9911796707
TMI Blog2013 (9) TMI 633X X X X Extracts X X X X X X X X Extracts X X X X ..... und which is numbered 1.11, being sub grounds of ground No. 1, additional ground No. 3A and additional ground No. 16A. The Senior AR, therefore, proceeded on the concise grounds of appeal. At the time of hearing before us the Senior AR of the assessee company placed before us the synopsis in a chart form for the assistance of the Bench. 3. Grounds No. 1.1 to 1.11 basically are against the disallowance of interest of Rs. 4,67,52,000/- on the grounds of diversion of borrowed funds for non business purposes for making investments. The assessee's main plea was that the claim made u/s 36(1)(iii) was a valid claim. To support its claim as a business deduction, the assessee has pleaded alternative grounds, wherein it had prayed before the CIT(A) to allow the impugned interest either as business deduction u/s 37(1), or still alternatively u/s 57(iii). As per grounds raised on this issue, the assessee's claim has been that the revenue authorities ought to, under one circumstance or other, should have allowed the claim of expense of interest. 4. From the observation of the AO in the assessment order it is seen that assessee has made investments in shares and had also advanced funds to sis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... om tax, expenses relatable to that income shall be disallowed as per the provisions of sec 14A. The AO dwelled on sec 37 and held that since dividend received on holding of shares is the income resulting from shares, it cannot be business income, therefore, it cannot be said that the expenditure is wholly and exclusively for the purposes of business, hence deduction u/s 37 cannot be allowed. 5. The AO then observed that for claiming an allowance u/s 57(iii), it has to be proved that the expenditure incurred is laid out wholly and necessarily for earning such income. According to him, the interest on moneys borrowed for investment in shares which has not yielded any dividend was deductible u/s 57(iii). Deduction u/s 57(iii) was allowable only in respect of expenditure incurred or laid out wholly and necessarily for earning such income. According to him, the assessee had not adduced any evidence to prove that the loans borrowed were utilized for the purpose of business and borrowed funds were not utilized in making investment in shares. He further observed that the assessee did not maintain any separate bank account for investments and on this observation, he says that the assessee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he running of the business. The Senior A.R. also relied upon the decision of CIT vs. Reliance Utilities & Powers Ltd. reported in 313 ITR 340 (Bom), wherein the Hon'ble jurisdictional High Court held (Head note) "that if there were funds available both interest free and overdraft and/or loans taken, then presumption would arise that investments would be out of interest free funds generated or available with the company if the interest free funds were sufficient to meet the investment". The Hon'ble Bombay High Court held that interest was deductible. The Senior A.R. relied upon an unreported judgment (copy placed on record) in the case of CIT vs Polyolefins Industries Ltd. (I.T.A. No.3897/2010) dated 16-06-2011, wherein the Hon'ble Bombay High Court dismissed the appeal filed by the CIT against the decision of Hon'ble ITAT reply upon the case of CIT vs. Reliance Utilities & Powers Ltd. (supra). The Senior A.R. also relied upon the decision of National Organic Chemical Inds. Ltd. vs. DCIT, rendered by Mumbai ITAT in ITA No. 3250/Mum/1990, wherein the co-ordinate Bench of the ITAT held that the assessee has sufficient self generated funds to make investments. The co-ordinate Bench als ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 22, in respect of which such common charge is incurred". 10. The Senior A.R. on the issue of weighted average cost in ground no. 1.8, argued and cited the case against himself wherein, he submitted that if the case of Cheminvest Ltd. vs. ITO reported in 121 ITD 318 (Del-SB) is taken into account then the disallowance would be to the tune of Rs. 2,11,67,000/- wherein this figure could be arrived at by computing exempt dividend yielding investments against the total borrowed funds. 