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TMI Blog2011 (11) TMI 743X X X X Extracts X X X X X X X X Extracts X X X X ..... 3. On appeal ld. CIT(A) has deleted some of the additions/disallowances and also confirmed some of the additions/disallowances made by the AO. That is how both the parties are in appeal before this Tribunal . 4. In ITA No. 756/Chd/2011, the assessee has taken following grounds of appeal: 1. That the ld. CIT(A) has erred in confirming the disallowance of ₹ 5,66,47,652/- being national sales tax liability on account of sales tax exemption/subsidy treating the same as revenue receipt, whereas, the same is a capital receipt. Therefore, the addition of ₹ 5,66,47,652/- may kindly be deleted. 2. That the ld. CIT(A) has erred in confirming the charging of interest u/s 234B, whereas the assessee is not liable to pay any interest u/s 234B of the Income-tax Act as the assessee was under bonafide belief that the Sales Tax subsidy is a capital receipt not liable for tax. Therefore interest charged u/s 234B may please be deleted. 5. In ITA 828/Chd/2011, the Department has taken the following grounds of appeal : 1. On the facts and in the circumstances of the case and in law, the ld. CIT(A) has erred in allowing appeal of the assessee without appreciating the facts o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssue has already been considered and decided by this Tribunal in Department s appeal bearing ITA No. 341/Chd/2007 (A.Y. 2004-05) against the Department and in favour of the assessee. The issue under appeal has been disposed of by this Tribunal in the said appeal with the following observations : 7. It is agreed by the parties that the issue is covered in favour of the assessee by the decision of the Tribunal in assessee s own case for assessment year 2001-02 (supra). The relevant discussion and findings on this issue contained in para Nos.12 and 13 of the order which are reproduced hereunder and adopted for the disposal of the ground of appeal raised by the Revenue :- 12. The next ground raised by the revenue is that the ld CIT(A) erred in treating the die Tooling charges as revenue expenditure as assessed as capital expenditure being of enduring nature. The ld DR supported the assessment order and placed reliance upon the decision in CIT vs Saraswati Industrial Syndicate ltd (166 ITR 366) and 78 ITD 327. On the other hand the contention of the learned counsel for the assessee that for earlier assessment years, on identical fact, it was allowed as revenue expenditure. Relia ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... these facts, we have not found any defect in the conclusion of the ld CIT(A), consequently, this ground of the revenue is also dismissed. 8. Since the decision of the Commissioner of Income-tax (A) is in accord with the decision of the Tribunal in assessee s case referred to above, we find no justification to interfere with the order of the Commissioner of Income-tax (A). The ground of appeal raised by the Revenue is thus dismissed. 13. Respectfully following the aforesaid decision, Ground No.2 taken by the Department is dismissed. 14. Apropos Ground No.3 taken by the Department, both the parties submitted that the issue was covered by the order of this Tribunal in Department s appeal bearing ITA No. 341/Chd/2007 (A.Y. 2004-05) in favour of the assessee and against the Department. The Tribunal has decided the issue in favour of the assessee with the following observations : 4. The parties agreed that the issue is covered in favour of the assessee by the decision of the Tribunal for assessment year 2001-02 in I.T.A. No. 750/Chandi/2005, order dated 30.7.2007. The said order has further been followed in assessment year 2003-04 in I.T.A. No. 897/Chandi/2006, order dat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not applicable to the instant case since the same pertains to assessment year 1991-92 when the Income Tax Act did not recognize technical know how as an intangible asset on which depreciation is al lowable. Further, it is seen that the Technical Collaboration agreement has specific clauses regarding the training of engineers w.r. t specific items viz training in rims, training in discs and training in design etc. The venues for training vary with the specific items as also training schedules. It has also been categorical ly specified in the technical collaboration agreement that the expenses towards the foreign and domestic travel of the technicians would have to be borne by the assessee. From the details of the foreign traveling expenses, it is noticed that the entire expenditure has been incurred towards to for travel between Japan and India for the purposes of training as per the technical collaboration agreement If the aforesaid conclusion of the ld assessing officer is analised. i t says that these expenses are l inked to the expansion of the present unit and virtually it is a new unit, therefore, the expenses are of capital nature whereas the conclusion of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uj). The Hon'ble Apex Court in the case of Alembic Chemical Works Co Ltd v CIT (177 ITR 377) (SC), the Hon'ble Kerala High Court in the case of CIT v Madras Spinners Ltd (177 ITR 495) and the Hon'ble Andhra Pradesh High Court in the case of Vejan Hydrair (P) Ltd v CIT (177 ITR 552), on identical fact, held that the amount so paid under the agreement is revenue expenditure. However, the Hon'ble Apex Court in the case of Jonas Woodhead Sons (India) Ltd vs CIT (224 ITR 342) wherein composite payment for supply of technical know how and services for setting up plant and manufacture of product, i t was held that the expenditure is of enduring benefit to the assessee, therefore, is of capital nature. The Hon'ble Calcutta High Court in the case of Shri Ram Bearings Ltd (251 ITR 155) wherein the assessee was allowed to use technical know how even after period of agreement, it was held that the benefit is of enduring nature, therefore, is of capital in nature. However, keeping in view the facts and circumstances and the latest decision of the Hon'ble jurisdictional High Court in the case of Swaraj Engines Ltd dated 18th May 2006 wherein the Hon'ble Court has al ..... X X X X Extracts X X X X X X X X Extracts X X X X
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