TP Adjustment - ‘international transaction‟ related to payment of royalty - CIT(A) has deleted it holding that the appellant has paid similar royalty in Assessment Year 2002-03 and no transfer pricing adjustment was proposed and ITAT has allowed the claim of the royalty as revenue expenditure - HELD THAT:- We do not subscribe to the finding of the ld CIT(A) as allowance of the expenditure operates in altogether different provisions of the law as well as the determination of arm’s length price of international transaction operates in different. Further, as in the impugned assessment order the adjustment on account of arm’s length price is made of ₹ 2.96 with respect to the service availed by the assessee. The ld CIT(A) has not given any answer to that fact. Further, the ld Assessing Officer has made an adjustment of ₹ 4.67 crores on the benefit test basis which is not permissible. Further, the comparability analysis made by the TPO is based on the past year, which is also not permissible. In view of this we set aside the whole transaction of determination of ALP of royalty back to the file of the ld Assessing Officer to determine the same in accordance with the law. Further, if the operating profit of the respondent falls into ± 5% range then no addition should be made. In the result ground No. 1 of the appeal of the Revenue is allowed.
Addition on account of imports from Sumitomo, Japan - MAM Selection - During the year assessee imported raw materials from Japan which were localized as per Indian market condition - CIT(A) upheld that the transaction of import is an international transaction but deleted the adjustment holding that CUP is not an appropriate method - HELD THAT:- Issue squarely covered by the order of the coordinate bench in assessee’s own case wherein, the same was considered in para No. 38 and 39 holding that CUP method is the most appropriate method to be followed with respect to the import of raw material and components. Therefore, we also accordingly, upheld CUP method to be adopted for this year. With respect to the adjustment of ₹ 1.71 crores the coordinate bench has held in para No. 48 and 49, the matter was ultimately set aside to the file of the ld Assessing Officer for fresh adjudication in accordance with the law. The coordinate bench has also given a direction to the ld Assessing Officer vide para No. 44 about the comparability analysis. The above decision of the coordinate bench has further been upheld by the Hon'ble Delhi High Court [2016 (3) TMI 55 - DELHI HIGH COURT] . Therefore respectfully following the decision of the coordinate bench in assessee’s own case for earlier years, we also set aside the whole issue back to the file of the ld AO with similar direction for application of CUP method and adopting comparable analysis.
Disallowance on account of NICNET charges paid - HELD THAT:- As the Internet facilities were wholly & exclusively for the business of assessee and not for the assessee company as covered by the decision of the Hon'ble Delhi High Court in assessee’s own case [2015 (1) TMI 824 - DELHI HIGH COURT] . Therefore, respectfully following the decision of the Hon'ble Delhi High Court the ground No. 3 of the appeal of the revenue is dismissed.
Addition being adjustment on account of TPOs order u/s 92CA(3) with respect to the Arm’s length price of international transaction - HELD THAT:- CIT(A) held that operating profit/ sales is the correct PLI for benchmarking the international transaction of royalty and he arrived at PLI of 16 comparables at 7.35% against the PLI of the assessee of 6.4% and consequently after giving benefit of ± 5% deleted the above adjustment. Therefore, revenue aggrieved is in appeal before us. The above ground identical to ground No. 1 of the appeal of the revenue for AY 2004-05 which has been decided by us setting aside the whole issue to the file of the ld AO/TPO, therefore, for similar reasons we set aside this ground of appeal also to file of the AO/TPO for fresh adjudication with similar direction. In the result ground No. 1 of the appeal of the revenue is allowed accordingly.
Nature of expenses - royalty payment - revenue or capital expenditure - HELD THAT:- Hon'ble Delhi High Court in assessee’s own case [2015 (1) TMI 824 - DELHI HIGH COURT] has held that royalty paid by assessee to its parent company was revenue expenditure and cannot be treated as capital expenditure.
