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ACITBK. Circle Versus M/s. Jyotindra International

2015 (3) TMI 570 - ITAT AHMEDABAD

Addition on account of interest expenses - CIT(A) deleted addition - Held that:- AO in the order has noted that Assessee was asked to furnish the cash flow statement and Ld. DR before us has also submitted that cash flow statement was not submitted by the assessee. Before us though Ld. AR has submitted that the cash flow statement was submitted but she could not point out the same from the paper book. We further find that CIT(A) while deleting the addition has passed on the burden of proving the .....

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at Assessee has not placed the sanction letter of the bank from which the terms and conditions of the bank loan received by the assessee could be ascertained. In such a situation, we are of the view that the issue needs re-examination at the end of AO. We therefore remit the issue to the file of AO to re-examine the issue afresh - Decided in favour of revenue for staitiscal purposes.

Addition on account of stamp duty for pledge agreement and processing fees charged by bank CIT(A) dele .....

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:- CIT(A) deleted addition - Held that:- CIT(A) while deleting the addition has noted that simply on the basis of quantum of expenditure vis-à-vis the WDV of assets, the expenditure cannot be treated as capital expenses. He has further given a finding that the entire work of repairs and renovation was given on contract and therefore the addition at 40% towards labour charge payments was also unwarranted. Before us no material has been placed on record by the Revenue to controvert the findings of .....

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haracter of the expenditure. Before us no material has been placed on record by the Revenue to controvert the findings of CIT(A) - Decided against revenue.

Disallowance of expenses u/s. 40(a)(ia) - CIT(A) deleted addition - payment to Soham Logistics Pvt Ltd comprises of payment towards Inland Transportation Charges, Ocean Freight, Terminal Handling Charges and Fees for Services rendered - Held that:- With respect to Inland transportation charges, we find that it is Assessee’s submiss .....

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ontention that there is no mark up on Inland transportation charges and the payments made the assessee are in the form of mere reimbursements. We further find that there is no finding of CIT(A) about payments made the Assessee to be in the nature of reimbursement. We therefore feel that the issue needs to be re-examined at the end of A.O. We therefore remit the issue to the file of A.O to decide the issue afresh.

With respect to Ocean freight provision of section 194C & 195 of deducti .....

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but on the contrary it is A.O’s observation that TDS was deducted only of ₹ 91,789/-, and no evidence of deduction of TDS on other payments was furnished before A.O. We also find that CIT(A) has also not given a categorical finding about the deduction of TDS by Assessee on the other payments of Terminal Handling charges. In view of these facts, we are of the view that the matter needs to be reexamined at the end of A.O. We therefore set aside the ground with respect to the disallowance of .....

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se is of no deduction of TDS. Before us no details of such expenses have been placed on record by both the parties so as to justify thier respective stands. We therefore feel that this issue of payment of TDS on account of services rendered also needs to be re-examined. We therefore set aside this portion of ground to the A.O to decide the issue in accordance with law and after giving a reasonable opportunity to the Assessee. The Assessee is also directed to furnish to all the necessary details .....

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d payment of taxes. Before us Revenue has not placed any material on record to controvert the submissions of the Assessee or the findings of CIT(A). In view of these facts, we find no reason to interfere with the order of CIT(A) and thus this ground of Revenue is dismissed. - Decided against revenue.

Addition of milling expenses - CIT(A) deleted addition - Assessee has debited milling expenses of ₹ 13 lacs which was paid to Jyotindra Industries, a person specified u/s. 40(a)(2b) .....

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s placed at page 128 of the paper book, it is seen that Assessee is located at Sri Sarvodya Industries Compound, Disha Road Palanpur, Gujarat whereas the address of the Assessee is “Jyotindra Group Compound 4 km. Ahmedabad Highway S.H. 41 Palanpur and therefore during the course of hearing, the ld. A.R. was asked to as to whether the Assessee and Jyotindra Industries are located in the same compound to which no satisfactory reply was given by ld. A.R. Further the exceptional reasons which necess .....

