9911796707
TMI Blog2019 (12) TMI 203X X X X Extracts X X X X X X X X Extracts X X X X ..... :- "1(a) That on the facts and in the circumstances of the case, the CIT(Appeals) failed to appreciate that the order passed by the Assessing Officer under section 143(3)/147 dated 27th March, 2006 was bad in law, ab initio void and liable to be struck down. 1(b) That on the facts and in the circumstances of the case, the CIT(Appeals) failed to appreciate that the Assessing has not satisfied the pre-conditions mentioned in section 147 and 148 of the Act before issuing notice under section 148 of the Act. 1(c) That on the facts and in tire circumstances of the case, the CIT(Appeals) erred in upholding tire action of the Assessing officer in making addition/ disallowances on the other issues which were not the subject matter for the initiation of reassessment proceedings. 2(a) That on the facts and circumstances of the case, tire learned CIT (Appeals) erred in confirming 50% of the expenditure disallowed by tire Assessing Officer amounting to Rs. 51,08,050/- incurred on assets not belonging to the company. 2(b) That on the facts and circumstances of the case, the action of the learned CIT / (Appeals) in confirming 50% of the disallowance has no basis whatsoever and the same ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... controverted by Revenue by placing any materials on record. We further find that the Kolkata Bench of Tribunal in the case of Deputy Commissioner of Income Tax Vs. Integrated Coal Mining Ltd. (supra) after relying on the decision of Hon'ble Apex Court in the case of L.H. Sugar Factory & Oil Mills (P.) Ltd. (supra) and on similar issue has decided the issue in favour of assessee by observing as under : "10. We have heard rival contentions and gone through facts and circumstances of the case. We find that the genuineness of expenditure is not doubted by the revenue. Only dispute is that the link road constructed by the assessee belongs to ZillaParishad and for their use. According to the revenue, it is a coincidence that the assessee will use this road for transportation as any other road belonging to the government. We find that assessee had, no doubt, incurred expenditure on up-gradation/construction of link road by making contribution to BurdwanZillaParishad from Barabani Railway station to mines of the assessee at Sarashatali, West Bengal. Whether this is a business expenditure or not? We find that this issue has been answered by Hon'ble Apex Court in the case of L. H. Sugar Fa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... conduct of the business of the assessee and making it more efficient and profitable and it was clearly an expenditure on revenue account." 11. We find that this issue is covered by the decision of Hon'ble Apex Court in the case of L. H. Sugar Factory & Oils Mills (P) Ltd. (Supra), wherein Hon'ble Apex Court noted that the assessee a sugar manufacturer contributed to the State of Uttar Pradesh a sum of Rs. 50,000/- for construction of a road around its factory for facilitating the transport of sugarcane into the factory and the outflow of manufactured sugar from the factory to the market centres. Contributions were also made for construction of the said road which belonged to the Uttar Pradesh State Government by the Central Government and the State Government equally. The expenditure of Rs. 50,000/- incurred by assessee in that case towards contribution for construction of a road around its factory is an expenditure in the revenue field as it was incurred for the purpose of facilitating the conduct of the business of the assessee and making it more efficient and profitable without the assessee getting an advantage of an enduring benefit to itself. We find that in the present c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Ld. DR in support of the findings recorded in earlier order of Tribunal dated 10.05.2019 submitted that the issues, since they have been remitted back to the file of Assessing Officer are technically open for adjudication and it is not only the case of TDS regarding ESM companies but as well as the genuineness of transactions that has to be looked into afresh. For this purpose, the decision of Tribunal remitting the issue back to the file of Assessing Officer, therefore, is correct. 10. We have heard the rival contentions and perused the case records. Before us, the Ld. AR tried to point out the distinctive features in the facts of the year under consideration and that of the earlier year. However, we are of the view that distinct features are not so glaring which would necessitate as to take a different view than the view taken by us in earlier year. That apart the CIT(A) while deciding the issue has also categorically given a finding in the order that the necessary details were not filed by assessee and this fact has not been controverted by the Ld. AR before us. We find that in order of Tribunal (supra) in paras 107 to 112 had similarly remitted this issue back to the fil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the assesse to prove these statements. The Hon'ble Supreme Court of India in the case of LaxminarayanMadanLalVs. CIT (SC) 86 ITR 439 has held that mere existence of agreement between the assessee and its agent does not prove the genuineness of the transactions in a particular case. It all depends on facts and circumstances of each case and the