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TMI Blog2021 (5) TMI 798X X X X Extracts X X X X X X X X Extracts X X X X ..... ccepted such accumulation during AYs 2004-05 2005-06 and this is the third year of accumulation under the projects. It is not the case of the revenue that the income under these projects have not been offered to tax in subsequent years. No case of revenue leakage has been established before us. Therefore, the action of revenue in disturbing the consistent method of accounting being followed by the assessee could not be held to be justified. Hence, we delete the impugned additions and allow these grounds of appeal. Deduction of education cess and higher and secondary education cess - HELD THAT:- We find that this issue is squarely covered by the decision of Hon ble jurisdictional High Court in case of Sesa Goa Ltd vs JCIT [ 2020 (3) TMI 347 - BOMBAY HIGH COURT] wherein, the Hon ble Court has held that amount paid towards education cess and higher and secondary education cess on income-tax is an allowable deduction. The same view has been expressed by the co-ordinate bench in case of M/s Baroda Industries Pvt Ltd [ 2020 (11) TMI 943 - ITAT MUMBAI] .Respectfully following the aforesaid decisions, we allow assessee s claim. These grounds are allowed. Depreciation on certain ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the aforesaid submission of the learned Counsel, we direct the assessing officer to verify the date of filing of return and in case it is found that the return of income was filed within the due date as per section 139(1) of the Act, no interest under section 234A can be charged. - I.T.A. No.6163/Mum/2014 I.T.A. No.7991/Mum/2019 I.T.A. No.6232/Mum/2016 - - - Dated:- 25-5-2021 - SHRI SAKTIJIT DEY (JUDICIAL MEMBER) AND SHRI RAJESH KUMAR (ACCOUNTANT MEMBER) Assessee by : Shri M.M. Golwala, AR Revenue by : Shri Narendra Singh Janpangi, DR ORDER Per Saktijit Dey, JM: Captioned are cross appeals for assessment year 2010-11 and appeal by the assessee for assessment year 2015-16. While cross appeals for assessment year 2010-11 arise out of order dated 29-07-2016 passed by learned Commissioner of Income Tax (Appeals)-24, Mumbai, the appeal for assessment year 2015-16 is against the final assessment order passed in pursuance to directions of the Dispute Resolution Panel (DRP). ITA 6232/Mum/2016 Revenue s appeal (Assessment Year 2010-11) 2. At the outset, learned Counsel for the assessee submitted, the tax effect in this appeal of the revenue is below ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the assessing officer. 8. Before us, learned Counsel for the assessee submitted that the assessee is consistently following the aforesaid method of accounting for revenue recognition from assessment year 2004-05 onwards and while deciding identical dispute in assessee s own case for assessment year 2006-07, the Tribunal has deleted similar disallowance made by the assessing officer. In this context, he drew our attention to the order passed by the Tribunal in ITA No.1691/Mum/2012 dated 09-04-2019.Further, he submitted, similar disallowance/addition made in assessment years 2007-08 and 2009-10 were also deleted by the Tribunal while deciding assessee s appeals on the disputed issue. 9. The learned Departmental Representative, though, agreed that the issue in dispute is covered by the decision of the Tribunal, however, he relied upon the observations of the assessing officer and learned Commissioner of Income Tax (Appeals). 10. We have considered rival submissions and perused materials on record. It is evident, identical issue came up for consideration before the Tribunal in assessee s own case for assessment year 2006-07. While deciding the issue in the order referred t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssing officer and learned Commissioner of Income Tax (Appeals). 16. Having considered rival submissions, we find that identical issue relating to similar addition made in assessment year 2006-07 came up for consideration before the Tribunal. While deciding the issue, in the order referred to above, the Tribunal has held as under:- 2.6.3 Upon careful consideration, we find that the assessee has accumulated cost as well as revenue under these projects in the Balance Sheet by following completed contract method. The revenue has accepted such accumulation during AYs 2004-05 2005-06 and this is the third year of accumulation under the projects. It is not the case of the revenue that the income under these projects have not been offered to tax in subsequent years. No case of revenue leakage has been established before us. Therefore, the action of revenue in disturbing the consistent method of accounting being followed by the assessee could not be held to be justified. Hence, we delete the impugned additions and allow these grounds of appeal. 17. Identical view was expressed by the co-ordinate bench while deciding assessee s appeal in assessment year 2009-10 (supra). Facts ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Tribunal, which, though has been heard, but order is still awaited. He submitted, while deciding assessee s appeal in assessment year 2008-09, though, learned Commissioner of Income Tax (Appeals) upheld the nature of expenditure as capital; however, he allowed depreciation on the expenditure incurred. Thus, the learned Counsel submitted, in case assessee s claim of revenue expenditure is not accepted in assessment year 2008-09, consequential relief relating to claim of depreciation should be allowed. 28. The learned Departmental Representative submitted, the issue can be decided on the basis of order to be passed by the Tribunal in assessment year 2008-09. 29. We have considered rival submissions and perused materials on record. As submitted by learned Counsel for assessee, the expenditure on which the assessee has claimed depreciation in the current year was debited as revenue expenditure in the assessment year 2008-09. Admittedly, the assessee is contesting the issue before the Tribunal in assessment year 2008-09 and as submitted, the appeal has been heard. Therefore, assessee s claim of depreciation would depend on the outcome of the decision of the Tribunal regarding ass ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o assessee s claim have to be examined, as, they were never examined at any stage. Therefore, we restore the issue to the assessing officer for examining assessee s claim and deciding it in accordance with law. We make it clear, we have not expressed any opinion on the merits of assessee s claim which the assessing officer has to decide keeping in view the allowability of assessee s claim vis- -vis the legal position. Of course, the assessing officer has to provide a reasonable opportunity of being heard to the assessee before deciding the issue. 38. In ground 11, the assessee has challenged the levy of interest under section 234A of the Act. 39. It is the claim of the assessee that the return of income having been filed within the time limit prescribed under section 139(1) of the Act, no interest under section 234A can be charged. Keeping in view the aforesaid submission of the learned Counsel, we direct the assessing officer to verify the date of filing of return and in case it is found that the return of income was filed within the due date as per section 139(1) of the Act, no interest under section 234A can be charged. 40. Ground 12 being consequential in nature, does ..... X X X X Extracts X X X X X X X X Extracts X X X X
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