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s in support of its claim of deduction of TDS. We further find that CIT(A) has also noted that before him , the A.R of the Assessee have expressed his inability to furnish the necessary details or evidence. Before us also no details of the same has been furnished by the Assessee. We further find that the ratio of the decision relied upon by ld. A.R. are not applicable to the present case as in that case, it was not a case of non deduction of tax, was a different case of difference in rate of ded .....

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ehicle has been given in Note 6 of the Appendix 1 which defines “commercial vehicle” as “heavy goods vehicle”, “heavy passenger motor vehicle”, “light motor vehicle”, “medium goods vehicles”, & “medium passenger motor vehicle” but does not include “maxicab”, “motor cab”, “tractor”, & “road rollers”. The definition of various types of vehicles specified herein above shall have the meanings respectively as assigned to them in S. 2 of Motor Vehicles Act, 1988. As per the definition of Motor Vehicle .....

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r light motor vehicle being considered by them. Further there is no finding by the A.O or CIT(A) that it has been used for the purpose of business nor any material has been placed by the Assessee to demonstrate its use for the purpose of business. In view of the aforesaid facts, we are of the view that the matter needs reexamination at the end of AO. We therefore set aside the issue to the file of AO to decide the issue afresh in accordance with law and after giving a reasonable opportunity of h .....

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8 - ITAT HYDERABAD] and Honda Siel Power Products Ltd vs. CIT [2007 (11) TMI 8 - Supreme Court of India] wherein held that a decision of Special Bench of the Tribunal on a particular issue is binding unless contrary decision of higher court is brought to its notice. - Decided against assessee. - .T. A. No. 2914 /AHD/2011 & C.O. No. 4/AHD/2012, I.T.A. No. 2148/AHD/2012 & C.O. No. 218/AHD/2012 - Dated:- 4-3-2015 - Shri G.C.Gupta And Shri Anil Chaturvedi JJ. For the Appellant : Shri M.K. Singh, Sr. .....

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fore proceed to dispose of all the appeals together for the sake of convenience and thus proceed with the facts for A. Y. 2008-09. 3. The facts as culled out from the material on record are as under. 4. Assessee is a partnership firm stated to be engaged in the business of manufacturing, trading and exporting Phyllium and other agro based products. Assessee filed its return of income for A.Y. 08-09 on 29.09.2008 declaring total income of ₹ 4,33,130/-. The case was selected for scrutiny and .....

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)-XX, Ahmedabad has erred in law and on facts in deleting the addition of ₹ 25,56,814/- made by the Assessing Officer, on account of interest expenses: 2). The Ld. Commissioner of Income-Tax (Appeals)-XX, Ahmedabad has erred in law and on facts in deleting the addition of ₹ 2,60,700/- made by the Assessing Officer on account of stamp duty for pledge agreement and processing fees charged by bank. 3). The Ld. Commissioner of Income-Tax (Appeals)-XX, Ahmedabad has erred in law and on fa .....

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law and on facts in deleting the addition of ₹ 74,66,684/- made by the Assessing Officer, on account of disallowance of expenses u/s.40(a)(ia) of the Act. 6). The Ld. Commissioner of Income-Tax (Appeals)-XX, Ahmedabad has erred in law and on facts in deleting the addition of ₹ 63,51,462/- made by the Assessing Officer, on account of seeds purchases expenses u/s.40A(2). 7). The Ld. Commissioner of Income-Tax (Appeals)-XX, Ahmedabad has erred in law and on facts in deleting the additi .....

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CO reads as under:- 1. Ld. CIT (A) erred in law and on facts in directing AO to verify bills issued for Inland Transport and Ocean Freight in support of the proposition advanced by the appellant that they were only reimbursement of expenses. Ld. CIT (A) ought to have granted relief claimed by the appellant rather than issuing direction to AO to examine when complete bill wise details were already submitted before AO during the assessment proceedings. 2. Ld. CIT (A) erred in confirming disallowa .....