Revenue Authorities is bound to look into the genuineness of the transaction in each of the case. The Hon'ble Delhi High Court in the case of Goodyear India Ltd. vs Commissioner of Income-Tax reported as 246 ITR 116 has held that even if there is an audit report filed by the assessee that does not prevent the Assessing Officer to ask for relevant documentary evidences and details from the assessee to check the genuineness of the transaction and the entire conduct of the assessee. In the present case before us, when the Assessing Officer called for relevant documentary evidences regarding identity, rates and genuineness of the transactions with regard to ESM companies, the assessee has not furnished requisite details before the Assessing Officer and that for the reasons as opined by the Hon'ble Delhi High Court, the power to call for de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tis mutandis to ITA No.189/JAB/2008 on this issue. Thus, ground Nos.1, 3 and 4 raised by assessee are dismissed. 15. The issue raised in ground No.2 is with regard to disallowance of 25% of expenditure on coal transportation paid to ESM companies. 16. Both the parties fairly admitted that this issue is covered by the decision of Tribunal in assessee‟s own case (supra), which is similar to the ground No.3 raised in ITA No.187/JAB/2008. Therefore, our decision rendered in ITA No.187/JAB/2008 on this issue shall apply mutatis mutandis to the ground No.2 in ITA No.189/JAB/2008. Accordingly, appeal of the assessee in ITA No.189/JAB/2008 is partly allowed for statistical purposes. ITA No.190/JAB/2008 A.Y. 2001-02 17. The ground No.1 raised in ITA No.190/JAB/2008 is similar to the ground No.1 and 4 raised in ITA No.187/JAB/2008. Since, facts and issue are similar, our decision rendered in ITA No.187/JAB/2008 shall apply mutatis mutandis to ITA No.190/JAB/2008 on this issue. Thus, ground No.1 raised by assessee is dismissed. 18. The issue raised in ground No.2 is with regard to disallowance of 25% of expenditure on coal transportation paid to ESM companies. 19. Both the partie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ciating that expenses incurred on rehabilitation of people/villagers is revenue in nature and hence allowable. 2(a) That on the facts and circumstances of the case, the learned CIT(Appeals) erred in confirming 50% of the expenditure disallowed by the Assessing Officer amounting to Rs. 24,000/- incurred on assets not belonging to the company. 2(b) That on the facts and circumstances of the case, the action of the learned CIT(Appeals) in confirming 50% of the disallowance has no basis whatsoever and the same has been made on an ad-hoc basis. 3(a) That on the facts and circumstances of the case, the learned CIT(Appeals) erred in confirming disallowance upto 25% of the expenditure amounting to Rs. 33,05,75,547/- incurred on coal transportation paid by the company to the ex service men transport companies. 3(b) That on the facts and circumstances of the case, the learned CIT(Appeals) erred in not appreciating that the said expenditure has been incurred wholly and exclusively for the purpose of business of the appellant. 3(c) That on the facts and circumstances of the case, the learned CIT(Appeals) in confirming disallowance upto 25% of the expenditure has no basis whatsoever a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Honble Supreme Court in the case of R.J. Trivedi (supra) wherein the expenditure was incurred by the assessee on fault-stone cutting operation in order to remove the obstruction in the course of mining operation and considering that it was not possible for the assessee to carry on the mining operation without removing the said obstruction, the Honble Apex Court found the said expenditure incurred by the assessee was to facilitate mining activities and, therefore, treated the same as revenue in nature. In the present, case there was no such obstruction in carrying on the mining operation of the assessee and the expenditure was incurred by the assessee to relocate and rehabilitate the villages in order to acquire a right to possession in the leasehold land to facilitate the enjoyment of surface rights in respect of the leasehold land. We are, therefore, of the opinion that the present case is distinguishable on facts from the case of R.J. Trivedi (supra) and, therefore the said decision cannot help the assessees case. Reliance was also placed by the learned counsel for the assessee on the decision of Honble Supreme Court in the case of Gotan Lime Syndicate v. CIT (supra) wherein the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... efficiently or more profitably while leaving fixed capital untouched, the expenditure would be of revenue nature even though the advantage may endure for a indefinite future. In the present case, the assessee has acquired an interest in the immovable property in the form of surface rights and right to possession in respect of leasehold land and the same being not merely to facilitate the assessees business operation but being in the nature of acquisition of substantive right in the immovable property for enduring advantage, the ratio laid down by the Honble Apex Court in the case of Empire Jute Co. Ltd. cannot be said to have any application in the assessees case. Similarly, the case of Plantation Corporation of Kerala v. Commr.Agrl. IT (supra) is also distinguishable on the similar