TMI Blog2016 (6) TMI 1036X X X X Extracts X X X X X X X X Extracts X X X X ..... mployees’ contribution to PF and ESI, if the same has been deposited before the due date of filing of the return u/s.139(1) of the I.T. Act. Since the assessee in the instant case has admittedly deposited the Employees’ contribution to PF before the due date of filing of the return u/s.139(1) of the I.T. Act, therefore, we do not find any infirmity in the order of the CIT(A) deleting the addition made by the AO - ITA No.2128/PN/2014, ITA Nos.2094 to 2097/PN/2014, C.O. No.22/PN/2016 - - - Dated:- 3-6-2016 - SHRI R.K. PANDA, AM AND SHRI VIKAS AWASTHY, JM For The Assessee : Shri Kirit Kamdar and Shri Nikhil Mutha For The Revenue : Shri Hitendra Ninawe ORDER PER R.K.PANDA, AM : ITA No.2128/PN/2014 filed by the Assessee and ITA No.2094/PN/2014 filed by the Revenue are Cross appeals and are directed against the order dated 25-08-2014 of the CIT(A)-V, Pune relating to Assessment Year 2004-05. ITA Nos. 2095/PN/2014 and 2096/PN/2014 filed by the Revenue are directed against the separate orders dated 25-08-2014 of the CIT(A)-V, Pune relating to Assessment Years 2005-06 and 2006-07 respectively. ITA No.2097/PN/2014 filed by the Revenue is directed against the ord ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... asonable by following his own decision in earlier assessment year, i.e. A.Y. 2003-04. On further appeal, the Tribunal following the decision of Hon ble Bombay High Court in the case of Godrej and Boyce Manufacturing Company Ltd. Vs. DCIT reported in 328 ITR 81 restored the issue to the file of the AO for deciding the issue afresh in the light of the above decision. Thereafter, the AO following the decision of Hon ble Bombay High Court in the case of Godrej and Boyce Manufacturing Company Ltd. (Supra) made disallowance of ₹ 23,40,334/- being 10% of the exempt income of ₹ 2,34,03,348/-. In appeal the Ld.CIT(A) restricted such disallowance to 2.5% of the exempt income which comes to ₹ 5,85,084/-. The relevant observation of the CIT(A) read as under : 12. I have carefully considered the facts of the case as well as reply of the appellant. In this case as held by Hon ble Bombay High Court in the case of Godrej Boyce Mfg. Co. Ltd. Vs. DCIT, 328 ITR Page 81, it is seen that Rule 8D is not applicable for A.Y. 2004-05. At the same time, there is no merit in the submission of the appellant that no expenditure has been incurred for earning such income. It is seen that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e to ₹ 50,000/-. On further appeal the matter was set aside by the Tribunal to the file of the AO who repeated the same disallowance of ₹ 23,40,334/-. We find on appeal by the assessee the Ld.CIT(A) restricted such disallowance to 2.5% of the exempt income, thus sustaining an amount of ₹ 5,85,084/-. We find identical issue had come up before the Tribunal in assessee s own case in A.Yrs. 2007-08, 2008-09, 2009- 10 and 2010-11. We find the CIT(A) in assessee s own case for A.Y. 2002-03 has restricted the disallowance u/s.14A to ₹ 50,000/- as against ₹ 24,54,729/- made by the AO. Similarly, the AO in A.Yrs. 2005-06 and 2006-07 has himself restricted such disallowance to ₹ 50,000/-, copies of which are placed at pages 156 to 163 of the paper book. We find for A,.Y. 2007-08 the AO has accepted the suomoto disallowance of ₹ 50,000/- made by the assessee. We find the Tribunal in assessee s own case for A.Y. 2009-10 had restricted such disallowance to ₹ 76,951/- which includes ₹ 26,951/- towards Demat charges. Since the facts of the impugned assessment year are identical to the facts decided by the Tribunal in case of the assessee for d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... delete the addition. 11. Aggrieved with such order of the CIT(A) the Revenue is in appeal before us. 12. The Ld. Counsel for the assessee at the outset submitted that the Tribunal in assessee s own case for A.Y. 2007-08 to 2010-11, copies of which are placed in the paper book, has decided the issue in favour of the assessee and the appeal filed by the Revenue on this issue has been dismissed. 13. The Ld. Departmental Representative on the other hand fairly conceded that the issue has been decided in favour of the assessee and against the Revenue by the order of the Tribunal in assessee s own case for A.Yrs. 2007-08 to 2010-11. 14. After hearing both the sides, we find the issue of taxability of interest on Non Performing Assets has been decided in favour of the assessee by the order of the Tribunal in assessee s own case for A.Y. 2007-08 in ITA No.1175/PN/2012 and ITA No.1273/PN/2012 order dated 30-06-2014. The relevant observation of the Tribunal from Para 27 to 30 read as under : 27. We have carefully considered the rival submissions. The assessee before us is a NBFC, and sum and substance of the dispute relates to the stand of the assessee that interest income re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e CIT(A). As per the CIT(A), unrecognized income on NPAs classified in terms of RBI guidelines cannot be assessed on actual basis. The aforesaid stand of the CIT(A) is directly supported by the judgement of the Hon ble Delhi High Court in the case of Brahamputra Capital Financial Services Ltd. (supra), which is also a case of a NBFC. The CIT(A) has also relied upon the decision of the Pune Bench of the Tribunal in the case of Alfa Laval Financial Services Ltd. (supra), which is also a copy of a NBFC. The Revenue has not brought to our notice any decision to the contrary. 