Technical fees paid has been held to be revenue in nature
Revenue expenditure of technical cost, training fee and IT cost fees
Nice net facility provided by Denso Haryana to be treated as revenue expenditure - See M/S. DENSO INDIA LTD. [2015 (1) TMI 824 - DELHI HIGH COURT]
Disallowance u/s. 14A - HELD THAT:- The appeal is admitted on the following substantial question of law - “Whether, on the facts and in the circumstances of the case and in law the Tribunal was justified in not considering the fact that the amount of disallowance u/s. 14A has to be computed as per Rule 8D when the computation of assessee was not found to be correct and as held in the order of this Court in the case of Godrej & Boyce Mfg. Co. Ltd. [2010 (8) TMI 77 - BOMBAY HIGH COURT] ?”
Disallowance us 14A - HELD THAT:- We find that undisputedly the assessee has not earned any exempted income. Now it is settled position of law that whenever assessee did not earn any exempt income, no disallowance could be made u/s. 14A of the Act.
The Hon'ble Delhi High Court in the case of Cheminvest Ltd. v. CIT [2015 (9) TMI 238 - DELHI HIGH COURT] has categorically held that section 14A envisages that there should be actual receipt of income which was not includible in the total income during the relevant previous year for the purpose of disallowing any expenditure in relation to the said income. Wherever there is no exempt income includible in the total income of the assessee, the provisions of section 14A cannot be invoked.
In the assessee’s own case for assessment year 2010-11 and held that when there is no exempt income, provision of section 14A of the Act cannot be applied.
In the light of the aforesaid judgment, the provisions of section 14A cannot be invoked as there is no exempt income in the hands of the assessee. Accordingly, we find no infirmity in the order of the CIT(Appeals) who has rightly deleted the addition.
Rebate of duty - export of Endothermic Gas Generator and export of imported parts/components of Hosiery knitting Needle manufacture machines - Cenvat credit against CVD reversed as per Rule 3(5A) of the Cenvat Credit Rules, 2004 - rebate was rejected by the jurisdictional Deputy Commissioner on the ground that the goods are not excisable goods, no duty of excise has been paid and Cenvat credit has been reversed at the time of clearance from the factory as required under the Cenvat Credit Rules, 2004.
HELD THAT:- The applicant has not paid any Excise duty on the generator and knitting machines and there is no export of excisable goods. Consequently, the primary condition of export of duty paid excisable goods is not established in this case and thus the orders of Commissioner (Appeals) cannot be faulted on this ground.
As regards the applicant’s argument that they could export the above goods under Bond as per para 3 of Chapter 5 of the C.B.E. & C. Manual, this proceeding does not have any such issue and the subject matter of the Revision Applications is only whether rebate of duty is admissible in this case or not. Further such reversal of credit was mandatory even if the goods were exported under Bond and, therefore, this issue is of no relevance here.
Refund of SAD - applicability of period of limitation to claim refund - HELD THAT:- In the present case, the only ground of the Revenue is that the SLP filed by the Revenue against the said High Court's order was dismissed by the Hon'ble Supreme Court only on limitation. The question of law is kept open. Accordingly, the Commissioner (Appeals) should not have followed the decision of Delhi High Court in SONY INDIA PVT. LTD. VERSUS THE COMMISSIONER OF CUSTOMS [2014 (4) TMI 870 - DELHI HIGH COURT]. The Revenue preferred this appeal without appreciating the legal implication and making certain observations, which, apparently, are bordering on contempt of Court. In the appeal, it is submitted, "the judgment of Hon'ble High Court is not legally tenable" and "the Hon'ble High Court has failed to appreciate.".
The said High Court's decision has not been overruled by the Higher Court and neither there is any contrary order of another High Court. In such situation, the Revenue cannot make such observations, which shows the non-application of mind and casual approach in appreciating the legal position of binding precedents.
There is no infirmity in the impugned order, which followed the decision of the jurisdictional High Court in Delhi - The appeal of the Revenue is dismissed - Decided against Revenue.
Addition on account of excess claim of depreciation and additional depreciation on the spare parts in respect of pre-existing machinery - HELD THAT:- There is no dispute that the assessee has purchased certain spare parts in respect of the machinery which is used for the purpose of power generation units. We further find that the purchase of spare parts for the machinery was treated as capital expenditure and, therefore, makes the assessee eligible for claim of depreciation and also the claim of additional depreciation on the same. We, therefore, do not find any error or infirmity in the findings of the CIT(A).