line. 11.8. The learned counsel for the assessee has also contended before us that the assessee-company did not acquire any right or interest in respect of relocated villages which were built up and handed over to the villagers and ultimately became the property of the said villagers. In this regard, we may observe that the said expenditure on rehabilitation and relocation of the villages was incur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arefully perusing the said decision of Honble Mysore High Court, it however, appears that the payment made to the Pattedars who were occupying rights over the land which had been acquired by the assessee from the government was found to be of the same character as the payments to the government for acquiring the mining lease and keeping in view this character of the payment, the Honble Mysore High Court held the same to be a capital expenditure. In the case of Chloride India Ltd. v. CIT (supra) relied upon by the revenue, the assessee had paid the money for buying out tile tenancy right and, therefore, it was held by the Honble Calcutta High Court that the amount so paid for acquiring the possession which was a benefit of enduring nature, is a capital expenditure. In the present case also, the assessee has acquired the right to possession from the villagers/occupants in respect of the leasehold land by rehabilitating and relocating the said villagers and, therefore, the decision in the case of Chloride India Ltd. v. CIT (supra) is clearly applicable to the facts of the present case. Similarly the case of CIT v. Lucky Bharat Garage (supra) relied upon by the revenue also renders sup ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a) relied upon by the revenue, the Honble Apex Court observed that the aim and object of the expenditure would determine the character of expenditure whether it is a capital or revenue and the source or the manner of payment would then be of no consequence. In the present case, the expenditure was incurred by the assessee-company with aim and object to acquire the surface rights as well as the right to possession in respect of the leasehold land for a long period and, therefore, the nature of such expenditure was certainly of capital nature. The revenue has also relied on the decision of Honble Mysore High Court in the case of N. Peer Sahib v. CIT (supra) in respect of which the learned counsel for the assessee has contended that the lease amounts having been paid to the surface owners by the assessee therein for extracting iron coal at the beginning of the mining operation, it was considered as capital in nature whereas in the present case the assessee has made the relevant payments during the currency of the lease period. After carefully perusing the said decision of Honble Mysore High Court, it however, appears that the payment made to the Pattedars who were occupying rights ove ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... right to possession in respect of the leasehold land to facilitate the enjoyment of surface rights. Moreover, as the said acquisition resulted into accrual of enduring benefits to the assessee-company for the balance period of lease, the same has to be treated as capital expenditure, as held by the Honble Supreme Court in the case of Assam Bengal Cement Co. Ltd. v. CIT (supra). As such, considering all the facts of the case and legal position enumerating from the judicial pronouncements discussed hereinabove, we are of the considered opinion that the impugned expenditure incurred by the assessee for acquiring surface rights as well as the right to possession in respect of leasehold land for enduring period was a capital expenditure and the learned Commissioner (Appeals) was fully justified in upholding the action of the assessing officer in treating the same as capital expenditure and thereby disallowing the deduction claimed by the assessee in respect of the same." Therefore, even in assessee's own case, the Co-ordinate Bench of the Tribunal, Nagpur has decided this issue in favour of the Revenue. Further, before us no material has been placed by the assessee to demonstrate tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssee has placed reliance on the decision of the Co-ordinate Bench of the Tribunal Cuttack in the case of East India Minerals Limited Vs. JCIT (ITA No.224/CTK/2012) wherein the Cuttack Bench of the Tribunal has held as under: "7. We have heard the rival contentions of the parties and perused the material available on record. Considering the facts and circumstances of the case, we uphold the contention of the learned Counsel for the assessee for the simple reason that the denial of claim of depreciation has been made on misinterpretation of law and the applicability thereof. Explanation to Section 32(1)(ii) leans in favour of the assessee to the extent that it is the actual action of put to use which entitles the assessee to claim depreciation. A straight line method of claiming the writing off of lease hold rights for the period of lease cannot be denied to the assessee for the simple reason it being intangible asset has been written off which pertains to land being a intangible asset. It is nobody's case that the land either belonged to the lessee or to the Government. This simply indicates that a depletion of the land against the payment of premium it was leased has to be claime ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecision rendered in ITA No.173/JAB/2008 shall apply mutatis mutandis to the appeal in ITA No.175/JAB/2008. 