Case Law Details

Case Name : Bector Food Specialties Ltd Vs JCIT (ITAT Chandigarh)
Appeal Number : ITA No. 396/CHD /2013
Date of Judgement/Order : 20/12/2019
Related Assessment Year : 2009-10
Courts : All ITAT (7336) ITAT Chandigarh (163)

Bector Food Specialties Ltd Vs JCIT (ITAT Chandigarh)

The issue under consideration is whether submitting additional claims before tribunal, which is not claim in return of income will be sustain in law?

ITAT states that, the case laws cited by the Ld. counsel for the assessee are applicable to the issue raised before us. Even the Hon’ble Bombay High Court in the case of “CIT vs. Pruthvi Brokers and Shareholders Pvt. Ltd.” (2012) 349 ITR 336 (Bom.) has observed that the assessee is entitled to raise not merely additional legal submissions before the appellate authorities, but is also entitled to raise additional clams before them. The appellate authorities have jurisdiction to deal not merely with additional grounds, which became available on account of change of circumstances or law, but with additional grounds which were available when the return was filed. The words ‘could not have been raised’ must be construed liberally and not strictly. There may be several factors justifying the raising of a new plea in an appeal and each case must be considered on its own facts. In view of this, taken by the assessee is admitted for adjudication. However, since the facts relating to this issue have not been examined by the lower authorities, hence, this issue is restored to the file of the Assessing Officer for adjudication of the same on merits irrespective of the fact whether this claim was made in the return of income not.

FULL TEXT OF THE ITAT JUDGEMENT

The present appeal has been preferred by the assessee against the order dated 28.03.2013 of the Commissioner of Income Tax (Appeals)-II, Ludhiana [hereinafter referred to as CIT(A)].

2. The assessee in this appeal has taken following grounds of appeal:-

1. That the learned CIT(A)-II has erred in confirming disallowance of Rs. 231241/- u/s 14A r.w.r. 8D of the Income Tax Rules.

2. That the Learned CIT(A)-II has erred in confirming 10% of the disallowance amounting to Rs. 34,93,537/- of deduction u/s 80IC on the ground of utilization of expertise of the management in the eligible units at Tahliwal (HP).

3. That the learned CIT(A)-II has erred in computing books profits u/s 115JB by making the following adjustments:-

a) Provision for doubtful debt and advances 1,15,89,656/-

b) Foreign exchange fluctuation loss 3,39, 41,455/-

c) Provision for diminution in value of investments 5,25,600/-

4. That the learned CIT(A)-II has erred in not allowing claim of Rs. 1,00,51,000/- in respect of expenses on the abandoned project.

5. That the learned CIT(A)-II has erred in not allowing the claim of Rs. 3,19,356/- made during the course of proceedings being the amount of employee’s contributing towards Provident Fund having been paid before the due date of filing of return.

6. That the learned CIT(A)-II has erred in confirming the charging of interest u/s 234B of the Income Tax Act.

7. The Appellant craves leave for permission to add, amend or alter any ground of appeal at the time of hearing.

3. Apart from the above grounds of appeal, the following additional grounds have been raised by the assessee.

Additional grounds of appeal

The appellant humbly submits that the following additional grounds of appeal which is purely of legal nature may kindly be admitted.

That the authorities below have erred in treating the Sale tax Subsidy of Rs. 42,36,100/- and transport subsidy of Rs. 20,11,023/- receipt from HP Government under the incentive scheme as revenue receipts instead the same being of a capital nature.

That the authorities below have erred in not allowing the fluctuation loss of Rs. 3,39,41,455/- in regular assessment, though wrongly disallowed in the revised return by the appellant.

4. Ground No. 1: The assessee vide ground No.1 has agitated the confirmation of disallowance of Rs. 2,31,241/- u/s 14A of the Income Tax Act, 1961 (in short ‘the Act’) read with rule 8D of the Income Tax Rules, 1962 on account of expenditure incurred for earning of tax exempt income.

