TMI Blog2012 (11) TMI 935X X X X Extracts X X X X X X X X Extracts X X X X ..... regard do not speak of the basic facts as to the nature of arrangement/agreement between the assessee and client and relevant facts regarding payment of Rs. 8 lakhs in this regard. - matter remanded back. Liability of exchange loss – alleged that expenditure has not crystallized – Held that:- Foreign exchange loss is on the revenue items – assessee submits that this issue is covered in favour of the assessee by the decision of Woodward Governor India P. Ltd. (2009 (4) TMI 4 - SUPREME COURT ) – matter remanded to AO Claim of interest u/s. 244A on the refund of taxes due – Held that:- First appellate authority has not dealt with this issue – matter remanded to AO - I.T.A.No. 3395/Mum/2008 - - - Dated:- 18-1-2012 - Shri J. Sudhakar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... de from the total income assessed, a sum of Rs. 9,48,833/-, being the amount considered by the appellant as income in the assessment year under appeal, out of unamortized set up const revenue of Rs. 7,73,333/-, the whole of which was already considered as income by the Assessing Officer and added to the total income assessed for the income tax assessment year 2002-03. 5. The learned CIT(A) erred in confirming the disallowance out of certain expenses, on the ground that personal usage to some extend at least can not be ruled out as per details of such expenses tabulated below :- NATURE OF EXPENSES TOTAL EXPENSES (Rs.) PERCENTAGE CONSIDERED AS PERSONAL BY THE AO AMOUNT DISALLOW ED BY THE AO (Rs.) PERCEN TAGE UPHELD ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ncurred on Repairs and maintenance in the assessment year 2002-03, which was held by the Assessing Officer as deferred revenue expenditure in that year, with a direction that Rs. 36,867/- will be allowed over the next two years in equal installments of Rs. 18,433/- each. 8. The learned CIT(A) erred in confirming the addition of Rs. 42,51,363/- on account of exchange loss, without understanding the facts and circumstances of the case and merely agreeing to the reliance placed by the Assessing Officer on the decisions of Hon'ble Supreme Court in Tuticorin Alkalies Vs. CIT, 227 ITR 172 and in the case of Indian Molasses in 37 ITR 66, as also on the decision of Hon'ble Karnataka High Court in CIT Vs. Motor Industries Ltd., 229 ITR 137. 9. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has come up before the Tribunal and at paragraph 9, page 5-6 of the order for A.Y. 2002-03, the Tribunal held as follows :- 9. We have heard rival submissions and perused the orders of the lower authorities. We find from paragraph 4 of the assessment order that the said amount relates to one-timepayment paid by the customer for initial start up of the contract between the assessee and M/s. Shilpa Ltd. The case of the assessee is that the amount is mere one time payment and it relates to the contract to be executed over the period of 5 years and, therefore, the amount has to be staggered over the years, as done by the assessee. On the other hand, the case of revenue is that the amount is a taxable receipt and relates to initial start-up ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d that expenditure is personal in nature. 9. The Tribunal in earlier assessment year at paragraph 13 on page 8 held as follows :- We have heard the rival submissions and perused the relevant material in this regard. Perusal of the said decisions mentioned above revealed that the disallowance made by the revenue authorities is not in order. Therefore, the decision of learned CIT(A) in this regard is set aside and the claim of the assessee should be allowed. Accordingly, ground No. 4 is allowed. 10. The Assessing Officer during the year has taken a view that the expenditure is in the nature of deferred revenue expenditure. Learned CIT(A) has not dealt with this issue. After considering the facts of the case, we prefer to follow the de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cision of Hon'ble Supreme Court in the case of CIT Vs. Woodward Governor India P. Ltd., 312 ITR 254 (SC). After considering rival contention, we are of the considered opinion that the issue should be set aside to the file of the Assessing Officer, as the facts are not clear. The Assessing Officer shall examine the claim of the assessee afresh, in the light of the Judgment of Hon'ble Supreme Court in the case of Woodward Governor India P. Ltd. (supra). In the result, ground No. 8 is allowed for statistical purposes. 14. Ground No. 9 is on the claim of interest u/s. 244A on the refund of taxes due. The first appellate authority has not dealt with this issue. As we have set aside certain issues to the file of the Assessing Officer, we sent ..... X X X X Extracts X X X X X X X X Extracts X X X X
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