TMI Blog2016 (10) TMI 624X X X X Extracts X X X X X X X X Extracts X X X X ..... the earlier years, we have already allowed the claim of the assessee to claim adjustments of notional loss/gain as per the provisions of section 43A of the Act. We, therefore, dismiss this appeal of the assessee with the direction that the assessee will be eligible to claim the adjustments under section 43A of the Act in the light of the observations made above while deciding the assessee’s appeal for A.Y. 2004-05. - ITA No.630/M/2009, ITA No.631/M/2009, ITA No.2536/M/2013, ITA No.3101/M/2013 - - - Dated:- 31-8-2016 - SHRI B.R. BASKARAN, ACCOUNTANT MEMBER AND SHRI SANJAY GARG, JUDICIAL MEMBER For The Assessee : Shri Prakash Jotwani, A.R. For The Revenue : Shri A.B. Koli, D.R. ORDER Per Sanjay Garg, Judicial Member: ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le to any circulating capital and as such he ought to have held it to be capital receipt not liable to tax. (c) Without prejudice to the above, the ld. CIT(A) erred in not directing the A.O. to allow depreciation on fixed assets without reducing the aforesaid foreign exchange fluctuation gain adjusted by the appellant under section 43A of the Act. 3. On the facts and circumstances of the case and in law, the ld. CIT(A) erred in confirming the disallowance of ₹ 1,29,839/- made by the A.O. in respect of expenses incurred and relatable to the previous year ended 31.3.2004 but accounted in subsequent year. Your appellant craves leave to add to alter, amend or delete the above ground of appeal, which are independent and without pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ake any disallowance in the light of the decision of the Hon ble Supreme Court. Ground No.2 8. With this ground, the assessee has agitated the action of the Ld. CIT(A) in confirming the action of the AO in taxing the notional gain due to fluctuation in foreign exchange rates in respect of foreign currency loans which were utilized for purchase of capital assets holding the same as revenue receipt as against the claim of the assessee that the same being a capital receipt was not liable to tax. The Ld. A.R. of the assessee has brought our attention to various documents on the file to demonstrate that the assessee had set up a five star resort and a flight catering unit at Goa in earlier years. It had borrowed fixed term loans inclu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aken by the assessee was not utilized for the purchase of an asset but for repayment of earlier loan. 10. The Ld. CIT(A) also confirmed the above finding of the AO. 11. The Ld. A.R. of the assessee, before us, has demonstrated from the various documents on the file that it was not a case of taking of new loan for any other purpose but it was just a case of shifting of the loan liability. Since the assessee had to pay the loan and interest liabilities to various banks/financial institutions and a proposal had come from the Bank of Baroda to consolidate all the loans of the assessee in one bank which was convenient to the assessee. Hence all the old loans which were relatable to acquisition of fixed assets regarding which the assessee h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sset in favour of the assessee. 12. The Ld. A.R. of the assessee has stated at bar that he does not press ground No.3 of the appeal. Thus, the ground No.3 of the appeal is dismissed as not pressed. 13. This appeal of the assessee is thus treated as partly allowed. ITA No.631/M/2009 for A.Y. 2005-06 (Assessee s appeal) Ground Nos.1 2 14. The assessee, in this appeal has taken six grounds of appeal. Ground Nos.1 2 are relating to the disallowance on account of delayed payment in respect of Employees Contribution to ESIC under section 36(1)(va) of the Act. This issue has already been adjudicated by us while deciding ground No.1 of the assessee s appeal for A.Y. 2004-05. This issue is accordingly restored to the fil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the assessee to claim adjustments of notional loss/gain as per the provisions of section 43A of the Act. We, therefore, dismiss this appeal of the assessee with the direction that the assessee will be eligible to claim the adjustments under section 43A of the Act in the light of the observations made above while deciding the assessee s appeal for A.Y. 2004-05. ITA No.3101/M/2013 for A.Y. 2009-10 (Revenue s appeal) 18. This cross appeal has been preferred by the Revenue against the order of the Ld. CIT(A) dated 16.01.2013. 19. At the outset, the Ld. D.R. has submitted that the tax effect in this appeal of the is less than ₹ 10 lakhs. He, therefore, has stated that the CBDT circular No.21/2015 is applicable to this appeal ..... X X X X Extracts X X X X X X X X Extracts X X X X
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