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2019 (2) TMI 1414 - AT - Income TaxLate payment of employees contribution towards superannuation fund u/s.36(1)(va) - HELD THAT - The due date for depositing the employee s contribution towards PF/ESI should be seen from the date of the payment and not from the due date. In this regard, we note that the Jurisdictional Tribunal in the identical facts and circumstance in the case of Suzlon Energy Ltd. 2018 (8) TMI 447 - ITAT AHMEDABAD has restored this issue to the file of the AO for fresh adjudication. Therefore, respectfully following the same we are inclined to restore the issue on hand to the file of AO for fresh adjudication and in accordance to the provision of law as well as after considering the order of this Tribunal in the case of Suzlon Energy Ltd. (Supra). Thus, the ground of appeal of the assessee is allowed for statistical purpose. Allowing the set off of the brought forward losses/unabsorbed depreciation against the current year income as well as not allowing the same to be carried forward to the succeeding assessment years - HELD THAT - There was no defect pointed out by the authorities below on the submission of the assessee. Therefore, we are of the view that the matter needs to be adjudicated afresh by the Assessing Officer after giving a reasonable opportunity of hearing to the assessee. Accordingly, we set aside the issue to the file of AO with the direction to allow the brought forward losses/unabsorbed depreciation of the earlier year against the current year income as well as to carry forward such losses/unabsorbed depreciation to the succeeding assessment years as per the provisions of law. Hence, the ground of appeal of the assessee is allowed for statistical purposes. Prior period income under the provisions of section 41 - HELD THAT - We find that income of the assessee is being assessed at entity level. All the expenditure debited under different heads cannot be decided qua a specific receipt. Once the assessee has been offering income of prior period as an entity, then its prior period expenditure cannot be disallowed simply by observing that it is not ascertainable whether this expenditure was incurred for earning a particular receipts offered under the head prior period income. If an assessee is offering prior period income, then the expenditure which was incurred under different heads ought to be set off against that income. Therefore, we are of the view that net differential amount ought to be assessed as income of the assessee. We allow both these grounds of appeal for statistical purpose and direct the AO to allow set off prior period expenditure against prior period income and only net income is to be added to the total income of the assessee. - Decision in the case of Dishman Pharmaceuticals 2018 (5) TMI 1640 - ITAT AHMEDABAD followed. MAT credit u/s 115 JAA - HELD THAT - We note that the Assessing Officer rejected the credit of MAT as claimed by the assessee on the ground that the assessee is not entitled to claim the credit of taxes paid under MAT in the earlier years while determining the income under the head MAT. From the order of the Assessing Officer, it is transpired that the assessee was claiming the credit of tax paid under MAT in the earlier years against the income determined under MAT provisions for the current year. However, the submission of the assessee reveals that it has claimed the credit of tax paid under MAT against the computation of income under the normal provisions. From the above details, we note mismatch between the finding of the Assessing Officer vis-a-vis submissions made by the assessee before the Ld. CIT(A). We note that the assessee is very much entitled to claim the credit of tax paid under MAT against the income computed under the normal provisions under section 115JAA of the Act - entire matter needs re-examination afresh by the Assessing Officer. Accordingly, we set aside the issue to the file of Assessing Officer for fresh adjudication following the provisions of law. Hence, grounds of appeal of the assessee are allowed for statistical purposes. Adjustment on account of upward transfer pricing adjustment - HELD THAT - We do not want to deviate from the finding of the Hon ble ITAT in the own case of the assessee as discussed above. Therefore we direct the AO/ TPO to select comparable companies having the nearest turnover to the assessee company. In the instant case, we note that there is a single company as discussed above having the nearest turnover to the assessee company. Therefore we direct the AO/TPO to select that company and make suitable adjustments within the provisions of law. From the above, we note that the assessee succeeds in its appeal by turnover criteria as directed above for the selection of comparable companies. Therefore we refrain ourselves from adjudicating the issue of super profit as indicated by the assessee. Thus the grounds of appeal of the assessee are allowed. Not allowing deduction u/s.10B on account of foreign exchange gain - HELD THAT - To de decided in favour of assessee 2008 (12) TMI 296 - ITAT AHMEDABAD the assessee would be entitled to the deduction under section 10B with regard to exchange gain only which is the gain on the day of deposit of US in the EEFC Account. Therefore, the assessee should be granted deduction under section 10B of the Act with regard to exchange gain. Not granting deduction u/s.10B of the Act on the revised gross total income - HELD THAT - We hold that the deduction u/s.10B of the Act will be enhanced by the disallowances made by the Assessing Officer in the assessment proceedings. Thus, we direct accordingly. Hence, the ground of appeal is allowed.
