2017 (11) TMI 1632 - ITAT DELHI

Allowability or disallowability of deduction of the statutory duties on payment basis under section 43B - Plea of the Revenue that these are continuous issues forming part of the assessment order for AY 2005-06 and 2006-07 also, and are at present pending adjudication before Hon'ble Delhi High Court is not a ground for us to deviate from the consistent view taken by this Tribunal in assessee's own case for the earlier years. We, therefore, while respectfully following the view taken for the earlier years, set aside the impugned order and direct the A.O. to firstly recast the assessee's profit and loss account on inclusive basis and then make suitable deduction in respect of the amount of unutilized PLA at the end of the current year and also the preceding year.

Customs Duty and amount paid on import of components for export purposes for which exports have not and have been made - Held that:- The entire amount of excise duty and customs duty paid by the assessee in a particular year are allowable as deduction irrespective of the fact that such duties are included in the value of closing stock. It was further held that provisions of Section 43B, while overriding all the other provisions of the Act, also override Section 145A and further that provisions of section 145A does not in any manner dilute or nullify the effect of provisions of Section 43B of the Act.

Excise duty actually paid on purchased inputs included in RG 23A Part II - Held that:- Facts being remained the same, we are not left with any clue as to why should we deviate from this consistent view taken for successive years, as such, we, therefore, respectfully following the same line of reason we set aside the matter to the file of the Assessing Officer to decide the issue afresh in view of the above decisions in the case of assessee itself in the appeal for the assessment year 2006-07 and 2007-08 after affording opportunity of being heard to the assessee.

Customs duty paid under protest - Held that:- This aspect of disallowance of claim for deduction under section 43B of the Act for the amount of Customs Duty paid under protest has been one of the subject of matters in assessee's own case for the AY 2006-07 and 2007-08 successively as similar issue supra while dealing with 'Excise duty paid under protest' by holding that first the Profit and loss account be recast as per 'Inclusive method' in terms of section 145A and then some adjustments as stated above be separately made. Such directions are fully applicable pro tanto to the customs duty paid under protest. The AO is directed to follow the same.

Not allowing withdrawal of add back u/s 43B - Held that:- For the AY 2007-08, though the AO refused to allow the deductions claimed by the assessee under section 43B of the Act, by order dated 20-05-2016 the Tribunal considered the case of the assessee and set aside the matter to the file of AO, and the relief on this aspect is dependent upon the findings of the AO while implementing the said order, as such we deem it just and proper to direct the AO to consider this aspect also in the light of implementing the order of this Tribunal for the AY 2007-08. These grounds are, therefore, allowed for statistical purpose.

Addition in respect of purported alleged excess consumption of raw material and components to be deleted as relying on Commnr. Of Central Excise v. M/s Maruti Suzuki India Ltd [2015 (8) TMI 493 - SUPREME COURT]

Disallowance under section 14A - Held that:- We agree with the submissions made on behalf of the assessee that insofar as the interest expense under Rule 8D(ii) is concerned, it has to be determined after examination of the macro fund/ cash flow position during the year and if the assessee had sufficient surplus funds available, presumption should be drawn in favour of the assessee that surplus funds have been utilized for making investments, and while calculating the disallowance under Rule 8D(iii) has to be calculated in relation to the income which does not form part of the total income and this can be done only by taking into consideration the investment which has given rise to this income which does not form part of the total income after reducing the strategic long-term trade investments. We, therefore, deem it just and proper to set aside the impugned order on this score and send the matter to the file of AO for making disallowance u/s 14A.

Disallowance of deduction under section 35DDA - Held that:- this Tribunal directed the Assessing Officer to allow the claimed deduction under sec. 35DDA of the Act at ₹ 23,91,54,586. Since facts are similar in assessee's own case, we follow the decisions above and direct the Assessing Officer to allow the deduction under section 35DDA of ₹ 23,91,54,836/- (being 1 /5th of the total expenditure of ₹ 119.58 crores incurred by the appellant company, in respect of payment made to its employees under the voluntary retirement scheme during the F.Y. 2003- 04).

Disallowance of expenditure incurred on club membership to be allowed

Disallowance of expenditure incurred on account of royalty - Held that:- The amount of royalty considered by the Assessing Officer as capital expenditure should be allowed as a revenue expenditure, and at the same time, depreciation allowed by the Assessing Officer on this amount should be taken back

Disallowance on account of R&D Cess on Royalty - Held that:- Since the related facts of the present assessment year are similar to those in the assessment year 2006- 07 and 2007-08 on an identical issue, we, while respectfully following the same direct the Assessing Officer to allow the deduction as directed by the ITAT in the appeal for the assessment year 2006-07 and 2007-08 after affording opportunity of being heard to the assessee

Sales Tax Subsidy claimed as capital receipt from the total income - Held that:- Any subsidy given to the assessee post accomplishment of the project or expansion there, without any obligation to utilize the subsidy only for repayment of term loans undertaken by the assessee for setting up new units/expansion of existing business, or to liquidate the cost incurred in creating the capital asset or its expansion, is only in the nature of the revenue receipt and is liable to be brought to tax

Disallowance on account of Provisional Liability relating to Expenditure on account of FPI-OE Components - Method of accounting - Held that:- There is no dispute that the same method of accounting is regularly and consistently followed by the assessee as such rule of consistency is applicable as per which under the similar facts and circumstances, department ought to follow same approach on an issue in other assessment years. We, therefore, respectfully following the reasoning adopted by the coordinate Bench of this Tribinal for the AY 2007-08, set aside the matter to the file of the Assessing Officer with direction to decide the issue afresh after affording opportunity of being heard to the assessee

Allow the deduction representing the excise duty paid by the appellant during the relevant previous year

Sharing of resources with other Group Companies/ Subsidiary Companies - Held that:- There is no material that is brought on record to controvert the plea of the assessee that they have provided the support to the Insurance subsidiaries due to its business exigency rather than supporting the said companies and it is it is in the best interests of MSIL to do so for maximizing their profits, as such the related cost is allowable business expenditure for the company. It also further goes undisputed that this being the business expenditure will have to be allowed as deduction under section 37(1) of the Act, either in the hands of the appellant company or to the group companies. No addition warranted.

Adjustment on account of allegedly excessive AMP expenses - Held that:- While respectfully following the decision in in assessee's own case [2015 (12) TMI 634 - DELHI HIGH COURT]hold that the AMP expenses incurred by MSIL cannot be treated and categorised as an international transaction under Section 92B of the Act, and the question of the TPO making any transfer pricing adjustment in respect of such transaction Chapter X does not arise

Adjustment on account of payment of royalty for use of brand name - Held that:- While respectfully following the decision of this Tribunal for the AY 2006-07, we order for the deletion of the addition of ₹ 237.24 crore on account of transfer pricing adjustment of royalty for use of licensed trademark.

Not allowing credit of TDS certificates claimed through the revised return and during the course of assessment proceedings - Held that:- Allow ground for statistical purpose by setting aside the matter to the file of the Assessing Officer to consider the claimed TDS credit on the basis of revised return after affording opportunity of being heard to the assessee.

Error in computation of interest u/s 234B - Held that:- We set aside the matter to the file of the Assessing Officer to decide the issue afresh in view of the above finding in the case of C.C.Chokshi & Co. (2010 (5) TMI 698 - ITAT MUMBAI) after hearing the assessee