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TMI Blog2019 (5) TMI 1972X X X X Extracts X X X X X X X X Extracts X X X X ..... nd decide the issue accordingly keeping in view the provisions of section 37(1) of the Act. Thus the above ground of appeal is allowed for statistical purposes. Disallowance u/s 40(a)(ia) - AO observed that though the appellant has made provision for expenses in the books of accounts but not deducted tax at source - HELD THAT:- Similar issue arose before the ITAT in Aditya Biral Nuvo Ltd. [ 2014 (10) TMI 154 - ITAT MUMBAI] - The Bench following the decision in the case of Mahindra Mahindra Ltd. ( 2013 (9) TMI 522 - ITAT, MUMBAI ) held that the assessee had made provisions but not received the bills, that in the subsequent year the provisions made by it were offered for taxation. Therefore, it allowed the appeal filed by the assessee. An examination of the ledger accounts indicates that these are ad-hoc provisions. Being so, following the ratio laid down in above decisions, we delete the disallowance u/s 40(a)(ia) of the Act .Thus the 3rd ground of appeal is allowed. Addition u/s 41(1) - HELD THAT:- In the instant case, there is nothing on record to suggest that there was remission or cessation of liability during the impugned assessment year. We fail to understand h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... held as under: 8. After hearing both the sides and in view of the decision of the Tribunal in assessee s own case in the immediate preceding assessment year on the same issue we hold that the CIT(A) is justified in confirming the disallowance of amortization of the premium paid for leasehold land amounting to ₹ 20,16,264/-. The ground raised by the assessee is accordingly dismissed. 2.1 Facts being identical, we follow the above order of the Co-ordinate Bench in assessee s own case and dismiss the 1st ground of appeal. 3. The 2nd ground raised in this appeal is against the ad-hoc disallowance of ₹ 77,35,100/- being 5% of the expenses incurred by the appellant. The AO having gone through the tax audit report noted that the auditors have stated in clause 17(e)(i), which represents the expenditure by way of penalty/fine for violation of any law for the time being in force as under: The scope of expenditure in this item, it is submitted, is such that it is not capable of being identified and/or quantified with reasonable accuracy, having regard to the volume of disbursement as also the plethora of law ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ingly keeping in view the provisions of section 37(1) of the Act. This ground is allowed for statistical purposes. Facts being identical, we set aside the order of the Ld. CIT(A) and restore the above matter to the file of the AO to examine the nature of expenditure from the details submitted/or to be submitted by the assessee and decide the issue accordingly keeping in view the provisions of section 37(1) of the Act. Thus the above ground of appeal is allowed for statistical purposes. 4. The 3rd ground raised in this appeal is against the order of the Ld. CIT(A) confirming the disallowance of ₹ 92,44,636/- made by the AO u/s 40(a)(ia) of the Act. During the course of assessment proceedings, the AO observed that though the appellant has made provision for expenses in the books of accounts but not deducted tax at source. The AO noted that even on provisions made in the books of accounts, the appellant is liable to deduct tax at source. Examining the reply filed by the assessee before him, the AO found that the details of provisions made of the expenses which are subject to TDS are legal and professional fees of ₹ 49,85, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 0(a)(ia) of the Act .Thus the 3rd ground of appeal is allowed. 5. The 4th ground of appeal is against the order of the Ld. CIT(A) confirming the addition of ₹ 42,33,362/- u/s 41(1) of the Act. In response to a query raised by the AO to furnish the creditors outstanding for more than three years, the assessee filed a statement showing the details. As per it, the creditors outstanding till the date of assessment are ₹ 42,33,362/-. The AO observed that the assessee did not offer any explanation why the same should not be treated as income u/s 41(1). Therefore, the AO made an addition of the above amount u/s 41(1) of the Act. 5.1 In appeal, the Ld. CIT(A) agreed with the reasons given by the AO since the assessee itself has written back in financial year 2009-10, the said credits outstanding for more than three years. 5.2 Before us, the Ld. counsel of the assessee submits that details were filed before the Ld. CIT(A) during the course of appellate proceedings. Reference is made by him to the observation made by the Ld. CIT(A) in his order that in financial year 2009-10, the assessee has written back the sai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the assets after the date of flood, the AO declined to accept the arguments of the assessee the documentary evidence are destroyed and not traceable, made a disallowance of the above claim of ₹ 93,40,242/-. 6.1 In appeal, the Ld. CIT(A) agreed with the reasons given by the AO and confirmed the above disallowance of claim of depreciation of ₹ 93,40,242/-. 6.2 Before us, the Ld. counsel of the assessee submits that there was no disallowance of depreciation in the AYs 2007-08 and 2008-09, whereas the same was disallowed from AY 2009-10 to AY 2014-15. Further, it is stated that additional evidence by way of sample copies of bills in respect of addition to fixed assets were provided, however, these were not considered by the Ld. CIT(A). On the other hand, the Ld. DR supports the order passed by the Ld. CIT(A). 6.3 We have heard the rival submissions and perused the relevant materials on record. We are of the considered view that the additional evidence being photocopies of sample invoices placed at page 367-383 of the Paper Book filed before us, which were also submitted before the CIT(A) would resolve the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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