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to bank debited ₹ 33,95,149/-. AO also noticed that Assessee had also paid interest of ₹ 3,59,788/- to others. A.O also noticed that Assessee had advanced loans and advance of ₹ 2,04,28,883/- to Jyotindra Brothers and ₹ 28,14,882/- to Jyotindra Herbal Industries, both being specified parties u/s. 40A(2b). Assessee was asked to explain as to why proportionate interest expenses on the amount advanced to its sister concerns not be disallowed and was also asked to furnish th .....

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anced was out of the interest free capital and unsecured loan and the interest paid was for genuine business expenditure. The submission of the Assessee was not found acceptable to the A.O. A.O noted that the interest free advance taken by Jyotindra Brothers from the Assessee has been advanced further by them on which it was charging interest. A.O was therefore of the view that Assessee was diverting its profit to other concerns and therefore did not accept the contentions of the Assessee. He th .....

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As regards the interest paid on Cash Credit Limit, one cannot say that there was diversion or siphoning of funds. As against the interest paid to other parties of ₹ 3,59,788/- the interest disallowed by the AO works out to ₹ 25,56,814/-. The AO did not establish any nexus between the interest bearing funds and the interest free advances. Appellant is having sufficient interest free funds. In the light of the decisions relied on by the AR, impugned disallowance is not in accordance w .....

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nt proceedings, Assessee was asked to submit cash flow statement in support of its contention that no borrowed funds have been diverted to the sister concerns but Assessee did not submit the cash flow statement. He further submitted that Assessee has not demonstrated the availability and use of interest free funds for advancing the loans and advance to its sister concerns. He thus supported the order of A.O. Ld. A.R. on the other hand submitted that Assessee has taken loan from bank under PCL an .....

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to the extent of ₹ 7.65 crore which was far in excess of the amount advanced. She further submitted that the cash flow statement was furnished before A.O. She also placed reliance on the decision of Hon ble Gujarat High Court in the case of Raghuvir Synthetics 355 ITR 222 and the decision in the case of Bombay High Court in the case of Reliance Utilities 313 ITR 340. She thus supported the order of CIT(A). 10.We have heard the rival submissions and perused the material on record. The issue .....

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nexus between the interest bearing funds and availability of interest free advances on the AO. We are of the view that AO can only prove the nexus provided the required information is made available to him. As seen in the present case, no material has been placed on record to demonstrate that the cash flow was submitted to the AO. Before us it was also submitted that the loans obtained from Bank was in the nature of pledge and therefore the funds could not have been diverted. We however find th .....

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urnish all the required information promptly before AO so as to enable him to decide the issue. In the result, this ground is allowed for statistical purposes. Ground No. 2 is with respect to deletion of addition of ₹ 2,60,700/- on account of stamp duty for pledge agreement and processing fees charged by the bank. 11.During the course of assessment proceedings, on perusing the details of bank charges, A.O noticed that it included ₹ 1,00,700/- on account of stamp duty charges and S .....

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the nature of capital expenditure and should have been capitalized. He accordingly disallowed the aggregate amount of ₹ 2,60,700/- and added to the income. Aggrieved by the order of A.O., Assessee carried the matter before CIT(A) who deleted the addition by holding as under:- 4.3 AO observed that out of the Bank charges debited by the appellant of ₹ 9,11,000/- an amount of ₹ 1,00,700/- was paid towards stamp duty and ₹ 1.6 lakhs was paid towards processing fee of the cre .....

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inclined to accept the contentions of the appellant. Since the expenses were incurred towards the pledge agreement with the Bank for borrowing working capital, it cannot be said that any capital asset has come into existence. Therefore, the question of capitalizing the incidental expenses does not arise, Hence impugned disallowance is deleted, This ground of appeal is allowed. 12.Aggrieved by the order of CIT(A), Revenue is now in appeal before us. 13. Before us, ld. D.R. relied on the order of .....

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overt the findings of CIT(A) and thus this ground of Revenue is dismissed. Ground n. 3 is with respect to deletion of ₹ 15,04,328 on account of repairs etc. 15.On perusing the details of expenditure, A.O noticed that Assessee had paid ₹ 6,30,422/- to Welldor Engineers and from the copy of the invoices, he noticed that the payment was for purchase of doors, windows, ventilators. He also noticed that payment of ₹ 1,00,580/- was made to Vishwas Trading towards purchase of paints, .....

