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TMI Blog2012 (2) TMI 545X X X X Extracts X X X X X X X X Extracts X X X X ..... 377; 2,69,800, by the Assessing Officer. 4. The Assessing Officer disallowed the expenditure on the ground that the same was not incurred in connection with the issue of shares for public subscription. 5. On appeal, the Commissioner (Appeals) confirmed the Assessing Officer's action holding that the expenditure has been incurred after the date of commencement of business and the same has not been incurred for issue of shares for public subscription. 6. Before us, learned Counsel prayed that increase in authorised share capital was required for issuing shares in consideration of acquiring business from Indian Rayons under the scheme of "Arrangement" under sections 391 / 394 of Companies Act, 1956, and that the issue is covered in favour of the assessee by the judgment of Hon'ble Rajasthan High Court in CIT CIT v/s Multi Metals Ltd., [1991] 188 ITR 151 (Raj.). 7. After hearing the rival contentions, we find that the first appellate authority had considered all the contentions of the assessee as well as the case laws cited and has come to a conclusion that the assessee had acquired a going concern from another company under the scheme of "Amalgamation" in terms of section 394 of C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e learned Counsel contended that the issue is covered in favour of the assessee by the judgment of Hon'ble Supreme Court in TRF Ltd. v/s CIT, 190 Taxman 391 (SC). 13. Learned Departmental Representative, on the other hand, drew the attention of the Bench and towards Paras-41 and 42 of the impugned appellate order and submitted that the Commissioner (Appeals) has categorically held that the bad debts represents, debts recoverable from Government organisation and the assessee could not provide any evidence whatsoever to explain the reason for non-payment or provide any other documentary evidence in support of its claim that these are bad debts and, hence, the disallowance was confirmed. He, relying on the orders of the authorities below, prayed for dismissing the ground raised by the assessee. 14. After hearing both the parties, we find that the Commissioner (Appeals) has, vide Para-41 of his order, held that the assessee's representative has not been able to provide any evidence indicating reluctance on the part of the Government bodies for not making payment. It is further commented that the assessee company has not provided any documentary evidence to show that recovery acti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tocks, purchases, sales, excise duty payments and if such adjustments result into an addition to the income of the assessee, the Assessing Officer should restrict the addition to that extent. Aggrieved, the assessee as well as the Revenue are in appeal before the Tribunal. 19. Learned Departmental Representative conceded before us that the issue is covered by the judgment of Hon'ble Jurisdictional High Court in Mahalaxmi Glass Works Pvt. Ltd., [2009] 318 ITR 116 (Bom.) and, accordingly, he prayed that the issue be restored to the file of Assessing Officer with direction to decide the same as per the ruling given by the Hon'ble Jurisdictional High Court. 20. Learned Counsel for the assessee did not object to the submissions made by the learned Departmental Representative. 21. In view of the aforesaid submissions of the respective parties, we restore the issue back to the file of Assessing Officer for denovo adjudication and direct the Assessing Officer to decide the issue in accordance with the propositions laid down by the Hon'ble Jurisdictional High Court in Mahalaxmi Glass Works (supra). Thus, ground no.1, in Revenue's appeal and ground no.3, in assessee's appeal a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ental Representative has rightly relied on the judgment of Hon'ble Supreme Court in IPCA Laboratories Ltd. (supra). Recently, the Hon'ble Supreme Court in Topman Exports v/s CIT, judgment dated 8th February 2012, has reversed the judgment of the Hon'ble Jurisdictional High Court in Kalpataru Colours &Chemicals (supra), wherein Their Lordships held as follows:- "22. The aforesaid discussion would show that where an assessee has an export turnover exceeding ₹ 10 crores and has made profits on transfer of DEPB under clause (d) of Section 28, he would not get the benefit of addition to export profits under third or fourth proviso to sub-section (3) of Section 80HHC, but he would get the benefit of exclusion of a smaller figure from "profits of the business" under explanation (baa) to Section 80HHC of the Act and there is nothing in explanation (baa) to Section 80HHC to show that this benefit of exclusion of a smaller figure from "profits of the business" will not be available to an assessee having an export turnover exceeding ₹ 10 crores. In other words, where the export turnover of an assessee exceeds ₹ 10 crores, he does not get the benefit of addition ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (Appeals) rejected the claim on the ground that no documentary evidence is adduced in the form of challan, etc., by the assessee. 32. Before us, the learned Counsel submitted the following statement:- Sr. No. PARTICULARS AMOUNT (Rs.) AMOUNT (Rs.) a) Amount added back in computation statement 2,15,12,604 b) Amount paid before filing return of income and claimed 2,05,67,769 c) Claim allowed by the A.O. out of (b) above 28,69,322 d) Balance claim disallowed by the A.O. (b-c) 1,76,98,447 e) This balance comprises of: (i) Bonus (Halol Unit) 74,93,349 (ii) Bonus (Rishra Unit) 92,23,819 (iii) Excise Duty (Halol Unit) 62,735 (vi) Excise Duty (Rishra Unit) 9,18,544 1,76,98,447 f) CIT(A) certificate for e(i) provided to the A.O. The total payment is inclusive of the above disallowed amount. g) CIT(A) certificate for e(ii) provided to the A.O. The total payment is inclusive of the above disallowed amount. h) For items e(ii) and e(iii), excise paid in April is presumed to be in respect of March 31st provision as per FIFO basis. 33. Learned Counsel submitted that the excise duty paid in April is presumed to be in respect of provisions made on 31st March, as pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 56 DTR (Kol.) (Trib.) 417, wherein identical issue has been decided against the assessee and in favour of the Revenue. 42. After hearing the rival contentions, we find that the issue is covered in favour of the assessee and against the Revenue by the judgment of Hon'ble Supreme Court in CIT v/s Vinay Cement Ltd., (2007) 213 CTR 268 (SC), wherein Their Lordships held that the contribution made to provident fund before filing of the return of income could not be disallowed under section 43B, as it stood prior to the amendment w.e.f. 1st April 2004. Mumbai Bench of the Tribunal in Pink Pen Pvt. Ltd. v/s ITO, ITA no.6847/Mum./2008, order dated 28th January 2010, has held that the judgment of the Hon'ble Supreme Court in the case of Alom Extrusions Ltd., 319 ITR 306 (SC), applies to the payment made out of employees' contribution of Provident Fund. Respectfully following the proposition laid down by the Hon'ble Supreme Court, we allow ground no.6, in assessee's appeal and dismiss ground no.5, in Revenue's appeal. 43. Ground no.2, in Revenue's appeal is on the issue of disallowance of maintenance of livestock. 44. The Assessing Officer disallowed the expenditure on the gr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the assessee's appeal and ground no.3, of Revenue's appeal, we restore the issue back to the file of Assessing Officer for de-novo adjudication in accordance with law. This ground is, thus, allowed for statistical purposes. 50. The second addition ground raised by the assessee is with regard to computation of deduction under section 80HHC, for the purpose of book profit under section 115JB. 51. During the course of hearing, the learned Counsel submitted that the issue is covered in favour of the assessee by the judgment of Hon'ble Supreme Court in Ajanta Pharma Ltd. v/s CIT, 194 Taxman 358 (SC) and CIT v/s Bhari Information Technology System Ltd., Civil Appeal no.33750 of 2009 (SC). He submitted that in applying the formula under sub-section (3) of section 80HHC, the expression "profit of the business" would need to be substituted by book profit. 52. Learned Departmental Representative, on the other hand, submitted that this issue has been decided by the Hon'ble Jurisdictional High Court in CIT v/s Al-Kabeer Export Ltd., (2010) 233 CTR (Bom.) 443, wherein it has been categorically held that for the purpose of clause (iv) of Explanation 1 to section 115JB(2), the extent ..... 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