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TMI Blog2011 (5) TMI 504X X X X Extracts X X X X X X X X Extracts X X X X ..... accordingly,uphold the same - Hence, the appeal filed by the assessee is dismissed. Disallowed - Deduction u/s 43B - Excise Duty - Business had already changed hands and when the business changes hand the assets as well as liabilities are transferred - Therefore, outstanding payment of excise duty was liability of the company known as TPIL, and, therefore, it should form a part of the capital loss/gain of the company to which it has been transferred - Accordingly,allow the deduction - Hence, decide the issue in favour of the Revenue. - ITA No. 3367/Del/2002, ITA No. 4518/DEL/2009 - - - Dated:- 20-5-2011 - Rajpal Yadav, Shamim Yahya, JJ. Tarandeep Singh, CA for the Appellant Srujani Mohanty, Sr. D.R. for the Respondent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Tax (Appeals) further noted that before him the assessee has produced only the evidence which is zerox copy certified issued by the CA. The assessee was asked to establish the facts from the records and from the bank accounts, but the same was never produced. Assessee contended before the Ld. Commissioner of Income Tax (Appeals) that certificate of CA is sufficient for allowing such deduction. When the factual evidence was again called for, it was stated that the details were related to 10 years old bank record and the same is not readily available. Ld. Commissioner of Income Tax (Appeals) noted that assessee has failed to establish the evidence of such payments before the Assessing Officer at the assessment stage and also before him. hen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecision of the Hon'ble Jurisdictional High Court in the case of ACIT vs. Jay Engineering Works Ltd. 114 ITR 289. In this case it was held that "where the original books of the assessee had been destroyed in a fire it was held that the Appellate Tribunal, in allowing a deduction, could rely upon other material mainly consisting of the auditor's reports from which it could be inferred that the deductions were properly supported by the relevant entries in the accounts books." In this background, the Hon'ble High Court did not interfere in the order of the tribunal. In our considered opinion, this case law is not at all applicable in the present case. It is not the case that books of account and other material were lost in fire. Here assess ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that assessee company has given Indemnity on account of Siel Corporation Ltd. which is known as Tecumseh Product India Ltd. (TPIL) which was formerly a unit of assessee company and presently renamed as Techmseh Products India Ltd. was transferred to another company as going concern as on 1.4.96 and, on such transfer the assessee had shown capital gain/loss during the assessment year 1997-98. The Assessing Officer observed that a sum of Rs. 1 crore paid by way of excise duty pertaining to the pending cases relating prior to 31st March, 1997, was a liability on account of capital assets which stands transferred. According to the Assessing Officer this expenditure was on capital account and cannot be allowed as revenue account. Before the Ld. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as not been debited to PandL account cannot be accepted because ultimately it has been deducted in the calculation on income. 10. Against the above order the assessee is in appeal before us. 11. We have heard the rival contentions in light of the material produced and precedent relied upon. The said note 5(e) referred above reads as under:- "Indemnity given by the Company to a party to whom investment in 1,00,00,00/- equity shares of Rs. 10 each fully paid up of Siel Compressors Limited, presently renamed as Tecemseh Products India Limited (TPIL) has been disposed off for any loss, damage, claim, action, suit etc. arising from various representations/breach of representations including for contingent liabilities existing as at M ..... X X X X Extracts X X X X X X X X Extracts X X X X
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