TMI Blog2011 (2) TMI 159X X X X Extracts X X X X X X X X Extracts X X X X ..... ad been accepted by the department in subsequent assessing year. In view of this undisputed fact, the question whether the dispute raised by the assessee was still pending in Hon’ble Supreme Court could not be a ground to tax the amount again. Claim of refund - claim of the assessee for refund was based on judgment of the Hon’ble Supreme Court in some other case - The credit entry in the profit and loss account was made on hypothetical basis. This being the factual finding which is not shown to be erroneous, the deletion by the Tribunal is not liable to be interfered with. - ITA No.66 of 2004 - - - Dated:- 1-2-2011 - MR JUSTICE ADARSH KUMAR GOEL, MR. JUSTICE AJAY KUMAR MITTAL, JJ. Ms. Urvashi Dhugga, Senior Standing Counsel for t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ars. 4. The assessee credited to its profit and loss account refund of higher rate of Central excise duty as it had challenged applicability of tariff entry attracting levy of higher rate by submitting that goods manufactured by it were covered by entry attracting lower rate of excise duty. It cleared the goods on furnishing of bank guarantee of the extra amount under interim order of the Court. Though the assessee succeeded before the Collector, the CEGAT set aside the order in favour of the assessee against which further appeal was pending before the Hon ble Supreme Court. However, in later year, the duty was paid under KVSS. The Assessing Officer added the amount to which the petitioner was entitled to refund on the basis of order of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dit could have been initiated only after 31st march 1988. As the assessee found that its audit will not be completed by 31.7.1988. It applied for extension of time upto 31.8.1988 which was granted by the AO. But as the audit could not be still completed, it made an application for extension of time for filing the return of income upto 30.9.1988. The request on Form No.6 were made accordingly. The request for extension of time for filing the return of income upto 30.9.1988, therefore, was quite reasonable and the AO was not justified to reject the same. As there was reasonable cause in filing the return late and the return of income has been filed within time for which the extension of time was sought, we direct the AO to carry forward to de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that subsequently the CEGAT has reverted the order of the Collector (Appeals), Central Excise on this issue. Though the CEGAT had denied the claim of the assessee, the assessee had challenged the same before the Hon ble Supreme Court, the same was still pending. During the pendency of the appeal before the Hon ble Supreme Court, the assessee thought it fit to offer the same for taxation and ultimately the same was also offered for taxation under KVSS. A copy of the order issued by the Collector, Central Excise is also on record. Under these circumstances, we hold that as there was no cessation of liability, the provisions of section 41 (1) of the Act were not applicable. We also hold that sustaining any addition in the year under considera ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed in favour of the assessee by the decision of the Delhi bench of the ITAT reported in 76 ITD 32. Concurring with the same, we hold that the disallowance sustained by the CIT(A) is not justified and the same is deleted. v) Foreign travelling expenses could not be held to be capital expenses. 56. We have heard the rival submissions. We find that the assessee was already manufacturing and dealing with the same products for which Shri Arun Brar has visited abroad. During his visit, he explored the possibility of technical collaboration for manufacturing of similar items. Any expenditure for modernization or up gradation of the technology of the existing product cannot be said to be capital expenditure. It is settled law that where a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... invoked. In the judgments relied upon, the return was beyond the prescribed date which was never extended. The question is, thus, answered against the revenu. Re: (ii) 13. The Tribunal has set aside the addition towards refund in view of the fact that the assessee had offered the amount for taxation under KVSS which had been accepted by the department in subsequent assessing year. In view of this undisputed fact, the question whether the dispute raised by the assessee was still pending in Hon ble Supreme Court could not be a ground to tax the amount again. Accordingly, the question is decided against the revenue. In such circumstances, the judgment relied upon in Polyflex (India) Private Limited v. CIT, (2002) 257 ITR 343 is not attr ..... X X X X Extracts X X X X X X X X Extracts X X X X
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