34. In the result, appeal of the assessee in ITA No.175/JAB/2008 is partly allowed for statistical purposes. ITA No.05/BLPR/2012 A.Y.2008-09 35. The issue raised in ground No.1 of this appeal is similar to the issue raised in ground No.1 in ITA No.173/JAB/2008. Since the facts and issues are common, our decision rendered in ITA No.173/JAB/2008 shall apply mutatis mutandis to the issue raised in ground No.1 in ITA No.05/BLPR/2012. Thus, the ground No.1 raised by the assessee is dismissed. 36. The issue raised in ground No.2 in this appeal is similar to the issue raised in ground No.2 in ITA No.187/JAB/2008. Since the facts and issues are common, our decision rendered in ITA No.187/JAB/2008 shall apply mutatis mutandis to the issue raised in ground No.2 in ITA No.05/BLPR/2012. Thus, the ground No.2 raised by the assessee is allowed. 37. The issue raised in ground No.3 in this appeal is similar to the issue raised in ground No.3 in ITA No.187/JAB/2008. Since the facts and issues are common, our decision rendered in ITA No.187/JAB/2008 shall apply mutatis mutandis to the iss ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ical purposes. ITA No.21/BLPR/2012( By Revenue) A.Y.2006-07 43. In ITA No.21/BLPR/2012, the Revenue has raised following grounds in appeal:- 1. That on the facts and in the circumstances of the case, the learned CIT(A) erred in law and in fact in allowing the relief of Rs. 2,56,03,757/- out of total interest withdrawn amounting to Rs. 3,71,78,138/- which has been withdrawn by the A.O. keeping in view that as per the provision u/s.244A of the Act, no interest shall be payable if the amount of refund is less than 10% of the tax as determined under sub section (1) of the section 115WE or sub section (1) of section 143(3) or on regular assessment. 2. That in reaching the aforesaid decision, the learned CIT(A) failed to appreciate both the meticulous finding of AO as well as the facts held in the case of the assessee that interest amounting to Rs. 3,17,78,138/- allowed to the assessee in violation of the provision u/s.244A of the Act. 3. (a) That on the facts and in the circumstances of the case, the learned CIT(A) erred in law and in fact in allowing the above relief, in spite of the facts on records that as per section 2(40), the definition of regular assessment is as under: ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be payable if the amount of refund is less than 10% of the tax as determined sub section (1) of Section 115WE or sub section (1) of Section 143(3) or on regular assessment. 45. The brief facts on the issue are that the Assessing Officer observed that as per provisions of Section 244A of the Act, no interest shall be payable if the amount of refund is less than 10% of the tax as determined under sub section (1) of Section 115WE or sub section (1) of Section 143(3) or on regular assessment. Accordingly, the interest so allowed has been withdrawn by the Assessing Officer vide rectification u/s.154 of the Act. 46. The Ld. CIT(A) has granted relief to the assessee by observing as under: "I have considered the submissions made by the Ld. AR carefully. As per the proviso to clause (a) of sub-section (1) of Section 244A of the I.T. Act, 1961, no interest shall be payable if the amount of refund is less than 10% of the tax as determined under sub-section (1) of section 115WE or sub-section (1) of section 143 or on regular assessment. In the instant case, the alleged refund of Rs. 33,46,03,238/- including interest of Rs. 3,71,78,138/- was neither issued under sub section (1) of 143 nor o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in hand and hence, admitted. The computation of interest ought to be called back or withdrawn as per provision u/s.234D, as submitted by the Ld. AR, was referred to the AO for further verification vide this office letter No. CIT(A)/BSP/RR/11-12/131 dated 14.11.2011 and the AO in his report dated 29.11.2011 has agreed to the argument of the Ld. AR on principle but pointed out certain mistakes furnished by the Ld. AR. He computed interest on refund to be called back at Rs. 1,15,74,341/- as against Rs. 1,02,02,000/- computed by the Ld. AR. The above report of the AO was referred to the Ld. ARs of the appellant company before finalizing the issue and no objection was raised by them. On careful perusal of the computation sheet furnished by the AO and the Ld. AR, I find that the report of the AO is more precise and accordingly, it is held that the excess claim of interest to the extent of Rs. 1,15,74,341/- is required to be called back u/s.234D of the Act only, but not the withdrawal of entire interest of Rs. 3,71,78,138/- granted u/s.244A of the Act." 47. We have perused the case records and heard the rival contentions. We have also given considerable thought to the findings of the Ld ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... A.Y. 2008-09 49. In ITA No.03/BLPR/2012, the Revenue has raised the following grounds: "1(a) That on the facts and in the circumstances of the case, the learned CIT(A) erred in law and in fact in deleting the addition which expenditure amounting to Rs. 732.98 Lakhs in spite of the facts on record that no admissible materials were produced before the AO to substantiate the claim. (b) That in reaching the aforesaid decision, the learned CIT(A) failed to appreciate that both the meticulous findings of the AO as well as the facts held in the case of the assessee that the expenditure were in the nature of charity and it could not be said to have been incurred for the purpose of business. 