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t the expenditure incurred was for overhauling of assets which would give a benefit of enduring nature. He was further of the view that the nature of expenditure incurred confirmed that some capital work has definitely been carried out by the Assessee. He accordingly treated the amount paid to Welldor Engineers as capital expenditure and 40% of the expenditure was considered by him to be as labour charges for fitting of doors, windows, partition etc and it was also treated as capital expenditure .....

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ed the matter before CIT(A) who deleted the addition by holding as under: 5.3 Having considered the contentions of the AR, I am inclined to agree with the AR. As seen from the assessment order AO was not able to controvert the contention of the appellant that the expenditure was only towards repairs and renovation. AO merely relied on the fact that the expenditure incurred was substantial compared to the w.d.v of the assets. I am of the view that the amount of expenditure alone does not alter th .....

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6.Aggrieved by the order of CIT(A), Revenue is now in appeal before us. 17.Before us, ld. D.R. relied on the order of A.O. On the other hand, Ld. AR reiterated the submissions made before CIT(A) and supported his order. 18.We have heard the rival submissions and perused the material on record. We find that CIT(A) while deleting the addition has noted that simply on the basis of quantum of expenditure vis-à-vis the WDV of assets, the expenditure cannot be treated as capital expenses. He ha .....

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machinery reconditioning expenses, A.O noticed that Assessee has purchased certain machineries which has been claimed as Revenue expenditure. The list of expenses is tabulated at page 9 of the assessment order. Assessee was asked to justify its claim of expenses as revenue expenses to which Assessee interalia submitted that it had incurred heavy expenditure for repairs and reconditioning of the old machineries. It was also submitted that while repairing, the core machinery consisting of grinder .....

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benefit to Assessee and therefore the expense was capital in nature. He therefore out of the total expenditure incurred, identified the expenditure which were of larger value and which according to him constituted towards the core part of machinery, and the aggregate of such expenditure amounting to ₹ 11,34,240/- was treated as capital expenditure but allowed depreciation on the same. Aggrieved by the order of A.O., Assessee carried the matter before CIT(A) who deleted the addition by hold .....

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inery put to use independently). Following the findings given by me at para-5.3, I hold that impugned disallowance is not sustainable. It is deleted. Simultaneously, AO is directed to withdraw the depreciation allowed on the said amount @ 15%, which worked out to ₹ 1,70,136/-. 20.Aggrieved by the order of CIT(A), Revenue is now in appeal before us. 21. Before us, Ld. DR supported the order of AO and on the other hand Ld. AR supported the order of CIT(A). 22.We have heard the rival submissi .....

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us this ground of Revenue is dismissed. Ground No. 5 is with respect to deletion of expenses u/s. 40(a)(ia) of the Act. 23.During the course of assessment proceedings, A.O noticed that Assessee had paid ₹ 90,03,637/- to Soham Logistic Pvt. Ltd on account of Inland Transportation Charges (Rs. 17,32,335/-), Ocean Freight (Rs. 56,74,349/-), Terminal Handling Charges (Rs. 6,67,159/-) and Fees for Services rendered (Rs. 8,69,794/-). He also noticed that Assessee had deducted TDS only on payment .....

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ssesse as well as other parties. The reasons given by the assessee for non deduction of TDS from inland transportation charges was not found acceptable to the A.O. as he was of the view that the letter of Soham Logistic Pvt Ltd has not pointed out the details of payment received from Assessee on which it has made TDS payments and therefore it remained unverifiable. With respect to payment of ₹ 56,74,349/- towards ocean freight it was assessee s submission that the payment of Ocean Freight .....

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r to an agent of any non resident ship owners and therefore the payment does not come under the purview of CBDT Circular No. 723. He accordingly disallowed the expenditure u/s. 40(a)(ia) of the Act. With respect to payment of ₹ 6,67,159/- to Soham Logistic Pvt. Ltd. towards Terminal Handling Charges, A.O noted that TDS was deducted by the Assessee only on ₹ 91,789/- and further there was no evidence of deduction of TDS on the balance amount. He accordingly considered the expenses of .....

