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TMI Blog2019 (4) TMI 294X X X X Extracts X X X X X X X X Extracts X X X X ..... ellate Tribunal, Kochi Bench in I.T.A. Nos. 22 of 2005 and 24 of 2005 in respect of the assessment year 1997 - '98. 2. The Commissioner of Income Tax, Cochin is the appellant. The matter is still to be admitted, though it was pending for more than 9 years. 3. Heard Sri. Christopher Abraham, the learned standing counsel appearing for the appellant and Sri. Joseph Markos, the learned counsel appearing for the respondent assessee. 4. The respondent assessee is engaged in the business of manufacture and sale of automotive tyres, tubes etc., who filed return in respect of the assessment year 1997 - '98 on 28.11.1998, which was followed by the revised return dated 29.09.1999. The assessment was finalized by the assessing officer under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appeals. 5. Two questions have been suggested, as involving substantial questions of law in I.T.A. No. 60 of 2009, as extracted below : "1.(a) Whether on the facts an in the circumstances of the case and also for the reasons stated in the grounds of appeal is not the loss of Rs. 61,30,191/- on sale of IRFC bonds a capital loss and an impermissible deduction under the I.T. Act ? (b) Is not the decision reported in 255 ITR inapplicable to the facts of the case for the reasons stated in the grounds of appeal ? 2. Whether on the facts and in the circumstances of the case and also in view of the fact that the Welfare Trust created by the assessee is in respect of transportation of the employees, the assessee is entitled to claim deducti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he actual expenses incurred by the assessee being transportation cost of the employees. It was accordingly, that the claim was allowed, which is now sought to be interdicted. 8. I.A. No. 1898 of 2010 has been filed raising an additional ground and a question in the following terms : "Ground G : The Tribunal should have confirmed the order of CIT (A) on the above issue without remanding the same to the Assessing Officer. Question No. 3 : Whether, on the facts and in the circumstances of the case and in the light of the cogent reasons given by the CIT (A) the Tribunal is right in law in restricting the disallowance of interest and other expenses under section 14 of the IT Act to 0.5% of the total interest and expenditure ?" 9. The add ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y the Apex Court in paragraph 12 of the decision in Appolo Tyres Ltd. Vs. Commissioner of Income Tax, Kochi [(2002) 9 SCC 1]. Whether it is an eligible business of the assessee or not was separately considered in 'paragraph 11', which is reproduced below : "11. The dispute in the present case is in regard to the question whether the assessees investment in the UTI .T.A. Nos. 60 and 99 of 2010 : 10 : is business, and if so, is it a business which qualifies to be an eligible business under S.32AB? In regard to the first aspect, we must note that the tribunal as a question of fact based on material on record has come to the conclusion that the investment in the UTI by the assessee company is in the course of its business and its busi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... this head is perfectly within the four walls of law and does not warrant any interference, as no substantial question of law is involved. 11. With regard to the contribution to the Employees' Welfare Trust, the contention raised by the Department is that the assessing officer was right in disallowing the claim under Section 40A(9). It is pointed out that Section 40A(9) permits deduction only in respect of contributions like provident fund, approved superannuation fund and approved gratuity fund [as envisaged under the relevant clauses of Section 36]. The 'Employees Welfare Trust' is contended as not an approved one and it does not come within the purview of the statutory prescriptions. In fact, in respect of the transportation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f Rs. 22,65,580/- made to the trust ? (b) Whether, on the facts and in the circumstances of the case and in the light of Section 40A (9) read with Section 36 (1) (iv) (v) read with ground (F) the assessee is entitled to claim the deduction of Rs. 11,31,385/- due to foreign exchange fluctuation ? 3. Whether, on the facts and in the circumstances of the case and when Section 43A of the I.T. Act provides for adjustment of actual cost of capital asset only on settlement of the liability, that is, on actual payment, the assessee is entitled to claim the deduction of Rs. 11,31,385/- due to foreign exchange fluctuation ? 4. Whether, on the facts and in the circumstances of the case and also in view of the omission of first proviso to clau ..... X X X X Extracts X X X X X X X X Extracts X X X X
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