TMI Blog2017 (10) TMI 246X X X X Extracts X X X X X X X X Extracts X X X X ..... - It is well settled proposition that the AO is not entitled to assess an income, which is otherwise exempt under the Act, since the AO is required to determine the total income in accordance with the law. Since the assessee claims that the above said interest income of ₹ 51.69 lakhs would be exempt u/s. 10(15) of the Act, we are of the view that the same requires examination at the end of the Assessing Officer. Accordingly, we set aside the order passed by the learned CIT(A) on this issue and restore the same to the file of the Assessing Officer with the direction to examine the claim for exemption u/s. 10(15) of the Act and take appropriate decision in accordance with law. Addition of interest income - claim of the assessee is that it has been added by the Assessing Officer without taking notice of the fact that the assessee itself has offered the same as its income in its original return of income and it has resulted in double taxation of same income - Held that:- Since double taxation of same income is not permitted under the Act, we are of the view that this claim of the assessee also requires verification at the end of the AO. Accordingly we restore this issue to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not press the ground No.1(a) relating to royalty receipts, as the assessee itself has offered the same in the revised return of income filed for second time. Hence the said ground is dismissed as not pressed. 4. The Ground No.1(b) relates to the claim for deduction of proportionate expenditure relating to royalty income. The Ld A.R submitted that identical claim was made by the assessee before Ld CIT(A) in AY 2007-08 and the Ld CIT(A) has restored the matter to the file of the AO, vide its order dated 18-03- 2011 passed in Appeal No.CIT(A)-1/IT/619/09-10. Accordingly he prayed that this issue may be restored to the file of the AO with similar directions. 5. We heard Ld D.R and also perused the order passed by Ld CIT(A) in AY 2007-08 (supra). We notice that, in paragraph 5.4 of the order, the Ld CIT(A) has restored the matter to the file of the AO for examining the claim of the assessee. Accordingly we restore this issue to the file of the AO for examining the claim of the assessee in accordance with the law. 6. The Ground No.2 relates to the taxability of catering revenue of ₹ 10.62 lakhs. The auditor of the assessee had attached a note to his report, wherein it was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he learned CIT(A) also confirmed the order passed by the AO on this issue. The Learned AR submitted that the above said interest income of ₹ 51.69 lakhs would be exempt u/s. 10(15) of the Act and hence the tax authorities are not justified in assessing the same as income of the assessee. 9. We heard learned Departmental Representative and perused the record. It is well settled proposition that the AO is not entitled to assess an income, which is otherwise exempt under the Act, since the AO is required to determine the total income in accordance with the law. Since the assessee claims that the above said interest income of ₹ 51.69 lakhs would be exempt u/s. 10(15) of the Act, we are of the view that the same requires examination at the end of the Assessing Officer. Accordingly, we set aside the order passed by the learned CIT(A) on this issue and restore the same to the file of the Assessing Officer with the direction to examine the claim for exemption u/s. 10(15) of the Act and take appropriate decision in accordance with law. 10. Ground No. 4 relates to addition of interest income of ₹ 233.03 lakhs. The claim of the assessee is that it has been added by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... have gone through the order dated 21.3.2016 passed in A.Y. 2008-09 and the Tribunal, in para No. 28 of the order has deleted the addition under the principles of consistency as explained in the case of CIT Vs. Dalmia Promoters Developers Pvt. Ltd. (281 ITR 346). The Tribunal noticed the fact that the assessee is in need of water to maintain the ground and other collateral purposes and accordingly, concluded that the expenditure incurred on water charges is necessary one and allowable under the provisions of section 23(1) of the Act. Since a particular view has already been taken by the co-ordinate bench on this issue, consistent with the view so taken, we set aside the order passed by Ld CIT(A) on this issue and direct the Assessing Officer to allow deduction of water charges/tax paid to BMC u/s. 23(1) of the Act. 16. The Ground No.5.1(c) relates to the disallowance made u/s 14A of the Act. The Learned AR submitted that the Coordinate Bench of the Tribunal had deleted an identical addition made in the A.Y. 2001-02 2002-03. He also submitted that the Coordinate Bench has, however, restored the matter to the file of the Assessing Officer in the order passed for A.Ys. 2006-07, 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... submitted that the order passed by the Assessing Officer in AY 2007-08 has since been reversed by Hon'ble ITAT. However, the Revenue has challenged the order passed by the ITAT by filing the appeal before the High Court of Bombay and is pending. The Ld A.R submitted that, in the event of reversal of order of the ITAT passed on this issue, then the assessee should be allowed depreciation on the WDV amount. The Ld A.R submitted that the assessee has taken this ground on a safer course as there is a possibility that the AO may reject the claim on the ground that the assessee has not claimed the same in the return of income. 22. We heard Ld D.R on this issue and are of the view that the prayer of the assessee is consequential in nature and has to be considered by the Assessing Officer in accordance with law. Accordingly we restore this issue to the file of the AO with the direction to decide the same after the receipt of order of Hon ble High Court. 23. In ground No. 6.1 6.2, the assessee is challenging decision of the learned CIT(A) in enhancing income of the assessee to ₹ 1562.22 lakhs as against assessed income of ₹ 1118.21 lakhs by holding that the assessee ..... X X X X Extracts X X X X X X X X Extracts X X X X
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