5. At the outset, Ld. Counsel for the assessee has submitted that the aforesaid amount of Rs. 2,31,241/- is the sum total of Rs. 1,99,050/-disallowed by the Assessing Officer on account of disallowance of proportionate interest expenditure under Rule 8D(2)(ii) of the I.T.Rules and further Rs. 32,191/- under Rule 8D(2)(iii) of the I.T. Rules.

So far as the disallowance on account of proportionate interest expenditure deemed to be incurred for earning of tax exempt dividend income is concerned, the Ld. Counsel for the assessee has submitted that the assessee was possessed of own sufficient funds to meet the investments. That the total share capital and reserves and surpluses of the assessee as per the balance sheet as on 31.3.2009 were Rs. 1096182758/- which had increased from Rs. 1033603001/- as on 31.3.2008. Further, that the assessee’s income as per profit and loss account for the year under consideration was at Rs. 6,84,24,319/- and apart from that there was a depreciation claim of Rs. 62980542/-. That the investment of the assessee as on 31.3.2008 was at Rs. 9169042/-which was considerably decreased during the year as it was only at Rs. 3707511/- as on 31.3.2009. The Ld. Counsel, therefore, has submitted that the aforesaid figures duly show that the assessee was possessed of sufficient own funds to meet the investment in question. He has relied upon the decision of the Hon’ble Supreme Court in ‘CIT (LTU) Vs. Reliance Industries Ltd.’ [2019] 410 ITR 466 (SC), wherein, the Hon’ble Supreme Court has confirmed the proposition of law that if the own funds / interest free funds are available with the assessee to meet the investment, presumption will be that the assessee had used its own / interest free funds for the said investment.

In view of this, we hold that no interest expenditure disallowance u/s 14A of the Act read with Rule 8D(2)(ii) of the I.T. rules is attracted on this issue.

6. So far as the disallowance of administrative expenditure u/s 14A of the Act read with Rule 8D(2)(iii) is concerned, the Ld. counsel for the assessee has relied upon the decisions of the Hon’ble Delhi High Court in the case of ‘Joint Investments Private Ltd vs CIT’ ITA No.117/2015 dated 25.2.2015 and further in the case of ‘ACB India Limited vs ACIT’ ITA No. 615/2014 dated 24.3.2015 wherein it is held that for computing the average value u/s 14A of the Act read with rule 8D(2)(iii), only the investment yielding non-taxable income have to be considered and not the entire investment. In view of this, the Assessing Officer is directed accordingly to consider only the investments yielding tax exempt income for computation of disallowance under Rule 8D(2)(iii) of the I.T. Rules.

7. Ground No.2: Vide ground No.2, the assessee has agitated the confirmation of 10% of the disallowance out of deduction claimed u/s 80IC of the Act on the ground of utilization of expertise of management of non-eligible unit in the eligible units at Tahiwal (HP).

8. The Ld. Counsel, at the outset, has submitted that this issue is squarely covered by the decision dated 21.5.2018 of the ITAT in the own case of the assessee for assessment years 2007-08 to 2008-09 & 2010-11 to 2013-14 in ITA Nos. 555/Chd/2017 & Others . The relevant part of the order of the Tribunal on this issue is reproduced as under:-

“6.1 The relevant portion of the Assessment Order pertaining to disallowance is as under:

“The assessee is running a unit at Tahliwal claiming exemption u/s 80IC of the Income Tax Act, 1961 established by M/s Cremica Agro Foods Limited in a industrial growth centre in the state of Himachal Pradesh as per section 80IC(2)(ii). M/s. Cremica Agro Foods Ltd. had taken the land on lease from Himachal Pradesh Government for establishing its unit in Himachal Pradesh. The funds and technical know how has been provided by the management since it was already running the similar business at Phillaur. The brand names, products, quantities, packing, sizes/ quantities of the saleable units of the products are the same, as per the discussions with the assessee during the assessment proceedings. The Tahliwal Unit has not paid any expenses for know how, goodwill, trade name, establishing expenses in the market for its products as it got a readymade market generated by Phillaur Units in the last 12 to 15 years, no patent rights expenses given to Phillaur Unit etc. All the Profits of Tahliwal Unit could not have been earned by a newly established independent group without having experience, expertise, market share, goodwill, trade name, know how etc. Therefore, as per Provisions of Section 80IA (8)&(10), 10% of the Profits earned by Tahliwal Unit are considered to be an indirect benefits derived from the parent unit i.e. Phillaur. It may not be out of place to mention that the group has struggled for twelve years to come at this level in the market through Phillaur Unit and had earned very small amount of profits as compared to Tahliwal Unit at present.

The assessee has submitted his reply on the issue as follows:-

“Regarding estimated amount of disallowance @ 10% of deduction u/s 80IC in respect of Tahliwal Unit on account some alleged indirect benefits derived from Phillaur Unit by Tahliwal Unit by applying provisions of sub section 8 & 10 to section 801 A. In this regard ” it is submitted that no such benefits have been derived by Talhliwal Unit. Moreover the ^provisions of sub section 8 & 10 to section 801A are not applicable in these circumstances as these provisions refer to transfer of goods and service. While in the ‘instant case there is no such transfer of any goods or service and no business has been transacted between the eligible Unit and other Unit of the assessee company which resulted in excess profit to the eligible unit. Unless until any specific benefit is pointed out and expressed in monetary terms, no addition can be made on the basis of conjectures and surmises.”

I have duly considered the reply of the assessee. It is observed that the exempted unit is using all the services, reputation, goodwill, experience, depots facilities, sharing of staff for sales and distribution, network of established non-exempted units etc. Therefore, the provisions of sub-section 8 & 10 of Section 80IA r.w.s. 14A of Income Tax Act, 1961 are applicable in the case of the assessee. The Assessing Officer during the assessment proceedings of assessment year 2006-07 has observed on this issue in the case of M/s. Cremica Agro Foods Ltd. , which is relevant this year also as follows:-

“8.  The assessee is running a unit at Tahliwal claiming exemption u/s 80IC of the Income Tax Act, 1961 being established in a industrial growth centre in the state of Himachal Pradesh as per section 80IC(2)(ii). The assessee has taken the land on lease from Himachal Pradesh Government for establishing its unit in Himachal Pradesh. The funds and technical know how has been provided by the management since it was already running the similar business at Phillaur. The brand names, products, quantities, packing, sizes/quantities of the saleable units of the products are the same, as per the discussions with the assessee during the assessment proceedings. The Tahliwal Unit has not paid any expenses for know how, goodwill, trade name, establishing expenses in the market for its products as it got a readymade market generated by Phillaur Units in the last 12 to 15 years, no patent rights expenses given to Phillaur Unit etc. All the Profits of Tahliwal Unit could not have been earned by a newly established independent group without having experience, expertise, market share, goodwill, trade name, know how etc. Therefore, as per Provisions of Section 80IA (8)&(10), 10% of the Profits earned by Tahliwal Unit are considered to be an indirect benefits derived from the parent unit i.e. Phillaur. It may not be out of place to tention that the group has struggled for twelve years to come at this level in the market mtpugh Phillaur Unit and had earned very small amount of profits as compared to Tahliwal at present. Therefore, 10% of the net profits claimed to be exempted by assessee for ahliwal Unit will be determined to be the benefits pertaining to Phillaur Unit who is running the similar business. An amount ofRs. 12,16,332/- taken @ 10% of the amount claimed to be exempted (Rs. 1,21,63,320/-) u/s 80IC as per Audit report will be added in the business income of the assessee for taxation purposes.”

