TMI Blog2022 (1) TMI 641X X X X Extracts X X X X X X X X Extracts X X X X ..... essee company are established and the evidence of the same filed by the assessee company which were also before the Ld. Revenue Authorities. The submission of the ld. AR that the above five entities had also infused funds in the assessee company during the preceding assessment year 2009-10 could not be controverted by the Ld. DR. Further, the Ld. AO in his remand report dated 8/11/2006 had stated that the concerned Directors of the group were in judicial custody and for such reason the summons and notices issued upon them were returned unserved itself justifies the reason that the entities could not cooperate during the assessment proceedings. It also establishes the fact that the relevant individuals managing the affairs of the assessee company were not in receipt of the notices sent by the Revenue Authorities during the course of assessment proceedings. Further, before us the Ld. DR could not state any reason as to why the first remand report of the Ld. AO was rejected. Assessee has established the genuineness of the transaction with cogent evidence which are forming part of the paper book. The Ld. Revenue Authorities could not draw any adverse inference from the documen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fore, the addition made and sustained by the Ld. Revenue Authorities is erroneous. Hence, we direct the Ld. AO to delete the addition made on this count. Accordingly, concise Ground No.2 mentioned herein above in the assessee s appeal is decided in favour of the assessee. Levy of interest U/s. 234A, B C of the Act are mandatory. - ITA No. 512/Hyd/2017 And ITA No. 398/Hyd/2017 - - - Dated:- 6-1-2022 - Shri A. Mohan Alankamony, Accountant Member And Sri Chandra Mohan Garg, Judicial Member For the Assessee : Sri Gowtham Jain For the Revenue : Sri K.V. Aravind, Sr. Standing Counsel for DR ORDER PER A. MOHAN ALANKAMONY, A.M: The captioned two appeals are cross appeals filed by the assessee and the Revenue for the A.Y. 2010-11. Both the appeals are filed against the order of the Ld. CIT(A)-8, Hyderabad in appeal No.0063/CIT(A)- 8/Hyd/2016-17, dated 27th December, 2016 passed U/s. 144 r.w.s 250(6) of the Act for the A.Y. 2010-11. 2. The assessee has raised several grounds in its appeal however, the cruxes of the issues are as follows: 1) The Ld. CIT (A) has erred in upholding the order of the ld.AO who had made addition of ₹ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ort from the Ld.AO. The Ld. AR further submitted that if the appeal is remitted back to the file of the Ld. CIT (A) by condoning the delay, it will serve no purpose as it will be a futile exercise because there are no fresh evidence to be considered and once again the assessee may have to approach the Tribunal which will be sheer waste of time. 7. Considering the submission of both the parties We proceed to hear the issue with respect to condonation of delay in filing the appeal by the Ld. CIT (A). On perusing the order of the Ld. CIT (A), we find that the assessee had filed the written submissions before the Ld. CIT (A) for delay in filing the appeal stating as follows: Paper Book: Page No: 57: As stated in the appeal memo the appeal has been instituted as soon as it has come to the knowledge of the appellant. The appellant could not have filed the appeal in respect of which he is not aware of. Hence, the delay has happened due to reasonable cause. This is without prejudice to the position that there is no valid service of the order at all. There may not even be valid services of notices and especially the last notice and the assessment may be invalid on this account a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... IT (A) has taken a vindictive action against the assessee for not appearing before the Ld. AO. Further, from the facts submitted before us by the Ld. AR which could not be controverted by the Ld.DR, We are of the view that the assessee had a reasonable cause for filing the appeal belatedly since the factory premises of the assessee was closed and due to that the assessment order could reach in the hands of the officers of the assessee company for a considerable period time. While holding so We rely on the decision of the Hon ble Apex Court cited by the Ld. AR the gist of which is extracted herein below for reference: Hon ble Apex Court decision in the case Collector, Land Acquisition vs. MST. Katiji and Others reported in 167 ITR 471 (SC) held as under: The Legislature has conferred power to condone delay by enacting section 5 of the Limitation Act, 1963, in order to enable the courts to do substantial justice to parties by disposing of matters on merits. The expression sufficient cause in section 5 is adequately elastic to enable the courts to apply the law in a meaningful manner which subserves the ends of justice that being the life-purpose of the