TMI Blog2018 (5) TMI 1321X X X X Extracts X X X X X X X X Extracts X X X X ..... nds of appeal as under:- 1. The Ld. CIT(A) has erred on facts and in law in not deciding the allowability of prior period expenses of ₹ 10,22,608/- claimed on account of overhead plant running expenses which crystallized during the year on approval of the expenses. 2. The Ld. CIT(A) has erred on facts and in law in confirming the prior period expenses of ₹ 2,04,87,540/- on account of interest on BOT asset ignoring that the said expenses is claimed on account of change in the method of depreciation on BOT asset vide Notification dt. 17.04.2012 which resulted in revision in the working of interest and thus, the claim has crystallized during the year. She has further erred in disallowing the expenditure but at the same time not excluding the prior period income of ₹ 1187.70 Lacs declared during the year. 3. The Ld. CIT(A) has erred on facts and in law in holding that administrative expenses and the employees cost in respect of 5 units where toll collection takes place should be allocated against the BOT projects where deduction u/s 80-IA(4) has been claimed ignoring that all expenses has been considered in respect of the projects on which deduction u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... annot be disallowed. Reliance is placed on the decision of the Hon ble Rajasthan High Court in case of PCIT vs. Rajasthan State Seed Corporation Ltd. (2016) 386 ITR 267 wherein it was held as under: Insofar as the prior period expenses is concerned a finding of fact has been recorded by the Appellate Authorities that approval for payment of the said expenditure was given during the year under appeal therefore the liability crystallized during the year and similar method was being regularly followed by the assessee consistently and when there is a finding recorded by the Appellate Authorities that the expenditure crystallized during the year, was written in the books this year and on year to year basis was claimed in the same manner and fashion was rightly claimed and allowed during the year, is a finding of fact. In our view the deletion of disallowance is based on material evidence on record and is a finding of fact, no question of law much less substantial question of law can be said to emerge. We find no perversity or illegality in the order impugned so as to call for interference of this Court. 4. The ld AR further placed reliance on CIT Vs. Excel Industrie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... examine the said claim of the assessee and the latter shall be at liberty to raise the contentions so advanced before us including the legal precedents which have been relied upon. 8. Regarding interest on BOT asset is concerned, it is the contention of the ld AR that the same has been crystallized during the year and therefore, the same is allowable as expenditure during the year. The ld CIT(A) has accepted the said fact but at the same time, in absence of details of such interest expenditure and whether the same has been actually paid or not has not allowed the claim of the assessee. The details of such interest expenditure is not available on record except the fact that such interest is in respect of loan obtained for creation of toll assets. Where such interest is paid to any public financial institution or state financial corporation or state industrial investment corporation as defined in section 43B, then in such a scenario, the ld CIT(A) is correct to hold that unless such interest has been shown as actually paid, the same cannot be allowed. However, in absence of specific details, it is difficult to determine the same. We are accordingly setting-aside the matter to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rtionate allocation should be made. Further, the CIT(A) then determined the expenditure under these heads allocable to the BOT projects and deduction under section 80IA(4) was modified accordingly. In the present proceedings, it was submitted that the issue has been decided by the Hon'ble ITAT, Jaipur for assessment year 2011- 12 (in ITA No. 558/JP/2015). In the present proceedings, it was submitted that the Hon'ble ITAT in its order for assessment year 2011-12 at set aside the matter to the file of the AO to apportion the expenditure on the basis of turnover and not income which has been done by the AO. The AR further submitted that the expenditure of ₹ 24.43 crores towards payment to provision for employees allocated by the AO related to the head office as well as 31 units of the assessee's Corporation and out of these 31 units, 26 units are related to the construction work and no toll collection takes place. It was contended that only in 5 units both construction and toll collection takes place, hence the expenditure of other 26 units should not be considered for allocation. This issue was also decided by my predecessor in favour of the assessee in A.Y11-1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o dispute on the turnover. Therefore, the issue is when assessee has already allocated the indirect expenditure in relation to the toll project in working out the income, the establishment expenses and the administrative expenses incurred at Head Office and Unit Office cannot be allocated in arriving at the income of toll projects. Therefore, the direction of Ld. CIT(A) to consider the allocation of these expenditure in respect of 5 units where both the construction and toll collection takes place is unjustified. 13. The relevant finding of the Coordinate Bench in assessee s own case for A.Y 2011-12 (ITA No. 558/JP/2015 and others dated 08.09.2016) is as under:- From the aforesaid submissions it is evident that the contention of the assessee against disallowance of deduction are three fold. Firstly, the turnover as taken by the AO and the ld. CIT (A) is incorrect. Secondly, the assessee himself has considered the expenditure against the income eligible for deduction under section 80IA. Thirdly, the allocation of head office expenditure as done by the lower authorities is not correct. Therefore, the authorities below were not justified in disallowing the claim of deduction u ..... X X X X Extracts X X X X X X X X Extracts X X X X
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