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TMI Blog2013 (10) TMI 417X X X X Extracts X X X X X X X X Extracts X X X X ..... e object of making the payment was purely one of commercial expediency – Decided in favor of Assessee. - Miscellaneous Application No. 765 & 766/Mum/2012 (Arising from ITA No. 5628 & 5629/Mum/2002) - - - Dated:- 4-10-2013 - Shri Rajendra Singh, AM And Shri Vijay Pal Rao, JM,JJ. For the Petitioner : Shri J. D. Mistri Madhur Agrawal For the Respondent : Shri Pitambar Das ORDER Per Vijay Pal Rao, JM. By way of these Miscellaneous Application the assessee is seeking ratification in the order dated 16.5.2012 of this Tribunal whereby the two sets of cross appeals were disposed off for the assessment years 1996-97 and 1997-98. 2. We have heard the Ld. Senior Counsel for the assessee as well as Ld. DR and considered the relevant material on record. It has been pointed out that while passing the impugned order some of the grounds have not been disposed off. The Ld. Counsel has submitted that the ground no. 1 has four sub grounds namely a, b, c d. The Tribunal while adjudicating the ground no. 1 has not disposed off ground 1(c) in respect of the expenses on statutory/cost auditors. The Ld. Counsel has further submitted that this ground is covered in favour of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al turnover is remained un adjudicated. We note that for the assessment year 1995-96 the Tribunal has considered and decided this issue in para 27.4 and 27.5 as under: "27.4 In respect of Ground No. 24, the ITAT in AY 1994-95 in assessee's own case (supra) dealt with the similar issue in paragraph 22 to 22.2, which are as follows: "22. Grounds of appeal Nos. 28 and 29 are as under: "28. In the event that the CIT(A)'s order that deduction u/s. 8OHHC of the Act is to be computed by considering all units of the appellant as a whole is upheld, then the CIT(A) erred in including inter-unit and inter-divisional transfers of Rs. 338.41 crores as part of total turnover, which results in the same figure being counted as a number of times and hence depriving the deduction u/s. 8OHHC." "29. In the alternative the learned CIT(A) ought to have held that deduction u/s. 8OHHC of the Act be computed on the basis of considering all units which had exports together." 22.1 After hearing both the sides, we find similar issue had come up before the Tribunal in assessee's own case and the Tribunal in its consolidated order for A.Ys. 1986-87 to 1989-90 order dated 22nd March, 2007 at para 154 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... een adjudicated by this Tribunal. He has submitted that this ground is covered in favour of the assessee by the decision of this Tribunal in assessee's own case for the assessment year 1996-97. We find that the Ground No. 4 of the assessee's appeal for the assessment year 1997-98 remained unadjudicated. For the assessment year 1996-97 a similar issue was raised by the revenue in ground no. 16 which has been disposed off by this Tribunal in the impugned order in para 44 to 44.4 in favour of the assessee and against the revenue. In view of our finding on the similar issue for the assessment year 1996-97 this grounds stands allowed in favour of the assessee. 9. The Ground No. 7 is also stated to be not disposed off. We have heard the Ld. Senior Counsel of the assessee as well as Ld. DR and considered the relevant material on record. We find that the ground no. 7 of the assessee's appeal for the assessment year 1997-98 remains unadjudicated. We further noted that the an identical issue has been considered and decided by this Tribunal in assessee's own case for the assessment year 1994-95 in para 32.5 to 32.11 as under: "32.5 We have considered the rival contentions and perused the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at High Court too, supports the case on our hand. 32.9 In the instant case, undisputedly, the assessee does not have any ownership or right over the bridge constructed by the State Government. The assessee contributed towards part of the expenditure for construction of a bridge to prevent the sea water entering into the factory premises of the assessee which naturally hurt the commercial interest of the assessee and for which the assessee was making a certain recurring expenditure annually in preventing the sea water entering into its premises. Replacement of annual recurring expenditure by one time contribution is revenue expenditure. Therefore, in our considered opinion, the expenditure did not bring any capital asset of an enduring benefit or advantage and the object of making the payment was purely one of commercial expediency. . 32.10 Be that as it may be, let us step into another aspect of the matter. It is a fact that the assessing officer held the impugned expenditure as capital in nature without considering it for depreciation. It is also a fact that no new asset came to the assessee out of the expenditure so capitalized by the assessing officer. The Income-tax Act pro ..... X X X X Extracts X X X X X X X X Extracts X X X X
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