TMI Blog2015 (7) TMI 534X X X X Extracts X X X X X X X X Extracts X X X X ..... delete the said addition. - Decided in favour of the assessee. Disallowance for total expenses and air fares of foreign visitors in India - Held that:- A mistake has been crept in the order of the Tribunal, wherein, it has been noted that the said ground is not pressed, which fact is not correct. Accordingly, we rectify the same and hold that such expenses are to be allowed as similar disallowances have been deleted by the Tribunal not only in the assessment years 1992-93 and 1993-94 but also in the assessment year 1995-96 - Decided in favour of the assessee. Excess and short provision of expenditure - assessee had mainly challenged the adding back of the amount of provisions of expenses as on year end based on estimates for which actual bills were not received - Held that:- The assessee has been making the provisions for expenses in respect of services and goods received during the previous year for which bill is not received till the time of the provision is made and payment is made on later date upon the receipt of the bill. Such a claim of provision has been made as assessee was following mercantile method of accounting. If there was some excess provision as compared to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Tribunal to set aside the issue to the file of the AO for re-examination and this fact seems to be omitted by the Tribunal while giving the finding that same is covered by the earlier order of the Tribunal. Accordingly, we hold that there is no need for verification either of the agreement or actuarial valuation certificate; as firstly, this has already been examined by the Ld. CIT(A); secondly, in this year it has incurred only incremental liability; and lastly, the Tribunal in AY 1995-96has already modified the similar finding. Accordingly, the present Miscellaneous Application filed by the assessee is allowed. - Miscellaneous Application 132/Mum/2013 to 133/Mum/2013 - - - Dated:- 10-7-2015 - Shri G S Pannu and Shri Amit Shukla, JJ. For the Petitioner : Shri J D Mistri For the Respondent : Shri Vivek Perampura ORDER PER AMIT SHUKLA, JM: The aforesaid Miscellaneous Applications have been filed by the assessee in relation to Tribunal order dated 31.10.2012 passed in ITA No. 2874/Mum/1999 and 2720/Mum/1999, seeking rectification of certain issues. 2. We will first take-up MA No. 132/M/2013, wherein, the assessee has raised five issues, wherein, it has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1-92 to 1993-94. 7. After hearing both the parties, it is noticed that the assessee vide Ground No. 3(a) has challenged that the Ld. CIT(A) has erred in disallowing ₹ 19,94,623/-, being 20% of total foreign travelling expenses on the ground that they are capital in nature. In Ground no. 3(b), an alternate contention was raised by the assessee, in case such an expense is not allowed, then depreciation should be allowed. In the chart submitted by the assessee and also on perusal of our log-book, we have also noted that Ground No. 3(b) will become infructuous if Ground no. 3(a) is allowed. However, in the order, it has been wrongly held that the said ground is not pressed. This is clear a mistake apparent from record, which needs to be rectified. 8. On merits, we find that this issue has been decided by the Tribunal not only in the earlier years but also in the assessment year 1995-96 wherein, the Tribunal vide para No. 37 has deleted the said addition after following the earlier years orders of the Tribunal. Thus, respectfully following the earlier years precedence and also the order for the assessment year 1995-96, we direct the AO to delete the said addition. Accordingl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed the relevant material on record. The learned counsel for the assessee has submitted that in respect of excess provision, the assessee has already got the relief from the AO in the subsequent year as per the direction given by the learned CIT(Appeals) inasmuch as the excess provision written back has been excluded by him from the total income of the assessee. He, however, has contended that no deduction has been allowed by the AO in the subsequent year on account of short provision made in the year under consideration for which payment was made in the subsequent year on the ground that the same represented expenses pertaining to assessment year 1994- 95. He has contended that the assessee thus has not got deduction for this amount either in assessment year 1995- 96 on the ground that it was pertaining to assessment year 1994-95 and even in 1994-95 on the ground that the same was not claimed by it in that year. He has contended that the AO, therefore, may be directed to allow deduction for the said amount in the year under consideration as the same represents expenses pertaining to that year. The learned DR, on the other hand, strongly relied on the orders of the authorities below ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a