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; 90,03,637/- to Soham Logistics Pvt. Ltd.( the clearing and forwarding agent of the appellant). Since no tax was deducted on the balance payment of ₹ 80,42,054/- it was disallowed by the AO u/s,40(a)(ia). The said amount consists of 3 components namely Inland Transportation charges of ₹ 17,92,335/-; Ocean freight charges of ₹ 56,74,349/- and -Terminal handling charges of ₹ 5,75,370/-. 7.3(i) Regarding the Inland Transport Charges, at para-8.2.1 of the assessment order, A .....

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rge component in this amount. No TDS is required to be deducted when the expenses are only reimbursement and there is no element of profit or income. In support of this contention, he relied on the Ahmedabad Tribunal's decision dt. 13-05-2011 in the case of M/s. Satya Exim Pvt. Ltd. in ITA No.l335/Ahd/2010. The issue involved in the said case was disallowance u/s 40(a)(ia) of C & F charges and Ocean freight and Octroi charges. At para-7 of the said decision it was held that "no TDS .....

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hat out of the Terminal Handling Charges of ₹ 6,67,159/- tax was deducted only on ₹ 91,789/-. Therefore, he disallowed the balance payment of ₹ 5,75,370/-. During the course of appellate proceedings the learned AR fairly conceded that the necessary details/evidence in this regard were not available. It is also to be noted that appellant deducted tax on part of the payment, which shows its liability to deduct tax on this payment. Hence impugned disallowance is upheld. 24.Aggriev .....

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e other hand reiterated the submissions made before A.O and CIT(A). She further pointed to the breakup of charges paid to Soham Logistic Pvt Ltd which was placed at page 26 & 27 of the paper book. She also submitted that TDS was deducted wherever it was applicable. She further placed reliance on the decision in the case of Om Satya Exim Pvt. Ltd. vs. ITO (ITA No. 1335/A/2010) order dated 13th May, 2011, decision in the case of ACIT vs. P.P. Overseas ITA No. 733/Mum/2010 order dated 18.02.201 .....

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rminal Handling Charges and Fees for Services rendered. (a) With respect to Inland transportation charges, we find that it is Assessee s submission that Soham Logistic Pvt. Ltd., to whom the payments have been made has in turn have made the payment to the transporters and thus it is in the form of reimbursement and there is no mark up. On the other hand, we find that the A.O while disallowing the payment has noted that Soham Logistic Pvt. Ltd. has not given details of the payment received from t .....

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mit the issue to the file of A.O to decide the issue afresh in the light of submissions made by the Assessee and in accordance with law. The Assessee is also directed to furnish all the necessary details called for by the A.O to decide the issue. (b) With respect to Ocean freight we find that it is A.R s contention that the Ocean freight was paid to Non Resident Foreign Companies and therefore in view of CBDT Circular No. 723 dated 19.09.1995 no TDS was required to be deducted. On the other hand .....

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ven any finding with respect to the residential status of the person to whom the Ocean freight has been paid. We further find the Circular No. 723 dated 19/09/1195 [reported in (1995) 128 CTR (st) 6], on the issue of TDS from payment made to foreign shipping companies at para 5 notes as under: There would, however, be cases where payments are made to shipping agents of non-resident ship-owners or charterers for carriage of passengers etc shipped at a port in India. Since the agent acts on behalf .....

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e that Soham Logistic Pvt Ltd was agent of non-resident shipowners, we find that A.O was justified in disallowing the expenditure on Ocean freight u/s. 40(a)(ia) of the Act. (c) With respect to payment to Terminal handling charges, it is Assessee s submission that it has deducted the TDS but on the contrary it is A.O s observation that TDS was deducted only of ₹ 91,789/-, and no evidence of deduction of TDS on other payments was furnished before A.O. We also find that CIT(A) has also not g .....

