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2016 (11) TMI 1595 - HC - Income TaxFresh claims on account of disallowance u/s 43B pertaining to payment on account of Royalty and interest thereon - Held that - In case of the Commissioner of Income Tax Vs. Pruthvi Brokers and Shareholders Ltd 2012 (7) TMI 158 - BOMBAY HIGH COURT has held that an assessee is entitled to raise an issue before the Appellate Authorities even if the same had not been claimed during the assessment proceedings. The above view of this Court was by following the decision of the Apex Court in National Thermal Power Corporation Ltd. Vs. Commissioner of Income Tax 1996 (12) TMI 7 - SUPREME COURT and Jute Corporation of India Vs. Commissioner of Income Tax 1990 (9) TMI 6 - SUPREME COURT . Disallowance made in respect of payments made under Voluntary retirement Scheme of the company - Held that - The decision of this Court in Godrej GE Applicances Ltd. 2008 (9) TMI 1002 - BOMBAY HIGH COURT does conclude the issue against revenue and in favour of the respondent assessee. Disallowance made for delayed payment of employees contribution to Provident Fund - Held that - Issue arising herein stands concluded by the decisions of this Court in Commissioner of Income Tax Vs. Hindustan Organics Chemicals Ltd. (2014 (7) TMI 477 - BOMBAY HIGH COURT) and the Commissioner of Income Tax Vs. Ghatge Patil Transports Ltd. (2014 (10) TMI 402 - BOMBAY HIGH COURT) decided in favour of the respondent assessee and against the revenue.
Issues:
1. Deduction of profit from power generation under Section 115JA 2. Restoration of sales tax exemption issue to Assessing Officer 3. Admissibility of fresh claims under Section 43B 4. Tribunal's powers regarding appellate authority 5. Taxability of profit from overseas branch 6. Treatment of expenditure under Voluntary Retirement Scheme 7. Disallowance for delayed Provident Fund contribution Analysis: Issue 1: Deduction of profit from power generation The Revenue challenged the Tribunal's decision to allow deduction for profit from power generation under Section 115JA. The Court noted that the same questions were raised in a previous appeal for a different assessment year, which was not entertained. As there were no substantial questions of law, the appeal was dismissed. Issue 2: Restoration of sales tax exemption The Tribunal restored the sales tax exemption issue to the Assessing Officer based on a decision of the Bombay High Court, which was later set aside by the Supreme Court. However, the Court found that the Revenue did not raise this issue in previous appeals. As no change in facts or law was shown, the Tribunal's view was upheld, and the appeal was dismissed. Issue 3: Admissibility of fresh claims under Section 43B The Tribunal admitted fresh claims under Section 43B for disallowance of royalty and interest, following its previous decisions. The Court found that the Revenue did not raise this issue in earlier appeals and failed to show any change in facts or law. Citing precedents, the Court held that the respondent could raise issues before the Appellate Authorities even if not claimed during assessment proceedings. The appeal was dismissed. Issue 4: Tribunal's powers as an appellate authority The Revenue contended that the Tribunal exceeded its powers, citing a Supreme Court judgment. However, the Court found that the Tribunal's decisions were in line with previous rulings and dismissed the appeal. Issue 5: Taxability of profit from overseas branch The Tribunal held that profit from an overseas branch was not taxable in India, which the Revenue challenged. The Court found that the Tribunal's decision was not perverse and dismissed the appeal. Issue 6: Treatment of expenditure under Voluntary Retirement Scheme The Tribunal deleted the disallowance of payments under Voluntary Retirement Scheme, considering it revenue in nature. The Court upheld the Tribunal's decision based on previous judgments and dismissed the appeal. Issue 7: Disallowance for delayed Provident Fund contribution The Tribunal deleted the disallowance for delayed Provident Fund contribution, following a Supreme Court decision. The Court found the issue concluded by previous judgments and dismissed the appeal. In conclusion, the Court dismissed the appeal on all issues, finding no substantial questions of law.
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