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2019 (2) TMI 1691 - AT - Income TaxDeduction u/s 36(1)(viia) - provision made in books for bad and doubtful - HELD THAT:- In view of the above findings of the Tribunal in assessee’s own case in the earlier assessment years [2016 (4) TMI 753 - ITAT CHENNAI] restricting claim u/s 36( 1)(viia)only for provision for rural debts and consequently disallowing claim for deduction of provision made of in accordance with the provision of sec 36( I )(viia) we find no reason to interfere with the order of the Ld. CIT(A) and reject the grounds raised by the assessee. Alternate claim raised in connection with protective disallowance made u/s 36(1 )(vii) - Direct the AO to examine these issues in the light of the Hon’ble Supreme Court decisions in the case of Vijaya Bank [2010 (4) TMI 46 - SUPREME COURT] and Catholic Syrian Bank Ltd [2012 (2) TMI 262 - SUPREME COURT]. The assessee shall place all the materials in support of its contentions before the AO and comply to the AO’s requirements as per law. AO shall furnish adequate opportunity to the assessee and then decide these issues in accordance with law. Restriction of tax relief u/s.90 only to the extent of tax paid in foreign country - HELD THAT:- As decided in own case [2017 (4) TMI 1424 - ITAT CHENNAI] CIT(A) has quoted a notification No.S.O 2123(E) dated 28.8.2008, clarifying that in such a case involving a DTAA, an income has to be included in the total receipts and the necessary relief is to be granted by ‘elimination’ method or as per the terms of agreement seeking to avoid double taxation. He relies upon Finance Act, 2012 inserting explanation 3 to section 90 making the notification retrospectively applicable. Denial of depreciation on goodwill - HELD THAT:- Assessee did not have any goodwill in commercial terms as it has acquired more liabilities than the assets. The Ld.DR’s submission that when there is no goodwill as per the terms of the agreement as well as in reality. When the assessee has not paid any amount for the goodwill, it cannot claim existence of any goodwill. When there is no existence of goodwill, it is not entitled for any depreciation. Therefore, the assessee’s corresponding grounds fail. Disallowance of contribution to staff welfare fund - HELD THAT:- As decided in own case [2017 (4) TMI 1424 - ITAT CHENNAI] decided against assessee. Recovery of bad debts written off relating to rural branches - HELD THAT:- As decided in own case [2017 (4) TMI 1424 - ITAT CHENNAI] Revenue does not dispute that the assessee had raised its claim of deduction of bad debts relating to the very sums in preceding assessment years. The Assessing Officer did not allow this relief in relevant previous year, when it has recovered the aforesaid debts, the Revenue is again seeking to tax the same. There is no cogent evidence before us to dispute this factual position Moreover, the CIT(A) has cited section 41(4) of the Act whilst granting relief.The Revenue has failed to point out any legal or factual error in CIT(A)’s findings Therefore, the same are affirmed. However, as a matter of caution, we observe that the assessee’s claim of bad debts pertaining to those sums in preceding assessment years, if any, shall be deemed to have been dismissed Depreciation on UPS allowed at 60% instead of 80% - decided against assessee. Depreciation @ 30% on software was rightly claimed - See M/S. SARASWAT INFOTECH LTD. [2013 (1) TMI 861 - BOMBAY HIGH COURT] Disallowance u/s 14A - HELD THAT:- No finding in the assessment order regarding treatment of exempted income yielding assets as stock-in-trade. Hence, in our opinion, if it is treated as stock-in-trade by the assessee, then the claim of assessee is to be allowed in terms of Order of Tribunal in [2014 (9) TMI 1179 - ITAT CHENNAI] . Accordingly, this issue is remitted to the file of AO for fresh consideration. Disallowance of provision made for leave salary on actuarial valuation - HELD THAT:- assessee submitted that the provision for leave salary cannot be disallowed u/s. 43B for the reason that leave provision is a contractual liability and therefore, it cannot be treated at par with tax, duty, cess or fee u/s. 43B. However, in the SLP in the case of CIT & ors. Vs M/s. Exide Industries Ltd & ANR [2009 (5) TMI 894 - SC ORDER] wherein, the Apex Court held that “pending hearing and final disposal of the Civil Appeal, Department is restrained from recovering penalty and interest which has accrued till date. It is made clear that as far as the outstanding interest demand as of date is concerned, it would be open to the Department to recover that amount in case Civil Appeal of the Department is allowed. We further make it clear that the assessee would, during the pendency of this Civil Appeal, pay tax as if section 43B(f) is on the statute Book but at the same time it would be entitled to make a claim in its returns. Addition sustained
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