. 25 12 71 309/- FROM TOTAL TURNOVER OF JAMMU DIV ISION WHILE WORKING DEDUCTION U/S 80HHC. 11. THE LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE ISSUES RAISED IN GROUND NOS. 4 & 5 WERE COVERED AGAINST TH E REVENUE BY THE ORDER OF THE I.T.A.T. IN THE CASE OF THE ASSESSEE I TSELF IN I.T.A.NO. 870/IND/2005 FOR THE ASSESSMENT YEAR 2002-03. THIS CONTROVERSY HAS ALSO BEEN SETTLED BY THE HON'BLE SUPREME COURT IN FAVOU R OF ASSESSEE IN THE CASE OF LAXMI MACHINE WORKS AS REPORTED IN 290 ITR 667. HENCE BOTH THE GROUNDS ARE DISMISSED. 12. GROUND NO. 6 READS AS UNDER :- ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE THE LD. CIT(A) HAS ERRED IN DIRECTING TO DEDUCT THE PROVISI ON OF DOUBTFUL DEBTS AMOUNTING TO RS. 3 10 00 635/- WHILE COMPUTING BOOK PROFIT U/S 115JA AND TREATMENT OF PR OVISION FOR DOUBTFUL DEBTS AS UNASCERTAINABLE LOANS. 13. THE LEARNED COUNSEL FOR THE ASSESSEE STATED THAT TH E CORRECT FIGURE IS RS. 3 01 00 635/- AND NOT RS. 3 10 00 63 5/-. PAGE 5 OF 14 - I.T.A.NOS. 878 & 869/IND/2005 H.E.G. LIMITED LIMITED - 14. THE LEARNED COUNSEL FOR THE ASSESSEE AT THE OUTSET SUBMITTED THAT THIS ISSUE WAS COVERED IN FAVOUR OF THE ASSESS EE BY THE ORDER OF THE TRIBUNAL IN ASSESSEES OWN CASE FOR ASSESSMENT YEAR 1998-99. HOWEVER WHEN THE BENCH POINTED OUT THAT THERE WAS A RETROSP ECTIVE AMENDMENT BY THE FINANCE ACT 2009 WHEREBY PROVISION FOR DOUBT FUL DEBTS HAD TO BE ADDED BACK TO THE PROFITS SHOWN IN THE PROFIT AND L OSS ACCOUNT TO COMPUTE THE BOOK PROFIT U/S 115JA THE LEARNED COUNSEL FAIR LY CONCEDED THE ISSUE. HOWEVER HE SUBMITTED THAT THE CORRECT QUANTUM OF S UCH PROVISION WAS RS. 3 01 00 635/- WHICH ALSO INCLUDED PROVISION FO R DOUBTFUL DEBTS IN RESPECT OF POWER DIVISION TAWA AMOUNTING TO RS. 7 8 03 390/- WHICH WOULD HAVE TO BE REDUCED FROM THE NET PROFIT AS PER THE PROFIT AND LOSS ACCOUNT TO COMPUTE THE BOOK PROFIT IN TERMS OF THE PROVISIONS OF SECTION 115JA(2)(IV) AS THE DISALLOWANCE OF SUCH PROVISION WOULD ULTIMATELY RESULT INTO INCREASE IN THE PROFITS OF THAT DIVISIO N. HE FURTHER CONTENDED THAT THE ISSUE OF EXCLUSION OF PROFITS OF POWER DIV ISION TAWA IN COMPUTING BOOK PROFITS U/S 115JA WAS COVERED IN FAV OUR OF THE ASSESSEE BY THE ORDER OF THE TRIBUNAL DATED 19.3.2008 FOR A SSESSMENT YEAR 2000- 01 AND REFERRED TO RELEVANT PAGES 175 TO 177 OF THE PAPER BOOK. THE LD. DEPARTMENTAL REPRESENTATIVE ON THE OTHER HAND PLA CED STRONG RELIANCE ON THE ORDER OF THE A.O. PAGE 6 OF 14 - I.T.A.NOS. 878 & 869/IND/2005 H.E.G. LIMITED LIMITED - 15. WE HAVE CONSIDERED THE SUBMISSIONS MADE BY BOTH THE SIDES MATERIAL ON RECORD AND THE ORDERS OF THE AUTHORITIE S BELOW. 