In the facts and circumstances of the case and as held in the last assessment year in the case of M/s. Cremica Agro Foods Ltd., Ludhiana on this issue 10% of the net profits (claimed to be exempted by assessee) of Tahliwal Unit will be determined to be the benefits pertaining to Phillaur Unit which is running the similar business. An amount of Rs.16,05,289/- taken @ 10% of the amount claimed to be exempted (Rs.1,60,52,899/-) u/s 80IC will be added in the business income of the assessee for taxation purposes.

6.2 The Ld. CIT(A) has deleted the addition based on the decision taken in the case of the assessee for the A.Y. 2006-07 in the Appeal No. 03/ROT/IT/CIT(A)-l/LDH/2016-17 dated 26.10.2016 by holding as under:-

“I have considered the facts of the case, the basis of the additions made by the Assessing Officer and the arguments of the AR. The AO has reworked the claim under section80IC between the Tahliwal unit and the Phillaur unit on estimated basis without bringing any evidence on record to show whether there has been any transaction between the two units. The appellant has made the allocation of all common expenses on turnover basis and the AO has failed to mention any expense which has not been considered in the said exercise. Thus, the reducing of the eligible profits to the extent of 10% by the AO without any sound basis is unwarranted and is hereby ordered to be deleted.

Further, the basic process is carried out by the appellant is the same whether the production is done for itself or job work. The Hon’ble Punjab and Haryana High Court in the case of CIT vs Impel Forge and Allied industries Ltd 326ITR 27 has held that the assessee is at liberty to manufacture for itself or others which makes no difference for the purpose of deduction under section 80IB of the act. Similar view was taken by the Hon’ble Delhi High Court in the case of CIT vs Northern Aromatics Ltd (2005) 196 CTR (Delhi) 479. In view of the same, the reduction in the claim made by the appellant under section 80IC on this account deserves to be deleted. These grounds of appeal are allowed”.

6.3 The matter has further travelled to the Tribunal in the A.Y. 2006-07 which stands adjudicated in the favour of the assessee. For the sake of brevity the relevant portion of the order of the ITAT in the case of the assessee in ITA No. 39 & 40/CHD/2017 dt. 08/12/2017 in the case of M/s. Cremica Agro Foods Pvt. Ltd. for the A.Y. 2006-07.

“28. Ground No.4 raised by the Revenue reads as under:

4. Whether upon facts and circumstances of the case, the Ld. CIT(A) was justified in deleting the disallowance Rs.12,16,332/- made by the A.O. on deduction u/s 80IC claimed by the assessee on Tahliwal Unit without giving any reasons and by simply stating that the A.O. is highly unjustified in denying deduction u/s 80IC to the assessee on the basis of some notional expenses such as knowhow, goodwill, trade name etc. where the A.O. has very clearly held that the provisions of the section 80IA (8) and (10) read with section 80IC are applicable to the assessee’s Tahliwal Unit only?”

29. The above ground is with respect to the deduct ion claimed u/s 80IC amounting to Rs.1,21,63,320/- in respect of Tahliwal unit which has been reduced by the Assessing Officer by 10% of the amount of net profits for the reason that the assessee is manufacturing biscuits on its own account as well as doing job work for ITC Limited at Tahliwal , H.P. and further i t is also manufacturing biscuits at Phillaur unit , which is not eligible for any deduct ion of its profits. The Assessing Officer has held that since same business is being done at Phillaur unit , Tahliwal unit has derived benefits by way of knowhow, goodwill, trade name, etc. of Phillaur Unit and held that 10% of the profits earned by the Tahliwal unit were indirect benefits derived from the Phillaur Unit as per the provisions of sect ion 80IA(8) & (10) of the Act .The Assessing Of f icer reduced the same from the deduct ion claimed u/s 80IC of the Act amounting to Rs.12,16,332/- 30. Before the Ld.CIT(Appeals) the assessee contended that it had specified all conditions laid down u/s 80IC(2) (a) ( ii ) of the Act and had right ly claimed the deduct ion, while the Assessing Officer had wrongly interpreted the provisions of sub-sect ion (8) & (10) of sect ion 80IA of the Act since these sub-sect ions referred to transfer of goods and services to any other business or to any other person while in the case of the assessee there was no transfer of goods or service to any other business or to any other person. I t was pointed out that the assessee had already al located the common expenses incurred to various units on the basis of turnover and, therefore, the denial of deduct ion to the extent of 10% of the profits on the basis of some notional expenses such as knowhow, goodwill , trade name, etc. was highly unjustified.

