TMI Blog2015 (4) TMI 228X X X X Extracts X X X X X X X X Extracts X X X X ..... of the assessee. In the circumstances the Assessing Officer was directed to consider these items under the head "Other income" and not exclude them for the purpose of deduction under section 80-I of the Income Tax Act. Thus, we are concerned for the year 1987-1988 but the ground in the present memo of appeal is framed in such a manner that it is difficult to ascertain whether the revenue is really aggrieved by what is done by the Assessing Officer for the year 1986-1987 or that the Assessing Officer will have to follow the direction in paragraph 11 of the order of the tribunal. We are of the opinion, that once the Assessing Officer has worked out details on the basis of items disclosed in the Profit and Loss account, then the directions given to him and issued in terms of paragraph 11 of the tribunal's order do not raise any substantial question of law. Expenditure incurred by the assessee is not in the nature of advertisement and no disallowance under Rule 6B can be made as directed by Tribunal - Held that:- We are of the view that the tribunal has followed the judgment of this Court in the case of the Commissioner of Income Tax Vs. Allana and Sons reported in (1993 (4) TMI 13 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ght to our notice, namely, the Commissioner of Income Tax Vs. Maina Ore Transport (P) Ltd. (2008 (8) TMI 504 - BOMBAY HIGH COURT ) answers the question in favour of the assessee. Include depreciation on guest house while computing the disallowance under section 37 (4) - Held that:- It is fairly conceded by Ms.Patel that the decision of the Hon'ble Supreme Court in the case of Britania Industries Ltd. Vs. the Commissioner of Income Tax (2005 (10) TMI 30 - SUPREME Court) answers it against the assessee and in favour of the revenue. Investment allowance under section 32A in respect of the 10 items though the same were not used directly for manufacturing activities - Held that:- Once again it has been brought to our notice that in the assessee's own case pertaining to disallowance, namely, Investment allowance under section 32A, the tribunal has passed the order in years 1979- 80, 1980-81, 1982-83 and 1983-84. In the first assessment year 1979-80 the department sought to make reference of a question of law to this Court but that application was rejected by the Income Tax Appellate Tribunal. Thereafter for the assessment year 1981- 82 the department application to seek reference o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al question by the parties. This Court has passed the order recording that the questions at Page 4, 5 and 6 are treated as substantial questions of law. 3. Those questions are reproduced hereinbelow: 1. Whether on the facts and circumstances of the case, the Tribunal was right in law in directing the Assessing Officer to compute disallowance as per Rule 3 in respect of ascertaining the perquisite value on account of motor car ? 2. Whether on the facts and circumstances of the case, the Tribunal was right in law in directing the Assessing Officer not to exclude from the profits and gains items of other income while working out the deduction under section 80-I ? 3. Whether on the facts and circumstances of the case, the Tribunal was right in law in confirming the order of the CIT (A) that expenditure incurred by the assessee is not in the nature of advertisement and no disallowance under Rule 6B can be made ? 4. Whether on the facts and circumstances of the case, the Tribunal was right in law in confirming the order of the CIT (A) that the premium of group Insurance policy should not be considered as salary or perquisite for disallowance under Section 40A (5) ? 5. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rs back. We are not aware whether the tribunal has in any manner preserved the old records so as to enable preparation of paperbooks by the Registry. In these circumstances we have not allowed the parties to controvert the factual conclusions reached in the impugned orders. 5. The compilation tendered by Ms.Vasanti Patel appearing for the respondent is taken on record. 6. As far as the first question and which we have reproduced above, it is fairly conceded by Mrs.Vasanti Patel appearing on behalf of the assessee that there is judgment in the field, namely, of the Commissioner of Income Tax Vs. British Bank of Middle East (2001) 251 ITR 217. That is the judgment of the Hon'ble Supreme Court and directly on the point. Since that covers the issue or question against the assessee and in favour of the revenue, we hold accordingly. 7. As far as the second ground is concerned, what we have noted from the tribunal's order and equally from the Commissioner's order is that the same pertains to the exclusion from the profits and gains items of other income while working out deduction under 80-I of the Income Tax Act, 1961. Mr.Pinto placed reliance upon the judgment of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sent memo of appeal is framed in such a manner that it is difficult to ascertain whether the revenue is really aggrieved by what is done by the Assessing Officer for the year 1986-1987 or that the Assessing Officer will have to follow the direction in paragraph 11 of the order of the tribunal. We are of the opinion, that once the Assessing Officer has worked out details on the basis of items disclosed in the Profit and Loss account, then the directions given to him and issued in terms of paragraph 11 of the tribunal's order do not raise any substantial question of law. 9. As far as the third question is concerned, we are of the view that the tribunal has followed the judgment of this Court in the case of the Commissioner of Income Tax Vs. Allana and Sons reported in (1995) 216 ITR 690 (Bom.). If that is how the matter has been approached and equally the tribunal found that the facts and circumstances in case of Allana and Sons, are identical to the assessee before us then even this question cannot be answered, otherwise but in favour of the assessee. Relying on the judgment, this is not substantial question of law at all because the answer to it has been given by this Court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bunal has referred, in the impugned order at page 65 and paragraph 25 to its findings in its order and pertaining to the same assessee for the assessment year 1982-83. That would bind the revenue. There are series of orders but the tribunal for the sake of reference points out its order for the assessment year 1982-83. In the circumstances, we are of the view that there being no distinction on facts and the tribunal's consistent view being not questioned successfully because the departmental application for reference was rejected by the tribunal itself, then this question is also not substantial question of law. In any event, the authoritative pronouncement by the Division Bench of this Court in the decision brought to our notice, namely, the Commissioner of Income Tax Vs. Maina Ore Transport (P) Ltd. (2010) 324 ITR 100 answers the question in favour of the assessee. 13. On the question No.7 reproduced above, it is fairly conceded by Ms.Patel that the decision of the Hon'ble Supreme Court in the case of Britania Industries Ltd. Vs. the Commissioner of Income Tax (2005) 278 ITR 546 answers it against the assessee and in favour of the revenue. 14. As far as question No. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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