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TMI Blog2025 (2) TMI 188X X X X Extracts X X X X X X X X Extracts X X X X ..... 9/2013-14/Noida 153/143(3) of the Act. 4. ITA 2357/Del/2016 (A.Y. 2007-08) JCIT(OSD),CC, Noida -do- -do- 5. ITA 1964/Del/2016 (A.Y. 2008-09) Triveni Engineering & Industries Ltd. CIT(A)-I, Noida's order dt. 27.01.2016 in case no. 148/2013-14/Noida 153A/143(3) of the Act 6. ITA 2359/Del/2016 (A.Y. 2008-09) JCIT(OSD),CC, Noida -do- -do- 7. ITA 1965/Del/2016 (A.Y. 2009-10) Triveni Engineering & Industries Ltd. CIT(A)-I, Noida's order dt. 27.01.2016 in case no. 147/2013-14/Noida 153A/143(3) of the Act 8. ITA 2360/Del/2016 (A.Y. 2009-10) JCIT(OSD),CC, Noida -do- -do- 9. ITA 1966/Del/2016 (A.Y. 2010-11) Triveni Engineering & Industries Ltd. CIT(A)-I, Noida's order dt. 27.01.2016 in case no. 146/2013-14/Noida 153A/143(3) of the Act 10. ITA 2361/Del/2016 (A.Y. 2010-11) JCIT(OSD),CC, Noida -do- -do- 11. ITA 1967/Del/2016 (A.Y. 2011-12) Triveni Engineering & Industries Ltd. CIT(A)-I, Noida's order dt. 27.01.2016 in case no. 145/2013-14/Noida 143(3) of the Act. 12. ITA 2362/Del/2016 (A.Y. 2011-12) JCIT(OSD),CC, Noida -do- -do- Heard both the parties at length. Case files perused. We proceed assessment year wise for the sake of convenience and bre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd circumstances of the case and in law, the assessing officer should be directed to allow deduction of Rs. 1,91,524, being expenses relatable to the relevant assessment year but debited in the Profit & Loss Account of the subsequent assessment year (s). 6.1 That the CIT(A) erred on facts and in law in not adjudicating the aforesaid ground of appeal taken in the memorandum of appeal (refer Ground No. 10 in Form No.35) 7. That on the facts and circumstances of the case and in law, the legal claims made vide ground of appeal Nos. 5 and 6 should be directed to be allowed, in order to compute the correct taxable income of the appellant under the provisions of the Act." 3. The Revenue's cross appeal ITA 2358/Del/2016 herein canvasses the following substantive grounds: "1. That the Ld. CIT(A) has erred in law and on facts in deleting the addition of Rs 1,04,70,00,000/- on account of capital subsidy credited to the assessee and was to augment the revenues of the assessee company. 2. That the Ld. CIT(A) has erred in law and on facts in deleting the addition of Rs. 1.76,30,000/- out of total addition of Rs. 6.89.80,258/- on account of after sales expenses and others as the same was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... & others, has stayed the operation thereof and the matter is yet to be taken up thereafter for final adjudication as informed to us by both the parties. 8. That being the case and despite the assessee having argued in favour of the "purpose" test (supra), we are of the considered view that since the issue herein is very much pending before their lordships for final adjudication, it would indeed be pre mature for us to apply "accrual" principle at this stage for lack of any reasonable certainty in recognition of revenue as per Chainrup Sampatram v. CIT (1953) 24 ITR 481 (SC). Their lordships have categorically held that a revenue receipt could be recognized as an income only in case there arise a reasonable certainty thereof. We reiterate that the Revenue's clear cut case is that the same has indeed been not actually received all along as the dispute is pending before hon'ble apex court. We, accordingly are of the considered view that the instant common first and foremost issue between the parties is required to be re-adjudicated by the learned Assessing Officer after it is decided in the hon'ble supreme court so as to avoid multiplicity of proceedings. We order accordingly. It is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wherein case law Bharat Earth Movers v. CIT (2000) 245 ITR 428 (SC); Calcutta Company Ltd. v. CIT (1959) 37 ITR 1 (SC); & CIT v. Triveni Engineering & Industries Ltd. (2011) 336 ITR 374 (Delhi) i.e. the assessee itself, in paras 6,7,8 & 11 has held that such a provision based on scientific computation formula could indeed be allowed. 13. Learned counsel further reiterates the assessee's stand that it has all along been recognizing the revenue from all projects subject to the corresponding expenditure provision which has to be incurred in future. 14. We find merit in the assessee's arguments as the learned CIT(A) has simply brushed aside it's impugned provision for after sales expenditure etc. by observing, "The ground taken by the appellant in its appeal memo settles the issue". Meaning thereby that the assessee's scientific computation herein has nowhere been specifically dealt with or rejected as the learned lower authorities have declined it's provision of the impugned expenditure raised for meeting future anticipated liabilities as per Bharat Earth Movers (supra). Coupled with this, the assessee has already succeeded on the very issue before hon'ble jurisdiction high court h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at being the case, learned counsel invites our attention to the assessee's contribution/ donation receipts to the duly registered recipients (page 117-119 of the paper book). His case, therefore, is that the same is not in the nature of additional evidence which would require further opportunity to the department for verification thereof. We make it clear that assessee has further given its due certification which has not been disputed at the Revenue's behest in principle so far as its foregoing supportive evidence is concerned. Faced with this situation, we deem it appropriate to accept the assessee's instant claim of section 80G deduction in principle and indeed leave to open for the learned Assessing Officer to frame his consequential computation afresh after verification of the necessary relevant facts, as per law. The assessee's instant 4th substantive ground is accepted in very terms. 