16. IN VIEW OF THE RETROSPECTIVE AMENDMENT OF THE PROVI SIONS OF SECTION 115JA THE TOTAL PROVISION FOR BAD AND DOUB TFUL DEBTS IS TO BE ADDED TO THE NET PROFIT SHOWN IN THE PROFIT AND LOS S ACCOUNT WHICH HAS BEEN ARRIVED AT BY REDUCING THE QUANTUM OF SUCH PRO VISION AND ACCORDINGLY THE BOOK PROFIT WOULD BE INCREASED BY THE QUANTUM OF SUCH PROVISION. HAVING STATED SO HOWEVER IT IS NOT IN DISPUTE THAT SUCH PROVISION ALSO CONSISTS OF PROVISION OF RS. 78 03 3 90/- MADE IN RESPECT OF POWER DIVISION THE PROFITS OF WHICH ARE TO BE REDU CED IN COMPUTING THE BOOK PROFIT AS PER THE PROVISIONS OF SECTION 115JA( 2)(IV) OF THE ACT. THIS ASPECT IS ALSO COVERED IN FAVOUR OF THE ASSESSEE BY THE DECISION OF THE TRIBUNAL IN ASSESSEES OWN CASE FOR ASSESSMENT YEAR 1998-99. ACCORDINGLY WE HOLD THAT AT THE FIRST INSTANCE T HE TOTAL PROVISION OF RS. 3 01 00 635/- WOULD BE ADDED BACK AND THEREAFTER PR OVISION OF RS. 78 03 390/- WOULD BE REDUCED FROM THE NET PROFIT TO COMPUTE THE BOOK PROFIT. THUS THIS GROUND OF THE REVENUE STANDS PAR TLY ALLOWED. 17. IN THE RESULT THE APPEAL FILED BY THE REVENUE PAR TLY ALLOWED. 18. NOW WE SHALL TAKE UP ASSESSEES APPEAL IN I.T.A.NO . 869/IND/2005 FOR ASSESSMENT YEAR 1999-2000. 19. GROUND NO. 1 READS AS UNDER :- PAGE 7 OF 14 - I.T.A.NOS. 878 & 869/IND/2005 H.E.G. LIMITED LIMITED - THAT THE LD. CIT(A) ERRED IN HOLDING THAT THE ORDE R PASSED BY THE ASSESSING OFFICER U/S 143(3) READ WITH SECTI ON 147 WAS LEGAL AND GOOD IN LAW. 20. THE LEARNED COUNSEL FOR THE ASSESSEE DID NOT PRESS THE ABOVE GROUND OF APPEAL HENCE THE SAME IS DISMISSED AS N OT PRESSED. 21. GROUND NO. 2 READS AS UNDER :- THAT THE LD. CIT(A) ERRED IN HOLDING THAT THE A.O. WAS EMPOWERED IN LAW TO MAKE ADDITION/DISALLOWANCE/ADJU STMENTS IN RESPECT OF ISSUES OTHER THAN THE ISSUES ON ACCOUNT OF WHICH PROCEEDINGS WERE INITIATED U/S 147 OF THE INCOME-TA X ACT. 22. GROUND NO. 3 READS AS UNDER :- 3. THAT THE LD. CIT(A) ERRED ON FACTS AND IN LAW I N REDUCING THE CLAIM OF DEDUCTION U/S 80IA IN RESPECT OF POWER DIVISION (WHRS) DURG AND POWER DIVISION (TAWA) HOL DING THAT THERE IS NO SALE OF UNITS ABSORBED TOWARDS WHE ELING CHARGES BY POWER DIVISION TO OTHER MANUFACTURING DI VISIONS OF THE APPELLANT. 3.1 THAT THE LD. CIT(A) ERRED ON FACTS AND IN LAW IN HOLDING THAT ACTUAL SALE OR TRANSFER OF POWER UNITS AS RECORDED BY THE POWER GENERATING DIVISION GETS PAGE 8 OF 14 - I.T.A.NOS. 878 & 869/IND/2005 H.E.G. LIMITED LIMITED - REDUCED BY WHEELING UNITS AND DISADVANTAGE OR LOSS HAS TO BE BORNE BY THE POWER DIVISION. 3.2 THAT THE LD. CIT(A) ERRED ON FACTS AND IN LAW IN REDUCING THE TURNOVER OF POWER DIVISION BY THE AMOUNT OF UNITS ABSORBED TOWARDS WHEELING CHARGES WITHOUT APPRECIATING THAT SUCH LEVY WAS TO THE ACCO UNT OF THE CONSUMING UNITS(S). 