11. The Senior A.R. in grounds no. 1.9 and 1.10 submitted that alternatively the interest paid on borrowed capital on account of sec 14A, AO should have excluded investments made in the preceding year which amounted to Rs. 7596.15 lacs. While submitting this, the Sr. A.R. cited the case of CIT vs. Sridev Inds. Reported in 192 ITR 165 (Kar), DCIT vs. Beck India Ltd. (2008) 26 SOT 141 (Mum), Saleem Chawda vs. ITO 96 TTJ (Jodh), Saw Pipes Ltd. vs. Addl. CIT (2005) 3 SOT 237 (Del) and Meenakshi Synthetics P. Ltd. vs. ACIT 84 ITD 563 (Luck). 12. The Senior A.R. referred to Ground No. 1.11, being the additional ground raised, wherein he pleaded that the AO should have excluded investments made in foreign comp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se of business and not making investments in shares. The revenue authorities accept that the assessee was maintaining common pool account and we also find that the revenue authorities did not make any effort on their own to make any ascertainment to carve out a case for themselves, but relied upon the figures provided by the assessee. The plain reading of those figures patently tilts the case heavily in favor of the assessee. At the time of hearing the Sr. A.R. had submitted that besides the case laws cited before the revenue authorities, certain other case laws, which he had placed in the paper book of case laws (extracted relevant portion). We find the decision of the Hon'ble jurisdictional High Court of Bombay in the case of CIT vs. Reliance Utilities & Powers Ltd. reported in 313 ITR 340 squarely covers the issue of the assessee company, holding, "if there were funds available both interest free and overdraft and/or loans taken, then a presumption would arise that investments would be out of interest free funds generated or available with the company. The interest was deductible". This case was followed by the Hon'ble Bombay High Court in the case of CIT vs. Polyolefins Indust ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r section 14A for the purposes of ground no. 1.8. 21. Grounds No. 1.1 to 1.11 are allowed, with specific directions in grounds No. 1.7, 1.8 and 1.11. 22. In the result : Grounds No. 1.1 to 1.3 are allowed. Grounds No. 1.4, 1.5 & 1.6 are held to be rendered redundant, hence these are dismissed. Grounds No. 1.7 & 1.8 are restored to the file of the AO with directions. Grounds No. 1.9 & 1.10 are held to be rendered redundant, hence these are dismissed. Ground No. 1.11 is restored to the file of the AO with directions. Ground No. 2 23. Ground No. 2.1 is against the order of the CIT(A), wherein the CIT(A) had sustained the disallowance of the claim of deduction u/s 80HHC amounting to Rs. 17,20,46,510/-. 24. The DR supported the findings of the revenue authorities. 25. At the outset, the Sr. A.R. submitted that in view of the insertion of 5th proviso to section 80HHC(3) by the Taxation Laws (Amendment) Act, 2005 w.e.f. 01-04-1992 and by virtue of decision of the co-ordinate Benches in the assessee's own case in I.T.A. No. 5591/Mum/2005 dated 11/09/2009 for assessment year 1999-2000; I.T.As. No. 4823 to 4825/M/2005 covering assessment years 1996-97 to 1998-99 and I.T.As. No. 27 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e for the earlier assessment years wherein the Tribunal has followed the decision in the case of ITO Vs. Artmis Exports (P) Ltd., 108 ITD 1 (Mum.). I this decision the bench held as follows: 'As regards the issue as to whether direct cost to be considered for working out deduction u/s 80HHC with regard to trading export should be only that direct cost which was attributable to realized trading export or total direct cost attributable to realized as well as unrealized trading export, the words 'direct cost' mean cost directly attributable to the trading export exported out of India including purchase price of such goods. Since direct cost is deducted from export turnover of trading goods which is only realized trading export turnover, direct cost to be considered for that purpose should be only that portion of the direct cost regarding trading export turnover which is attributable to realized trading export turnover. From a reading of subsection (3)(b) of section 80HHC, it is clear that as per the mandate of this clause, direct cost to be reduced from export turnover of trading goods in direct cost attributable to such export, i.e. trading export turnover. Since as per definition o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cent of the quantum of any of the aforesaid receipts which are allowed as expenses and therefore not included in the profits of business of the assessee. 