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2015 (11) TMI 1799 - AT - Income TaxDisallowance u/s. 43B(f) being provision made for leave salary/compensated absence as per actuarial valuation - HELD THAT:- As decided in own case [2014 (10) TMI 154 - ITAT MUMBAI] wherein direct the AO to allow the claim of provisions for leave salary - appeal are decided in favour of the assessee-company. Disallowance u/s. 14A in respect of other expenses - HELD THAT:- We find that the AO has made disallowance u/s. 14A with regard to other expenses, that he had applied provisions of Rule 8D of the Rules. The Hon’ble Jurisdictional High Court has held that said Rule could be applicable from AY. 2008-09 only. In these circumstances, we are of the opinion that, in the interest of justice, the matter should be restored back to the file of the AO for fresh adjudication. He is directed to afford a reasonable opportunity of hearing to the assessee and decide the issue afresh. Ground No. 2 is allowed in favour of the assessee, in part. Provision made for pension liability as per actuarial valuation disallowed - AR contended that the liability was disallowed without any basis, that the AO/FAA had not disputed the crystallization of the liability that the same was allowable - HELD THAT:- We find that the assessee had claimed deduction for the provisions made under the head pension liability, that the figure was arrived at as per the actuarial valuation. We are of the opinion that after the decision of Bharat Earth Movers, [2000 (8) TMI 4 - SUPREME COURT] the issue of crystallised liability has been decided conclusively by the Hon’ble Supreme Court. Decided in favour of the assessee . Disallowance u/s. 40(a)(ia) towards provision made for expenses at the year-end as per best estimates - HELD THAT:- Assessee had made provisions but had not received the bills, that in the subsequent year the provisions made by it were offered for taxation. Considering these facts and following the orders of the Tribunal in the case of Mahindra & Mahindra Ltd. [2013 (9) TMI 522 - ITAT, MUMBAI] & Industrial Development Banking Company [2006 (7) TMI 248 - ITAT BOMBAY-H] we decide ground no. 2 in favour of the assessee. Deduction u/s. 80IA ad 80IB on account of allocation of head office expenses - HELD THAT:- As decided in own case interest income earned by the 100%EOU and allocation of head office expenses of other division have been decided in favour of the assessee-company. Depreciation of goodwill on acquisition of Madura Garments division on-going-concern-basis - HELD THAT:- As decided in own case [2013 (11) TMI 1241 - ITAT MUMBAI] we direct the AO to allow the claim of depreciation on Goodwill. Exemption from taxable profits and to treat the same as capital receipt - HELD THAT:- We find that the assessee during the assessment proceedings had made the claim about sales tax exemption, relying upon the decision of Reliance Industries delivered by the Special Bench of the Tribunal [2003 (10) TMI 255 - ITAT BOMBAY-J ] that the AO and the FAA held that the amount in question was directly linked with the running and operation of the business. The FAA also held that claim was not made by filing a revised return. In our opinion for making a fresh claim before the appellate authority the assessee is not required to file revised return as held by the Hon’ble Bombay High Court in the case of Prithvi Brokers [2012 (7) TMI 158 - BOMBAY HIGH COURT] . However, the AO cannot accept a fresh claim without a revised return. The assessee had requested the FAA for relief. In our opinion the FAA was not justified to reject the claim on that ground. Now, coming to the merits of the case as to whether the incentive received by the assessee could be treated as capital receipt or not we would like to mention that the assessee had made the claim relying upon the decision of the Special Bench in the case of Reliance Industries. We find that the matter had travelled to the Hon'ble Supreme Court and it was restored back to Hon’ble High Court [2009 (4) TMI 516 - BOMBAY HIGH COURT] with certain directions. Therefore, we are of the opinion that in the interest of justice, the matter should be restored back to the file of the FAA who would analyse the provisions of the scheme in light of the decision of the Hon’ble Apex Court Sale of certified emission reduction(CER) - treated as revenue receipts and liable to tax and to treat the same as capital receipt not chargeable to tax - HELD THAT:- As relying on MY HOME POWER LTD. [2014 (6) TMI 82 - ANDHRA PRADESH HIGH COURT] assessee is carrying on the business of power generation. The carbon credit is not even directly linked with power generation. On the sale of excess carbon credits the income was received and hence as correctly held by the Tribunal it is capital receipt and it cannot be business receipt or income. In the circumstances, we do not find any element of law in this appeal. Addition made on account of general expenses incurred on buy back of shares - Expenditure on issuance of bonus shares is revenue expenditure. See GENERAL INSURANCE CORPORATION [2006 (9) TMI 116 - SUPREME COURT]
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