3.3 WITHOUT PREJUDICE THAT THE LD. CIT(A) ERRED ON FAC TS AND IN LAW IN NOT APPRECIATING THAT EVEN TAKING INT O ACCOUNT THE WHEELING CHARGES THE PROFITS OF POWER GENERATING DIVISIONS (NAMELY TAWA & DURG) CLAIMED BY THE APPELLANT WOULD REMAIN THE SAME. 23. THE LEARNED COUNSEL FOR THE ASSESSEE FAIRLY SUBMITT ED THAT THE ISSUE RAISED IN THIS GROUND WAS COVERED BY THE EARL IER ORDER OF THE TRIBUNAL PASSED IN ASSESSEES OWN CASE IN I.T.A.NO. 149 & 243/IND/2005 FOR ASSESSMENT YEAR 2001-02 DATED 17 TH OCTOBER 2008 WHEREIN AT PARA 46 IT IS HELD AS UNDER :- 46. ON CONSIDERATION OF THE ABOVE FACTS AND THE MA TERIAL ON RECORD AND OUR EARLIER ORDER FOR THE PRECEDING A SSESSMENT YEAR WE ARE OF THE VIEW THAT THE AUTHORITIES BELOW ERE NOT JUSTIFIED IN MAKING THE DEDUCTION OUT OF THE CLAIM U/S 80IA PAGE 9 OF 14 - I.T.A.NOS. 878 & 869/IND/2005 H.E.G. LIMITED LIMITED - OF THE ACT. THE CLAIM OF THE ASSESSEE WAS CORRECTLY ALLOWED BY THE LD. CIT(A). HOWEVER THE LD. CIT(A) WAS NOT JUSTIFIED IN MAKING THE DEDUCTION ON ACCOUNT OF WHE ELING CHARGES. WE ACCORDINGLY SET ASIDE THE ORDER OF TH E LD. CIT(A) TO THAT EXTENT AND DELETE THE ADDITION AS RE STRICTED BY THE CIT(A). 24. HENCE RESPECTFULLY FOLLOWING OUR DECISION WE ALLO W THIS GROUND OF THE ASSESSEE. 25. GROUND NO. 4 READS AS UNDER :- THAT THE LD. CIT(A) ERRED ON FACTS AND IN LAW HOLD ING THAT INTER DIVISIONAL TURNOVER SHALL NOT BE EXCLUDED FRO M THE TOTAL TURNOVER FOR THE PURPOSE OF COM0UTING DEDUCTION U/S 80HHC. 26. THE LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE ISSUE RAISED IN GROUND NO.4 IS COVERED AGAINST THE ASSESS EE BY THE ORDER OF I.T.A.T. PASSED IN THE CASE OF THE ASSESSEE ITSELF IN I.T.A.NO. 870/IND/2005 AND 860/IND/2005 DATED 23 RD JANUARY 2009. HENCE THIS GROUND IS DISMISSED. 27. GROUND NO. 4.1 READS AS UNDER : PAGE 10 OF 14 - I.T.A.NOS. 878 & 869/IND/2005 H.E.G. LIMITED LIMITED - THAT THE LD. CIT(A) ERRED IN REDUCING THE BUSINESS INCOME OF THE COMPANY BY 90 % OF GROSS INTEREST RECEIVED W HILE ALLOWING DEDUCTION U/S 80HHC. 28. THE LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED THAT NO DOUBT IN EARLIER YEARS THIS ISSUE WAS DECIDED AGAINST TH E ASSESSEE IN VIEW OF THE DECISION OF THE HON'BLE PUNJAB & HARYANA HIGH COURT IN THE CASE OF RANI PALIWAL AS REPORTED IN 208 ITR 220 AS THE SAME DEC ISION HAD NOT BEEN CONSIDERED BY THE SPECIAL BENCH IN THE DECISION OF LALSONS ENTERPRISES. HOWEVER NOW IN VIEW OF THE LATEST DECISION OF SPEC IAL BENCH OF THE TRIBUNAL IN THE CASE OF M/S. ASHIMA SYNTAX AS REPOR TED IN 310 ITR 1 ( A.T.)