31. The Ld.CIT(Appeals) af ter considering assessee’s submissions held the deduct ion of eligible profits by the Assessing Officer as unwarranted deleting the same by holding that the entire exercise of the Assessing Officer was done on estimate basis without bringing any evidence on record to show whether there was any transact ion between the two units. The Ld.CIT(Appeals) held that the assessee having al located al l common expenses on turnover basis and the Assessing Officer have not pointed out as to which expenses had not been considered, this al location of notional expenses by the Assessing Officer was unjustified and unwarranted. Relevant findings of the Ld.CIT(Appeals) at para 3.2 are as under:

“3.2 I have considered the facts of the case, the basis of the additions made by the Assessing Officer and the arguments of the AR. The AO has reworked the claim under section 80IC between the Tahliwal unit and the Phillaur unit on estimated basis without bringing any evidence on record to show whether there has been any transaction between the two units. The appellant has made the allocation of all common expenses on turnover basis and the AO has failed to mention any expense which has not been considered in the said exercise. Thus, the reducing of the eligible profits to the extent of 10% by the AO without any sound basis is unwarranted and is hereby ordered to be deleted.

32. Before us, the Ld. DR relied upon the order of the Assessing Officer while the Ld. counsel for assessee reiterated the content ion made before the Ld.CIT(Appeals) and relied upon the order of the Ld.CIT(Appeals) .

33. We find no infirmity in the order of the Ld.CIT(Appeals) . Undeniably, the reduction of profits to the extent of 10% has been done by the Assessing Officer on estimate basis without demonstrating by way of evidence whether any expenses on account of knowhow, goodwill, trade name, etc. had been incurred by the Phillaur unit with respect to Tahliwal unit . The same has not been demonstrated even before us. Further as rightly held by the Ld.CIT(A) , the provisions of sect ion 80IA (8) and 80IA (10) cannot be invoked in the present case in the absence of any transact ion between the two units. The Ld. DR has not pointed out any infirmity in the order of the Ld.CIT(Appeals) . We, therefore, uphold the order of the Ld.CIT(Appeals) in deleting the reduction of profits of the Tahliwal unit by 10% of the profits amounting to Rs.16,16,332/- . The ground of appeal No.4 raised by the Revenue is, therefore, dismissed.

6.4 As the matter stands adjudicated, following the ratio laid down which is squarely applicable to the appeals before us, the grounds raised by the Revenue on this issue are hereby dismissed.”

Respectfully following the above referred to decision, Ground No.2 is accordingly allowed in favour of the assessee and the disallowance / reduction made by the Assessing Officer on this issue is ordered to be deleted.

9. Ground No.3: Vide ground No.3, the assessee has agitated the action of the CIT(A) in computing book profits u/s 115JB by making the following additions:-

a) Provision for doubtful debt and advances 1,15,89,656/-

b) Foreign exchange fluctuation loss 3,39, 41,455/-

c) Provision for diminution in value of investments 5,25,600/-

(a) Provision for doubtful debt and advances :

The Ld. Counsel for the assessee has submitted that as per the instructions of his client, he does not press this issue. The disallowance of adjustment made on this issue is accordingly confirmed.