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(d) With respect to deduction of TDS on the fees for services rendered, it is assessee s contention that the TDS has been deducted but on the other hand it is Revenue s contention that on all the bills TDS has not been deducted and it is not the case of short deduction but the case is of no deduction of TDS. Before us no details of such expenses have been placed on record by both the parties so as to justify thier respective stands. We therefore feel that this issue of payment of TDS on account .....

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e of assessment proceedings, A.O noticed that Assessee has purchased seeds from various parties including Jyotindra Brothers, a person specified u/s. 40(a)(2b) of the Act. On the basis of the details examined by him, he noticed that Assessee has purchased seeds from its sister concerns at a higher rate than the purchase from outside parties. The Assessee was asked to show cause as to why no disallowance be made u/s. 40(a)(2b) of the Act to which Assessee interalia submitted that Assessee has pur .....

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rate. He thereafter worked out the payment of ₹ 63,51,462/- to be unreasonable out of the total purchases of ₹ 3.17 crores from Jyotindra Brothers and accordingly disallowed the same. Aggrieved by the order of A.O., Assessee carried the matter before CIT(A) who deleted the addition by holding as under:- 1.2 As seen from the para-9 of the assessment order, AO observed that appellant made purchases of ₹ 3,17,57,310/- from M/s. Jyotindra Brothers,; a person falling under section 4 .....

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.; and keeping in view the fact that M/s. Jyotindra Brothers is also assessed at maximum rate of tax and the case laws relied on, there can be no case for disallowance, Appellant's contentions are tenable. It is seen that for the AY 2008-09, M/s. Jyotindra Brothers ( a firm) filed return of income admitting income of ₹ 1,19,530/-. It cannot be said that there was any idea to avoid payment of tax. Impugned disallowance is not sustainable. It is deleted. This ground of appeal is allowed. .....

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s no intention to divert any profit in the form of unreasonable or excessive payments. She thus supported the order of CIT(A). 31.We have heard the rival submissions and perused the material on record. Before us it is Assessee s contention that the prices paid to the sister concerns were comparable to the price paid to outsiders and no undue advantage has been passed on to the sister concerns. CIT(A) while deleting the addition has given a finding that the transaction of purchase could not have .....

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77; 13 lacs which was paid to Jyotindra Industries, a person specified u/s. 40(a)(2b) of the Act. Assessee was asked to give justification of the expenses more so, when no such expenses were incurred by the Assessee in previous years. In reply to the show cause notice, Assessee interalia submitted that the amount was paid for getting the job work done by Jyotindra Industries and further TDS was deducted before making the payment. It was also submitted by the Assessee that due to the constraint o .....

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ngly concluded that in the absence of proof of genuineness of expenses, the milling expenses cannot be allowed and accordingly disallowed ₹ 13 lac. Aggrieved by the order of A.O., Assessee carried the matter before CIT(A) who deleted the addition by holding as under:- 9.3 The contentions of the learned AR in this regard are that all the necessary evidences were furnished to the AO; M/s. Jyotindra Industries is an Income-tax assessee; and making disallowance without any further enquiries wa .....

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l is allowed. 33.Aggrieved by the order of CIT(A), Revenue is now in appeal before us. 34. Before us, ld. D.R. pointed to the findings of A.O and submitted that no evidence about the transportation of goods etc were furnished by the Assessee nor any evidence of the emergency situation has been pointed by the Assessee which necessitated the payment of milling expenses in the year under consideration more so when no such payments were made in earlier years and therefore the A.O was fully justified .....

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ard the rival submissions and perused the material on record. We find that A.O while disallowing the expenses has noted that no evidence like challans for sending and receiving the goods have been submitted by the assessee. Before us also no material has been placed on record by the Assessee in the form of challans, transportation receipts bills etc to demonstrate that there was movements of goods between the premises of Assessee and Jyotindra Industries. From the copy of the audit report for ye .....

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.R. Further the exceptional reasons which necessitated the payment has also not been placed before us. We further find that CIT(A) has also not given any finding on the issues raised by A.O. In view of the these facts, we are of the view that A.O was fully justified in making the disallowance, we therefore uphold the action of A.O. and thus this ground of Revenue is allowed. 36.In the result, the appeal of Revenue is partly allowed We now take up C.O.NO. 4/AHD/2012 for A.Y. 2008-09 of Assessee. .....

