TMI Blog2022 (5) TMI 104X X X X Extracts X X X X X X X X Extracts X X X X ..... s associated with the assessee or assessee itself. It is clear from the record that it is in the interest of the assessee not to venture into the operations of the new joint venture company. In order to avoid any loss, which assessee may suffer due to non compete, the joint venture partner agreed to compensate the same. It is nowhere connected with the day to day running of the assessee company as perceived by the tax authorities that it is a compensation for the loss incurred by the assessee. Therefore, we are not in agreement with the tax authorities that it is compensation for allowing the facilities or widespread network in marketing or selling the products of the joint venture. and it is only a non compete fees paid by the joint venture partner to restrict the assessee not to curtail the development of the new joint venture company. Therefore, we are inclined to allow the claim of the assessee - Decided in favour of assessee. Addition u/s 40A(9) being contribution to Utmal Employees Welfare Fund - HELD THAT:- As decided in own case for the assessment year 2000-01 we allow the ground raised by the assessee. Expenditure in relation to oil exploration u/s 42 - HELD T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to pay the said amount and thus as for as the Sales-Tax Department is concerned, there is no remission or cessation of a liability. The case of the assessee finds support from the decision of the Apex Court in CIT vs. S. I. Group India Ltd. [ 2015 (11) TMI 1004 - SUPREME COURT] wherein the Apex Court held that when the Sales-tax Department has not accepted the pre-payment, it cannot be a case of cessation or remission of a liability. In the present case also, the assignment has not been accepted by the Sales-tax Department and, therefore, there is no question of cessation or remission of the liability. Besides the 38 deemed loan from the Sales-tax Department is not a loss or expenditure or a trading liability and, therefore, the provision of section 41(1) of the Act is not applicable. The sales-tax originally collected by the assessee was an expenditure which has been allowed to the assessee by treating it as a deemed loan. Once the said amount has been treated as a loan, it loses its characteristic of sale-tax liability. Such deemed loan is not a loss or expenditure or a trading liability and, hence, does not come within the ambit of section 41(1) of the Act. - Similarly the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Appellate Tribunal was right in holding that 100 per cent of the export profits earned by the assessee as computed under section 80HHC(3) was eligible for reduction under clause (iv) of the Explanation to section 115JB. We also find that the above ratio laid down by the Hon ble Apex Court squarely applies to the case on hand. Therefore, we allow the additional ground raised by the assessee. - I. T. A No. 6908/Mum/2012 And I. T. A No. 2117/Mum/2013 And I. T. A No. 6878 /Mum/2012 And I. T. A No. 2284/Mum/2013 - - - Dated:- 29-4-2022 - Shri S. Rifaur Rahman (Accountant Member) And Shri Amarjit Singh (Judicial Member) For the Assessee : Shri J. D. Mistry, Sr. Advocate For the Department : Smt. Shailaja Rai,(CIT DR) ORDER PER: S. RIFAUR RAHMAN (AM): These cross appeals filed by the assessee and Revenue arise out of the independent orders of the Learned Commissioner of Income-tax (Appeals) for the assessment years 2001-02 and 2002-03. 2. Various grounds are raised in the cross appeals; they are dealt with in seriatim, below. ITA No. 6908/Mum/2001 3. The first ground in this appeal pertains to disallowance of Rs. 4,86,03,144/- being commission pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng in setting up of any business in India of selling, marketing and trading of electronic office products (i. e. not competing with the business of the joint venture company) for a period of 7 years from the date of the joint venture agreement. We enclose a copy of the co-operation agreement at Annexure 7. 1. The said non-compete fees received by us has been credited to our Profit Loss account in Schedule L under the head Miscellaneous Income . However, as the same is in the nature of a capital receipt we have not offered it for tax in our computation of income. In support of our claim that non-compete fees is not liable to income-tax, our submissions are as under: The receipt of Rs. 3 crores by us as non-compete fees is a capital receipt in our hands. It is in pursuance of the co-operation agreement entered into by us which puts a restriction on us to indulge ourselves in any business which is in competition with the business of the joint venture company. It is a well settled law that whenever anything is received as compensation upon termination or breach of a (fading contract in the normal course of business, the same is taxable as a revenue receipt. , But