TMI Blog2019 (11) TMI 746X X X X Extracts X X X X X X X X Extracts X X X X ..... ic case of the assessee that the receipts transferred to other hoteliers and tour operators by issuing certificate in Form no. 10CCAC should not form part of tourist receipts to compute deduction u/s 80HHD as per the formula prescribed under the said provision. While deciding identical issue in A.Y. 2002 03, [ 2019 (3) TMI 561 - ITAT MUMBAI] held that the receipts passed on to other hotels and travel agents cannot be included in the total business receipts for computing deduction u/s 80HHD. The same view was reiterated by the Tribunal while deciding the issue in A.Y. 2003 04. As could be seen from the aforesaid facts, this is a recurring dispute continuing from past assessment years. In fact, the AO as well as Commissioner (Appeals) have decided the issue simply following their respective decisions in the assessment year 2002 03. There being no difference in facts brought to our notice in the impugned assessment year, respectfully following the consistent view of the Tribunal in assessee s own case as referred to above, we uphold the decision of Commissioner (Appeals). Ground raised is dismissed. Excluding the unrealized tour receipts for the purpose of computing deducti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e loan transaction as genuine and also allowed the interest expenditure thereon while deciding the appeal for A.Y. 2003-04. The aforesaid decision of learned Commissioner (Appeals) was also upheld by the Tribunal. That being the case, the reason on which the Assessing Officer disallowed the interest expenditure is unsustainable. As regards the observation of the learned Commissioner (Appeals) that the amount on which interest was paid being an advance the interest expenditure is not allowable, we must observe, the facts on record clearly reveal that since the assessee needed finance for his business activity it availed the loan/advance against proposed sale of property. The purpose of availing loan / advance is connected with the business of assessee. In any case of the matter, under identical facts and circumstances, interest expenditure was allowed in the preceding assessment year. That being the case, we delete the disallowance of interest expenditure. Ground raised is allowed. Disallowance of deduction claimed towards payment of non compete fees - HELD THAT:- From the observations of Commissioner (Appeals) it appears that the payment made by the assessee is not only for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 03-04, Learned Commissioner (Appeals) has actually deleted the disallowance made by the Assessing Officer, as evident from his order dated 06.12.2012. In fact, in assessment year 2002-03 also the Assessing Officer himself allowed the payment made to the very same party in the scrutiny assessment. Therefore, considering the overall facts and circumstances relating to the issue, we are of the opinion that the disallowance made is unsustainable, accordingly, we delete it. Computing deduction u/s 80HHD - excluding the income received on interest on income tax refund and misc. Income from total business receipt - HELD THAT:- In so far as income from interest on income tax refund, the assessee has accepted the decision of Revenue authorities. Therefore, there is no need to deliberate any further on that issue. As regards misc. income, it is the claim of the assessee that this income is closely related to the business activity of the assessee. It is observed, the Revenue authorities have disallowed assessee s claim in absence of necessary details. It has been submitted before us by the learned AR that the assessee is in possession of all the details relating to the income earned a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecision of learned Commissioner (Appeals) in excluding the receipts of ₹ . 52,04,70,961/ from the total receipt for computing deduction under section 80HHD of the Income Tax Act, 1961. 3. Briefly the facts are, the assessee, a resident company, carries on business as travel agent and tour operator. For the assessment year under dispute assessee filed his return of income on 31.10.2004 declaring total income of ₹ . 18,65,81,256/ . In course of assessment proceeding, the Assessing Officer noticing that the assessee has claimed deduction under section 80HHD of the Act called upon the assessee to furnish the necessary details. From the details furnished by the assessee, he found that the assessee has transferred a receipt of ₹ . 52,04,70,961/ to other hoteliers. Following the assessment order passed in assessee s own case for A.Y. 2002 03 the Assessing Officer concluded that the receipts transferred to other hoteliers should have been included in the total business receipt. Accordingly, he included the aforesaid receipt in the total business receipt for computing deduction under section 80HHD. Being aggrieved with the aforesaid decision of the Asses ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... decision of learned Commissioner (Appeals) in excluding the unrealized tour receipts of ₹ . 63,90,733/ for the purpose of computing deduction under section 80HHD of the Act. 6. Briefly the facts are, while computing deduction under section 80HHD of the Act, the Assessing Officer included the unrealized receipts of ₹ . 63,90,733/ in the total business receipts. Assessee challenged the aforesaid decision of Assessing Officer before learned Commissioner (Appeals). Learned Commissioner (Appeals) having found that the Assessing Officer has included the unrealized receipts without making any discussion, held that such adjustment made by the Assessing Officer is unjustified. Accordingly, he allowed assessee s claim. 7. We have considered rival submissions and perused the materials on record. It is agreed before us by learned counsels appearing for the parties that the issue is covered in favour of the assessee by the decision of the Tribunal in its own case in A.Y. 2002 03 (supra). As rightly observed by Learned Commissioner (Appeals), the Assessing Officer has included the unrealized tour receipts of ₹ . 63,90,733/ to the gross recei ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... IT vs. Syntel Limited (ITA no. 1974/2009) dated 15.12.2009 and in case of CIT vs. Rachana Udhyog 236 CTR 72 has held that the foreign exchange fluctuation gain has to be considered as part of foreign exchange receipt for computing deduction under section 80HHD of the Act. The same view was expressed by the Tribunal while deciding the issue in assessee s own case in A.Y. 2003 04 (supra). There being no difference in facts involved in the impugned assessment year, respectfully following the consistent view of the Tribunal in assessee s own case as referred to above, we uphold the decision of learned Commissioner (Appeals) on the issue. Ground raised is dismissed. 