16. In the result, we allow the appeal and set aside the impugned order of the High Court and remand the matter to the Assessing Officer to work out the deductions from rent and interest in accordance with this judgment. No cost". The Senior AR prayed that since the issue is now settled by the Hon'ble Apex Court a definite finding on the issue be taken by the Bench as well. 34. On the other hand, DR supported the orders of the revenue authorities. 35. Respectfully following the decision of the Hon'ble Supreme Court, Court in the case of ACG Associated Capsule Pvt. Ltd. vs CIT (supra), we allow the ground and direct the AO to recompute the profits of business in accordance with law, as held by the Hon'ble Apex Court. Ground No. 2.8 is allowed. 36. Ground No. 2.9 was an additional ground taken before the C.I.T. (A), wherein vide letter dated 25/02/2005 the assessee had raised ground No. 2.6B, which read as under: In computing the "profits of business" under Explanation (baa) to section 80HHC, the Learned Assessing Officer ou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 9-2000 in I.T.A. Nos. 4823 to 4825/M/2005 and I.T.A. No. 5591/M/2005. "11.1 The representatives of the parties agreed that the issue decided in favor of the assessee by the ITAT in assessee's own cases for AY 1996-97 to 1998-99 vide ITA Nos. 4823 to 4825/Mum/2005,order dated 26th March, 2009, wherein the ITAT held as under: "In our considered opinion, these are not the tests laid down for allowance or otherwise of the depreciation claim made by the assessee. In fact the assessee is entitled to claim depreciation u/s 32. The essential conditions for the allowance of a depreciation claim are - (a) he should be the owner of the asset; (b) it should be utilized for business purposes. Both these conditions are fulfilled in this case. The fact that the assessee had made a business decision to recover lease rent from the other party i.e. VGMPL is not relevant consideration for the issue as to whether depreciation allowance is to be allowed or not. Be it as it may, it is well settled that the revenue cannot step into the shoes of the assessee and decide whether a particular commercial decision is proper or not. In view of the above, discussion and also in view of the fact that the jurisd ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ciation on two helicopters owned by the assessee. The CIT(A) has followed the CIT(A)'s order for A.Y. 1997-98. This issue too has been decided by the co-ordinate Bench of the Tribunal in assessee's own case in ITA No. 4823 to 4825/M/2005 and I.T.As. No. 5591/M/2005, covering A.Yrs. 1996-97 to 1999-2000, over-ruling the CIT(A)'s decision. The AR further submitted that the issue is covered by the judgment of the Hon'ble Madras High Court in the case of CIT vs. Indian Express (Madurai) Pvt. Ltd. reported in 255 ITR 68 (Mad) and Hon'ble Bombay High Court in CIT vs. Associated Cement Co. Ltd. 68 ITR 478 (Bom). "12.1 The learned representatives of the parties agreed that the /issue decided in favour of the assessee by the ITAT in assessee's own cases for AY 1996-97 to 1998-99 vide ITA Nos. 4823 to 4825/Mum/2005 order dated 26th March, 2009, wherein the ITAT held as under:- "4.19 We have considered the rival submissions and perused the material available on record. The undisputed fact is that the assessee's helicopter was utilized by the sister concerns of the assessee and it had recovered certain amounts from those sister concerns. The assessee as well as the first appellate; authority ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ter that the payment may benefit a third party. The fact that a benefit is obtained by a third party by reason of an expenditure incurred by an assessee does not ipso facto result in the assessee not being regarded as having incurred the expenditure solely and exclusively for its business. What is important is the intention of the assessee and the user by the assessee of the machinery in relation to his business. If the investment is made by the assessee and ownership vests in the assessee, expense is incurred by the assessee, the machine is used for the business of the assessee, and the machine has not been used by the assessee for any non-business or non-professional use, the expenditure incurred on the machinery is commercially expedient from the point of view of the business of the assessee, and if the business of the assessee is benefited from the user of the machine, then the identical sharing of the benefits obtained form the user of the machine with an associate would not render the user of the machine non-exclusive for the purpose of section 38(2). 