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2019 (6) TMI 470 - AT - Income TaxDisallowance u/s 40(a)(i) & 40(a)(ia) - payment made for freight on raw material - payments of professional fees to foreign parties for services rendered abroad - HELD THAT:- Undisputed position that emerges is the fact that issue of disallowance u/s 40(a)(i) & 40(a)(ia) stood covered in assessee’s favor by the decision of this Tribunal for AY 2007-08. It has been brought to our notice that the revenue further contested the issue of disallowance on account of import / local purchases & freight payment before Hon’ble Bombay High Court [2013 (3) TMI 820 - BOMBAY HIGH COURT] wherein the question of law, as urged by the revenue, has not been admitted by Hon’ble High Court. Further, similar issue of disallowance on account of import / local purchase arose in AY 2009-10 which was agitated before this Tribunal wherein the view taken in AY 2007-08 was followed by the Tribunal. Nothing has been demonstrated before us to suggest any change in material facts or circumstances. Disallowance u/s 14A - assessee offered suo-moto disallowance - HELD THAT:- It was incumbent on the part of Ld.AO to form an opinion as to why the disallowance offered by the assessee, having regards to its accounts, was not satisfactory or correct. The aforesaid satisfaction of AO, is sine-qua-non before clothing Ld. AO the power to acquire jurisdiction u/r 8D. Therefore, finding no infirmity in the decision on this issue, we dismiss ground nos. 5 & 6. Addition of discount received on Foreign Currency Convertible Bonds [FCCB] buyback u/s 28(iv) - HELD THAT:- In the present case, it is a matter of record that the amount having received as cash receipt due to the waiver of loan. Therefore, the very first condition of Section 28(iv) which says any benefit or perquisite arising from the business shall be in the form of benefit or perquisite other than in the shape of money, is not satisfied in the present case. Hence, in our view, in no circumstances, it can be said that the amount can be taxed under the provisions of Section 28(iv) - benefit to be received by the assessee has to be in some form other than in the shape of money so as to bring the same within the ambit of Section 28(iv). See M/S. XYLON HOLDINGS PVT. LTD. [2012 (9) TMI 449 - BOMBAY HIGH COURT] Grant of deduction u/s 80-IB - assessee claimed deduction being 30% of profit earned from M-seal unit situated at Daman - AO opined that since the assessee had unabsorbed depreciation in respect of said windmills, the same should have been first set-off against the profit for the years before claiming deduction u/s 80IA - HELD THAT:- we find that this issue stood covered in assessee’s favor by the aforesaid decision of Hon’ble Bombay High Court rendered for AYs 2006-07 & 2007-08, as rightly observed by Ld.CIT(A). The Hon’ble Court has followed its own decision rendered in CIT V/s Hercules Hoists Ltd. [2017 (6) TMI 1125 - BOMBAY HIGH COURT] while adjudicating the assessee’s appeal. Further, following the same reasoning, the stated issue has also been adjudicated in assessee’s favor by the Tribunal in its latest order for AYs 2008-09 & 2009-10 .
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