Issues Involved:
1. Disallowance of late payment of employees' contribution towards superannuation fund. 2. Set-off of brought forward losses/unabsorbed depreciation. 3. Addition of prior period income and disallowance of prior period expenses. 4. Non-allowance of MAT credit. 5. Transfer pricing adjustments. 6. Deduction u/s 10B on foreign exchange gain. 7. Deduction u/s 10B on revised gross total income. 8. Addition u/s 69 of the Act. Issue-wise Detailed Analysis: 1. Disallowance of Late Payment of Employees' Contribution Towards Superannuation Fund: The assessee's appeal regarding the disallowance of ?38,565/- for late payment of employees' contribution towards the superannuation fund was addressed. The Tribunal noted that the issue is covered against the assessee by the Hon'ble Gujarat High Court in CIT vs. GSTRC. However, the Tribunal also referenced the jurisdictional Tribunal's decision in Suzlon Energy Ltd. vs. DCIT, suggesting that the due date for depositing the contribution should be considered from the payment date, not the due date. Consequently, the matter was restored to the AO for fresh adjudication. 2. Set-off of Brought Forward Losses/Unabsorbed Depreciation: The assessee's claim for set-off of brought forward losses/unabsorbed depreciation amounting to ?11,02,365/- was initially disallowed by the AO due to the absence of such losses in previous orders. The Tribunal directed the AO to re-examine the matter, considering the assessee's submission that there were brought forward losses/unabsorbed depreciation to be set off against the current year's income. 3. Addition of Prior Period Income and Disallowance of Prior Period Expenses: The Tribunal addressed the addition of prior period income of ?4,29,490/- and the disallowance of prior period expenses of ?18,79,653/-. It was noted that the assessee had shown prior period income of ?3,76,358/- and incurred prior period expenses. The Tribunal directed the AO to allow the set-off of prior period expenses against prior period income, following the precedent set in DCIT vs. Dishman Pharmaceuticals & Chemicals. 4. Non-allowance of MAT Credit: The AO disallowed MAT credit of ?17,26,221/- claimed by the assessee. The Tribunal noted a mismatch between the AO's findings and the assessee's submissions. The Tribunal directed the AO to re-examine the matter and allow the MAT credit as per the provisions of section 115JAA of the Act. 5. Transfer Pricing Adjustments: The Tribunal addressed the assessee's challenge against the upward transfer pricing adjustment of ?2,33,75,788/-. The Tribunal upheld the application of the turnover filter within the range of 50% of the assessee's turnover, following the precedent set in the assessee's own case for earlier years. The Tribunal directed the AO/TPO to select comparable companies within this range and make suitable adjustments. 6. Deduction u/s 10B on Foreign Exchange Gain: The Tribunal addressed the disallowance of deduction u/s 10B on foreign exchange gain of ?19,02,690/-. Following the precedent set in ITO vs. Banyan Chemicals P.Ltd., the Tribunal held that the foreign exchange gain directly related to exports is eligible for deduction u/s 10B and directed the AO to allow the deduction. 7. Deduction u/s 10B on Revised Gross Total Income: The Tribunal noted that any disallowances made in respect of the eligible unit/undertaking should enhance the deduction claimed u/s 10B. Following CBDT Circular No.37 of 2016, the Tribunal directed the AO to enhance the deduction u/s 10B by the amount of disallowances made. 8. Addition u/s 69 of the Act: The Tribunal addressed the Revenue's appeal against the deletion of addition u/s 69 amounting to ?2,20,10,405/-. Following the precedent set in the assessee's own case for earlier years, the Tribunal upheld the deletion of the addition, noting that the issue had been consistently decided in favor of the assessee by the Tribunal and the Hon'ble Gujarat High Court. Conclusion: - Assessee's appeal in ITA No.1947/Ahd/2015 was allowed for statistical purposes for grounds 1, 2, 7, and 8, while grounds 3 to 6, 9 to 16, and 17, 18 were allowed. - Revenue's appeal in ITA No.1909/Ahd/2015 was dismissed.
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