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TMI Blog2018 (12) TMI 1205X X X X Extracts X X X X X X X X Extracts X X X X ..... the assessee, effectively there was no delay at all in as much as the date of communication of the order of Ld. CIT(A) was wrongly mentioned in the original form 36 as 22/11/2015 instead of 22/11/2016. He also drew our attention to page No. 87 of the paper book explaining the same in the form of a letter addressed to the Registry. We have gone through the same and find that there is no delay in filing of appeal by the assessee in the instant case. 3. The first issue to be decided in this appeal is as to whether the Ld. CIT(A) was justified in upholding the addition in the sum of Rs. 17,11,818/- u/s 41(1) of the Act in respect of liability written back pertaining to dues payable to Bombay Port Trust (in short "BPT"). 4. The assessee is a registered partnership firm carrying on warehousing business under the name and style of M/s. Sankalchand Amritalal Parekh and also engaged in manufacturing of wooden articles for the use of textile industry under the name and style of M/s Grand Wood Works & Saw Mills. The income derived from these two activities were offered by the assessee as business income. The assessee has obtained warehousing license from Municipal Corporation of Greater Mu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be given double benefit for the very same amount. This action of the Ld. AO was upheld by the Ld. CIT(A). Aggrieved, the assessee is in appeal before us. 6. We have heard the rival submissions. From the facts narrated above, we find that the assessee is entitled for deduction of Rs. 17,11,818/- as an item to be reduced from computation of total income. We find that the lower authorities had erroneously proceeded on the ground that assessee was granted relief by this Tribunal vide order dated 31/03/1994 for AY 1990-91,91-92 & 92- 93 in respect of provision made for incremental rentals. But the lower authorities had grossly erred in not considering the giving effect order to High Court order passed by the Ld. AO on 30/03/2009 wherein, ultimately the assessee was denied the benefit of deduction towards provision for incremental rentals as the increased rentals were determined at a particular figure by Hon'ble Apex Court vide its order dated 13/01/2004. We hold that there is no double benefit claimed by the assessee in the facts of the instant case as narrated above. Moreover, we hold that the provisions of Section 41(1) of the Act could be invoked only if deduction for the very same ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e find that this argument of the Ld. AR is not acceptable in as much as, during the year under consideration, the assessee had purchased Gold and Silver for allegedly giving the same to its customers to the tune of Rs. 2,04,186/- and debited the same in its warehousing business. We do not have any details before us to ascertain whether similar items of expenditure in the form of purchase of Gold and Silver were incurred in the past and whether the same were allowed as revenue expenditure by the department for the earlier AY. Hence we have to look at this issue in isolation based on the material available on record. It is not in dispute the assessee had duly produced the bills for incurrence of purchase of Gold and Silver to the tune of Rs. 2,04,186/-. But we find that the assessee had not established the nexus between the incurrence of this expenditure vis-à-vis the warehousing revenue derived by it. Hence, we hold that the lower authorities were justified in disallowing this claim of Rs. 2,04,186/- towards sales promotion expenses. Accordingly, the ground No. 2 raised by the assessee is dismissed. 8. The ground No.3 raised by the assessee is general in nature and does not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der of co-ordinate Bench in assessee's own case for AY 2007-08. We have seen that the Revenue has raised identical ground of appeal for AY 2007-08 and the co-ordinate Bench of Tribunal passed the following order in Para 4 which reads as under: - "4. After considering the facts on record and the rival contentions put forward before us, we observe that the assessee is not merely letting out its premises for warehousing but were doing complex commercial activity. All the duties cast upon the assessee was responsible for ensuring the incoming and, outgoing of goods apart from providing adequate security. The consideration received by the assessee from client is not for letting the property on rental basis but the consideration received is exclusively for providing the benefits of business service facilities to the client. The assessee is not providing warehousing sexvice to one or two fixed customers. There is number of customers to whom warehousing service is provided. Apart from that the godwown control of the assessee; customer had no right of occupancy. As per the definition of business u/s 2(13) of the Act, business include adventure or concern in the nature of trade. The word a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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