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2023 (3) TMI 599 - AT - Income TaxBusiness expenditure u/s 37 - Allowability of advertisements, sales and marketing expenses - CIT-A allowed deduction - HELD THAT:- Hon’ble Gujarat High Court in the case of Smt. Virmati Ramkrishna [1976 (2) TMI 4 - GUJARAT HIGH COURT] held that the said expenses was allowable as ‘business expenditure’ as per the provision of section 37 of the Act in which case also the A.O. has not questioned the genuinity of the expenses. The Hon’ble Tribunal has stated that earning of income is not a criteria for allowability of the business expenditure when the said expenditure was incurred wholly in the course of business activity. The co-ordinate bench has also laid its hands on the proposition laid down by the Hon’ble Gujarat High Court in allowing the business expenditure and the criteria for the eligibility of claiming of the expenditure which are expended for the purpose of business. As this issue has been already dealt with by the co-ordinate bench for A.Y. 2016-17 [2022 (8) TMI 1355 - ITAT MUMBAI] we do not find any justification in deciding otherwise. Charging of 35% of the total receipts from on-money on the basis of the order of the Hon’ble Settlement Commission passed u/s. 245D(4) - An assessee’s case for A.Y. 2016-17, on similar facts the Tribunal has held the addition on on-money to be restricted to the extent of 35% of the total on-money by stating that the order of the Hon’ble Settlement Commission is appealed before the Hon'ble High Court, does not bar the ld. CIT(A) from adhering to the said order. Tribunal also held that unless any of the order passed by the Revenue authority is stayed, it does not prevent the lower authorities to rely on the said decision. By holding so, the Tribunal has restricted the addition to 35% of the total on-money. As in this appeal also, the facts are identical to that of A.Y. 2016-17, we find no justification in interfering with the decision of the tribunal in the previous year. From the above observation, we find no infirmity in the order of the ld. CIT(A). Hence, the ground nos.3, 4 & 5 raised by the Revenue are dismissed.
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