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ed in confirming disallowance of ₹ 5,75,370/- made by AO out of Terminal Handling charges u/s 40(a)(ia) of the Act without taking into consideration submissions made by the appellant. Ld. CIT (A) ought to have deleted such disallowance of legitimate business expenses. Ground no. 1 is with respect to directions given by CIT(A) to AO. 38.Before us both the parties submitted that the present ground is connected with ground of no. 5 of Revenue s appeal 39.Before us, Ld. AR submitted that even .....

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that since the details were furnished, CIT(A) should have granted relief claimed by the Assessee rather than directing the A.O to verify and then decide. Ld. DR on the other hand submitted that u/s. 251 CIT(A) does not have power to remand. 40. We have heard the rival submissions and perused the material on record. We find that the CIT(A) has directed the AO to verify the details and thereafter decide the issue. We find that u/s 251(1) CIT(A) can only confirm, reduce, enhance or annul the asses .....

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therefore this ground for similar reasons is set aside with ground no. 5 of Revenue s appeal and thus allowed for statistical purposes. Ground no. 2 is with respect to confirming disallowance out of Terminal handling charges. 41.A.O while scrutinizing the details of Terminal handling charges had noted that against the total payment of ₹ 6,67,159/- made by the Assessee to Soham Logistic Pvt. Ltd., TDS was deducted only on ₹ 91,789/- and Assessee could not give any evidence about dedu .....

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.R. submitted that TDS wherever applicable was deducted and further relied on the decision in the case of CIT vs. S.K. Tekriwal (G.A. No. 2069/A/2012). Ld. D.R. on the other hand submitted that the decision of Hon ble Calcutta High Court in the case of S.K. Tekriwal (supra) would not be applicable to the facts of present case as in the present case, the case was with respect to no deduction of tax whereas in the case before Hon ble Calcutta High Court, the case was with respect short deduction o .....

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Assessee. We further find that the ratio of the decision relied upon by ld. A.R. are not applicable to the present case as in that case, it was not a case of non deduction of tax, was a different case of difference in rate of deduction of TDS (i.e. whether TDS to be deducted u/s 194C or 194I of the Act). In view of the aforesaid facts, we therefore find no reason to interfere with the order of CIT(A) and thus this ground of Assessee is dismissed. 44.In the result, the C.O of the Assessee is par .....

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sessing Officer, on account of interest expenses. 3. The Ld. Commissioner of Income-Tax (Appeals)-XX, Ahmedabad has erred in law and on facts in deleting the addition of ₹ 9,62,408/- made by the Assessing Officer, on account of factory building expenses. 4. The Ld. Commissioner of income-Tax (Appeals)-XX, Ahmedabad has erred in law and on facts in deleting the addition of ₹ 17,37,360/- made by the-Assessing Officer, on account of machinery reconditioning charges of existing plant and .....

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r of Income-Tax (Appeals)-XX, .Ahmedabad has erred in law and on facts in deleting the addition of ₹ 32,11,600/- made by the Assessing Officer, on account of milling charges u7s.40A(2)(b) of the Act 8. On the facts and in the circumstances of the case, the Ld. Commissioner of Income-Tax (Appeals)-XX, Ahmedabad ought to have upheld the order of the Assessing Officer. Ground no. 1 is with respect to disallowance of depreciation of BMW car. 46.During the course of assessment proceedings, A.O .....

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m of 50% depreciation but however allowed the depreciation at the normal rate applicable to vehicles. Aggrieved by the order of A.O., Assessee carried the matter before CIT(A) who deleted the addition by holding as under:- 3.2. I have considered the submissions made by the A. R. of the appellant and the observations of the assessing officer in the assessment order. In the case of Daleep S. Chandani Vs. ACIT 14 SOT 233 (Mum) relied on by the A.R., the issue for consideration was whether Maruti Ze .....

