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TMI Blog2016 (5) TMI 352X X X X Extracts X X X X X X X X Extracts X X X X ..... facts and in law. 4. That the grounds of appeal are without prejudice to each other. 5. That the appellant craves leave to add, amend or forego any ground(s) of the appeal either before or at the time of hearing of the appeal." 2. The facts in brief are that the assessee is a Company incorporated in India under the Companies Act, 1956 and is a resident of India for tax purposes. The assessee is engaged in the business of manufacture and sale of pizzas and related fast food products of pizzas and their sales from its retail outlets throughout India under a franchisee model taken from a reputed international pizza chain called Domino's Pizza International Inc., USA and have countrywide presence. The assessee had voluntarily filed its income tax return declaring total loss of Rs. 65,263,411/- for AY 2004-05. The case of the assessee was selected for detailed scrutiny by issuing notice under section 143(2) of the Act and the assessment was completed under section 143(3) at a total loss of Rs. 56,157,020/- vide the assessment order dated 26.12.2006. Aggrieved with the assessment order, assessee filed the appeal before the CIT(A) and Ld. CIT(A) has granted the partial relief to t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ue to the file of the AO. Later, AO vide his order dated 25.3.2014 passed u/s. 254/143(3) of the I.T. Act, 1961 has allowed the expenses of Rs. 20,33,590/- made for relocation of store in the assessment year 2003-04. Hence, he requested that since the AO has accepted the expenses as above, the addition in dispute of Rs. 12,44,678/- being store relocation expenses involved in the assessment year 2004-05 may be allowed and this ground may be dismissed accordingly. 6.1 He further submitted that as regards the issue raised in ground no. 2 relating to deletion the addition of Rs. 84,80,000/- being debentures restructuring by treating the same as revenue expenditure is concerned, the same was allowed by the Ld. CIT(A) by following the jurisdictional High order in the case of CIT vs. Gujarat Guardian Ltd. 222 CTR 526 (Del.) and requested that the same may be upheld. Moreover, he submitted that in the assessment year 2003-04 the Ld. CIT(A) has allowed this issue in favour of the assessee in which the Revenue came in appeal before the Tribunal and the Tribunal vide order dated 24.10.2012 passed in ITA No. 183 to 186/Del/2011 (Ayrs. 2003-04 to 2005-06) has allowed the said ground in favour ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rs. 2003-04 to 2005-06) has set aside the issue to the file of the AO by observing as under:- "We have heard both the sides, considered the material on recorded as well as the case laws cited by the rival sides and find that there appears to be a clear violation of Rule 46A of I.T. Rules, 1962 and, therefore, impugned order cannot be legally sustained. As such while accepting this ground of appeal of the Revenue, we set aside the orders of the authorities below and restore the matter back on the file of the AO with assessee. We hold and direct accordingly. 7.1.2 Pursuant to the above directions give vide order dated 24.10.2012, the AO vide his order dated 25.3.2014 passed u/s. 254/143(3) of the I.T. Act, 1961 has allowed the expenses of Rs. 20,33,590/- made for relocation of store in the assessment year 2003-04 by holding as under:- "In view of Hon'ble ITAT's directions the submission of the assessee company has been thoroughly examined. In view of the discussions held with the AR of the assessee company and also in view of the submissions made during the assessment proceedings, the assessee's claim of deduction u/s. 80G amounting to Rs. 80,000/- and expenses of Rs. 20,33,590 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he CIT(A). It is not in dispute that due to non-availability of finances, assessee was not in a position to negotiate the debentures issue which got matured during the year under consideration. So, he has arranged the finance by paying Rs. 15 lakhs to M/s Infrastructure Leasing & Financial Services Ltd. In the light of case laws cited by the Ld. CIT(A) and in the absence of any contrary decision or evidence produced or any higher courts orders having been placed to support the plea raised by the department, we do not find any reasonable ground to interfere in the order passed by the CIT(A), which is confirmed and the appeal of the Revenue is dismissed on this ground." 7.2.2 We further note that aggrieved with the order dated 24.10.2012 of the Tribunal passed in ITA No. 183 to 186/Del/2011 (Ayrs. 2003-04 to 2005-06) in assessee's own case, the Revenue has preferred an appeal before the Hon'ble High Court of Delhi and the Hon'ble High Court of Delhi vide dated 1.8.2014 passed in ITA No. 311/2014 has allowed the ground in favour of the assessee and dismissed the appeal of the revenue by observing as under:- "The Tribunal in the impugned order has recorded a finding that Rs. 15 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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