result of stand taken by the authorities below on this issue, the assessee is not in a position to get the deduction on account of genuine business expenditure either in assessment year 1993-94 or even in assessment year 1994-95, it is observed that a similar contention raised on behalf of the assessee in assessment year 1993-94 has not been accepted by the Tribunal vide its order dated 29-06-2010 (supra) and a similar issue has been decided against the assessee. As a matter of judicial discipline, we follow the said decision of the Tribunal in assessee s own case for assessment year 1993-94 and uphold the impugned order of the learned CIT(Appeals) confirming the disallowance made by the AO on this issue. Ground No.11 of the assessee s appeal is accordingly dismissed . 8. Regarding this issue, the Ld. Senior Counsel submitted that assessee s claim was that the AO has erred in disallowing its claim for the year end provision of expenses, based on estimates for which actual bills were not received, on the ground that the actual expenditure in the subsequent year is less than the provisions made in the year. Based on this, the AO had denied the assessee s claim for provisions ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n respect of excess provision for the year under consideration covered by ground No. 2 and actual payment/expenditure in excess of the provision for the earlier years covered by ground no. 14 ought to have been allowed. d) In the alternative it was urged by the Applicant that the same principles to be applied to short provision and excess provision and thereby deduction should be granted in respect of short provision of ₹ 8,229,109/- details of which were available before the Tribunal at page 1 of the Paper book. 11. He submitted that the finding of the Tribunal (as noted above) is based on non-appreciation of the facts and issues involved because the Tribunal for the assessment year 1993-94 had decided the matter on the presumption that this issue stands covered by the earlier order of the Tribunal. The Tribunal in AY 1993-94 had relied upon the order of the assessee for the assessment year 1992-93 on the presumption that the issues stands covered by the order. However, in that year the assessee had not raised the issue of denial of deduction in respect of either excess provision or short provision. In that year, the factual position was that there was an excess provis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ision written back by the assessee, there is no merits in allowing such excess provision in this year, as direction has been already given for consequential relief in the next year. This year, no different stand can be taken. 12. In so far as the issue as raised in Ground No. 11, wherein, the assessee has challenged the disallowance on account of expenses pertaining to the assessment year 1993-94, which were actually incurred in the year under consideration and there was short provision made in the earlier year, though we feel persuaded to agree with the contention of the Ld. Sr. Counsel that, if the excess provision is being disallowed on the ground that actual bills for which payment has been made is less than the provision and same should be added in the year of excess provision, then on same logic it has to be held that if the assessee s actual payment is more than the provisions made, then assessee should be granted deduction in respect of short provision made, because, it would lead to jeopardy to the assessee. However, we find it difficult to take a contrary view, within the limited scope of section 254(2), as it will amount to review of the earlier order, which is not pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r. Further, the issue of quantum of provision of VRS liability was involved in the AY 1993-94, whereas in the assessment year 1994-95, the matter was only of incremental liability, which has not been disputed by the AO in the assessment order. He further pointed out that the Tribunal for the assessment year 1995-96 in the MA order has accepted this fact after observing and holding as under: 13. After giving thoughtful consideration, we find force in the contention of the Ld. Senior Counsel. In the assessment year 1993-94, the Tribunal has restored the issue with a direction to see that the amount claimed is as per actuarial valuation certificate. However, during the year under consideration, the liability for payment of pension is only incremental liability and there is no need for verification by actuarial valuation certificate. To this extent, we modify the findings of the Tribunal . 17. After considering the contention of the assessee and on perusal of the impugned order, we find that in this year the only issue was that of incremental liability towards payment of pension under VRS Scheme. There was no need for any actuarial valuation certificate or examination of agre ..... X X X X Extracts X X X X X X X X Extracts X X X X
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