4.20 Respectfully following the above judgments, we allow the ground raised by the assessee. 12.2 Since the facts of the cas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lly following the said decision in the order, we dismiss the ground. Ground No. 10.1 is dismissed. 57. Ground No. 10.2 is on account of treatment of interest of Rs. 2,16,90,335/- u/s 244A as business income and not as income from other sources. The CIT(A) has treated as income from other sources by creating a distinction of the case of R.B. Jodhamal Kuthiala vs. CIT reported in 83 ITR 464 (P&H). The CIT(A) observed that that case was on the issue of excess profit tax. The Sr. A.R., however, reiterated the submissions made before the revenue authorities and pleaded that it is a business receipt and not income from other sources. 58. Ground No. 10.2 is on the treatment of interest received by the assessee u/s. 244-A of the I.T.Act. As referred to by the Sr. A.R, the character of the receipt shall remain the same when it was allowed or disallowed on the previous occasion by referring to the Hon'ble Punjab & Haryana High Court in R. B. Jodhamal Kuthiala vs. CIT, reported in 83 ITR 464, we are inclined to agree with the submissions made by the Sr. A.R that the interest received shall be treated as business receipt and not income from other sources, we allow this ground. Ground No. 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... late orders for A.Yrs. 1997-98 to 1999-2000 had just been passed and according to the CIT(A), the assessee should have awaited too examine and give effect to the appellate orders. The Sr. A.R. submits that technically the observations of the CI(A) were correct but simultaneously, he has pointed out that the issue has got covered in its own case in I.T.A. Nos. 4823 to 4825/M/2005 covering assessment years 1996-97 to 1998-99 and I.T.A. No. 5591/Mum/2005 for assessment year 1999-2000 by the coordinate Benches of Mumbai, wherein it was held as under: 15. Ground No. 17 is in respect of omission to set off and carry forward to AY 2000-01 tax credit u/s 115JAA brought forward from AY 1998-99 of Rs. 2,16,45,977/-. "15.1. The learned representatives of the parties agreed that the issue decided in favour of the assessee by the ITAT in assessee's own cases for AY 1996-97 to 1998-99 vide ITA Nos. 4823 to 4825/Mum/2005 order dated 26th March, 2009, wherein the ITAT held as under: "4.23 Ground No. 19 for the assessment year 1997-98 and ground 14 for the assessment year 1998-99 are on the issue of granting of tax credit u/s 115JAA which is brought forward from the earlier assessment year. As t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appeal, vide ground 17 for assessment year 1996-97, ground 21 for assessment year 1997-98 and ground 16 for the assessment year 1998-99. The assessee made a claim u/s 80HHC and this claim stood defeated by the insertion of Fifth Proviso to section 80HHC(3) by the Taxation Laws (Amendment) Act, 2005 with effect from 01.04.1992. Due to this retrospective amendment the assessee raises this legal claim that interest u/s 234B is not chargeable in respect of disallowance of the assessee's claim for deduction u/s 80HHC. After hearing rival contentions we are of the considered opinion that this is a pure legal claim and does not require any new evidence and as all the facts are on record, the same can be admitted. The assessee while filing this return of income has claimed deduction u/s 80HHC by not taking into consideration the amount of negative profits computed under the provisions to section 80HHC(3)(c) and against the amount computed under the then Proviso to section 80HHC(3) the assessing officer disallowed, in full, the assessee's aforesaid claim. Further, the learned AO also charged interest u/s 234B. Vide Taxation laws (Amendment) Act, 2005, almost 8 years from the end of the prev ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 000-01, 2001- 02 and 2002-03. Grounds No. 1.1 to 1.11: 69. Grounds No. 1.1 to 1.11 are identical grounds taken in assessment year 2000-01. As the grounds are identical, for the reasons/findings given therein, we shall follow the decision taken in each of the grounds numbered 1.1 to 1.11 which are as follows: Grounds No. 