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TMI Blog2011 (7) TMI 1212X X X X Extracts X X X X X X X X Extracts X X X X ..... for ascertaining as to whether all the issues in the appeals stand covered by various orders of the Tribunal in the case of the assessee, as contended by the learned counsel. Accordingly, the case was adjourned to 18.07.2011 with the direction that no further time shall be granted. However, the learned CIT-DR moved an application for adjournment on this date of hearing on the ground that he is on casual leave. Further, the learned DR, who was present, was not able to explain the urgency because of which the leave is taken. He also did not argue the case on the ground that the learned CIT-DR is supposed to argue and he is not available today. On the other hand, the learned counsel opposed the application on the ground that all the issues ta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the submission, the learned CIT(A) deleted the disallowance. 2.1 We have considered the facts of the case. On perusal of the order of the Tribunal for assessment year 2005-06 in I.T.A. No.3030/D/09 dated 23.10.2009, it is seen that ground Nos. 1 2 taken by the revenue were against disallowance of lump sum fee for technical guidance amounting to ₹ 26,62,04,000/- and royalty amounting to ₹ 44,27,31,000/-. The Hon ble Tribunal mentioned in paragraph No.5 that the issue and facts involved in this appeal and in the appeals for assessment years 2001-02, 2002-03 and 2003-04 are identical. Those appeals were decided in favour of the assessee, following those orders, learned CIT(A) allowed relief to the assessee. Therefore, it w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er was also directed not to grant any relief in assessment year 2007-08 in which the refunded amount was offered for taxation. In other words, the payment was held to be deductible in assessment year 2005-06 and taxable in assessment year 2007-08. Respectfully following this decision, it is held that the assessee is entitled to deduct the aforesaid amount of ₹ 1,05,01,000/- in computing the total income for this year. In case this amount is refunded in any subsequent year, the same will be liable for tax. 3.1 In result, this ground is also dismissed. 4. Ground No.3 is against the deleting of the amount of ₹ 6,05,635/- in respect of entry tax, made by the Assessing Officer by invoking the provision contained in section 43B ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r considered the facts and the explanation. It is mentioned that the ITAT allowed similar claim of the assessee by considering it as an ascertained liability. However, the revenue is of the view that such a liability is an unascertained liability. Therefore, appeal has been moved before the High Court. In view of the departmental position, the amount of ₹ 3,18,00,796/- has been disallowed. This issue stands covered by the orders of the Tribunal in the case of the assessee for assessment years 2001-02 to 2005-06, copies of which have been placed before us. In the decision for ay 2005-06, one of the grounds taken by the revenue (ground No.6) was that the learned CIT(A) erred in allowing the relief of ₹ 5,69,65,605/- by holding tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent of export commission was made wholly and exclusively for the purpose of business for acquiring rights outside the country for exporting components and cars. This ground was dismissed by the Tribunal. Therefore, relying on this and earlier decisions, it is held that the assessee is entitled to deduct the export commission in computing its total income. Thus, this ground is also dismissed. 7. Ground No.6 is against deleting the addition of ₹ 97,98,566/- made by the Assessing Officer in respect of the cost of air fares and other travel related expenses forming part of technical guidance fee. In this connection, it is mentioned in the assessment order that Honda Motor Company Limited, Japan deputed foreign technicians for technical ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as a bearing on the issue at hand. Therefore, the order of the learned CIT(A) was upheld. Respectfully following this decision, ground No.6 is also dismissed. 8. We may now proceed with the cross objection of the assessee that the learned CIT(A) erred in disallowing expenditure of ₹ 6,05,635/- made by the Assessing Officer in respect of entry tax paid by the assessee under protest. The case made out before us is that the issue is similar to the issue of payment of customs duty, paid under protest on provisional basis. Both the items are covered u/s 43B, which have to be allowed on the basis of actual payment. The fact that the payment is made on provisional basis is also immaterial because it has been made on the basis of rules and ..... X X X X Extracts X X X X X X X X Extracts X X X X
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