whe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ITR 283). We submit that vide the object clause of our Memorandum of Association we are authorised to cany on the business which will result in direct competition with the business of the joint venture company. We further rely on following judicial pronouncements to support our view: i) Oberoi Hotels Pvt. Ltd. v. CIT (236 ITR 903) (Supreme Court): The assessee in this case was engaged in the business of maintaining and operating hotels. It had entered into an agreement to operate a hotel in Singapore on payment of a management fee for a period of 10 years with an option to ask for renewal for another 10 years apart from an option for pre-emptive purchase in case the owner intended to transfer the property pending the agreement. Later the agreement was cancelled and the assessee for a consideration of Rs. 30 lakhs forgone its right of preemptive purchase. The Supreme Court while deciding upon the matter held that the contract for management for hotel was not a trading contract, but a capital asset by itself and the compensation received for its breach could only be considered as having the character of a capital receipt. ii) CIT v. Best Co. (P) Ltd (60 ITR 11) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he law and the facts of our case, we submit that the non-compete fees received by us is in the nature of capital \ receipt and not liable to be taxed. 8. After considering the submissions of the assessee, Assessing Officer observed that assessee and Sharp Corporation, Japan have entered into a joint venture contract on 27/03/2000 and on the same date, the contracting parties entered into Cooperation Agreement. In the joint venture contract, the above parties have agreed to entered into cooperation agreement in respect of the products. This clearly signifies that non compete clause was part of the original joint venture agreement. The parties have entered in Cooperation Agreement for the sake of accounting convenience. In this regard, Assessing Officer reproduced the terms an covenants of the Cooperation Agreement in the assessment order. For the sake of convenience, we reproduce the same below:- (i) L T has represented that for a period of seven (7) years from the date of the Joint Venture Contract it shall not set up nor undertake nor assist in setting up or undertaking any business in India of selling, marketing and trading of electronic office products. However, the re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Co (I) Ltd 236 ITR 903 (SC) Kettlewell Bullen Co Ltd vs CIT 53 ITR 261 (SC) and further observed that the facts in those cases are distinguishable to the facts of assessee s case and assessee further submitted that sub section clause (va) to section 28 has been inserted with effect from 01-04-2003 and accordingly from A. Y. 2003-04, the receipts in the nature of non compete fees, an exclusivity to tax, will be taxable. 10. Aggrieved, assessee preferred appeal before Ld. CIT(A) and before CIT(A), it made similar submissions made before the Assessing officer. Ld. CIT(A) dismissed the grounds raised by the assessee by sustaining the additions made by the Assessing Officer. 11. Aggrieved, the assessee is in appeal before us. 12. The Ld. AR of the assessee brought to our notice findings of the Assessing Officer and Ld. CIT(A) in their respective orders. In this regard, he submitted that assessee has entered into joint venture with Sharp Corporation, Japan to manufacture electronic items. He submitted that during this assessment year assessee has received an amount of Rs. 3 crores from Sharp Corporation Business Systems India Ltd in pursuance of cooperation agreement entered ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (Mum)(URO) 3. Blue Star Ltd vs CIT (1995) 79 Taxman 281 (Bom) 4. Lyka Labs Ltd vs ACIT (2015) 60 taxmann. com 76 (Mumbai Trib) 5. DCIT vs Bayer (India) Ltd (ITAT, Mum) 7 ITR (Trib) 381 6. IIT Corporate Services Ltd vs DCIT 4 ITR (Trib) 147 7. CIT vs. Al-Kabeer Exports Ltd (2010) 193 Taxman 56 (Bom) 14. Considered the rival submissions and material placed on record. We observe that assessee has entered into joint venture with Sharp Corporation, Japan for the purpose of setting up a joint venture company in India (which is an independent company). With the object of marketing, selling and servicing in India certain electronic office products and other equipments. Apart from entering into joint venture agreement, assessee also entered into a Cooperation Agreement in order to avoid competing with the business of joint venture company, which assessee and Sharp Corporation, Japan were interested to develop in India. It is a common interest for both the partners, so that the joint venture company, which has set up in India should not suffer the competition from any of the companies associated with the assessee or assessee itself. It is clear from the record that it is in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d by the assessee under non- competition agreement was a capital receipt, not taxable under the 1961 Act. It became taxable only with effect from 1. 