TMI Blog2012 (2) TMI 545X X X X Extracts X X X X X X X X Extracts X X X X ..... ing Officer. 4. The Assessing Officer disallowed the expenditure on the ground that the same was not incurred in connection with the issue of shares for public subscription. 5. On appeal, the Commissioner (Appeals) confirmed the Assessing Officer s action holding that the expenditure has been incurred after the date of commencement of business and the same has not been incurred for issue of shares for public subscription. 6. Before us, learned Counsel prayed that increase in authorised share capital was required for issuing shares in consideration of acquiring business from Indian Rayons under the scheme of Arrangement under sections 391 / 394 of Companies Act, 1956, and that the issue is covered in favour of the assessee by the judgment of Hon ble Rajasthan High Court in CIT CIT v/s Multi Metals Ltd., [1991] 188 ITR 151 (Raj.). 7. After hearing the rival contentions, we find that the first appellate authority had considered all the contentions of the assessee as well as the case laws cited and has come to a conclusion that the assessee had acquired a going concern from another company under the scheme of Amalgamation in terms of section 394 of Companies Act, 1956, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the learned Counsel contended that the issue is covered in favour of the assessee by the judgment of Hon'ble Supreme Court in TRF Ltd. v/s CIT, 190 Taxman 391 (SC). 13. Learned Departmental Representative, on the other hand, drew the attention of the Bench and towards Paras-41 and 42 of the impugned appellate order and submitted that the Commissioner (Appeals) has categorically held that the bad debts represents, debts recoverable from Government organisation and the assessee could not provide any evidence whatsoever to explain the reason for non-payment or provide any other documentary evidence in support of its claim that these are bad debts and, hence, the disallowance was confirmed. He, relying on the orders of the authorities below, prayed for dismissing the ground raised by the assessee. 14. After hearing both the parties, we find that the Commissioner (Appeals) has, vide Para-41 of his order, held that the assessee s representative has not been able to provide any evidence indicating reluctance on the part of the Government bodies for not making payment. It is further commented that the assessee company has not provided any documentary evidence to show that recove ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tments with regard to stocks, purchases, sales, excise duty payments and if such adjustments result into an addition to the income of the assessee, the Assessing Officer should restrict the addition to that extent. Aggrieved, the assessee as well as the Revenue are in appeal before the Tribunal. 19. Learned Departmental Representative conceded before us that the issue is covered by the judgment of Hon'ble Jurisdictional High Court in Mahalaxmi Glass Works Pvt. Ltd., [2009] 318 ITR 116 (Bom.) and, accordingly, he prayed that the issue be restored to the file of Assessing Officer with direction to decide the same as per the ruling given by the Hon'ble Jurisdictional High Court. 20. Learned Counsel for the assessee did not object to the submissions made by the learned Departmental Representative. 21. In view of the aforesaid submissions of the respective parties, we restore the issue back to the file of Assessing Officer for denovo adjudication and direct the Assessing Officer to decide the issue in accordance with the propositions laid down by the Hon'ble Jurisdictional High Court in Mahalaxmi Glass Works (supra). Thus, ground no.1, in Revenue s appeal and ground ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... entions, we find that the learned Departmental Representative has rightly relied on the judgment of Hon'ble Supreme Court in IPCA Laboratories Ltd. (supra). Recently, the Hon'ble Supreme Court in Topman Exports v/s CIT, judgment dated 8th February 2012, has reversed the judgment of the Hon'ble Jurisdictional High Court in Kalpataru Colours Chemicals (supra), wherein Their Lordships held as follows:- 22. The aforesaid discussion would show that where an assessee has an export turnover exceeding ₹ 10 crores and has made profits on transfer of DEPB under clause (d) of Section 28, he would not get the benefit of addition to export profits under third or fourth proviso to sub-section (3) of Section 80HHC, but he would get the benefit of exclusion of a smaller figure from profits of the business under explanation (baa) to Section 80HHC of the Act and there is nothing in explanation (baa) to Section 80HHC to show that this benefit of exclusion of a smaller figure from profits of the business will not be available to an assessee having an export turnover exceeding ₹ 10 crores. In other words, where the export turnover of an assessee exceeds ₹ 10 cr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ingly. In respect of excise duty claimed, the Commissioner (Appeals) rejected the claim on the ground that no documentary evidence is adduced in the form of challan, etc., by the assessee. 32. Before us, the learned Counsel submitted the following statement:- Sr. No. PARTICULARS AMOUNT ( Rs. ) AMOUNT ( Rs. ) a) Amount added back in computation statement 2,15,12,604 b) Amount paid before filing return of income and claimed 2,05,67,769 c) Claim allowed by the A.O. out of (b) above 28,69,322 d) Balance claim disallowed by the A.O. (b-c) 1,76,98,447 e) This balance comprises of: (i) Bonus (Halol Unit) 74,93,349 (ii) Bonus (Rishra Unit) 9 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n Revenue s appeal is on the issue of disallowance of contribution to provident fund. 38. The Assessing Officer disallowed assessee s claim on the ground that the assessee failed to adduce any evidence in respect of payment made on account of contribution to provident fund. 39. On appeal, the Commissioner (Appeals) directed the Assessing Officer to re-examine as to whether the payment on account of contribution to provident fund is made upto the grace period i.e., 20th of subsequent month and allow the ground accordingly. 40. Before us, the learned Counsel submitted that the payment made even after grace period but before the due date of filing return of income is an allowable deduction. He submitted that the amendment made to section 43B of the Act is held as retrospective by the Hon'ble Supreme Court in CIT v/s Alom Extrusions Ltd, 319 ITR 306 (SC). He prayed for relief. 41. Learned Departmental Representative, on the other hand, placed reliance on the decision of the Kolkata Bench of the Tribunal in DCIT v/s Ashika Stock Broking Ltd., (2011) 56 DTR (Kol.) (Trib.) 417, wherein identical issue has been decided against the assessee and in favour of the Revenue. 4 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ure good quality of milk and had incurred certain expenditure on maintenance thereof. The milk was sold at subsidised rates to the employees. There was a net deficit and this was charged to the Profit Loss account. On these facts, we uphold the findings of the Commissioner (Appeals) that the expenditure incurred in question is incurred out of commercial expediency and, hence, has to be allowed as a deduction. 47. We now take up assessee s additional ground no.1, i.e., on the issue of disallowance of deduction under section 80HHC, in relation to DEPB profit. 48. Both the parties agree before us that this issue is required to be restored to the file of Assessing Officer for denovo adjudication in line with the judgment of Hon'ble Jurisdictional High Court in CIT Vs Kalpataru Colours Chemicals, (2010) 192 Taxman 435 (Bom.). In the meanwhile, the Hon'ble Supreme Court in Topman Exports (supra), had reversed the judgement of Hon'ble Jurisdictional High Court. 49. In view of the judgment of the Hon'ble Supreme Court, and consistent with our view on ground no.4, of the assessee s appeal and ground no.3, of Revenue s appeal, we restore the issue back to the fil ..... X X X X Extracts X X X X X X X X Extracts X X X X
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