existence of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e, whether there was any valuable right of the appellant, which would be taken away by not condoning the delay in the matters arising under the Act. Ultimately the question is, what is the tax payable under law. It is not an adversary litigation. An assessee cannot be charged without statutory authority. Under these circumstances, the approach of the Tribunal could not be accepted. In that view of the matter, the reasoning given by the Tribunal for not condoning the delay was unsustainable in law. Hence, it was to be opined that the assessee had made out a sufficient cause for condoning the delay in preferring the appeal. Hence, the appeal was to be allowed. The impugned order passed by the Tribunal dismissing the appeal as barred by limitation was to be set aside. The application filed for condonation of delay of 310 days in preferring the appeal before the Tribunal was to be allowed. Consequently, the Tribunal was to be directed to take on its file, the appeal presented by the assessee and to decide the appeal on merits without again going into the question of limitation. [Para 6] The Hon ble Supreme Court in the case Senior Bhosale Estate (HUF) vs. ACIT reported in [2019] ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cided the appeal on merits. Once again remitting back the appeal to the file of the Ld. CIT (A) will result only in waste of time and it will go against the very purpose of this Institution whose motto is Easy Speedy Justice which is embedded in the logo of the Tribunal. 11. The Ld. DR s submission was that if the Ld. CIT (A) refused to condone the delay then he refuses to assume jurisdiction to decide the appeal and therefore according to him any finding recorded by the Ld. CIT (A) on merits after refusing to condone the delay is void. We are not in agreement of this proposition of the Ld. DR. In fact, when the Ld. CIT (A) has decided the issue on merits there could be a presumption that the Ld. CIT (A) has condoned the delay in filing the appeal before him. Further, the decision relied by the Ld. DR in the case Mela Ram Sons vs. CIT reported in 29 ITR 607 does not support the case of the Revenue. In fact, the Hon ble Apex Court applied the ratio that if an appeal by the assessee is admitted without the fact of delay in its presentation having been noticed, it is open to the Department to raise the objection at the time of hearing of the appeal. However, in the case of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y with the appeal since he was under the belief that the hearing was only with respect to early hearing petition. Thereafter, the appeal was posted for hearing on 11/6/2021. The Ld. DR again expressed his inability to argue the case on 11/6/2021. However, the Ld. AR was ready with the case on both the dates of hearing and vehemently submitted that the Revenue had invoked the provisions of section 68 in the hands of the assessee though the entire funds received by it are from its sister concerns which are already assessed to tax. The Ld. AR further submitted that the amount of addition made by the Revenue is more than ₹ 300 Crs and recovery of demand at this stage would bring irreparable loss to the assessee and therefore, the appeal may be taken up for hearing instantly. Therefore, the Bench presided by the Hon ble President posted the appeal for hearing on 6/7/2021 by treating the appeal as part heard with the following direction: Order sheet page No.6 (ITA No. 512/Hyd/2017), Dated 11/06/2021 1. The Ld. AR is hereby directed to produce before us the return of income, Balance Sheet and Assessment Order of the following Eight Companies highlighting the funds advanc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , requested for adjournment. Thereafter, the Benched Presided by the Hon ble President adjourned the case to 27/07/2021 to be heard by the Regular Bench. On 27/07/2021 again the Ld. DR sought time stating that the Revenue is yet to appoint Special Counsel. Accordingly, the appeal was adjourned to 28/07/2021. On 28/07/2021 Standing Counsel Sri K.V. Aravind appeared however, sought for adjournment and the appeal was adjourned to 9/08/2021. On 09/08/2021, the Bench did not function and the appeal was posted for hearing on 10/08/2021. When the matter came up on 10/08/2021, the Ld. AR pointed out that the Revenue had not complied with the direction of the Bench dated 11/06/2021 therefore once again the case was adjourned to 06/09/2021 with direction to the Ld. DR to comply with the earlier direction of the Bench. On 06/09/2021 also the directions were not complied by the Revenue, therefore the appeals were adjourned to 11/10/2021. Once again on 11/10/2021, the Ld. DR asked for adjournment and the appeals were posted for hearing on 12/10/2021 first on board. Finally, the appeal was heard on 12/10/2021. This lethargic attitude of