4. 2003. It is well settled that a liability cannot be created retrospectively. In the present case, compensation received under Non-Competition Agreement became taxable as a capital receipt and not as a revenue receipt by specific legislative mandate vide Section 28(va) and that too with effect from 1. 4. 2003. Hence, the said Section 28(va) is amendatory and not clarificatory. Lastly, in Commissioner of Income-Tax, Nagpur v. Rai Bahadur Jairam Valji reported in 35 ITR 148 it was held by this Court that if a contract is entered into in the ordinary course of business, any compensation received for its termination (loss of agency) would be a revenue receipt. In the present case, both CIT (A) as well as the Tribunal, came to the conclusion that the agreement entered into by the assessee with Ranbaxy led to loss of source of business; that payment was received under the negative covenant and therefore the receipt of ₹ 50 lakhs by the assessee from Ranbaxy was in the nature of capital receipt. In fact, in order to put an end to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that in the section that the expenditure on acquiring asset is to be allowed when such expenditure is incurred on acquisition of asset which is used in business of the assessee. In the present case the assessee incurred Rs. 54,72,697/- on acquisition of asset which was used for the purpose of business in the assessment year 2001-02. The Ld. 11 CIT(A) has opined that the term used in the language of the section denotes actual usage and not ready to use, which in our opinion is correct. In this case, we observed that the section does specify the use of the said assets which has to be the year in which the asset is used for the purpose of business. Accordingly, we inclined to uphold the order ld. CIT(A) on this issue by dismissing the ground no. 3 raised by the assessee. Needless to say that this deduction is to be allowed in the year in which the asset is put to use i. e AY 2001-02. Accordingly the Ground No. 3 is dismissed. 21. The facts and circumstances are stated to be identical. Therefore, consistent with the earlier orders of the co-ordinate bench of this Tribunal, we dismiss the ground raised by the assessee. 22. Ground 5 pertains to disallowance of expenditure on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s Tribunal in assessment year 200- 01 and the Tribunal allowed the ground raised by the assessee, by observing as under:- 22. After hearing both the parties and perusing the material on record we find that the issue is squarely covered in favour of the assessee by the decision of the Coordinate Bench in assessee s own case for the A. Y 1999-00 in ITA No. 6257/Mum/2011 vide order dated 28. 03. 2018, wherein, vide para No. 10 the Bench has allowed the appeal of the assessee. For the sake of convenience and ready reference, the said para 10. 4 is reproduced as under: 10. 4 We have heard the rival submissions and perused the relevant materials on record. It is found, as recorded at page 28 of the assessment order dated 20. 03. 2002 by the AO, that the total own funds of the assessee was Rs. 3706. 19 crores whereas the investment in taxfree bonds was Rs. 22. 92 crores and investment in shares and mutual funds was Rs. 449. 67 crores during the relevant period. In HDFC Bank Ltd. v. DCIT [2016] 67 taxmann. com 42 (Bom), the Hon'ble Bombay High Court referring to the decision in CIT v. HDFC Bank Ltd. [2014] 366 ITR 505 (Bom) and CIT v. Reliance Utilities Power Ltd. [2009] 31 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e payment of said sale tax was to be deferred for specified number of years subject to the fulfillment of certain special conditions as specified in the scheme. Such deferment of sale tax was to be treated as loan to the assessee by sales tax department to be paid after a specified number of years. During the year the assessee deferred the sales tax amounting to Rs. 71. crores which the assessee has assigned to another company at a net present value of Rs. 19. 73 crores. In other words, the assessee has paid an amount of Rs. 19. 73 crores in assignment in consideration for taking over the said obligation for repaying for Rs. 71. 34 crores on future date to another company. The differential amount of Rs. 51. 