(b) Foreign exchange fluctuation loss :

The Ld. Counsel for the assessee has submitted that this claim was made in the original return filed under normal provisions of the Act as well as return u/s 115JB of the Act. However, in the revised return, under normal provisions, this claim was not made. However, this claim was duly made in the revised return filed u/s 115JB of the Act. The Ld. counsel has further submitted that in subsequent years i.e. assessment year 2010-11, the assessee has already offered for taxation the aforesaid claim of loss on account of Foreign Exchange Fluctuation. Hence, adjustment is not warranted u/s 115JB of the Act for the year under consideration.

This issue is accordingly restored to the file of the Assessing Officer for verification of the aforesaid submissions of the assessee. If the assessee has offered the aforesaid amount for taxation in the return filed u/s 115JB of the Act in the subsequent assessment year 2010-11, then this amount should not be added / adjusted in computing the income of the assessee u/s 115JB for the year under consideration. This issue, with the above directions, is restored to the file of the Assessing Officer.

(c) Provision for diminution in value of investments:

The Ld. Counsel for the assessee has submitted that as per the instructions of his client, he does not press this issue. Accordingly, the adjustment made /confirmed by the CIT(A) on this issue is upheld.

10. Ground No.4: Vide ground No.4, the assessee has agitated the action of the Ld. CIT(A) in not allowing the claim of expenditure incurred on abundant project. The Ld. Counsel for the assessee in this respect has submitted that the assessee could not inadvertently make the aforesaid claim in the return of income. However, the plea for this claim was raised during the assessment proceedings but the Assessing Officer did not consider the said claim as the same was not claimed in the return of income. A plea was raised before the Ld. CIT(A) also. However, the Ld. CIT(A) dismissed the claim on the ground that since the claim was not made in the return of income, hence, could not be considered at appellate stage. The Ld. counsel in this respect has relied upon the decision of the Hon’ble Supreme Court in the case of ‘National Thermal Power Ltd vs CIT’ (1998) 229 ITR 383 (SC) and has submitted that the Hon’ble Supreme Court has held that the ITAT has jurisdiction to examine a question of law which even did not arose before the lower authorities but was raised first time before the ITAT. In this respect, the Ld. Counsel has relied upon the decision of the Hon’ble Delhi High Court in the case of ‘CIT vs Jai Parabolic Springs Ltd.’ (2008) 306 ITR 42 (Delhi) and has submitted that the Hon’ble Delhi High Court in this case has held that there is no prohibition of powers of the Tribunal to entertain an additional ground which was not raised before the lower authorities.

11. The Ld. DR, on the other hand, has relied on the findings of the lower authorities.

12. We have heard the rival contentions of the Ld. Authorized Representatives of both the parties. We find that the case laws cited by the Ld. counsel for the assessee are applicable to the issue raised before us. Even the Hon’ble Bombay High Court in the case of “CIT vs. Pruthvi Brokers and Shareholders Pvt. Ltd.” (2012) 349 ITR 336 (Bom.) has observed that the assessee is entitled to raise not merely additional legal submissions before the appellate authorities, but is also entitled to raise additional clams before them. The appellate authorities have jurisdiction to deal not merely with additional grounds, which became available on account of change of circumstances or law, but with additional grounds which were available when the return was filed. The words ‘could not have been raised’ must be construed liberally and not strictly. There may be several factors justifying the raising of a new plea in an appeal and each case must be considered on its own facts.

In view of this, ground No.4 taken by the assessee is admitted for adjudication. However, since the facts relating to this issue have not been examined by the lower authorities, hence, this issue is restored to the file of the Assessing Officer for adjudication of the same on merits irrespective of the fact whether this claim was made in the return of income not.

13. Ground No. 5 : Vide this ground the assessee has agitated the action of the Ld. CIT(A) in not allowing the claim of the amount of contribution towards Provident Fund having been paid before the due date of filing of the return.