the Revenue in such a case having high pitch additions does ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 9,50,00,000 As seen from the balance sheet for FY 2008-09, share application money pending allotment in FY 2008-09 is ₹ 477,79,60,000. Also, as seen from the balance sheet for FY 2007-08, share application money pending allotment in FY 2007-08 is ₹ 39,00,00,000/-. Thus, the total amount received in FY 2009-10 is Rs.. =Share capital as on 31/3/2010- {share capital as on 31/3/2009 + share application money pending allotment as on 31/3/2009} = ₹ 1289,18,57,970 {₹ 499,50,00,000 + ₹ 477,79,60,000} = ₹ 1289,18,57970 ₹ 977,29,60,000} = ₹ 311,88,97,970. However, the party-wise amounts of share application money received in FY 2009-10 were not furnished by the assessee. 17. It appears that during the course of assessment proceedings, the assessee did not respond to the several notices issued calling for information. In some instances, adjournments were sought. Finally, the notice sent to the assessee was returned by the Postal Authorities with remarks The assessee has left . Therefore, the Ld. AO completed the assessment U/s. 144 of the Act. Since the assessee had not re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt and Form-2. The assessee was asked to prove the genuineness of the transaction. No confirmation letters, bank statements of the share subscribers, Annual reports etc., which prove the creditworthiness had been submitted. Therefore, the addition may kindly be sustained. . ---------- ---------- Remand Report dated 17/3/2015. Share capital: The assessee company has issues equity shares value of ₹ 789,68,57,960/- out of which an amount of ₹ 311,88,97,960/- has been received during the FY 2009-10. The assessee company furnished the ledger extract of share capital a/c, share application money pending for allotment, bank ledger a/c, bank statement and ROC copy. In this case M/s OMC is the major investor, during the remand proceedings the assessee company produced the assessment order passed in the Central Circle, Benglore wherein no addition is made on capital account, hence the money introduced is prima facie explained. .. 18. Before us, the Ld. AR has filed a written submission which is reproduced herein below for reference: 4 The basis of the addition of ₹ 311,87,97,960/- is tabula ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reholders: Sr. No. Name of shareh older No. of shares (pages of Paper Book) Amount received upto 31.3.2010 as share capital (Rs.) (pages of Paper Book) (A) Amount received upto 31.3.2009 as share capital (Rs.) (B) Share application money pending allotment as on 31.3.2009 (Rs.) (C) Total (D) = (A-B-C) (pages of Paper Book) 1 M/s Obulapuram Mining Co. (P) Ltd. 102,07,15,960 (151) 1020,71,59,600 (151) 479,52,00,000 296,80,61,640 244,38,97,960 2 M/s Kireeti Power Corporation (P) Ltd. 9,24,20,000 92,42,00,000 (209) 8,00,000 65,64,00,000 26,70,00,000 3 Lakshmi Aruna Oxygen (P) Ltd. 8,23,20,000 82,32,00,000 (228) 8,00,000 66,44,00,000 15,80,00,000 4 Sr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Income Tax, Central Cirlce- 1(3), Bangalore 2 M/s Kireeti Power Corporation (P) Ltd. Address:. Plot No. 1121, Sr. No. 403/1, Road No. 54, Jubilee Hills Hyderabad Hyderabad TG No. of shares: 92420000 PAN No. AADCK2296A Ward: DCIT, Circle 2(1), Hyderabad 26,70,00,000 65,72,00,000 i) Copy of balance sheet alongwith its schedules for the financial year 2009- 10 relevant to assessment year 2010-11 in the case of M/s Kireeti Power Corporation (P) Ltd. (pages 204-218 to Paper Book) ii) Copy of order of assessment dated 31.3.2013 u/s 143(3)/144 of the Act for Assessment year 2010-11 in the case of M/s Kireeti Power Corporation (P) Ltd. (pages 219-221 of Paper Book) Suman Malik Deputy Commissioner of Income Tax Cirlce-2(1), Hyderabad 3 Lakshmi Aruna Oxygen (P) Ltd. Address: Plot No. 1121, S. No. 403/1, Road No. 54, Jubilee Hills Hyderabad Hyderabad TG No. of shares: 82320000 PAN No. AABCL3634K 15,80,00,000 66,52,00000 i) Copy of balance sheet alongwith its schedules for the financial year 20 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... It is submitted that paper book was filed on 10.6.2021 comprising of 376 sheets and judgment paper book comprising of 229 sheets. 8 In such circumstances it is submitted that share capital addition made u/s 68 of the Act is not in accordance with law and untenable. 19. The details of the share application money received during the relevant assessment year for ₹ 311,88,97,960/- from the five parties mentioned herein above as extracted from the written submission of the Ld. AR is not disputed. From the first remand report of the Ld. AO dated 17/3/2015 it is apparent that the Ld. AO has not drawn any adverse inference on the receipt of share application money of ₹ 311,88,97,960/-. It appears that in the second remand report, the assessee has not cooperated and therefore, the ld. AO held that the genuineness of the transaction are not proved. While doing so, the Ld. AO also has not made any finding in order to disturb the earlier finding of the erstwhile AO. The Ld. CIT (A) relying on the second remand of the Ld. AO confirmed the addition made by the Ld. AO in his ex-parte order. 