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2011 (8) TMI 1154 - ITAT MUMBAIRural Development Expenditure - AO disallowed rural development expenditure on the ground that in the earlier years, an identical claim was disallowed - HELD THAT:- We note that a similar issue came before the Tribunal for AY 1994-95, where The AO allowed the claim of the assessee. Accordingly, the claim of the assessee for the AY under consideration is also to be allowed, if the claim is identical on the facts as it was in the earlier years. Accordingly, we restored this issue to the record of the AO for limited purposes to verify, if the facts in respect of the claim of rural development expenses are identical as to the earlier years, then the same shall be allowed - Matter restored back. Interest u/s 244A - Interest along with income tax refund - The assessee has received interest u/s 244A. Such interest may undergo changes as dept. and assessee has appealed against such interest amount and the decision for the same is pending HELD THAT:- It is found that this matter is settled by the decision of the Special Bench of the Tribunal in the case of AVADA TRADING CO. (P.) LTD. VERSUS ASSISTANT COMMISSIONER OF INCOME-TAX, SPL. CIRCLE 18 (1) [2006 (1) TMI 465 - ITAT MUMBAI], where it was viewed that the assessee would not be remediless, if any change or reduction in the amount of interest refund u/s 244A in future; in that eventuality, the assessment can be rectified u/s 154 and therefore, the apprehension and the contention of the assessee was found baseless by the Special Bench. Therefore, respectfully following the decision of the Special Bench of the Tribunal, we do not find any merit or substance in the ground taken by the assessee; accordingly, the same is rejected. However, as observed by the Special Bench, if any change or reduction in the interest, refund to the assessee u/s 244A, the same has to be taken into account u/s 154 - Decision in favour of Assessee. Depreciation of Rollover Charges - Revenue or Capital in Nature? - Assessee’s claim for roll over charges was disallowed by the department being capital in nature - HELD THAT:- In view of the decision of the jurisdictional High Court in assessee's own case EDELWEISS CAPITAL LTD., MUMBAI VERSUS INCOME TAX OFFICER 3 (1) (1) , MUMBAI 2012 (10) TMI 223 - ITAT, MUMBAI and in view of the facts that in the earlier years, the AO himself has allowed the depreciation on the expenditure, which was treated as capital in nature, the claim of depreciation on such expenditure treated as capital in nature is therefore, allowable. Accordingly, we decide this issue in favour of the assessee. Disallowance u/s 10A (9) - Assessee claimed expenditure incurred being payment made to the School wherein the children of the employees of the assessee are studying. The AO disallowed the expenditure - HELD THAT:- We find that the same issue had been considered by the tribunal in assessee’s own case in assessment year 1994-95. In that year also disallowance had been made u/s 40A(9). The tribunal, however following the decision in A.Y.1992-93 and 1993-94 allowed the claim. Facts this year are identical. Therefore, we allow the claim of the assessee. Admission of additional grounds HELD THAT:- In our considered opinion and in the interest of justice, additional grounds are required to be reconsidered at the levy of the AO. We have one more reason to restore the issue to the AO because an identical issue has already been considered and restored back to the file of the AO in the case of the assessee, M/S. ADITYA BIRLA NUVO LTD. FORMERLY INDIAN RAYON AND INDUSTRIES LTD. VERSUS ASSISTANT COMMISSIONER OF INCOME-TAX -3 (2) [2011 (2) TMI 962 - ITAT, MUMBAI], where it was held that, principle relating to admission of additional ground being a legal ground for the first time before the tribunal is settled by the judgment of Hon’ble Supreme Court in case of NATIONAL THERMAL POWER COMPANY LIMITED VERSUS COMMISSIONER OF INCOME-TAX [1996 (12) TMI 7 - SUPREME COURT], in which the Hon’ble Supreme Court held that question of law arising from the facts which are on record in the assessment proceedings has to be allowed to be raised if it is necessary to consider the question in order to correctly assess the tax liability of the assessee. Accordingly, the matter is restored to the record of the Assessing Officer to examine the additional evidences filed by the assessee then decide the issue as per law. Expenditure incurred on assets not owned - Revenue or Capital Expenditure? - HELD THAT:- Since this is a consequential relief sought by the assessee in case the expenditure incurred on the assets not owned by the assessee claimed as revenue expenditure but such expenditure has already been held by the Tribunal in AY 1995- 96 as capital in nature. -Decision in favour of Assessee. Interest Expenses for period prior to commencement of business - Deduction u/s 36(1)(iii) - Assessee claimed amount being interest paid on capital borrowed funds for its new project. Assessee capitalized and showed the interest under capital work-in progress in the books of account; however, has claimed as deductible revenue expenditure in computing the profits and gains of business u/s 36(1)(iii) -
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