TMI Blog2016 (9) TMI 1482X X X X Extracts X X X X X X X X Extracts X X X X ..... for the Assessment Year 1998-99. The impugned order merely follows its order of Assessment Year 1998-99. Therefore, in the absence of any special circumstances being pointed out by Revenue such as different facts etc. in the subject Assessment Year from those in earlier Assessment Year, i.e. 1998-99 there is no warrant for taking a different view. Fresh claim of expenditure on account of subway and power lines not claimed in the return of income filed - Held that:- The aforesaid questions do not arise from the impugned order of the Tribunal. These questions were not urged/raised for the first time in appellate proceedings as suggested in the questions framed. In fact the claim of expenditure by M/s. Indian Rayon & Industries Ltd. prior to the date of merger with the Respondent Assessee was a subject of consideration during the Assessment proceeding leading order dated 18 March 2002. Expenditure on subway and power line though the said expenditure was not incurred by the assessee but by Indian Rayon & Industries Ltd., prior to the date of scheme of merger - Held that:- As the impugned order of the Tribunal has merely followed its order for Assessment Years 199495 and 1998-99 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... x Appellate Tribunal ( Tribunal ). The Assessment Year involved is Assessment Year 1999-2000. 2. The Appeal Memo has formulated the following questions of law for our consideration : 1. Whether on the facts and in the circumstances of the case and in law, the Tribunal was justified in holding that profit of the assessee branch in USA viz. Birla consultancy software Services is not taxable in India without examining the facts of the case and without appreciating the fact as per Article 24(2)(a) of the DTAA only deduction in respect of taxes on income paid in USA should be allowed as deduction from the tax payable in India, and therefore this decision of the Tribunal is perverse on facts? 2. Whether on the facts and n the circumstances of the case and in law, the Tribunal was justified in holding that profit from power generated are eligible for deduction for the purpose of book profit u/s 115JA without appreciating the fact that no profits was derived from business of generation and distribution of power and that the power generated was used for captive consumption only ? 3. Whether on the facts and in the circumstances of the case and in law, the Tribunal was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3. Re. Question (1) : (a) The impugned order of the Tribunal dismissed the Revenue's appeal on the above issue by following its order in the case of the same Respondent Assessee for Assessment Years 1996-97 and 1997-98. (b) On specifically being asked, Mr. Suresh Kumar, learned Counsel appearing for the Revenue, states that nothing is available on record to indicate any challenge by the Revenue to the order of the Tribunal for Assessment Years 1996-97 and 1997-98 before any higher forum. It therefore follows that the orders of the Tribunal on the above issue for the Assessment Years 1996-97 and 1997-98, have been accepted by the Revenue. Therefore, the Revenue can have no grievance with the impugned order of the Tribunal as it merely follows its earlier orders which have been accepted. Further, no distinguishing features in the present Assessment Year from that existing in the Assessment Years 1996-97 and 1997-98 have been brought to our notice which would justify our taking a different view on this issue for the subject Assessment Year. (c) In the above view, Question (1) as proposed by the Revenue does not give rise to any substantial question of law. Thus, not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment Year 1998-99 was filed in this Court being Income Tax Appeal No.964 of 2013, no question with regard to this issue was raised therein. It may be pointed out that Income Tax Appeal No.964 of 2013 was dismissed on 22 March 2013. Further, Mr. Suresh Kumar states that there is nothing on record to indicate that any appeal has been filed from the order of the Tribunal for the Assessment Year 199495. (c) In the above view, as the impugned order of the Tribunal has merely followed its order for Assessment Years 199495 and 1998-99 which has been accepted by the Revenue there is no basis for the Revenue being aggrieved by it. This is particularly so as no distinction in facts or law is shown in the subject Assessment Year from those in Assessment Years 199495 and 1998-99. Therefore, the question as proposed does not give rise to any substantial question of law. Therefore, not entertained. 7. Re. Question No. (6) and (7) : (a) The impugned order of the Tribunal has allowed the Respondent Assessee's appeal on this issue by holding that the provision made on account of gratuity and leave salary is not to be added to arrive at book profits under Section 115JA of the Act. The a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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