61 Crores was credited to the P L account, however while computing the income the assessee, the same was reduced in the computation of income by treating the same as capital receipt not chargeable to tax. According to the A. O. , the said liability has ceased to exist in the books of the assessee as the same was taken over by another entity. In coming to this conclusion, the A. O relied on the decision of CIT vs. Sunderam Iyengar Sons Ltd. (supra). wherein the assessee used to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... upreme Court and the High Court decisions were concerned with pre-payment of salestax liability at net present value to the Salestax Department, but the same principle would equally be applicable to the present case of assignment of the sales-tax deferred loan liability at the net present value. We find merits in the case of the assessee that the provisions of section 41(1) of the Act are not applicable, as there is no remission or cessation of 37 the liability. The remission or cessation of liability contemplates a discharge or partial discharge of a liability coupled with no obligation to discharge the balance liability and thus, it would not cover the facts of the present case, where the Appellant has assigned its obligation, although at the present value. The liability has been discharged by the Appellant by making an immediate payment at the present value and therefore it cannot be said that there is a remission or cessation of the liability. Further there is no remission or cessation of the liability for the reason that the assignment of the liability is to a third party whereas qua the Sales-Tax Department the assessee continues to be liable to pay the said amount and thus a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... favour of the assessee by the decision of the Apex Court in the case of CIT vs. Mahindra Mahindra Ltd. 93 taxmann. com 32(SC) wherein the Apex Court has held that waiver of loan is a monetary benefit and, hence, it does not come within the ambit of section 28(iv) of the Act. Therefore, the amount of Rs. 51,60,87,976/- is to be regarded as capital receipt which is not chargeable to tax. 39. We have also perused the decision relied upon by the revenue to support the orders of the authorities below but find that the same are distinguishable on facts or reversed or not a good law 40 in view of the subsequent decisions. In the case of CIT vs. Sunderam Iyengar Sons Ltd. (supra), the assessee used to receive deposits in the course of its trading transaction on sale of Coca Cola in glass bottles of, etc. which are refundable on return of the said bottles. During the relevant year, such deposits outstanding for a number of years were transferred by the assessee to the Profit Loss Account as no longer payable to the said customers. On these facts, the Apex Court held that the amount was received by the assessee in the course of trading transaction and the same is chargeable to tax as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which no deduction has been claimed in earlier years and, therefore, does not come within the ambit of section 41(1) of the Act. Thus the decision of the Bombay High Court in Solid Containers Ltd. (supra) which had taken a contrary view, is no longer good law. Further the decision of Solid Containers Ltd. (supra) is further not applicable to the present case as in the present case, the Appellant has discharged the full liability at net present value which cannot be said to be a case of either waiver or cessation of the liability, which was the fact before the High Court. The decision in the case of CIT vs. Ramaniyam Homes Pvt. Ltd. ,(supra) relied upon by the ld DR has been reversed by the Apex Court by the common judgment dated 24th April 2018 in Mahindra Mahindra Ltd. (supra). Therefore, the reliance on the decision of the Madras High Court by the Revenue is wholly misplaced and completely 43 unjustified. The facts in the case of CIT vs. Aries Advertising Pvt. Ltd. (supra) are altogether different vis a vis the facts in the present case as in the case before the High Court, there was actual write off credit balance (trading liabilities) and, accordingly, the High Court held tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the decision of the Tribunal being contrary to the decisions in Balkrishna Industries Ltd. (supra) and Mahindra Mahindra Ltd. (supra), is not applicable to the Appellant. In view of these facts and decisions as discussed above we are inclined to set aside the order of CIT(A) on this issue by holding that Rs. 51. 61 Crores is a capital in nature. The AO is directed accordingly. The ground of the assessee is allowed. 29. The facts and circumstances are stated to be identical. Therefore, consistent with the earlier orders of the co-ordinate bench of this Tribunal, we allow the ground raised by the assessee. 30. Ground 8 pertains to deduction under section 80HHC. This ground has sub grounds (a) to (e) 31. This ground alongwith its sub grounds (a) to (e) is covered by the decision of the co-ordinate bench for assessment year 2000-01. The coordinate bench vide paragraphs 45 to 49 of order dated 29/10/2020 in ITA No. 3076/Mum/2012 has restored the issue to the file of the assessing officer. Consistent with the earlier decision of the Tribunal for assessment year 2000-01, we restore all these issues to the file of the assessing officer and direct him to follow the direc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cision of the Calcutta High Court has been considered by the jurisdictional High Court in the case of Reliance Industries Ltd. (supra) and has not been followed by the jurisdictional High Court and, therefore, in the present case, the Tribunal to follow a decision of the jurisdictional High Court and not another High Court. Hence, the Appellant submits decision of the Calcutta High Court is not applicable when the view taken by the jurisdictional High Court is contrary to the view taken by the Calcutta High Court. The Id DR on the other hand relied heavily on the orders of authorities below. 