2(a) That on the facts and in the circumstances of the case, the learned CIT(A) erred in law and in fact in deleting the addition amounting to Rs. 43.29 Lakhs out of Rs. 45.39 Lakhs which has been made by disallowing the guest house expenditure, in spite of the facts on records that the assessee company failed to establish that the guest house are being wholly and exclusively used as transit camp for the officers and the officials during their tours as claimed in the submissions. (b) That in r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by disallowing the expenditure on plantation of trees and reclamation of land respectively, in spite of the facts on records that the above expenditure is a capital expenditure because the expenditure incurred under the above heads endure a permanent benefit to the assessee. 8.That on the facts and in the circumstances of the case, the learned CIT(A) erred in law and in fact in deleting the addition amounting to Rs. 5801.76 Lakhs out of the total disallowance of Rs. 1,603.52 Lakhs which has been made by disallowing of expenditure on account of transportation charges paid to ESM company, in spite of the facts on records that the assessee failed to furnish the complete details such as quantity transported and rate charged by the transporters. Further, the assessee during the course of assessments proceedings failed to furnish the information required by the AO in respect of non ESM company which was necessary to verify the allegation against the company that it had paid loading and transportation charges at a very high rate i.e. almost 70 to 80% more than what was paid to non ESM company. 9.That on the facts and in the circumstances of the case, the learned CIT(A) erred in law a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sions and also perused the relevant material on record, We have also gone through the various case laws cited by the learned representatives of both, the sides. It is observed that the expenditure incurred by the assessee-company for providing basic amenities like road widening, street lighting, better drinking water facilities, etc. for the residential areas in and around the company's area of operations in which mainly the workers of the assessee-company were residing, was disallowed by the AO considering that the same has been incurred by the assessee to discharge its social obligation towards the community as a whole and there is no nexus between such expenditure and the business of the assessee company. In this regard, we find that the AO, however, ignored a very relevant and material fact that the population residing in the area which was benefitted by the provision of such basic amenities mainly comprised of the workers of the assessee-company and their families. He also appears to have overlooked the fact that such basic amenities could not have been provided to the assessee's employees in isolation as the said expenditure in any case had to be incurred for the enti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... employees. He also noted that the details with reference to the type of quarters, electric points in each type of quarters, rate of electricity per unit charged by CSEB and recovery from the employees were furnished by assessee. The Assessing Officer therefore, after considering the reply of assesseehad disallowed 50% of said expenses. Aggrieved by the order of Assessing Officer, assessee carried the matter before CIT(A), who after considering the submissions of assessee granted full relief to the assessee. Aggrieved by the order of CIT(A), Revenue is now in appeal before us. 60. Before us, Ld. DR took us through the order of Assessing Officer and from the order he pointed that no details about the mode of recovery from the employees, the consumption of electricity by the employees and rate of electricity per unit charged by CSEB and the rate at which recovery is made from employees were furnished by the assessee before Assessing Officer. He submitted that no evidences were furnished and nothing is there on record with reference to aforesaid details and without looking into all these things, the Ld. CIT(A) has just followed the earlier years and have provided relief to the assesse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssee‟s contention that the first Appellate Authority has allowed the claim of the assessee is concerned, he observed that the order of First Appellate Authority has not been accepted by the Department and has preferred appeal before the Income Tax Appellate Tribunal on this issue. He noted that the Income Tax Appellate Tribunal dismissed the departmental appeal merely on the technical ground that the Committee on Dispute (COD)‟s approval was not obtained by the Department. Moreover, the Department has not accepted the decision of the ITAT, Nagpur Bench in ITA No.20/Nag/2002 dated 28.02.2005, in its case itself for the A.Ys. 1994-95, on the very same issue, the department has preferred appeal u/s.260A before the Hon‟ble High Court, Bilaspur on 10.07.2002 which is still pending for decision. Accordingly, the Assessing Officer disallowed the expenses on grants to school under the head "Social Overheads" at Rs. 1135.86 Lakhs. 