TP Adjustment - addition on account of guarantee provided to Associated Enterprise - Whether Appellant was justified in not charging any guarantee fees since guarantee provided by the Appellant was in the capacity of parent company and out of commercial expediency of the Appellant - HELD THAT:- Guarantees in question are, to use the words of the CIT(A), “continuing guarantees’ from the immediately preceding year and that except for the figures, entire facts of the case are similar to that of the immediately preceding assessment year 2008-09”. Vide our order dated [2017 (4) TMI 1406 - ITAT AHMEDABAD] the Tribunal has allowed the appeal of the assessee, on the same point, and held that no such ALP adjustments are permissible in law.
We see no reasons to take any other view of the matter that the view so taken, by the co-ordinate bench, for the immediately preceding assessment year. We, therefore, uphold the grievances of the assessee and delete the impugned ALP adjustments.
As we have held that no such ALP adjustment is permissible, grievances raised by the Assessing Officer, with respect to quantification of ALP adjustment, are dismissed as infructuous.
Disallowance u/s 14A r.w.r. 8D - HELD THAT:- CIT(A) has merely remitted the matter to the file of the Assessing Officer for a factual verification. There cannot be any infirmity in this approach, and the grievance of the Assessing Officer is devoid of any rationale. It is difficult to understand that when the matter is remitted to the file of the Assessing Officer, how can the Assessing Officer be aggrieved of such a direction. We see no merits in the grievance raised by the Assessing Officer. We, therefore, uphold the order of the learned CIT(A) and decline to interfere in the matter.
Notional loss on account of foreign exchange fluctuation loss amounting claimed on account of Mark to Market basis - HELD THAT:- As decided in own case [2017 (4) TMI 1406 - ITAT AHMEDABAD] the assessee is consistently following the mercantile method of accounting, the same accounting treatment for the foreign exchange losses and gains has been given by the assessee all along, the assessee is making entries in respect of such losses and gains, and the treatment is consistent with the Accounting Standards. As a matter of fact, the Assessing Officer has not even raised any issues with respect to the above. His case is confined to the loss being notional in nature and contrary to the CBDT guidelines.
As for the CBDT instructions, it is only elementary that any instructions issued by the CBDT cannot bind the assessee even though the assessee is entitled to, and can legitimately ask for, any benefits granted to the assessee by such instructions or circulars. Nothing, therefore, turns on the CBDT instruction even if it is actually contrary to the claim of the assessee.
As per the details filed by the assessee, the foreign exchange contracts have been entered into for genuinely restricting its bonafide risk exposure of the assessee in respect of its exports and imports transactions. These contracts cannot, therefore, be viewed on a standalone basis as speculative transactions. These transactions are integral part of the business transactions and any loss or gains arising from these transactions, for the detailed reasons set out above, are deductible in computation of profits and gains of business.
We uphold the action of the CIT(A) so far as this relief in respect of deleting the disallowance on account of loss, at the end of the year, on foreign exchange contracts.
Disallowance u/s.36(1)(va) r.w.s.2(24)(x) on account of employees contribution towards PF & ESI - HELD THAT:- This issue is to be decided against the assessee, in the light of Hon’ble jurisdictional High Court’s judgement in the case of CIT vs. Gujarat State Road Transport Corporation Limited [2014 (1) TMI 502 - GUJARAT HIGH COURT]. The relief granted by the learned CIT(A), on this issue, is thus vacated.
Upward adjustment on account interest charged on the loans granted to the Associated Enterprises' at discounted rate to the prevailing Market rate - HELD THAT:- In the light of the above factual position, it is clear that once the Revenue authorities accept the stand of the CIT(A) on an issue and allow it to reach finality in one assessment year, it cannot be open to them to challenge the same in the subsequent assessment year. As noted by Hon’ble Supreme Court, in the case of CIT vs. Radhasoami Satsang [1991 (11) TMI 2 - SUPREME COURT] while “strictly speaking, res judicata does not apply to income tax proceedings”, “where a fundamental aspect permeating through the different assessment years has been found as a fact one way or the other and parties have allowed that position to be sustained by not challenging the order, it would not at all be appropriate to allow the position to be changed in a subsequent year”. In view of these discussions, grievance raised by the Assessing Officer is not maintainable, and is dismissed as such.