48. After hearing the rival parties and perusing the records before us including the decisions referred to by both the sides, we observe that the issue is covered by the jurisdictional high court decision in the case of C1T vs. Reliance Industries Ltd. , (supra) in favour of the assessee wherein on identical facts, the High Court has held that deduction under section 801A of the Act is to be computed at the rate at which the electricity is supplied to the consumers and not the rate at which the board purchases the electricity. Similar view has been taken by the Chhattisgarh High Court in t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... with the findings of AO and concluded that there was no reason to deviate from the findings of AO. Also ld. CIT(A) relied on the order by his predecessor wherein he had rejected similar claim of the appellant in respect of Captive Power Generating (DG) unit for AY 1999-2000. 52. After hearing the counsel of the assessee and departmental representative of the revenue and perusing 54 the facts of the assessee case in the light of coordinate bench decision in AY 1999- 00 in assessee s own case , we observe that the issue before us is completely covered by the said decision vide para 12. 2 in favour of the assessee. We are ,therefore , inclined to set aside the order of CIT(A) on this issue by allowing the ground no. 9. The AO is directed accordingly. 37. Consistent with the earlier decision of the co-ordinate bench, we allow ground 10 of the assessee. 38. Ground 11 pertains to disallowance under section 14A for the purpose of computing book profit under section 115JB. 39. Upon hearing the parties, we find that this issue is identical to the ground raised for A. Y. 2000-01, which has been dealt with by the coordinate bench of this Tribunal, as under:- 53. The ass ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s from power generation units. During the course of assessment proceedings, the appellant claimed before the Assessing Officer that the tax payable under section 115- O of the Act on distribution of dividend has to be reduced while computing the book profits. The Assessing Officer, however, did not discuss the aforesaid claim in the assessment order passed by him. 55. In the appellate proceedings ld CIT(A) dismissed the appeal of the assessee on these adjustments by the AO by observing and holding as under:- a) Disallowance u/s 14A : The appellant has relied on the arguments put forth in connection with the addition made u/s 14A of the Act. The action of the AO in ground no. 17 has already been affirmed. As such, there is no scope for interference in the matter in view of specific provision for making such adjustment in section 115JA with regard to exempted income. The addition made is upheld. b)On the profits derived from DG sets not allowed as reduction from book profit u/s 80-IA and reduction of deduction u/s 80 IA relating to profits of power generation operation from captive power plants, the ld. CIT(A) held that since appellant has relied on the arguments put ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... deduction 80HHC under section 115JA need to be computed on the basis of profit as per P L instead of business income computed as per normal provisions of the Act. 43. We find that this issue also stands decided by the Tribunal for the A. Y. 2000-01, in the following manner:- 60. After hearing both the parties and carefully examining the records before us, we find that the issue is arising out of the records before the authorities below and does not require any verification of facts or details. We are therefore admitting the same and restoring to the file of the AO to examine and decide as per facts and law. The additional ground is allowed for statistical purpose. 44. Consistent with the earlier order of the Tribunal, we restore this issue to the file of the Assessing Officer to examine and decide as per facts and law. This additional ground is treated as allowed. 45. The second additional ground raised by the assessee pertains to reduction in depreciation of Rs. 8,27,76,558/- arising on account of AO s action to disregard transfer of Bangalore undertaking as slump sale by the AO in AY 1998-99. 