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TMI Blog2016 (10) TMI 1349X X X X Extracts X X X X X X X X Extracts X X X X ..... espect of the same assessee in different years. While respectfully following the decision of the coordinate bench of this Tribunal referred supra, we hold that the findings of the Ld. CIT(A) in the impugned orders on this ground needs no interference. Disallowance of the telephone expenses to an extent of 5% - Addition by the AO on the ground that the expenses on account of personal calls by the employees of the company were debited and also the expenses for residential phones and mobile phones were claimed - HELD THAT:- On this aspect, the assessee relied on the decisions reported in Sayaji Iron Engg. Co. [ 2001 (7) TMI 70 - GUJARAT HIGH COURT ] and Intersil India Ltd. [ 2004 (10) TMI 595 - ITAT MUMBAI ] and it is submitted that since the assessee is a corporate entity, there cannot be any personal expenditure. It is further submitted that in respect of AY 2005-06 the Ld. CIT(A) deleted such an addition based on ad hoc disallowance in the telephone expenses and the department has not preferred any appeal against such finding. On a careful consideration of the orders of the authorities below the judgments cited by the assessee and also in view of the fact that as against ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d maintenance thereof, logistics solutions provider and agency work. With their Head office at Kolkata, Assessee engaged in ort activities at Haldia, Paradeep and Mumbai. At Haldia they have activities at berth No 12 and it is eligible for deductions under section 80-IA, and others not eligible for deductions under section 80-IA of the Act. 3. For the AY 2004-05, they filed their return of income on 31.10.2004 declaring income of ₹ 12,174,610/- computed under provisions other than section 115JB of the Act. By way of order dated 29.12.2006 passed under section 143(3) of the Act, Assessment Officer, determined the income of Assessee as ₹ 11,51,27,120/- after making various additions. Such additions, for the purpose of this appeal, are disallowance of claim under section 80-IA of the Act, expenses for repairs and maintenance of building, on account of 14A of the Act, disallowance of telephone expenses to an extent of 5% thereof, expenses relating to repairs and maintenance on building at Kolkata, allowability of club expenditure 4. So also for the AY 2005-06, they filed their return of income on 31.10.2005 declaring income of ₹ 11,38,54,010/- computed under pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 14A(2) and (3) do not apply to the instant year even when this section was introduced w.e.f. 01.04.1962. 5. That Ld.CIT(A) erred in the facts and circumstances of the case and in law in deleting the addition in respect of telephone expenses ignoring the findings of the A.O. that telephones and mobiles were installed at the residential addresses of employees and that non-business use of such telephones cannot be ruled out. Grounds of C.O. No. 109/Kol/2008 1. That on the facts and circumstances of the case, the learned CIT (Appeals) failed to appreciate that the assessment order was barred by limitation, void ab initio and should have been quashed. 2. That on the facts and in the circumstances of the case, the CIT(Appeals) erred in upholding the disallowance of ₹ 8,243/- incurred on account of repair to building. 3. That on the facts and in the circumstances of the case, the CIT(Appeals) erred in upholding the disallowance on account of club membership expenses. Like wise challenging the said orders of the learned CIT(A), in respect of AY 200506 Revenue carried the matter in appeal No ITA 1914/Kol/2008 and the Assessee preferred appeal in CO 133/Kol/200 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sheet was prepared for Berth No. 12, Haldia Dock Complex. These documents were submitted along with return of income. Further, it is found that as per provision of Act, there is no need for assessee to give evidence of acquisition of new plant and machinery for the eligible unit for claiming deduction u/s.80lA of Income Tax Act, 1961 because the assessee maintains port. As per Circular No. 10/2005 dated 16.12.2005, the business activity of assessee in relation to Berth No. 12. Haldia Dock Complex falls within the meaning of Port in Explanation below Section 80(IA)(i)(c) of the Income Tax Act, 1961. Learned AR submits that the learned CIT(A) having taken cognizance of the same, adopted consistent approach in respect of the same Assessee for these two years also. 8. We have perused the material papers on record. A coordinate Bench of this Tribunal in ITA NO 450/Kol/2007 dated 30.10.2007 in the case of Assessee s own case in respect of AY 2003-04 confirmed the finding of the learned CIT(A) to the effect that the Assessee is entitled to the deductions under section under section 80-IA of the Act. Rule of consistency, as laid down by the Hon ble Kerala High Court in CIT Vs. N ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he orders of the earlier years and also the rule of consistency, Ld. CIT(A) decided this issue in favour of the assessee. We do not find any need to interfere with this finding of the Ld. CIT(A) and dismiss these grounds of appeal for both the years. Grounds 4 in ITA 1513/Kol/2008 and ITA 1914/Kol/2008 11. It is the argument of the Ld. AR that in the year 2006-07 and 2007-08 also, there was disallowance of the expense u/s. 14A of the Act and the Ld. CIT(A) after considering the submissions restricted the disallowance to 1% of the dividend income because the provisions of Rule 8D have no application prior to the AY 2008-09. A coordinate bench of this Tribunal in ITA No. 377 378/Kol/2012 and C.O. Nos. 37 38/Kol/2012 upheld the findings of the CIT(A) while observing as follows: 7.1. There is no dispute to the fact that Rule 8D is not applicable prior to A.Yr.2008-09. The contention of the assessee before Ld.CIT(A) and before us that no expenditure has been incurred to earn the exempt income and therefore we find no infirmity in the order of Id. CIT(A) in sustaining the disallowance @ l % of the exempt dividend income. Our view find support from the decision of Kolkat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oc disallowance in the telephone expenses and the department has not preferred any appeal against such finding. On a careful consideration of the orders of the authorities below the judgments cited by the assessee and also in view of the fact that as against the deletion of the disallowance of a portion of telephone charges the department preferred no appeal, we find that the order of the Ld. CIT(A) is consistent with the judgment of the Hon ble Kerala High Court in N. P. Mathew, supra and we uphold the same. This ground is dismissed accordingly. Grounds 3 in ITA 1513/Kol/2008 14. AO disallowed a sum of ₹ 10,00,000/- said to have been paid to the non executive directors of the company, on the ground that no details resolution, nature of service provided by them etc. were not furnished before the AO. However, Ld. CIT(A) observed that a similar disallowance was deleted by Ld. CIT(A) in respect of AY 2003-04 and such finding of Ld. CIT(A) was approved by the Tribunal. He further observed that even in respect of the AY 2004-05 Ld. CIT(A) allowed such a claim. In view of this set of circumstances, and need to follow the rule of consistency, we allow such a claim by uphol ..... X X X X Extracts X X X X X X X X Extracts X X X X
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