Fresh claim of the Assessee in respect of Revenue expenditures for issue of debenture of LIC of India - HELD THAT:- We find that it is a well settled legal position that the bar on accepting a fresh claim in assessment proceedings, except by way of a revised return, is only on the Assessing Officer and not the appellate authorities. There is, thus, no infirmity in learned CIT(A)’s accepting the claim in principle and remitting the matter to the Assessing Officer for examination of claim on merits. Hon’ble jurisdictional High Court has also, in the case of PCIT vs. UTI Bank Ltd. [2016 (6) TMI 961 - GUJARAT HIGH COURT] approved this approach. We, therefore, see no merits in the grievance of the Assessing Officer and reject the same.
Assessment u/s 153A - HELD THAT:- We find that the issue is squarely covered in favour of the assessee by the decision of the Coordinate Bench of the Tribunal in the case of ‘Rajiv Kumar Vs. ACIT’ [2016 (12) TMI 1722 - ITAT CHANDIGARH] and ‘CIT (Central) Vs. Raj Kumar Jaiswal and others’ [2017 (2) TMI 1276 - ALLAHABAD HIGH COURT] . The Hon'ble Allahabad High Court (supra) while deciding the identical issue on framing of assessment u/s 153A of the Act for the assessment year relevant to the search year has observed that when a power is exercised under a particular provision and in the manner, it is so contemplated in such substantive provision, then this defence is not open that it may be treated as a mere mistake of wrong provision of statute - Decided in favour of assessee.
Benefit of N/N. 12/2003-ST dated 20.06.2003 - Classification of services - Mandap Keeper Service or not - appellant also provides catering facilities to its customers, who uses the mandap owned by the appellant - inclusion of value of food items into the convention services - HELD THAT:- The appellant had demonstrated the charges separately claimed for the mandap keeper service and for providing the catering service to the customers. Hence, the requirements of N/N.12/2003 have been duly complied with and accordingly, the service tax demand cannot be confirmed by clubbing the value of food items sold during the course of providing “mandap keeper service‟.
The appellant should be entitled for benefit of N/N.12/2003-ST. - Appeal allowed - decided in favor of appellant.
The Supreme Court dismissed the Special Leave Petition as no valid ground for interference was found. Application for exemption from filing certified copy of the impugned order was allowed. Delay was condoned.
Deduction u/s. 80P - HELD THAT:- The issue is covered in favour of the assessee by the decision of Hon'ble jurisdictional High Court in the case of Quepem Urban Co-operative Credit Society Ltd. vs. Asst. CIT [2015 (6) TMI 573 - BOMBAY HIGH COURT]
Issue now is squarely covered in favour of the assessee by the decision Hon’ble Apex Court in Citizen Co-operative Soceity Ltd. vs. ACIT [2017 (8) TMI 536 - SUPREME COURT] has expounded that if one has to go by the definition of co-operative bank, the assessee does not get covered thereby. That it is also a matter of common knowledge that in order to do the business of a co-operative bank, it is imperative to have a license from the Reserve Bank of India which the assessee does not possess. In the present case, before me also the assessee co-operative society is not licensed from the Reserve Bank of India to act as co-operative bank. Hence, as per the ratio emanating from the afore-said Hon’ble Apex Court judgment, the assessee is not affected by the provisions of section 80P(4).
Confirm the order of the ld. Commissioner of Income Tax (Appeals) and hold that the assessee is entitled to deduction u/s. 80P(2)(a)(i). - Decided against revenue
Approval claimed u/s 80G(5) - Exemption u/s 11 - denial of claim as assessee has not undertaken much activity in accordance with the objects - HELD THAT:- Commissioner has already granted registration u/s 12AA of the Act and approval u/s 80G was not rejected on the ground of not obtaining registration u/s 12AA of the Act but only on the limited ground that no activity has been carried out.