46. Upon hearing the parties we find that this additional ground ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 51. This ground is covered by the earlier order of the co-ordinate bench for assessment year 1997-98 in ITA No. 2891/Mum/2001 4299/M/2001 vide order dated 18/10/2013. The Tribunal, while dismissing the ground of the Revenue, has held as under:- 11. Ground no. 2 relates to the deletion of the addition made on account of unutilized MODVAT credit. TTiis issue has been discussed by the Assessing Officer at para 10 page 6 of his order and the same has been considered by the CTT(A) at para 6 on page 3 of his order. Similar issue has been decided by the Tribunal in favour of the assessee in its own case in ITA No. 2863/Murn/2000 at para 41 page 14 of its order, wherein the Tribunal has followed its own order in the case of the assessee for A. Y. 1994-95. Facts and issues being identical, following the decision of the Tribunal in assessee's own case, we confirm the findings of the GT(A). Ground 2 is accordingly dismissed . Consistent with the earlier orders of the co-ordinate bench of this Tribunal, we dismiss the ground 2 raised by the Revenue. 52. Ground 3 pertaining to expenditure relating to power lines is also covered in favour of the assessee by the Tribunal o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd is covered in favour of the assessee by the decision of the co-ordinate bench of this Tribunal for assessment year 2000-01. Facts and circumstances stated to be identical in this year also. Further, this issue is identical to ground 2 of appeal for A. Y. 2001-02,which we have already decided elsewhere in this order. Therefore, the reasons mentioned therein shall apply mutatis mutandis here. Ground 2 of the assessee succeeds. 59. Ground 3 pertains to disallowance of expenditure on computer software IDEAS Solutions Package, Back up Management, LOTUS Notes, Unicenter TNG, PRO Engineering, CAADS 5. 1 and CATI V5 treating it to be capital in nature. This ground is akin to ground 5 of assessee s appeal for A. Y. 2001-02 which we have decided in favour of the assessee by following the co-ordinate bench decision for AY 2000-01. Therefore, consistent with the earlier decision of this Tribunal, we allow ground 3 of the assessee. 60. Ground 4 pertains to Reduction in depreciation claim of Rs. 6,51,46,084/- arising on account of refusal to treat the Transfer of Bangalore undertaking as slump sale by the AO. 61. After hearing the parties, we find that this issue is akin to additiona ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... essee s appeal for A. Y. 2001-02. Therefore, consistent with the earlier decision of this Tribunal, we partly allow the ground raised by the assessee. The Assessing Officer is directed to follow the decision of this Tribunal for Assessment Year 2000-01. 70 That takes us to additional grounds raised by the assessee. 71. The first additional ground pertains to deduction under section 80HHC under section 115JA needs to be computed on the basis of profit as per P L instead of business income computed as per normal provisions of the Act. This additional ground is identical to first additional ground raised by the assessee for A. Y. 2001-02 and we have already restored the issue to the file of the Assessing Officer to decide the issue in line with the directions issued by the co-ordinate bench of this Tribunal for A. Y. 2000-01. Consistent with the same, we restore the issue to the file of the Assessing Officer to decide the issue in accordance with facts and law. 72. The second additional ground raised by the assessee pertains to deduction under section 80HHE under section 115JA needs to be computed on the basis of profit as per P L instead of business income computed as per no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l has made specific finding in the earlier years that the valuation of work-in-progress relating to incomplete contracts has been made by the assessee company in a consistent manner following the accepted principles of accounting and decided the issue in favour of the assessee. Respectfully following the decision of the co-ordinate bench in assesse s own case, we set aside the impugned orders of the authorities below and allow the ground of appeal raised by the assessee. 78. Consistent with the earlier order of the co-ordinate bench of this Tribunal, we dismiss the ground taken by the Revenue. 79. Ground 4 pertains to expenses on setting up a new cement plant (Rs. 2,73,04,166/-). Upon hearing the parties, we find that identical issue crept in for A. Y. 1994-95 and the co-ordinate bench of this Tribunal, vide order in ITA 4265/M/98 4892/M/2000 decided the issue in favour of the assessee. For clarity we reproduce the finding of the Tribunal below:- 16. As regards ground no. 9, it is observed that the issue raised herein relating to assessee's claim for deduction on account of expenditure of Rs. 17,04 ,98,906/- incurred on setting up of new cement plan is similar t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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