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2019 (11) TMI 1387 - AT - Income TaxAdditional depreciation - AO disallowed the claim holding that the assets on which additional depreciation is claimed by the assessee was neither new nor brought into existence in the year under consideration - HELD THAT:- Jurisdictional tribunal’s order in Gloster Jute Mills Ltd. [2017 (3) TMI 1807 - ITAT KOLKATA] has decided the issue in assessee’s favour that the impugned additional depreciation claim is not allowable in case of new plant and machinery only. Coupled with this, it further emerges that hon’ble Madras high court’s decision in the very assessee’s case M/s Brakes India Ltd. vs. DCIT [2017 (4) TMI 511 - MADRAS HIGH COURT] has reversed the tribunal’s non-jurisdictional bench’s decision hereinabove. We hold in this factual and legal backdrop that the CIT(A)’s findings under challenge deleting the corresponding additional depreciation disallowance by quoting section 32(1)(iia) in the twin assessment years (supra) deserves to be confirmed. TP Adjustment - corporate guarantee’s arm’s length price’s adjudication made by the Assessing Officer as per the Transfer Pricing Officer’s order - HELD THAT:- We find no merit in Revenue’s instant grievance since various judicial precedents Tega Industries Ltd. vs. DCIT [2016 (9) TMI 1456 - ITAT KOLKATA] & Bharti Airtel Ltd. vs. Addl. CIT [2014 (3) TMI 496 - ITAT DELHI] take note of the foregoing legislative amendment to hold that a corporate guarantee is not an international transaction u/s 92B of the Act. We decline the Revenue’s instant grievance. Provision for leave encashment disallowance u/s 43B(f) - lower authorities have treated the same as a contingent liability being a mere provision only - HELD THAT:- It transpires during the course of hearing the hon’ble jurisdictional high court’s decision in the case of Exide Industries Ltd. vs. UOI [2007 (6) TMI 175 - CALCUTTA HIGH COURT] had quashed the very statutory provision itself as ultra vires. We therefore direct the Assessing Officer to keep this issue in abeyance for a fresh decision in view of their lordships’ final call in the above stated lis. This former substantive ground is accepted for statistical purposes. Education cess disallowance made u/s 40(a)(ii) - HELD THAT:- It emerges that the same is no more res integra as hon’ble Rajasthan high court’s decision in Chambal Fertilizers Ltd. vs. DCI [2018 (10) TMI 589 - RAJASTHAN HIGH COURT] has considered the CBDT circular issued long back dated 18.05.1967 that the expression “tax” does not include cess. We therefore go by their lordships’ view to delete the impugned educational cess disallowance
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