1.1 to 1.3 are allowed. Grounds No. 1.4, 1.5 & 1.6 are held to be rendered redundant, hence these are dismissed. Grounds No. 1.7 & 1.8 are restored to the file of the AO with directions. Grounds No. 1.9 & 1.10 are held to be rendered redundant, hence these are dismissed. Ground No. 1.11 is restored to the file of the AO with directions. Grounds No. 2.1 to 2.10 : 70. Grounds No. 2.1 to 2.10 are identical grounds taken in assessment year 2000-01. As the grounds are identical, for the reasons given therein, we shall follow the decision taken in each of the grounds numbered 2.1 to 2.10 which are as follows: Ground No. 2.1 is rejected. Ground no. 2.2 to 2.4 have not been pressed, hence these are dismissed as not pressed. Ground no. 2.5 is rejected. Ground no. 2.6 is not pressed, hence rejected as not pressed. Ground no. 2.7 is allowed. Ground no. 2.8 is res ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es, the assessee prays that appropriate directions be given to the AO to give appropriate relief. 81. We have gone through the arguments, we therefore, direct the AO to give appropriate relief to the extent of tax certificates produced before him so that the assessee gets appropriate relief. Grounds No. 9, 10 & 11 are allowed with directions to the AO. 82. Ground No. 12 herein is identical to ground No. 15 taken in assessment year 2000-01, where we have allowed the ground for statistical purposes. As the ground is identical, for the reasons/findings given therein, we shall follow the decision taken in the ground. Hence ground No. 12 is allowed for statistical purposes. 83. Ground No. 13 is consequential. 84. Ground No. 13A herein is identical to ground No. 16A taken in assessment year 2000-01, where we have partly allowed the ground. As the ground is identical, we shall follow the decision taken in the ground. Hence ground No. 13A is partly allowed 85. Grounds No. 14.1 and 14.2 are dismissed as not pressed. 86. Grounds No. 15.1 and 15.2 are dismissed as not pressed. 87. Grounds No. 16.1 and 16.2 are dismissed as not pressed. 88. Ground No. 17 relates ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt expenses. 94. The Senior AR submitted that the issue has now been under dispute before various Hon'ble High Courts. He submitted that now the issue has virtually been set at rest by the decisions by the Hon'ble Delhi High Court in the case of CIT Vs Asahi India Safety Glass Ltd., ITA No. 1110 & 1111 of 2006, order dated 04/11/2011, wherein the Hon'ble Delhi High Court has held as under: "11. Software is nothing but another word for computer programmes, i.e., instructions, that make the hardware work. Software is broadly of two types, i.e., the systems software, which is also known as the operating system which controls the working of the computer; while the other being applications such as word processing programs, spread sheets and data base which perform the tasks for which people use computers. Besides these there are two other categories of software, these being: network software and language software. The network software enables groups of computers to communicate with each other, while language software provides with tools required to write programmes. (See Microsoft Computer Dictionary, 5th Edition "Software" at page 489). 12. The aforesaid would show that what the ass ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se of export activities of the assessee and when the assessee did not execute the full quota allotted, EMD was forfeited by AEPC. Thus the forfeiture of EMD has occurred during the course of business activities carried on by the assessee. Hence, it is a case of business loss. The AO has disallowed the amount on the ground that it was in the nature of penalty. Forfeiture of EMD on account of non-fulfillment of quota allotted to the assessee cannot be treated penal in nature, as held by the AO. In the case of Tarun Commercial Mills Co. Ltd. (supra) the assessee executed a bond towards shortfall in export obligations. Under the terms of bond executed with the Government the assessee had option to either achieve the target or pay for the shortfall. The terms of the bond clearly indicated that the auction with the manufacturer assessee of paying for the shortfall could be for variety of reasons in the interest of commercial expediency. Hon'ble Gujarat High Court has held that the exercise of option of the assessee for payment on account of shortfall was not in the nature of