20. The Ld. AR submitted be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... requested that the Hon ble Bench may please be appraised to take note of the revised remand report. With regard to item Nos.2 3, partial information was furnished, which is being elaborated as under: 1) During the course of assessment proceedings for AY 2010-11 in the case of M/s. Brahmani Industries Limited, the assessee has received share application money to an extent of ₹ 311,88,97,970/- from following eight (8) investors. Sl no Name of the assessee (Sri/Smt/M/s.) 1. Obulapuram Mining Co., Pvt Ltd., 2. Mudita Properties Pvt Ltd., 3. Tubular Rivets Pvt Ltd., 4. G. Janardhan Reddy 5. G. Lakshmi Aruna 6. Kireeti Power Corporation Pvt Ltd., 7. Lakshmi Aruna Oxygen Private Limited 8. M/s. GJR Holding International Ltd As can be seen from the as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d clearly at Para 3.2 has held that delay is not condoned. However, the Ld.CIT(A) instead of closing the appeal at that stage, has proceeded to adjudicate on the merits of the case, thereby, granting partial relief to the assessee. The assessee earlier challenged only the order of the Ld.CIT(Appeals) to the extent of denial of relief on merits, the refusal to condone the delay was not challenged. Subsequently, an additional ground has been raised challenging the order of the Ld.CIT(Appeal) in rejecting the condonation of delay. Once the condonation is rejected, the appeal become non-est and the Ld.CIT(A) should not have proceeded to take up the appeal on merits. Even on merits, the following is submitted for kind consideration of the Hon'ble Bench. In respect of status of assessment of companies/shareholders who contributed the share capital of Rs, 311 crores, and the contribution of share capital from the companies/shareholders are explained in their hands, it was already submitted by the then AO dated 08.11.2016 in the revised remand report wherein it was stated that the asseessee was asked to prove the genuineness of the transactions along with creditworthiness of sou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... estor company, would not amount to discharge of burden imposed on the assessee as held by the various high courts and the Hon 'ble Supreme Court on establishing identity and creditworthiness of the investor and genuineness of the transaction. (iv) Lakshmi Aruna Oxygen Private Limited (PAN - AABCL3634K): Assessment has been completed under section 144 dated 20/03/2013 for the Assessment Year 2010-11 which is placed in page nos.372 - 376 of paper book. Here also, it is very clear that the assessee has not produced any evidence in paper book and t he assessee has not discharged its burden of onus before the Assessing Officer. Mere production of the accounts and assessment orders of the investor company would not amount to discharge of burden imposed on the assessee as held by various High Courts and the Hon 'ble Supreme Court on establishing identity and creditworthiness of the investor and genuineness of the transaction. (v) Mudita Properties Pvt. Ltd., (PAN - AABCM9291K) : The assessee has not produced any material regarding its transaction of investing in shares of M/s. Brahmani Industries, therefore, the entire investment worked out in the asses ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y to discharge its burden before the AO as well as the Ld. Commissioner of Income Tax (Appeals). The assessee having failed to avail the opportunities before the AO and the Ld. Commissioner of Income Tax (Appeals) during the course of assessment proceedings or appeal proceedings. The burden of the assessee cannot be sought to be discharged by the revenue, in contravention of the law laid down by l he Hon'ble Supreme Court. 4) The Ld.CIT(Appeal) at Para 8.2 of Page No.13 has clearly mentioned the copy of the remand report was given to the tax payer to furnish its comments with a clear mention that if no comments / objections are received by 22-12-2016, it is presumed that the tax payer has no objection to the comments in the remand report. There is no response from the assessee on the remand report of the Assessing Officer. Neither any submissions were filed nor adjournment was taken and therefore, the Ld.CIT(Appeal) disposed the appeal based on the information (or) material available on record. At Page No.1S, the Ld.ClT(Appeal) clearly holds that the addition made by the Assessing Officer is upheld and ground No.3 is dismissed. Therefore, it is once again humbly submitte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he assessee