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TMI Blog2019 (4) TMI 663X X X X Extracts X X X X X X X X Extracts X X X X ..... ithout any basis and factually incorrect. 3. That the assessee company has been declared as sick industrial company as such liability is not payable and as such provisions of section 43B are not applicable. 4 (i). That on the facts and circumstances of the case, the CIT(A) was not justified in confirming addition of Rs. 9, 13,560/- in respect of Excise duty u/s 43B. (ii) That there is no dispute that claim is in respect of actual liability and also supported from audited accounts. 5. That orders of lower authorities are not justified on facts and same is bad in law." 2. Briefly stated facts of the case are that the assessee is before the Tribunal in second round of the proceedings. In first round of the proceeding the Tribunal in ITA No.3940/Del/2007 vide order dated 9.9.2009 restored the matter on following two additions to the file of the Assessing Officer, on the plea of the assessee that it had intimated about the applicability of the Sick Industrial Companies (special provision) Act, 1985 which was not considered in proper perspective by the lower authorities: (i) the addition of interest amounting to Rs. 1,75,73,101/- due to financial institution on term loans and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y of balance sheet ending as on 31st of March 2008 and profit and loss account for the period from 01/04/2007 to 31/03/2008 and submitted that in the previous year corresponding to assessment year 2008-09, the assessee has written back liability no longer required of Rs. 10,59,13,100/- which included the interest liability in dispute also. 7. On the contrary, the Ld. DR submitted that the Assessing Officer is justified in sustaining the addition in the second round of the proceeding due to the reason that the assessee has not filed any document of rehabilitation scheme prepared following the direction of the order of the BIFR dated 13/08/2002 and thus the assessee has not followed the direction of the Tribunal (supra). On the other arguments it was submitted that no such ground was raised before lower authorities. 8. We have heard the rival submissions and perused the relevant material on record. The assessee is before the Tribunal in second round of the proceedings. In first round of the proceeding the matter was restored to the Assessing Officer with following directions: "7. We have heard the rival contentions and perused the material available on record. From the perusal of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e company was directed to give proposal containing name and address of the government authorities including the CBDT ( which is apex body for matters related to income tax) from relief or concession were required. 11. The Assessing Officer and the Ld. CIT(A) in the second round of the proceeding, asked the assessee to submit the comprehensive rehabilitation scheme submitted by the assessee and whether the same was considered in joint meeting as referred in para 14(d) of the order of the BIFR (supra). It is evident from the assessment order and impugned order of the Ld. CIT (A) that no such scheme was submitted before them. The Ld. Council of the assessee was asked specifically by the bench to provide such a copy of the scheme. However neither any such scheme nor any such order in view of para 14(d) of the BIFR (supra) was produced before us. The Ld. Counsel before us relied on the decision of the Hon'ble High Court of Calcutta in the case of JK Corporation Limited (supra) . In the said case the Hon'ble High Court held that the Sick Industrial Companies (Special Provisions) Act, 1985, is a special act and the scheme framed thereunder is binding upon everyone, as it has assumed the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch such sum is actually paid by him:7 Provided that nothing contained in this section shall apply in relation to any sum referred to in clause (a) 8 or clause (c)] 9 or clause (d)] which is actually paid by the assessee on or before the due date applicable in his case for furnishing the return of income under sub- section (1) of section 139 in respect of the previous year in which the liability to pay such sum was incurred as aforesaid and the evidence of such payment is furnished by the assese along with such return : Provided further that no deduction shall, in respect of any sum referred to in clause (b), be allowed unless such sum has actually been paid in cash or by issue of a cheque or draft or by any other mode on or, before the due date as defined in the Explanation below clause (va) of subsection (1) of section 36, and where such payment has been made otherwise than in cash, the sum has been realised within fifteen days from the due date.]] Explanation 1 1].- For the removal of doubts, it is hereby declared that where a deduction in respect of any sum refer- red to in clause (a) or clause (b) of this section is allowed in computing the income referred to in section 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... any deduction under this section in respect of such sum in computing the income of the previous year in which the sum is actually paid by him.} Explanation 4.- For the purposes of this section,- (a) " public financial institution" shall have the meaning assigned to it in section 4A of the Companies Act, 19567 (1 of 1956 ); (b) " State financial corporation" means a financial corporation established under section 3 or section 3A or an institution notified under section 46 of the State Financial Corporations Act, 1951 8 (63 of 1951 ); (c) " State industrial investment corporation" means a Government company within the meaning of section 617 of the Companies Act, 1956 9 (1 of 1956 ), engaged in the business of providing long- term finance for industrial projects and approved by the Central Government under clause (viii) of sub- section (1) of section 36.]" 13. The Ld. Counsel has also raised the alternative plea that the assessee has already written back the said amount of interest under section 41(1) of the Act as miscellaneous income in assessment year 2008-09 and therefore no disallowance should be made in the year under consideration. 14. The above arguments of the Ld. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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