The decision of ABACUS FOUNDATION VERSUS COMMISSIONER OF INCOME TAX (EXEMPTIONS) [2016 (11) TMI 390 - ITAT KOLKATA] as rightly been pointed out by the Ld. Counsel, supports the stand of assessee that if the activities of the trust are genuine, at the stage of commencement of institution, registration has to be granted automatically and claim u/s 80G of the Act can be followed with grant of registration. Ld. Commissioner (Exemptions) did not reject the request of the assessee for approval u/s 80G of the Act on the ground of not annexing the registration certificate u/s 12AA of the Act but on the limited ground that it has not undertaken much activity. At the inception of the institution, one cannot expect serious activities, since it needs funds and to obtain funds, the trust needs approval u/s 80G of the Act. Thus, the activities are interlinked with obtaining approval. Hence, mere fact that the assessee could not undertake much activity within the short span of 3 months, the Commissioner (Exemptions) should not have refused the claim of approval u/s 80G(5) - Decided in favour of assessee.
Jurisdiction - power to issue SCN - whether Additional Director General, DRI is proper officer to issue SCN or not - HELD THAT:- The issue raised herein on the question of jurisdiction seems to be concluded in favour of the Revenue by the decision of this Court in SUNIL GUPTA VERSUS UNION OF INDIA AND OTHERS [2014 (12) TMI 151 - BOMBAY HIGH COURT]. However, as identical questions have been admitted post the order in Sunil Gupta, the issue raised herein would require consideration.
The hearing of this appeal is expedited - To be heard along with Customs Appeal No. 53 of 2016 and Writ Petition No. 2338 of 2016 [SUN POLYTRON INDUSTRIES LTD. AND ORS. VERSUS UNION OF INDIA AND ORS. [2017 (4) TMI 1449 - BOMBAY HIGH COURT]].
Summon under Section 91 of the Cr.P.C. - some documents were not part of charge sheet - Framing of charge - HELD THAT:- It is settled law that at the stage of framing of charge, the accused cannot ordinarily invoke Section 91. However, the court being under the obligation to impart justice and to uphold the law, is not debarred from exercising its power, if the interest of justice in a given case so require, even if the accused may have no right to invoke Section 91. To exercise this power, the court is to be satisfied that the material available with the investigator, not made part of the chargesheet, has crucial bearing on the issue of framing of charge.
While ordinarily the Court has to proceed on the basis of material produced with the charge sheet for dealing with the issue of charge but if the court is satisfied that there is material of sterling quality which has been withheld by the investigator/prosecutor, the court is not debarred from summoning or relying upon the same even if such document is not a part of the charge sheet. It does not mean that the defence has a right to invoke Section 91 Cr.P.C. de hors the satisfaction of the court, at the stage of charge.
The trial court may now proceed to deal with the issue of framing of charge in the light of the observations made hereinabove and also to proceed with the matter expeditiously in accordance with law - impugned judgement set aside.
Interpretation of statute - Section 26A of the Drugs and Cosmetics Act, 1940 - prior consultation of the Drugs Technical Advisory Board (DTAB) set up under Section 5 of the said Act - mandatory condition precedent for the exercise of the power by the Central Government under Section 26A of the Drugs Act - HELD THAT:- Section 26A has been introduced by an amendment in 1982. A bare reading of this provision would show, firstly, that it is without prejudice to any other provision contained in this Chapter (meaning thereby Chapter IV). This expression only means that apart from the Central Government’s other powers contained in Chapter IV, Section 26A is an additional power which must be governed by its own terms. Under Section 26A, the Central Government must be “satisfied” that any drug or cosmetic is likely to involve (i) any risk to human beings or families; or (ii) that any drug does not have the therapeutic value claimed or purported to be claimed for it; or (iii) contains ingredients in such quantity for which there is no therapeutic justification - The power exercised under Section 26A must further be exercised only if it is found necessary or expedient to do so in public interest. When the power is so exercised, it may regulate, restrict or prohibit manufacture, sale or distribution of any drug or cosmetic.
Section 26A was brought in by an amendment in 1982. The amendment specifically made changes in Sections 33 and 33N in which it added the words “on the recommendation of the Board”. From this, it is clear that Parliament in the very Amendment Act which introduced Section 26A made certain changes which involved the DTAB under Section 5 of the said Act. It is clear that the additional power that is given to the Central Government under Section 26A does not refer to and, therefore, mandate any previous consultation with the DTAB.
