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TMI Blog2017 (1) TMI 1196X X X X Extracts X X X X X X X X Extracts X X X X ..... es and trades in diagnostics reagent strips and kits along with sale and service of diagnostics instrument. It has incurred the impugned expenditure in the nature of payment made to sponsor air fare of London Delhi London business class of two speakers based in England. The Assessing Officer is fair enough in not rebutting the fact that the said speakers attended an educational meeting at the Apollo Hospital, New Delhi in February 2007. His only case is that the assessee has not proved any business expediency in the said expenditure. The CIT(A) on the other hand agrees with assessee’s contention that it had paid the impugned expenditure for publicity purposes. We thus view assessee’s expenses as very much connected having direct nexus with its manufacture and sale of diagnostics product wherein it is supposed to garner wider publicity in order to create a niche for itself in the field of diagnostics instruments market. We thus find no reason to interfere in CIT(A)’s order under challenge Addition on account of receivables written off and claimed as business loss - Held that:- There is no quarrel between the parties so far as basic facts pertaining to the instant issue are con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 49/Ahd/2012 challenge the CIT(A) s order deleting disallowance of claim of depreciation amounting to ₹ 42,61,735/- and ₹ 2,46,35,881/-; respectively allegedly over looking the statutory provision enshrined in Section 32 of the Act. Its case is that the assessee had already placed its medical instruments with customers and therefore, the same cannot be held to have been used for its business purpose. The Revenue accordingly seeks to revive Assessing Officer s action making the above impugned disallowance in both the assessment years before us. 3. Learned Senior Departmental Representative Shri James Kurian submits at the outset that the CIT(A) has followed his order in preceding assessment year allowing assessee s identical claim of depreciation. He then produces before us tribunal s order in assessee s case itself in ITA No.1842/Ahd/2010 decided on 12.11.2013 restoring the very issue back to the Assessing Officer for factual verification as to whether the assessee s assets in question stood transferred to its customers or not. Learned coordinate bench directs the Assessing Officer to allow assessee s depreciation claim in case it is not found to have transferred the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... achinery is not used, section 32 is not applicable and, hence, the assessee could have any benefits, if granted, would result in reading something which is not provided in the statute in terms of section 32. Here, in this case, the assessee has not at all used the equipments kept at the customers' premises. Therefore, depreciation claimed by the assessee at ₹ 42,61,735 on these equipments u/s.32 is not allowed. Penalty proceedings u/s.271(1)(c) of the Income-tax Act, 1961 are separately initiated. 5. Shri Shah s case accordingly is that the Assessing Officer nowhere holds the assessee to have transferred its surgical instruments to its customers. It is apparent from above extracted para 5.9 that the Assessing Officer s observations are very much self contradictory if we go by different portions therein. He is of the view in former portion that the assessee has also sold its equipments to customers. He however opines in middle portion that the assessee s ownership over the equipments in question is not in dispute. We thus feel it appropriate that the Assessing Officer shall carry out a detailed exercise in tune with ld. co-ordinate bench s directions (supra) in the i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ded wholly and exclusively for the purpose of business carried on by it. However, in the instant case, the , assessee has not been able establish the bus/ness expediency for bearing the airfare of two speakers. The sum paid by the assessee is nothing, but donation in nature. In the following cases, it was held that burden is on the assessee to prove that the expenses were laid out wholly and exclusively for the purpose of business:- [a]Good/as Nerolac Paints Ltd.[Bom] [137 ITR 58]. [b]Andrew Yule Co Ltd. [Cat] [49 ITR 57]. [c]Assam Pesticides Agro Chemicals. [Guj] [227 ITR 846]. [d]Indian Express (Madurai) (p) Ltd. [ITAT Mad] [68 ITD 374]. In view, of above the airfare borne by the assessee is held to be nonbusiness expenditure. The same is, therefore, disallowed and added back to the total income of the assessee. Penalty proceedings u/s 271 (' l)(c ) of the I.T. Act. 1961 are separately initiated. 6.2 During the course of appellate proceedings the appellant's AR de following submissions: 1. On the facts and circumstances of your appellant's case and in law, the Ld. AO has erred in disallowing payments made to Royal Colleg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ness expediency in the said expenditure. The CIT(A) on the other hand agrees with assessee s contention that it had paid the impugned expenditure for publicity purposes. We thus view assessee s expenses as very much connected having direct nexus with its manufacture and sale of diagnostics product wherein it is supposed to garner wider publicity in order to create a niche for itself in the field of diagnostics instruments market. We thus find no reason to interfere in CIT(A) s order under challenge. Revenue s latter ground accordingly fails. Its appeal ITA No.49/Ahd/2012 is partly accepted for statistical purposes. 8. We now come to assessee s appeal ITA No.3107/Ahd/2011 in assessment year 2006-07 raising sole substantive ground challenging both the lower authorities action in disallowing an amount of ₹ 25,04,514/- on account of receivables written off and claimed as business loss. The Assessing Officer declined the impugned relief by treating the above amount as advances only and not debts. He further rejected its business loss claim by treating it as a loss on capital. The CIT(A) however adopts a different tune in observing that the assessee ought to have established it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tal expenditure. We deem it appropriate to reproduce CIT(A) s finding taking not of Assessing Officer s observation as well assessee s argument as follows: 8. The fifth ground of appeal is regarding the addition of ₹ 5,14,686/- on account of purchase of books holding that the said expenditure is capital in nature. 8.1 While making this addition the assessing officer has made following observations: 1. In its profit and loss account, the assessee has debited books and periodicals at ₹ 5,14,686/-. Vide order sheet entry dated 19.11.2010, it was asked to show cause as to why the above said expenditure should not be treated as capital in nature. However, no plausible explanations could be given by the assessee in this regard. The books must have been used for research related matters. Therefore, the same is held to be capital in nature and accordingly disallowance and added back to the total income of the assessee. 8.2 During the course of appellate proceedings the appellant's AR has made following submissions: 1. On the facts and in the circumstances of the case and in law, the Id. AO was not justified in making addition of ₹ 5,1 ..... 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