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motor car or a Tractor or Road Roller the unladen weight of which does not exceed 75,00 kgs. Thus a motor car not exceeding the specified weight is covered under the definition of "light motor vehicle". It is further provided that commercial vehicle would not include "maxi-cab " and "motor-cab as per provisions of Motor Vehicle Act means any motor vehicle constructed or adapted to carry more than six passengers but not more than twelve passengers excluding the driver for .....

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ion further leads to an interference that the Legislature has given benefit of higher depreciation to the assessee not engaged in the business of Motor Buses, Motor Lorries and Motor Taxies on hire and defining such light motor vehicles as commercial vehicles though intentionally excluding vehicles commercially exploited for yielding income from the definition of commercial vehicle further supports the case of the assessee. We also find sufficient force in the contention of the assessee that dif .....

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the assesses would get the depreciation at the rate of 40 per cent as per the IIIrd proviso to section 32 of . Thus, Ground Nos 1 to 3 of the assessee stand accepted. " The issue under consideration is identical to the issue decided upon in the above mentioned order, though the said judgment pertains to A.Y. 1999-2000. The observations of the AO at para-4 of the assessment order on the issue are general. Therefore in the light of the above mentioned order, I hold that the BMW car bought by .....

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ported the order of A.O. The ld. A.R. on the other hand reiterated the submissions made before A.O and CIT(A) and further placed reliance on the decision of Bombay Tribunal in the case of Dilip Chandani vs. ACIT (2007) 233 (Mum). 49. We have heard the rival submissions and perused the material on record. It is an undisputed fact that Assessee had purchased a BMW car and has claimed depreciation @ 50% considering it to be commercial vehicle. The definition of commercial vehicle has been given in .....

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p; heavy passenger motor vehicle among other things stipulates that a heavy vehicle would be one with the unladen weight which exceeds 12000 kg & the light motor vehicle vehicle s apart from other things in the Act would be one whose weight does not exceed 7500 kgs. Before us no copy of the Registration certificate issued by Motor Vehicle Authorities has been placed on record to demonstrate as to the nature of the vehicle i.e. whether the vehicle is heavy motor vehicle or light motor vehicle .....

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n the result, this ground of Revenue is allowed for statistical purposes. 50.Before us, both the parties submitted that the ground no. 2 to 7 are identical to the grounds for A.Y. 08-09 of Revenue s appeal except for the amounts and the submissions made by them while arguing the grounds for A.Y. 08-09 would equally apply to present grounds. 51.We have heard the rival submissions and perused the material on record. In view of the submissions of both the parties stated herein that the grounds bein .....

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u/s 80IB of ₹ 2,67,837/- by holding that the loss of earlier year ought to have been reduced. Ld. CIT (A) ought to have granted relief claimed by the assessee and allowed the deduction u/s 80IB. 2. Ld. CIT (A) has erred in not allowing the deduction u/s 80IB by relying on decisions of Hon'ble ITAT while decision of Hon'ble High Court being in favor of the assessee. 54.During the course of assessment proceedings, A.O noticed that Assessee has claimed deduction u/s 80IB to the extent .....

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eduction under 80IB and the excess deduction of ₹ 2,67,837/-as worked out by him was disallowed. Aggrieved by the order of A.O., Assessee carried the matter before CIT(A) who following the Special Bench decision in the case of ACIT vs. Goldmines Shares & Finance Pvt. Ltd. 113 ITR 209 uphold the order of A.O by holding as under:- 10.2. I have considered the submissions made by the A. R. of the appellant and the observations of the assessing officer in the assessment order. As admitted b .....

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at the disallowance made by the AO is in accordance with law. It is upheld. These grounds of appeal are dismissed. 55.Aggrieved by the order of CIT(A), Assessee is now in appeal before us. 56. Before us, ld. A.R. submitted that for the purpose of calculation of deduction under 80IB, the loss of earlier year is not required to be adjusted and for which she placed reliance on the decisions in the case of Sheri Exports vs. JCIT (2013) 33 Taxman.com 446 (Mum), Anil Lad vs. DCIT (2012) 25 Taxman.com .....

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