20. Learned counsel next takes us to the assessee's substantive ground nos. 5 to 5.1 claiming exemption of dividend income of Rs. 13,43,047/- u/s 10(34) of the Act. Learned Assessing Officer appears to have quoted Goetz (India) Ltd. vs. CIT (2006) 284 ITR 323 (SC) in holding that such a claim o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fact that this is an instance of revenue's neutral expenditure only as per CIT vs. Modipon Ltd. (2012) 18 taxmann.com 331 (Del.). The fact also remains that we have already rejected the Revenue's stand based on Goetz India Ltd. in preceding paras. It further fails to rebut the fact that the very expenditure stands declined in the succeeding assessment year of crystallization as well. We accordingly direct the learned Assessing Officer to accept the assessee's impugned claim after verification of all the necessary facts as per law. Ordered accordingly. This assessee's "lead" appeal ITA 1962/Del/2016 is partly allowed in above terms. 25. A perusal of the case file indicates that the assessee and the Revenue have filed another set of appeals ITA 1963 and 2357/Del/2016 arising from the learned Assessing Officer's section 143(3) read with section 153A assessment framed on 31.03.2013 in furtherance to the department's search action dated 7.4.2010. This being the clinching fact in the instant cross appeals, we are of the considered view that once there is no addition made by the learned Assessing Officer specifically based on the seized material, we quote PCIT v. Abhisar Buildwell P. Ltd ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at the Ld. CIT(A) did not appreciate the facts and material on record. 4. That the order of the Ld. CIT(A) being erroneous in law and on facts which needs to be vacated and the order of the AO be restored. 5. That the appellant craves leave to add or amend any one or more of the ground of the appeal as stated above as and when need for doing so may arise." 29. Both the learned representatives invite our attention to the learned CIT(A)'s detailed lower appellate discussion deciding the instant issue against the Department as under: "7. The next ground of addition as made by the Id. A.O. is of Rs. 3,08,000/- which was estimated by the Id. A.O. as amount received by the appellant over and above the amount disclosed by the appellant in its books of accounts. The Id. A.O. did not accept the amount of Rs. 15/- per MT as adequate and felt that an amount of Rs. 60 per MT was adequate as in A.Y. 2011-12 the appellant sold the same fly ash at that rate. Apart from the fact that there was a time gap of about six years in the transactions involved, i.e., those in the A.Y. 2005-06 and those in A.Y. 2011-12, the revenue found no incriminating material on this issue in course of search and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ry fair in not pin pointing any specific distinction on facts or law; as the case may be. Ordered accordingly. 34. This leaves us with the Revenue's second substantive ground seeking to revive unexplained expenditure addition of Rs. 78,66,269/-, deleted in lower appellate discussion as under: "10. Loose sheets of paper found in a premises not under the control of the appellant per- se cannot be admissible as evidence against the appellant. The Id. A.O. must have some further material and evidence to link up the loose sheets as well as the entries recorded on the same to the appellant. The Hon'ble Supreme Court has settled this issue in several cases where such loose sheets in the absence of independent material linking up those loose sheets to the assessee cannot be treated as books of accounts and therefore cannot be held against the assessee. In the impugned assessment the Id. A.O. who admittedly had the details of payments made and the persons and incidences for which those payments were made was required in law to bring on record additional material to link up those details to the appellant. The Id. A.O. had the necessary authority in law to prove the transactions record ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 80-IA of the Income Tax Act, 1961 (the Act to which the appellant was eligible as per the provisions of the Act." 38. The Revenue vehemently argues in support of the impugned addition made by the learned lower authorities on account of alleged excess stock of bagasse. It could hardly dispute the clinching facts, inter alia, emerging from the case file that the assessee herein has already been held entitled for claiming section 80IA deduction. And also that the relevant item i.e. baggage herein is indeed 'derived' from the eligible business activity of producing power and, therefore, the same is also in the nature of "business income" only, which would fall u/s 80IA deduction. We thus accept the assessee's second substantive ground claiming the impugned deduction relief in very terms. It's instant appeal ITA 1967/Del/2016 is allowed. 39. Coming to the Revenue's last cross appeal ITA 2362/Del/2016, we note that its twin substantive grounds pleaded herein seek to revive fly ash addition by way of rate difference; of Rs. 3.25 lakhs and capital subsidy addition of Rs. 4,64,18,358/-; respectively. 40. Suffice to say, this former substantive ground already stands declined in the Rev ..... X X X X Extracts X X X X X X X X Extracts X X X X
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