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TMI Blog2013 (7) TMI 647X X X X Extracts X X X X X X X X Extracts X X X X ..... being amount written off in the previous year relevant to the assessment year towards amortisation of lease amount paid towards land obtained from Noida authorities – Held that:- Tribunal in the assessee's own case for the assessment year 2004-05 has held that the said expenditure was capital in nature and not deductible in computing the income – In an analogical issue in the case Deputy CIT v. Sun Pharmaceuticals [2009 (3) TMI 587 - Gujarat High Court], decision has been rendered in favour of the assessee - However, since this Tribunal in the assessee's own case has taken a view, therefore adhering to the doctrine of precedence, relying upon the decision of the co-ordinate Bench of the Tribunal in the assessee's own case decided the issue ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aforesaid precedent, we uphold the order of the learned Commissioner of Income-tax (Appeals) and decide the issue in favour of the assessee. The next issue raised is that the Commissioner of Income-tax (Appeals) erred in deleting the disallowance of Rs. 14,59,16,969 to M/s. GAIL without deducting tax at source as per the provisions of the Income-tax Act. Upon enquiry, the assessee submitted that the gas was delivered and sold by GAIL at Hazira and the point of sale was located at premises at Hazira. The transportation charges are part of various elements in the purchase of gas. It was claimed that it was not a contract for carrying out any work but for supply of gas. The transportation charges were said to be considered by GAIL as part o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ind that it is undisputed that a co-ordinate Bench at Ahmedabad had found the said contract to be a contract for sale of goods and not a works contract. Under the circumstances, respectfully following the said decision, we uphold the order of the learned Commissioner of Income-tax (Appeals) and decide the issue in favour of the assessee. The next issue raised is that the Commissioner of Income-tax (Appeals) has erred in directing the Assessing Officer to treat the payment of Rs.2,56,48,187 towards insurance premium paid under Sankat Haran Bima Yojna as deductible under business income. In this regard, at the outset, it was submitted that the same issue has been decided by this Tribunal in the assessee's own case in I. T. A. No. 1767/Del ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e assessee can be made during the course of assessment proceedings. In this regard, we note that article 265 of the Constitution of India mandates that no tax can be collected except by authority of law. The Central Board of Direct Taxes Circular dated April 11, 1955 No. 14(XL-35) states that officers of the Department must not take advantage of ignorance of the assessee as to his rights. In the case of CIT v. V. Mr. P. Firm [1965] 56 ITR 67 (SC), the hon'ble apex court has held that if a particular income is not taxable under the Income-tax Act, it cannot be taxed on the basis of estoppel or any other equitable doctrine. In the background of the aforesaid discussion, we do not find any infirmity in the proposition that the assessee's issue ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... with Special Bench decision of the Mumbai Tribunal in ITO v. Daga Capital Management P. Ltd. [2009] 312 ITR (AT) 1 (Mumbai); 26 SOT 603. We have heard the rival contentions and perused the records. We find that the hon'ble Bombay High Court in the case of Godrej and Boyce Mfg. Co. Ltd. v. Deputy CIT [2010] 328 ITR 81 (Bom) has held that the Assessing Officer could adopt a reasonable basis to identify the expenses in relation to the earning of exempt income and overruled the decision of the Special Bench. Respectfully following the aforesaid decision we remit this issue to the file of the Assessing Officer to examine the same afresh and compute reasonable disallowance accordingly. The next issue raised is that the Commissioner of Income- ..... X X X X Extracts X X X X X X X X Extracts X X X X
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