29. In the above background, the learned counsel for the assessee is justified in arguing that no useful purpose would be served by remanding the issue back to the file of the Assessing Officer following the orders of the Tribunal of earlier years. In the present year, as our aforesaid discussion shows, the factual findings of the CIT(A) regarding the nature of the impugned is not disputed, and, the legal position articulated by the CIT(A) has also not been assailed by the Revenue on the basis of any contrary judgement, whereas the stand of the CIT(A) is supported by the judgement of the Hon ble Delhi High Court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al No. 1(a) and 1(b) by the Revenue read as under: 1(a) Whether on the facts and circumstances of the case and in law, the CIT(A) was correct in disregarding the judgment of Hon ble Supreme Court given in the case of Southern Technologies Ltd. Vs. JCIT 320 ITR 577 (SC) which says that provisions of RBI Act cannot override the provision of Sec.145 of the Income Tax Act, since both the Acts operate in different fields and therefore assessee cannot recognize interest income on NPA and yet not offer it in profit and loss account. 1(b) Whether on the facts and circumstances of the case and in law, the CIT(A) was justified in not considering the fact that the special provisions of section 43D are applicable only to Financial Institutions and Co-op. Banks whereas the assessee falls under the category of Domestic Company. 20. After hearing both the sides, we find the above grounds are identical to grounds of appeal No.1(a) and 1(b) in ITA No.2094/PN/2014 for A.Y. 2004-05 filed by the Revenue. We have already decided the issue and the grounds raised by the Revenue have been dismissed. Following the same reasonings, the above grounds by the Revenue are dismissed. ITA No.2097/P ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ds raised by the Revenue have been dismissed. Following the same reasonings, the above grounds by the Revenue are dismissed. 25. Ground of appeal No.3 by the Revenue reads as under : 3. Whether on the facts and circumstances of the case and in law, the Ld.CIT(A) was justified in deleting the addition of ₹ 4,30,854/ - made u/ s.36(1)(va) without appreciating that the assessee as an employer has not credited the employee's contribution to PF before the due date prescribed in the relevant fund and not before the due date of filing of return of income? 26. After hearing both the sides, we find the AO made addition of ₹ 4,30,854/- on account of delay in the payment of Employees contribution to PF. While doing so, he rejected the contention of the assessee that the same has been paid before the due date of filing of the return of income u/s.139(1) of the Act. In appeal the Ld.CIT(A) following the decision of Hon ble Gujarat High Court in the case of Gujarat State Road Transport Corporation vide order dated 26-12-2013 and the decision of Hon ble Bombay High Court in the case of CIT Vs. Hindustan Organics Chemical Ltd. reported in 366 ITR 1 held that provisions ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for the assessee accordingly submitted that since all the facts are already there on the records of the Department and no fresh facts are required to be verified, therefore, in view of the decision of the Tribunal in assessee s own case in the immediately preceding assessment year, the ground may be admitted and the matter may be restored to the file of the AO for deciding the issue in the light of the decision of the Tribunal. 30. The Ld. Departmental Representative on the other hand while opposing the above grounds in the Cross Objection submitted that the expenditure was never claimed by the assessee and therefore the same should not be admitted. 31. After hearing both the sides, we find the Tribunal in assessee s own case in ITA No.579/PN/2014 for A.Y. 2010-11 has discussed the issue and restored the issue to the file of the AO by observing as under : 32. The assessee raised additional ground as ground no. 4 on account of claim of deduction in respect of Employee Stock Options (ESOP) expenditure of ₹ 1,33,64,340/-. The ld. AR submitted that the assessee is a listed company and issued stock options with a ceiling of 5% of the issued equity capital of the company ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... OF AMORTIZATION OF PREMIUM ON INVESTMENTS : ₹ 83,77,194/-. The Respondent submits that the amortization of premium paid on securities of ₹ 83,77,195/- forming part of its business assets ought to be allowed as a deduction u/s.37(1) of the Act. 34. After hearing both the sides, we find the assessee has not raised this ground before the AO or the CIT(A). However, the assessee has raised this ground in the Cross Objection. It was submitted that similar issue was raised by the assessee in A.Y. 2010-11 as additional ground vide Additional Ground No.5. The Tribunal vide ITA No.579/PN/2014 order dated 11-04-2016 has admitted the additional ground and restored the issue to the file of the AO. The Ld. Counsel for the assessee accordingly submitted that since all the facts are already there in the records of the Department and no fresh facts are required to be verified, therefore, in view of the decision of the Tribunal in assessee s own case in the immediately preceding assessment year, the ground may be admitted and the matter may be restored to the file of the AO for deciding the issue in the light of the decision of the Tribunal. 35. The Ld. Departmental Representa ..... X X X X Extracts X X X X X X X X Extracts X X X X
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