(ASD)( S.B.) WHEREIN THE SAID DECISION OF THE HON'BLE PUNJAB & HARYANA HIGH COURT HAD ALSO BEEN CONSIDERED. HENCE ONLY 90 % OF NET INTEREST HAD TO BE EXCLUDED WHILE COMPUTING DEDUCTI ON U/S 80HHC. THE LEARNED COUNSEL FURTHER SUBMITTED THAT THE HON'BLE DELHI HIGH COURT IN THE CASE OF M/S. SHRI RAM HONDA POWER EQUIP AS REPO RTED IN289 ITR 475 HAD ALSO TAKEN A SIMILAR VIEW. 29. THE LD. DEPARTMENTAL REPRESENTATIVE ON THE OTHER H AND PLACED STRONG RELIANCE ON THE ORDERS OF THE REVENUE AUTHOR ITIES. 30. WE HAVE CONSIDERED THE SUBMISSIONS MADE BY BOTH THE SIDES MATERIAL ON RECORD AND THE ORDERS OF THE AUTHORITIE S BELOW. PAGE 11 OF 14 - I.T.A.NOS. 878 & 869/IND/2005 H.E.G. LIMITED LIMITED - 31. IT IS NOTED THAT THIS ISSUE WAS DECIDED BY THE TRI BUNAL AGAINST THE ASSESSEE EARLIER FOR THE REASON THAT THERE WERE CERTAIN JUDICIAL DECISIONS WHICH OPINED THAT 90 % OF GROSS INTEREST HAD TO BE EXCLUDED. HOWEVER AS PER THE LATEST DECISION OF THE SPECIAL BENCH OF THE TRIBUNAL IN THE CASE OF ASHIMA SYNTEX (SUPRA) NOW ` ONLY 90 % OF NET INTEREST IS TO BE EXCLUDED PROVIDED THE ASSESSEE PROVES THE NEXUS BETWEEN THE INTEREST PAID AND INTEREST RECEIVED. THUS IN PRINCIPLE WE ACCEPT THIS CLAIM OF THE ASSESSEE HOWEVER SINCE THE ASPECT OF NEXUS HAS NO T BEEN EXAMINED AT ANY STAGE EARLIER HENCE WE RESTORE THIS MATTER TO THE FILE OF A.O. FOR VERIFICATION OF NEXUS BETWEEN THE INTEREST PAID AN D INTEREST RECEIVED WHICH SHALL BE THE ONUS OF THE ASSESSEE AND IN SUPP ORT OF SUCH CLAIM THE ASSESSEE WOULD BE AT LIBERTY TO SUBMIT NECESSARY EV IDENCES/DETAILS IN THE COURSE OF OPPORTUNITY OF HEARING TO BE PROVIDED BY THE ASSESSING OFFICER TO THE ASSESSEE. THUS THIS GROUND OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES IN TERMS INDICATED ABOVE. 32. GROUND NO. 4.2 READS AS UNDER :- THAT THE LD. CIT(A) ERRED IN HOLDING THAT FOR APPO RTIONMENT OF INDIRECT EXPENSES IN TEXTILE DIVISION JAMMU WHI LE CALCULATING LOSS ON EXPORT TRADED GOODS THE GROSS INTEREST PAID SHOULD BE CONSIDERED INSTEAD OF THE NET INTERE ST TAKEN BY THE APPELLANT. PAGE 12 OF 14 - I.T.A.NOS. 878 & 869/IND/2005 H.E.G. LIMITED LIMITED - 33. THE ISSUE INVOLVED IN THIS GROUND IS REGARDING ASCE RTAINMENT OF INDIRECT COST IN RESPECT OF EXPORT PROFIT OF TRADIN G GOODS. ON MERITS WE FIND SUBSTANCE IN THE CONTENTIONS OF THE ASSESSEE. HOWEVER ASPECT OF NEXUS HAS NOT BEEN EXAMINED SO AS TO INCLUDE ONLY NET INTEREST IN THE INDIRECT COST. HENCE THIS ISSUE ON THIS ASPECT IS ALSO RESTORED TO THE FILE OF A.O. ON THE LINES AS DIRECTED BY US IN GROUND NO. 4 .1 HEREINABOVE. 