penalty. In the case of CIT v. Surya Prabha Mills (supra) the assessee company was running a textile mill, was a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... allotted on the basis of past performance in the field of export and payment of earnest money is incidental to fulfilment of the quota so allotted and, therefore, it cannot be said to have been deposited for acquisition of the quota. Therefore, forfeiture of security deposit is in the nature of business loss and has to be allowed as deduction. Accordingly, neither the AO was justified in treating neither the forfeiture of security deposit as penal in nature nor the learned CIT(A) was justified in holding the security deposit in the nature of capital expenditure. Accordingly, we set aside the order of the learned CIT(A) and direct the AO to allow the claim of the assessee. 8. In the result, the appeal filed by the assessee is allowed." 95. Respectfully following the said decisions of the Hon'ble Bombay High Court and Hon'ble Delhi High Court, we hold that these expenses are revenue in nature and hence we delete the addition made by the revenue authorities. Ground No. 18 is allowed. I.T.A. No. 3959/Mum/06 - A.Y. 2002-03 (Assessee's appeal : 96. The grounds arise from the common order of the CIT(A) - XXIII, Mumbai dated 02-01-2006, covering assessment years 2000-01, 2001- 02 and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dings, the assessee submitted as under: "For the purpose of exporting out of India, textiles garments, the appellant had during the year under consideration held Export Entitlement Quotas, under and in terms of which, shipments of the relevant exports were required to be effected on or before the 30th day of September of the year immediately succeeding the year in which the concerned Quota was issued by the AEPC. In case shipment(s) under a Quota could not be effected before the 30th day of September aforesaid, the AEPC permitted revalidation of the Quota until the 31st day of December, upon the concerned exporter (quota-holder) furnishing to the AEPC, a Bank Guarantee and/or a Legal Undertaking. If, however, shipment(s) under the Quota could not be effected even on or before the 31st day of December aforesaid, the AEPC could recover from the concerned exporter, certain amounts in cash for not effecting shipment(s) within the extended period of the Quota. During the year under consideration, the appellant had paid to the AEPC, a sum of Rs. 7,42,805/-, for being unable to make the required shipment(s) within the extended period aforesaid. The learned Assessing Officer has disallowe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xport quota allotted to the assessee. Therefore, the quota was allotted on the basis of past performance of the assessee as an exporter and not on the basis of earnest money deposited. The quota was allotted during the course of export activities of the assessee and when the assessee did not execute the full quota allotted, EMD was forfeited by AEPC. Thus the forfeiture of EMD has occurred during the course of business activities carried on by the assessee. Hence, it is a case of business loss. The AC has disallowed the amount on the ground that it was in the nature of penalty. Forfeiture of EMD on account of non-fulfillment of quota allotted to the assessee cannot be treated penal in nature, as held by the AC. In the case of Tarun Commercial Mills Co. Ltd. (supra) the assessee executed a bond towards shortfall in export obligations. Under the terms of bond executed with the Government the assessee had option to either achieve the target or pay for the shortfall. The terms of the bond clearly indicated that the auction with the manufacturer assessee of paying for the shortfall could be for variety of reasons in the interest of commercial expediency. Hon'ble Gujarat High Court has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urity deposit as deductible from the income. The amount was held to have been paid for securing right to purchase stock-in-trade and hence was not in the nature of capital expenditure. In the instant case, the quota has been allotted on the basis of past performance in the field of export and payment of earnest money is incidental to fulfillment of the quota so allotted and, therefore, it cannot be said to have been deposited for acquisition of the quota. Therefore, forfeiture of security deposit is in the nature of business loss and has to be allowed as deduction. Accordingly, neither the AC was justified in treating neither the forfeiture of security deposit as penal in nature nor the learned CIT(A) was justified in holding the security deposit in the nature of capital expenditure. Accordingly, we set aside the order of the learned CIT(A) and direct the AC to allow the claim of the assessee. 