company as evident from the statement of affairs of the assessee company. Hence, it is a holding company of the assessee company. (ii) The Ld. AR s submission that the Directors of the holding company and the assessee company are the same is not disputed. (iii) Page No. 148 149 of the paper book contains the acknowledgement for filing the Return of income for the AY 2010-11 wherein the entity has returned Gross Total Income of ₹ 228,99,19,735/- and the PAN of the entity is stated as AAACO 5753 D. (iv) Page No. 150 to 161 of the paper book contains the audited balance sheet and statement of accounts from which it is evident that entity has reserves and surplus of ₹ 958,29,97,000/- and in page no. 157 the entity has declared profit before tax of ₹ 189,48,39,000/-. (v) Page No. 162 to 184 consists of the assessment order U/s. 143(3) of the Act of the entity for the AY 2010-11 by the DCIT, Central Circle-1(3), Bangalore wherein the entity s income of ₹ 225,13,29,740/- is accepted and further addition is made. (vi) Page No.185 to 200 consists of the assessment order U/s. 143(3) r.w.s 144C(13) of the Act for the AY 2009-10 by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... planation was given the same was treated as unexplained loan and added to the income of the entity on substantive basis. The PAN of the entity is stated as AADCL 3634 K in the assessment order. (vi) Page No.235 consists of the CIN No. of the entity viz., U24117TG2007PTC053783 4. Sri G. Janardhana Reddy : (i) Sri. G. Janardhana Reddy has invested ₹ 12,50,00,000/- (paper book page no.293) towards allotment of share in the assessee company during the relevant assessment year. Shri G. Janardhana Reddy is one of the promoter of the assessee company. (ii) Page No. 289 of the paper book contains the acknowledgement for filing the Return of income for the AY 2010-11 wherein the Shri G. Janardhana Reddy has returned Gross Total Income of ₹ 33,23,50,203/- and the PAN is stated as AFBPR 9737 D. Page no.290 of the paper book contains the computation statement wherein the total income of Shri G. Janardhana Reddy is declared at ₹ 33,22,21,233/-. (iii) Page No. 291 to 294 of the paper book contains the balance sheet and statement of accounts from which it is evident that Shri G. Janardhana Reddy has capital of ₹ 112,55,35,986/-. (iv) Page No ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e all the entities were assessed to tax and additions were made on substantive basis with respect to certain entities. It is also apparent that all the entities had sufficient funds within their means to make investment in the assessee company. All the entities have filed their returns of income. The accounts of all the entities were also audited. It is also not in dispute that the entire money were infused into the assessee company towards share application money through banking channels. Therefore, from the factual matrix of the issue it is crystal clear that identity, creditworthiness and genuineness of the entities who had infused money into the assessee company are established and the evidence of the same are forming part of the paper book containing 1 to 376 pages filed by the assessee company which were also before the Ld. Revenue Authorities. The submission of the ld. AR that the above five entities had also infused funds in the assessee company during the preceding assessment year 2009-10 could not be controverted by the Ld. DR. Further, the Ld. AO in his remand report dated 8/11/2006 had stated that the concerned Directors of the group were in judicial custody and for s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... where the Hon ble Supreme Court categorically held that any legislation which imposes new obligation or new duties or a new levy shall have to be necessarily treated as prospective in nature. Reliance is also placed in certain decision viz., (i) CIT vs. Gagandeep Infrastructure Private Limited (394 ITR 680); (ii) Pr. CIT vs. Apeak Infotech (88 taxmann.com 695); (iii) ACIT vs. Swiftsol (I) Pvt Ltd ( 171 ITD 577 (ITAT Nag); (iv) ACIT vs. Goldmohur Design Apparel Park Ltd (96 Taxmann.com 375) (ITAT Mum.); (v) DCIT vs. RCP Infratech (P) Ltd (95 Taxmann.com 103) (ITAT Raipur). Moreover, it is also apparent that all the entities who had infused funds in the assessee company had filed their return of income and they were assessed to tax. From the return of income and the statement of accounts furnished by the assessee it is also evident that the entities who infused funds in the assessee company had sufficient funds for making such investments. 