TMI Blog2021 (6) TMI 661X X X X Extracts X X X X X X X X Extracts X X X X ..... nd against the Revenue by deleting the disallowance made by the Assessing Officer. Education cess and higher and secondary education cess - whether taxable as the same is covered under section 40(a)(ii) of the Act and accordingly allowable as deduction in computing the income from business or profession - HELD THAT:- We find that the issue raised by way of additional ground is squarely covered in favour of the assessee and against the Revenue by the decision of Sesa Goa Ltd. v/s JCIT, [ 2020 (3) TMI 347 - BOMBAY HIGH COURT] and Chambal Fertilizers Chemicals Ltd. [ 2018 (10) TMI 589 - RAJASTHAN HIGH COURT] . Respectfully following the aforesaid judicial pronouncements, we set aside the impugned order of the learned Commissioner (Appeals) and allow the additional ground raised by the assessee. Disallowance towards year end provision for expenses on which TDS was not deducted - HELD THAT:- We find that identical issue relating to deletion of disallowance towards year end provision for expenses on which TDS was not deducted, has been decided by the Co ordinate Bench in an appeal filed by the Revenue [ 2021 (2) TMI 608 - ITAT MUMBAI] for assessment year 2015 16, decided t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... completed on 29th December 2017, by making various additions and determining total income of ₹ 3447,84,24,670 under normal provisions of the Act. Consequent upon the additions so made by the Assessing Officer and confirmed by the first appellate authority, following grounds of appeal have been raised by the assessee in the present appeal which are reproduced below: 1. The Ld. CfT(A) erred in not granting relief on disallowance under Rule 8D(iii) based on decision of Hon'ble Gujarat High Court in case of Sintex Industries Ltd (82 taxmann.com 171) by wrongly distinguishing the case even when the facts of the case are squarely applicable to appellant. 2. The Ld. CIT (A) erred in confirming the disallowance of payment for non-compliance with RBI norms on KYC and under Information Technology Act treating the same as falling under Explanation-l to section 37(1) without appreciating that as held in various decisions including that of Hon'ble ITAT Mumbai in case of Mangal Kishore Securities Ltd. [46 ITR (Trib.) 458], the payment was only compensatory in nature. 3. The Ld. CIT(A) erred in confirming order of AO in adding the tax on non-monetary perquisite in c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the Co ordinate Bench of the Tribunal in assessee s own case in assessment year 2015 16, has decided the issue of disallowance under section 37(1) of the Act, vide order dated 9th February 2021, passed in ITA no.3394 3849/Mum./2019, a copy of which is placed on record, wherein vide Para 12 of the order, the issue has been decided in favour of the assessee and against the Revenue by deleting the disallowance made by the Assessing Officer. Respectfully following the same, we set aside the impugned order passed by the learned Commissioner (Appeals) and allow the ground raised by assessee. Thus, ground no.2, is allowed. 9. The issue raised by the assessee in ground no.3 is, the learned CIT(A) erred in confirming the order of the Assessing Officer in adding the tax on non monetary perquisite in computing book profits under section 115JB of the Act. 10. Before us, the learned Counsel for the assessee submitted that identical issue raised in this ground of appeal is similar to the issue decided by the Tribunal in assessee s own case in assessment year 2015 16, vide order dated 9th February 2021, in ITA no.3394 3849/ Mum./2019. He submitted that the issue being covered b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... no.3393/Mum./2019, for the assessment year 2014 15, wherein vide Para 3 of this order, the issue has been decided in favour of the assessee and against the Revenue. Consistent with the view taken therein, we uphold the order passed by the learned Commissioner (Appeals) by dismissing the ground raised by the Revenue. 18. Ground no.2, relates to deletion of disallowance of ₹ 54,15,23,433, towards year end provision for expenses on which TDS was not deducted. 19. Before us the learned Departmental Representative submitted that first appellate authority has ignored the decision of the Tribunal, Bangalore Bench, in IBM India Pvt. Ltd., ITA no.305/Bang./2015, wherein the Tribunal has held that it is clear from the statutory provisions that the liability to deduct tax at source exists when the amount is credited to a suspense account or any other account by whatever name called which will also include a provision created in the books of account. Referring to this decision, the learned Departmental Representative prayed for upholding the order passed by the Assessing Officer. 20. The learned Counsel for the assessee submitted before us that identical issue has been decided ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 24. The learned Commissioner (Appeals) observed that the Assessing Officer did not find any justification in deletion of disallowance made by the Assessing Officer and, hence, allowed the claim of the assessee. The relevant portion of the observations made by the learned Commissioner (Appeals) in his order is reproduces below: 93. I have considered the AO's order and the submission made by the appellant. I find that this amount of ₹ 817,81,448/- is part of the expense head other provisions arid write offs' amounting to ₹ 26,80,85,106/- and has been added back in the computation of total income. However, out of above, the appellant has claimed a deduction of the amount of ₹ 8,17,81,448/-, as an allowable expense in the computation of total income. 9.3.1 From the submissions made and details filed, I find that out of the above said amount of ₹ 8,17,81,448/- the expenditure claimed amounting to ₹ 350,82,974/- is in the nature of actual write off of various charges in the nature of loan recovery expenses, which is to be recovered from the borrowing party, write off of Master Card POS acquired charges and other write offs relating to ATM ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n of the operations of the business of banking. In this view, the loss incurred by dacoity in the instant case was incidental to the carrying on of the business of banking. Therefore, the above said losses, incurred in the course of carrying out of its business are held to be allowable as business loss/ expen, deductible u/s 37(1) of the Act. 9.3.2 In view of above discussion, the addition of ₹ 817,81,448/- made to total income as per normal provisions of Act is deleted. 9.3.3 The appellant had debited this amount of ₹ 817,81,418/-, as part of other provisions for expenses amounting to ₹ 26,80,85,106/-, in the profit and loss account. In its computa tion of book profit, it has added back the entire amount of ₹ 26,80,85,106/-, being shown as provisions and has claimed the deduction of ₹ 817,81,448/-, being in the nature of expenses. As noted in para 9.3 and 9.3.1 above, the said amount of ₹ 817,81,448/- is not in the nature of provision but are in the nature of allowable expenditure. Therefore, the claim of the said amount as deduction is found to be in line with the provisions of section 1153B, as what is to be added back is the pr ..... X X X X Extracts X X X X X X X X Extracts X X X X
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