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TMI Blog2017 (2) TMI 1493X X X X Extracts X X X X X X X X Extracts X X X X ..... rom its customers in the nature of non refundable receipts are to be treated as income in entirety pertaining to relevant assessment year or not? - HELD THAT:- We find that hon ble jurisdictional high court s decision in Unique Mercantile Services Pvt. Ltd. [ 2015 (1) TMI 525 - GUJARAT HIGH COURT] decides a similar question pertaining to membership fee spreading over to a time span of more than one assessment year to be taxable on prorata basis. We adopt the same reasoning herein as well and direct the Assessing Officer to assess the above stated non refundable receipts by adopting similar proportionate computation formula. This Revenue s ground is accordingly accepted for statistical purposes. Excluding interest income and one time membership fee for incinerator plan for the purpose of computing Section 80IA deduction - HELD THAT:- It emerges that the assessee s interest income in question arises from fixed deposits maintain with bank in order to comply with Gujarat Pollution Control Boards, norms, terms and conditions since it has to upkeep the site in question for a period of 30years of closure date - Both the learned representatives very much agree that a co-ordinate benc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Id. AR and facts of the case. On perusal of various appellate orders passed .by my predecessors, it is seen that the appellant has been allowed deduction u/s.80IA of the Act since A.Y.2002-03 in respect of its Land Filling Project-1. Further, on perusal of notes to computation for assessment year 2005-06 and 2006-07, the assessee has made its claim for allowability of deduction u/s.80IA of the Act for its Incinerator Unit. It is also brought to my notice that the Assessing Officer has considered this issue of claim in Para no.-4-1 in the assessment order passed u/s.143(3) of the Act for A.Y 2006- 07. Further, in support, the appellant has relied on decision by Mumbai Bench-1 in the case of - JCIT Vs. Associated Capsules Pvt. Ltd (2008-TIOL-247-ITAT MUM). - CIT Vs. Anand Affiliates ( 2008-TIOL-662-HC- P H-IT), the ratio of which is applied - Textiles Machinery Corporation Ltd vs. CIT (1977-107-ITR195(SC) - CIT Vs. Brigade Enterprises (p) Ltd ( Manu / IL/0019/2008) Relying on the said decisions, the appellant establishes asjjnder that the Appellant has two different undertakings and each of them fulfils independently all the conditions as stipulat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nsidering Toxic and other hazardous elements in wastes. Thus, I find merit in the Assessee's submission wherein it is established that both the Units are different and independent by way of process, method, mechanics, different machinery/ infrastructure, having entered into separate agreements with the authorities concerned. I also have gone through various case laws relied by the assessee which squarely cover the issues under consideration. In the light of aforesaid discussion and on the facts of the case and respectfully following the decision relied by the assessee, I direct the Assessing Officer to re-compute the deduction u/s.801A of the Act separately for both the units and allow the same accordingly. 5. We have heard rival submissions. It emerges that the assessee has amply demonstrated during the course of lower proceedings that two projects in question are in fact separate ones. We afforded amply opportunity to learned Departmental Representative to rebut all the above extracted evidence / pleadings to the effect that the two projects i.e. land filling and incinerator one are very much separate. The Revenue fails to quote any material against th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the case of Calcutta Co. Ltd Vs. CIT (1959) 37 ITR. I find that the foresaid decisions are correctly support the facts of the instant case and accordingly, relying on the aforesaid submissions of the appellant and facts of the case, I direct the Assessing Officer to treat the amount of ₹ 10,34,19,765/- as advance received from customers / members instead of as income in computing both normal income as well as book profit u/s.115JB of the Act. 8. Heard both sides. The relevant issue between the parties is as to whether the assessee s advance receipts from its customers amounting to ₹ 10,34,19,765/- in the nature of non refundable receipts are to be treated as income in entirety pertaining to relevant assessment year or not. We find that hon ble jurisdictional high court s decision in (2015) 15 taxmann.com 429 (Guj.) CIT vs. Unique Mercantile Services Pvt. Ltd. decides a similar question pertaining to membership fee spreading over to a time span of more than one assessment year to be taxable on prorata basis. We adopt the same reasoning herein as well and direct the Assessing Officer to assess the above stated non refundable receipts by adopting similar pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d in disallowing its provision made for post closer expenses of ₹ 27,82,379/- as well as adding the same in its book profits computation u/s.115JB of the Act. Both the learned counsel agree herein as well that the above stated co-ordinate bench decision has already deleted identical disallowance in earlier assessment years (supra) and latter issue of Section 115JB is rendered academic. We appreciate this fair stand to accept assessee s instant substantive grounds. 14. The assessee s fourth sixth substantive ground challenge disallowance of provision made for pit covering expenses of ₹ 1,40,83,813/- as well as inclusion thereof in computing Section 115JB book profits. We notice herein as well that it has succeeded on the very issues before the tribunal in earlier assessment years (supra). The Revenue fails to rebut all these factual and legal developments post facto filing of the instant appeals. We therefore accept assesse s these two grounds as well. Its appeal ITA No.2223/Ahd/2010 succeeds. 15. The Revenue s appeal ITA No.2290/Ahd/2010 is partly allowed for statistical purposes whereas assessee s cross appeal ITA No.2223/Ahd/2010 is partly allowed. [Pronoun ..... X X X X Extracts X X X X X X X X Extracts X X X X
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