26. Further, in spite of the opportunity given to the Ld. AO by the Bench to submit a third remand report with respect to the genuineness of the return of income, balance sheet and other particulars filed before the Ld. Revenue Authorities, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Ld. AO for his comments and report. It was only after the receipt of remand report from the Ld. AO/ Ld.CIT that this Tribunal has taken these documents on record. The Ld. AR of the assessee has rightly pointed that neither the AO in his report dated 31-08-2021 nor the CIT in his report dated 01-09-2021 have raised any objection to the admissibility of the documents furnished by the assessee in terms of Rule 29 of the Appellate Tribunal Rules, 1963. Hence, in view of the facts as set out in the foregoing, we are unable to agree with the Ld. Standing counsel that there was any violation of Rule 29 of Appellate Tribunal Rules, 1963. Instead, the documents furnished by the assessee, at the instance of this Tribunal, are found to be in compliance with the said Rule. Moreover, these documents were already available with the revenue. 27. Further, the contention of the Ld. Revenue Authorities that the assessee has not appeared before them by itself will not make the transactions to be bogus. We have placed reliance in the decision of the Hon ble Bombay High Court in the case CIT vs. Orchid Industries Limited Pvt Ltd (397 ITR 136) wherein it was held that: 6. The Tribunal h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y of share applicants, the assessee furnished the name, address, PAN of share applicants together with the copies of balance sheets and Income Tax Returns. With regard to the creditworthiness of share applicants, as we noted supra, these shareholders not only had capital running in several crores of rupees but their income had also been assessed in several crores and the investment made in the assessee company is only a small part of their capital. All the transactions are also duly reflected in the balance sheets of the share applicants, so creditworthiness is proved. Now if still the Ld.AO had any doubt regarding the creditworthiness of the shareholders, then the only course available with the Ld.AO was to have proceeded against the shareholders as held in the several judgments cited above, but no adverse view could have been drawn against the assessee. The third ingredient is genuineness of the transactions, for which we note that all the shares were allotted within the group entities/ promoter-individuals. It is therefore not a case that the shares privately placed by the assessee were to unknown or complete strangers. The assessee has demonstrated that it was in need of funds ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd the letters sent to them were returned as unserved . The shareholders were also not traceable. 31. The Ld. DR placed reliance in 19 decisions of various higher judiciary enclosed in paper book page 1 to 227 with respect to condonation of delay and on merits however, the facts of those cases are not identical with the facts of the assessee s case before us and therefore those decisions cannot be applied to the case of the assessee. The decisions relied by the Ld. DR are as follows: Mela Ram Sons (29 ITR 607); Commissioner Nagar Parishad vs. Labour Court (3 SCC 525); Asst. Commissioner LTU vs. Glaxo smith Consumer Health Care Ltd (CA No. 2413/2020); Brahampal @ Sammay Anr vs. National Insurance Company (CA No. 2926/2020); C.N. Nagaraja and Ors. Vs. The Chief Secretary, Zilla Parishad, Bangalore (2001(3) KCCR 1653); B. Bhadragiri Gowda vs. The State of Karnataka and Ors (2007 (2) KCCR 1021; S.R. Vediappan vs. S.P. Ramalingam (CMP No.7730/2017); S.V. Matha Prasad vs. Lalchand Meghraj and Ors (14 SCC 772); State of M.P. and Anr vs. Pradeep Kumar and Anr ( 7 SCC 372); State of UP vs. Sudhir Kumar Singh and Ors (CA No. 3498/2020); Tuticorin Alkali Chemicals Fertilizers Ltd ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fluctuation in foreign exchange will vary from year to year and if there is a loss as per the accounting standards, it has to be casted in the statement of affairs of the entity by providing due provision for the loss. This aspect in case of loss arising out of foreign exchange fluctuation has been upheld by the Hon ble Apex Court and the same ratio cannot be applied when there is a notional gain. Therefore, the addition made and sustained by the Ld. Revenue Authorities is erroneous. Hence, we direct the Ld. AO to delete the addition made on this count. Accordingly, concise Ground No.2 mentioned herein above in the assessee s appeal is decided in favour of the assessee. 33. Ground No.3: Addition of ₹ 61,95,95,194/- by capitalising the expenditure as the business of the assessee has not commenced operation. This ground was not pressed by the Ld. AR during the course of hearing. Hence, this ground does not survive. 34. Ground No.4: Additions towards interest charged U/s. 234A, B and C of the Act. This ground raised by the assessee is consequential in nature as the levy of interest U/s. 234A, B C of the Act are mandatory. Therefore, the ground raised by the asse ..... 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