11. Ground no. 4 and 5 being general grounds do not require specific adjudication, hence, dismissed. 12. In the result, appeal is dismissed. ITA No. 3321/Mum/2008 (Appeal by the assessee for A.Y. 2004 05) 13. Ground no. 1 is against disallowance of interest paid of ₹ . 19,00,000/ . 14. Briefly the facts are, during the assessment proceedings, the Assessing Officer noticed that the assessee has claimed deduction o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... business. He submitted, if the amount is not allowable under section 36(1) (iii) of the Act, it has to be allowed as business expenditure under section 37 of the Act. 18. We have considered rival submissions and perused the materials on record. Undisputedly, the assessee had availed loan of ₹ . 2 Crore from USG Buildwell Pvt. Ltd. in assessment year 2003-04. It appears from record, the aforesaid loan/advance was availed by the assessee against proposed sale of one of its property in Delhi as the assessee needed finance for its business activities. While completing the assessment in assessment year 2003-04 the Assessing Officer had treated the aforesaid loan/advance as unexplained cash credit under section 68 of the Act. For the very same reason, the Assessing Officer also disallowed the interest paid thereon. However, in proceeding before learned Commissioner (Appeals), the Assessing officer again verified the loan transaction and in the remand report accepted it to be genuine. On the basis of such remand report, learned Commissioner (Appeals) not only deleted the addition made under section 68 of the Act, but also allowed the interest expenditure. In the imp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... earned Commissioner (Appeals) observed that the payment was not restricted to non competition alone but the assessee has acquired the ownership of tour club brand, trademark and goodwill. Thus, he held that the payment made by the assessee is inextricably linked with generation of capital asset. Accordingly, he agreed with the decision of the Assessing Officer in holding it as capital expenditure. 21. The learned AR submitted, identical issue came up for consideration in A.Y. 2002-03 and while deciding the issue the Tribunal allowed assessee s claim by treating it as Revenue expenditure. Without prejudice, the learned AR submitted, if the payment made is held as capital expenditure, the assessee should be allowed depreciation at the rate applicable to intangible assets. Further, he submitted, for such without prejudice claim assessee has raised an additional ground. 22. The learned DR relied upon the observations of the Assessing Officer and learned Commissioners (Appeals). 23. We have considered rival submissions and perused the materials on record. The short issue arising for consideration is, whether the payment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ainst the disallowance made by the Assessing Officer of ₹ . 13,46,358/-. 26. The learned AR submitted, while deciding identical issue in A.Y. 2002-03, the Tribunal has restricted the disallowance to 2% of the exempt income earned during the year. Thus, he submitted, similar disallowance may be made in the impugned assessment year. 27. The learned DR relied upon the observations of learned Commissioner (Appeals). 28. We have considered rival submissions and perused the materials on record. Undisputedly, the assessee has earned exempt income during the year under consideration. Therefore, expenditure attributable to earning of exempt income has to be allowed in terms of section 14A of the Act. It is observed, while deciding identical issue in assessment year 2002-03, the Tribunal, in the order referred to above, has restricted the disallowance to 2% of the exempt income earned during the year. Facts being identical, respectfully following the decision of the Coordinate Bench in assessee s own case, we direct the Assessing Officer to restrict the disallowance to 2% of the exempt income. Ground raised is partly allowed. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... considered rival submissions and perused the materials on record. We have also carefully examined the case laws cited before us. Though, while disallowing the expenditure the Assessing Officer has not specifically referred to section 40A(2)(b), however, it is clear he intended to disallow the expenditure under the said provision. On a reading of section 40A(2) of the Act it becomes clear that if a particular expenditure concerning payment made to a related party, in the opinion of the Assessing Officer, is unreasonable and excessive having regard to the market rate, he may either disallow it or may allow it as per the market rate. Therefore, the Assessing Officer must establish on record that the payment made by the assessee to a related party is unreasonable and excesseive having regard to the market rate. On a careful reading of the assessment order, we are of the view that the Assessing Officer before disallowing the expenditure has not brought any material on record to demonstrate that the payment made by the assessee is unreasonable and excessive having regard to the market rate. Learned Commissioner (Appeals) also sustained the disallowance on a factual misconception that sim ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... In so far as the issue of inclusion of misc. income in the business receipt, he submitted, the issue may be restored back to the Assessing Officer to provide an opportunity to the assessee to prove its claim. We have considered rival submissions and perused the materials on record. In so far as income from interest on income tax refund, the assessee has accepted the decision of Revenue authorities. Therefore, there is no need to deliberate any further on that issue. As regards misc. income, it is the claim of the assessee that this income is closely related to the business activity of the assessee. It is observed, the Revenue authorities have disallowed assessee s claim in absence of necessary details. It has been submitted before us by the learned AR that the assessee is in possession of all the details relating to the income earned and can establish its claim before the AO. Considering the above, we are inclined to restore the issue relating to assessee s claim of misc. income to be treated as business income for deduction under section 80HHD to the Assessing Officer for de novo adjudication after verifying the details to be filed by the assessee. Needless ..... X X X X Extracts X X X X X X X X Extracts X X X X
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