65. When the matter was contested by the assessee before CIT(A), the Ld. CIT(A) provided the relief to the assessee following the order of his predecessor for the assessment year 2002-03. Further, the Ld. CIT(A) observed that this issue has been ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of a National Coal Wage Agreement entered with the employees and as the said agreement was enforceable in law under the Indian Contract Act as well as the Industrial Dispute Act, the assessee-company was under a statutory obligation to incur the said expenditure. As such, considering all the facts of the case and keeping in view the aforesaid decisions including the decision of this Bench in assessee's own case, we hold that the expenditure incurred by the assessee-company on account of grants made to various schools was an admissible business expenditure and the learned CIT(A) was not justified in confirming the disallowance made by the AO on this count. His impugned order on this issue is, therefore, reversed and the AO is directed to allow the said expenditure." Following the same parity of reasoning as rendered in the aforesaid decision (supra), we find no reason to interfere with the order of CIT(A) and thus, decide the issue in favour of the assessee and against the Revenue. Thus, ground No.4 raised by the Revenue is dismissed. 68. Ground No.5pertains to the disallowance of the expenditure incurred on reimbursement of LPG Cylinders to the employees. 69. The brief fac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... order of CIT(A) further submitted that National Coal Wage Agreement entitles employees to get free issue of coal for domestic use only subject to quantity limitation. For a cleaner environment, many employees have opted to use LPG Cylinders in lieu of free issue of coal and accordingly the same is reimbursed to the employees subject to certain regulation fixed by SECL. Such reimbursement of LPG Cylinders is considered as perquisites and necessary tax is deducted from the employees.He therefore submitted that CIT(A) has rightly allowed the ground of assessee. 73. Before us, the Ld. DR has placed strong reliance on the order of Assessing Officer. 74. We have perused the case records and heard the rival contentions. We have also given considerable thought to the findings of the Ld. CIT(A). We find that as per the National Coal Wage Agreement (Page 69-77 of the Paper book), the employees are entitled to get free issue of coal for domestic use only subject to some quantity limitation. On perusal of the record, it is apparent that the assessee company has considered the reimbursement of LPG Cylinder as a perquisite in the hands of the employees and regular income tax is being deducte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted the disallowance made by the Assessing Officer by stating it as revenue expenditure. We find that this issue is squarely covered by the ratio laid down by the Hon‟ble Supreme Court in the case of CIT Vs. Malayalam Plantation Ltd. (supra),CIT Vs. Gogte Minerals (supra) and Smt. K. SuryakumariVenu Vs. ACIT (supra).Before us, no fallacy with the finding of CIT(A) has been pointed by Ld. DR. We therefore find no reason to interfere with the order of CIT(A). Hence, we uphold the order of CIT(A) in deleting the disallowance made by the Assessing Officer on account of expenses on trees plantation and others. Thus, the ground No.7 raised by the Revenue is dismissed. 82. The ground No.8 pertains to the expenditure incurred on coal transportation paid by the company to the ex-servicemen transport companies. 83. Both the parties fairly admitted that this issue is covered by the decision of Tribunal in assessee‟s own case (supra), which is similar to the ground No.3 raised in ITA No.187/JAB/2008. Therefore, our decision rendered in ITA No.187/JAB/2008 on this issue shall apply mutatis mutandis to the ground No.8 in ITA No.03/BLPR/2012. Thus, the ground No.8raised by the Reven ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ive criterion, which will be appropriate on the facts of this case, nor have they have demonstrated that the facts implicit in their stand actually exist. As a matter of fact, the apprehensions of the Assessing Officer seem to be purely hypothetical and in the realm of conjectures and surmises inasmuch as not one instance is shown in which the overburden removal expenses, booked in the accounts as revenue expenditure, actually pertain to removal of overburden only at the surface level and should be, therefore, treated as capital expenditure. Similarly, while declining the deduction of overburden removal as capital expenditure, the Assessing Officer, as also the CIT(A), has not treated any part of this expenditure, which essentially includes the expenditure incurred on removing overburden in the process of coal mining and production, as revenue expenditure. It seems to be more or less an undisputed position, given the nature of overburden removal expenses as we have discussed earlier, that a part of the overburden removal expenses is admittedly revenue expenditure, but if we have to uphold the stand of the authorities below, entire overburden removal expenses is required to be treat ..... X X X X Extracts X X X X X X X X Extracts X X X X
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