If the power under Section 26A is exercised on the basis of irrelevant material or on the basis of no material, the satisfaction itself that is contemplated by Section 26A would not be there and the exercise of the power would be struck down on this ground. - Also, as a matter of statutory interpretation, words can only be added if the literal interpretation of the Section leads to an absurd result. As has been stated by us, the construction of Section 26A on a literal reading thereof does not lead to any such result.
CENVAT credit - Clandestine removal - Granules - appellant was found to have wrong taken cenvat credit on the inputs which were sold and not used in the manufacturing - HELD THAT:- Though it is contended on behalf of the appellant that the findings arrived at by the Tribunal suffers the vice of perversity. However, these findings when tested on the anvil of the facts on record cannot be faulted with as would give rise to any substantial question of law. Therefore, no indulgence is caused.
Provisions of section 115JB applicability to the assessee bank - HELD THAT:- We notice that the Ld. CIT (A) has decided this issue in favour of the assessee by following the decision of the coordinate Benches of the Tribunal in the assessee’s own case [2013 (4) TMI 752 - ITAT MUMBAI] appellant is not a company under Companies Act but is only deemed to be a company as per the provisions of Sec. 11 of the Banking Companies (Acquisition and Transfer of Undertaking)Act,1970.Therefore as held by the Jurisdictional ITAT in the case of Maharashtra State Electricity Board [2001 (8) TMI 310 - ITAT MUMBAI] the provisions of Sec. 11 5JB cannot be made applicable to the appellant.
Broken period interest paid by the appellant for acquiring securities - HELD THAT:- Following the reasons given in appellant’s own case for A.Y. 2010-11 and 2011-12 no disallowance is called for in respect of broken period interest on securities. Accordingly, the addition on account of broken period interest for acquiring securities is deleted.
Revision u/s 263 - an order which is erroneous and prejudicial to revenue - Deduction U/s 80IA - Objection raised by CAG - Irregular allowance of deduction u/s.80IA in respect of Power Plant unit SBU 2 (2 X 300MW), which were earlier owned by JSW (Vijaynagar) Ltd. and then transferred to assessee company as a result of merger. - Irregular allowance of deduction u/s. 80IA in respect of the amount of income enhanced u/s.92CA of the Act (on account of TP adjustment. - Held that:- Ld. PCIT cannot assume jurisdiction u/s. 263 of the Act on the issue of TP Adjustment and disallowance u/s. 14A r.w. Rule 8D which were already subject matter of the appeal before the Ld.CIT(A). - Assessment Order passed by the AO is neither erroneous nor prejudicial to the interest of the Revenue in so far as these two issues are concerned. - Decided in favor of assessee.
Deduction U/s 80IA regarding power plant - post merger - revision u/s 263 - Held that:- the Ld.PCIT failed to demonstrate with reasons that the Assessment Order was erroneous and prejudicial to the interest of the Revenue not only that, the Ld.PCIT failed to address the objections of the assessee on the issues which explained that why the order sought to be revised is not erroneous and prejudicial to the interest of the Revenue. In the case on hand also the Ld.PCIT merely extracted the objections of the assessee and he could not explain why the objections were wrong and lead to the Assessment Order being erroneous and prejudicial to the interest of the Revenue and rather he has simply rested his decision by observing that the Assessing Officer in the subsequent year examined the claim of the assessee and made disallowance and therefore order passed is erroneous and prejudicial to the interest of the Revenue.
The claim for deduction u/s. 80IA is to be allowed in the assessment years subsequent to the initial Assessment Year the expected enquiries which could have been made by the Assessing Officer is to call for the computation of profits for the units eligible for 80IA and the units not eligible for 80IA which exactly has been done by the Assessing Officer in the course of Assessment Proceedings for search assessments for the Assessment Years 2005-06 to 2011-12 in order to satisfy himself that the claim of the assessee is in order. Therefore, it cannot be said that the Assessing Officer has not made proper enquiries and there is no application of mind by the Assessing Officer.