The Ld. Counsel for the assessee has submitted that this issue is squarely covered in favour of the assessee by the decision dated 29.3.2019 of the Coordinate Bench of the Tribunal in the case of ‘New Time Contractors Builders (P) Ltd vs DCIT’ in ITA no. 1243/Chandi/2018 for assessment year 2013-14 and has submitted that as per the aforesaid decision, if the contribution to the Provident Fund & ESI is paid before the date of filing of the return, then no disallowance warranted on this issue.

14. That Ld. DR, on the other hand, has relied on the findings of the lower authorities on this aspect.

15. We find that this issue stands adjudicated by the Tribunal in the case of ‘New Time Contractors Builders (P) Ltd vs DCIT’ (supra), wherein, the Tribunal while replying upon the decision of the Hon’ble jurisdictional High Court of Punjab & Haryana in the case of ‘CIT vs Hemla Embroidery Mills (P) Ltd.’ [2014] vs 366 ITR 167 (P&H) has held as under :-

(10) We have considered the submissions of both the parties and perused the material available on record. In the present case, it is an admitted fact that there was delay in depositing the employees’ contribution of provident fund and ESIC. However, it is accepted by the AO that the deposit was made before filing of the return of income on 27.09.2013.

(11) On a similar issue the Hon’ble Jurisdictional High Court in the case of CIT vs. Hemla Embroydery Mills (p.) Ltd.(supra) held as under:

“The second proviso to section 43B of the Income-tax Act, 1961, omitted by the Finance Act, 2003, with effect from April 1, 2004, was clarificatory in nature and was to operate retrospectively. Thus, the assessee, for the assessment year 2003-04, was entitled to deduction in respect of the employer’s and employees’ contributions to the employees’ State Insurance and provident fund as the contributions had been deposited prior to the filing of the return under section 139(1).”

So respectfully following the ratio laid down by the Hon’ble Jurisdictional High Court in the aforesaid referred to case, the impugned addition made by the AO and sustained by the Ld. CIT(A) is deleted.”

Since no contrary decision on the above proposition has been cited before us, hence, respectfully following the above decision of the Coordinate Bench, the impugned disallowance is deleted.

Ground No. 5 stands allowed.

16. Ground No.6: This ground is consequential in nature and does not require any specific adjudication.

17. Now, we proceed to adjudicate the additional grounds of appeal raised by the assessee.

18. Additional ground No.1: The assessee through this additional ground has claimed that the sales tax subsidy and transport subsidy received by the assessee from HP government is a capital receipt. The Ld. Counsel for the assessee has further submitted that this legal issue has been raised for the first time before this Tribunal. He has further submitted that in identical circumstances this issue was raised in the earlier years also as an additional ground of the appeal and the matter has been restored back by the Tribunal in the earlier years vide order dated 21.5.2018 passed in ITA Nos. 555/Chd/2017 & Others (supra), wherein this matter has been set aside and restored to the file of the CIT(A) to decide the issue afresh after considering the case laws relied on the assessee.

19. We have gone through the order of the Tribunal dated 21.5.2018 (supra) and find that this issue has been restored in the own case of the assessee in earlier years to the file of the CIT(A) to adjudicate it a fresh keeping in view the judgments as discussed in the order of the Tribunal and the nature of the scheme and to adjudicate it by a speaking order in accordance with law.

The issue for the year under consideration, with similar directions, is also accordingly restored to the file of the CIT(A) for adjudication afresh.

20. Additional Ground No.2: At the outset, Ld. Counsel for the assessee has submitted that as per the directions of his client and since the assessee has not claimed the aforesaid claim in the revised return of income and even offered the aforesaid claim for taxation in the return filed u/s 115JB of the Act for the assessment year 2010-11, as discussed above while adjudicating ground No. 3(b) above, he does not press this ground. This ground is accordingly dismissed as ‘not pressed’.

In view of our findings given above, the appeal of the assessee is treated as partly allowed.

Order pronounced in the Open Court on 20.12.2019

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