34. GROUND NO. 5 READS AS UNDER :- THAT THE LD. CIT(A) ERRED IN CONFIRMING LEVY OF IN TEREST U/S 234-D OF THE INCOME-TAX ACT. 35. THE ISSUE RAISED IN THIS GROUND IS COVERED IN FAVOU R OF THE ASSESSEE BY THE DECISION OF THE SPECIAL BENCH OF T HE TRIBUNAL IN THE CASE OF EKTA PROMOTERS 117 TTJ 289 SPECIAL BENCH AS A DMITTED BY BOTH THE SIDES. HENCE GROUND OF THE ASSESSEE IS ALLOWED. 36. THE GROUND NO. 6 IS TAKEN AS ADDITIONAL GROUND WHI CH READS AS UNDER :- THAT THE LD. CIT(A) ERRED IN NOT ALLOWING THE CLAI M OF DEDUCTION U/S 80IA IN RESPECT OF THE PROFITS OF THE SE POWER DIVISIONS AMOUNTING TO RS. 19 49 63 281/- AS CLAIME D WHILE COMPUTING THE BOOK PROFITS U/S 115JA VIDE GROUND NO S. 3 5 AND 5.1 TAKEN BEFORE HIM WHICH AS PER SETTLED POSI TION OF LAW REQUIRE TO BE ADOPTED AS DECLARED BY THE ASSESS EE AND CAN PAGE 13 OF 14 - I.T.A.NOS. 878 & 869/IND/2005 H.E.G. LIMITED LIMITED - BE ADJUSTED ONLY TO THE EXTENT SPECIFICALLY PROVIDE D U/S 115JA. 37. THIS ISSUE WAS RAISED BY THE ASSESSEE BY WAY OF ADD ITIONAL GROUND VIDE ITS LETTER DATED 20 TH OCTOBER 2008 WHEREIN IT HAS ALSO BEEN CONTENDED THAT THIS ISSUE WAS OF LEGAL NATURE AND N O FRESH INVESTIGATION INTO THE FACTS WAS REQUIRED. HENCE THE SAME SHOULD BE ADMITTED. 38. THE LD. CIT DR HOWEVER OPPOSED THE SAME. 39. WE HOWEVER ARE OF THE OPINION THAT THIS ISSUE IS PURELY OF LEGAL NATURE AND THERE HAS NOT BEEN ANY INTENTIONAL ACT O N THE PART OF THE ASSESSEE NOT TO RAISE THIS GROUND ORIGINALLY. HENCE WE ADMIT THE SAME FOR ADJUDICATION. 40. WE FIND THAT THE ISSUE RAISED IN THIS GROUND ALSO A ROSE BEFORE THE TRIBUNAL IN THE ASSESSMENT YEAR 2000-01 WHEREIN THE TRIBUNAL DECIDED THIS ISSUE IN FAVOUR OF THE ASSESSEE. THE RELEVANT FINDINGS OF THE ORDER OF THE TRIBUNAL ARE REPRODUCED AS UNDER :- ON CONSIDERATION OF THE RIVAL SUBMISSIONS AND THE MATERIAL ON RECORD WE DO NOT FIND ANY JUSTIFICATION TO INTE RFERE WITH THE ORDER OF THE LD. CIT(A). WE HAVE ALREADY DISMIS SED THE GROUND NO. 6 OF THE DEPARTMENTAL APPEAL. THEREFORE THE LD. CIT(A) WAS JUSTIFIED IN ALLOWING THIS GROUND OF APP EAL OF THE ASSESSEE. THERE IS THUS NO INFIRMITY IN THE O RDER OF THE PAGE 14 OF 14 - I.T.A.NOS. 878 & 869/IND/2005 H.E.G. LIMITED LIMITED - LD. CIT(A). THE SAME IS CONFIRMED AND THIS GROUND O F APPEAL OF THE REVENUE IS DISMISSED. 41. THERE IS NO CHANGE IN THE FACTS OR IN LAW HENCE R ESPECTFULLY FOLLOWING THE ABOVE RATIO OF THIS ORDER OF THE TRIB UNAL WE ALLOW THIS GROUND OF THE ASSESSEE. 42. IN THE RESULT THE APPEAL FILED BY THE ASSESSEE STA NDS PARTLY ALLOWED. THIS ORDER HAS BEEN PRONOUNCED IN THE OPEN COURT ON 27 TH JANUARY 2010. SD/- SD/- (JOGINDER SINGH) (V. K. GUPTA) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED :27 TH JANUARY 2010. CPU* 221