8. In the result, the appeal filed by the assessee is allowed." Respectfully following the decision by the co-ordinate Bench, we set aside the order of the CIT(A) on this issue and direct the AO to allow the claim of the assessee. 111. Ground No. 4.1 is identical to ground No. 8.1 taken ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the decision cited by the Sr. A.R. We are inclined to accept the submissions of the Sr. A.R but since the DR has referred to a later decision, which according him is against the assessee, we would like to crystallize the issue. We, will allow the appeal on the basis, when two views are possible, the one favourable to the assessee should be followed. We direct the AO to cancel the levy of interest, levied by him. Accordingly, ground No. 8 is allowed. 122. Ground No. 9.1 pertained to the claim of Rs. 2,70,178/- being prior period expenses and ground No. 9.2 is claim of duty drawbacks of Rs. 2,41,571/- refused. 123. It has been conceded by the Sr. A.R that the expenses of Rs. 2, 70,178/- and income of Rs. 2,41,571/- pertained to earlier year. Since nowhere do we find that both these figures either fall in the provisions or in the accrual in the preceding year, we do not intend to deviate from the decision arrived at by the CIT(A). We, therefore, reject the ground of appeal on both these issues. 124. Ground No. 9.2 (ii) is not pressed, hence it is dismissed as not pressed. 125. Ground No. 10 is identical to ground No. 18 in assessment year 2001-02. As the ground is identical, for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... - 93, 1994-95 and 1995-96. This view of the Tribunal is further supported by the decision of the Delhi Tribunal in the case of Glaxo Smithkline Asia (F) Ltd. Vs. ACIT [2006] 6 SOT 113 (Del) and Surendra Engg. Corpn. Vs. ACIT [2003] 86 ITD 121 (Mum)(SB). Respectfully following the same we reject the first ground." 20.2 Since the facts of the case and ground of appeal under consideration is similar to that of AYs. 1996-97 to 1998-99 cited supra, we respectfully follow the decision of the ITAT and in the light of that we dismiss the ground No.1 of the revenue's appeal." Respectfully following the decision of the co-ordinate Bench in the assessee's own case, we dismiss this ground filed by the department. 132. Ground No. 2 (identical in all three years) : On the facts and in the circumstances of the case and in law, the Ld.CIT(A) erred in directing to exclude sales tax and excise duty collected from the total turnover while computing deduction u/s 8OHHC of the Act. 133. The issue before us is covered by the decision of the co-ordinate Bench in assessee's own case in I.T.As. No. 2738, 2846 & 4296/Mum/2000, wherein the Bench held as under: "11. In second part of ground No. 3 the issu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Tata Employees Consumers Co-op Soc. Ltd., Dewas. 140. The issue has been consistently being held in favour of the assessee by the appellate authority and by the co-ordinate Bench, we do not intend to deviate from the findings of the CIT(A) and respectfully following the orders of the co-ordinate Bench in I.T.A. No. 5591/Mum/2005 and earlier Co-ordinate Benches, in the assessee's own case, we dismiss the ground raised by the department. 141. Ground No. 6 (only in assessment year 2000-01) : On the facts and in the circumstances of the case and in law, the Ld.CIT(A) erred in deleting the disallowance of Rs. 38,54,354/- in contravention of proviso to 36(1)(xi) of the Act. 142. The CIT(A) in his order had allowed the claim of Y2K expenses, which were disallowed by the AO, as the assessee had not filed the Audit Report in compliance with section 36 (1)(ix) along with the return. It was noticed by the CIT(A), that the required audit report was later filed during the course of the assessment proceedings, the CIT(A) held that disallowance could not be sustained because the audit report was not filed, which was made available later on. We find that the CIT(A) has taken a judicious decisi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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