There is merit in the contentions of the assessee that the revision order passed by the Ld.PCIT for the year under consideration is beyond the scope of section 263 and hence not valid in so far as the action of the Assessing Officer in allowing the claim for deduction u/s. 80IA in respect of SBU 2 unit. - Decided in favor of assessee.
Addition u/s 68 - assessee was selected for scrutiny - discrepancies in the jewellery declared under VDIS Scheme and sold - as noticed by the AO that assessee has maintained the capital account as received from sale of gold, silver and diamonds which were declared by the assessee under VDIS 1997 - AO came to the conclusion that the jewellery sold are not the same which were declared under VDIS as there was difference in quantities - HELD THAT:- From the details of the bills, we find in the case of Basavaraj I. Kamatagi, HUF that the gold and silver jewellery were given for conversion into bullion to Shree Balaji Refinery and the gold bullion was sold on 28.01.98 and silver bullion on 18.01.98. Since the gold jewellery and silver jewellery were sold in the form of bullion on 28.01.98 and 18.01.98, where as the need to get it converted into bullion? The assessee has not made out the case that gold and silver jewellery were not saleable in the open market and the jewellers have forced them to get it converted into bullion before purchase. The assessee could not furnish the valid reasons for the conversion of jewellery into bullion.
If in any case the jewelleries are to be converted into bullion, how the weight of jewellery gets substantially reduced. All these questions remained unanswered during the course of hearing. We cannot ignore the facts that in the original assessment proceedings, assessee has agreed for the additions proposed by the AO on account of profit and sale of jewelleries. But when the assessment order was revised under section 263 by the CIT in consequential order, assessee retracted from the earlier statement and tried to justify the sale of declared jewellery.
Whatever quantity was declared under VDIS Scheme was not sold later on. Therefore, we are of the view that order of the Tribunal would not render any assistance to the assessee. Keeping in view the totality of the fact and circumstances of the case, we are of the considered opinion that assessee could not establish that the goods declared under the VDIS Scheme 1997 were sold as claimed by the assessee. Therefore, we find no infirmity in the order of the CIT(A) who has rightly confirmed the addition. - Decided against assessee.
Disallowance of EDP expenses considering the same as capital expenditure - HELD THAT:- In the case of Raychem RPG Ltd [2011 (7) TMI 953 - BOMBAY HIGH COURT] has held that the assessee in that case was manufacturing telecommunication and power cable. Software was not a part of profit making apparatus of the assessee. Therefore, it held the expenditure as revenue expenditure.
In the instant case, the assessee-company is engaged in the business of manufacturing, trading and marketing of industrial and automatic lubricants. EDP expenses is not a part of profit making apparatus of the assessee-company - We direct the AO to treat the EDP expenses as revenue expenditure. Thus the 1st ground of appeal is allowed.
Disallowance of advertisement expenses - HELD THAT:- We are of the considered view that whether there should be disallowance of advertisement expenses or not requires verification at the level of AO from the primary documents. It cannot be decided at an abstract level treating it as capital expenditure or revenue expenditure. One has to delve into micro details from bills/vouchers.
Disallowance by the AO of travelling and conveyance expenses - HELD THAT:- We are of the considered view that whether the expenditure incurred by the assessee for travelling and conveyance is wholly and exclusively for the business purpose or not has not been examined either by the AO or the Ld. CIT(A). It requires verification at the level of the AO from bills/vouchers.
Disallowance of interest on housing loan considering the same as non-business expenditure - HELD THAT:- We are of the considered view that this aspect is required to be verified at the level of the AO from the details to be filed by the assessee - we set aside the order of the Ld. CIT(A) and restore the matter to the file of the AO to make a fresh order
Penalty u/s 271(1)(c) - disallowance of travelling and conveyance expenses as not incurred wholly and exclusively for the purpose of its business - HELD THAT:- The above addition made by the AO and upheld by the Ld. CIT(A) has been set aside by us. Therefore, the penalty imposed by the AO on the said addition does not survive as held in K.C. Builders vs. ACIT [2004 (1) TMI 7 - SUPREME COURT] Therefore, the penalty is cancelled.
9911796707
