TMI Blog2022 (5) TMI 721X X X X Extracts X X X X X X X X Extracts X X X X ..... ase on this issue (Mutatismutandis) and direct him to consider the claim of the assessee and to pass order in accordance to law. Thus, the sole issue is decided on merits for statistical purposes. Claim of deduction regarding donation - HELD THAT:- We note that on similar issue i.e. donation/expenditure claimed by an assessee in respect of donation given to the local clubs during Durga Puja etc. the Hon ble Calcutta High Court in CIT vs. Bata India Ltd. [ 1993 (3) TMI 89 - CALCUTTA HIGH COURT] held that the same was an allowable expenses. However we note that in the present case in hand, since the assessee could not submit materials/evidence before the authorities below in respect of its claim of donation given to the local clubs, we direct the assessee to submit materials to substantiate the fact of donation it gave to local clubs/bodies during festival/sports in order to have good relations with them for smooth running of its business. And if the assessee produce evidence/material as directed by us, the AO may verify the same and allow balance 50% of the expenses which are shown to have been made by the assessee to the local clubs for smooth functioning of its business of e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... heard both the parties and perused the records. At the outset, the Ld. A.R. drew our attention to the fact that similar issue had cropped up in assessee s own case before this Tribunal; and the Tribunal was pleased to remand the issue back to the AO and drew our attention to the assessee s own case decided by the Tribunal in ITA No. 1010 1015/Kol/2015 for AY 2009-10 ITA No. 916 999/Kol/2017 for AY 2008-09 dated 16.01.2019 wherein this issue was considered from para 4.1 to 4.5 which is as under: 4.1 Ground No.3 is on the issue of allowability of depreciation. The Assessing Officer rejected the claim of the assessee on the ground that excavation/raising of coal is not manufacture or production of any article or thing. On appeal, the ld. First Appellate Authority at Para 5.4 of his order relied on the order of the ld. CIT(A) for the Assessment Year 2009-10 and followed the view taken therein and directed the Assessing Officer to allow the claim of the assessee to the extent of 80% of the amount claimed. For the Assessment Year 2009-10, we find that the Assessing Officer has disallowed the claim of the assessee for additional depreciation on the ground that, the assessee has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... duction of article or thing are to be established with hard documents. There are not brought to record. The additional depreciation is also a business expense and the onus is on assessee to prove before Assessing Officer the eligibility as prescribed in law. This clearly is not discharged here. Therefore Assessing Officer is correct in exercising best of judgment. Thus to decision before me is whether manner of exercising best of judgment is fair or not. 18. The broad nature of expense is let know by appellant. He also stated that the volume of documents is too much to produce the same (assets of Rs.221.4 crore are covered in additional depreciation) which are located in many units of Eastern Coalfields Ltd.. The fact is that appellant is a PSU and having proper documents. Exercise of proper internal financial control within the PSU cannot be negated. Normal depreciation is fully granted as claimed. All that can create dispute is whether the asset is new and whether it goes in manufacture or production of article or thing . The decision cannot come without examining relevant documents. These were not produced and hence best of judgment was rightly exercised. However, a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ack to the file of the AO and the assessee was directed to produce all the details as required in support of its claim for deduction in respect of additional depreciation and the Tribunal has directed the AO to grant additional depreciation on such plant and machinery that have been used for the production of coal and reminded the AO the fact that the assessee is a Public Sector Undertaking which undergoes audit by the Comptroller and Audit General (in short CAG); And in this regard it has been brought to our notice, that pursuant to the remand, the AO has allowed the claim of additional depreciation to the assessee. Be that as it may be, we set aside the order of the Ld. CIT(A) and this issue is remanded back to the AO, with the same observation and directions given in the assessee s own case on this issue (Mutatismutandis) and direct him to consider the claim of the assessee and to pass order in accordance to law. Thus, the sole issue is decided on merits for statistical purposes. Since the issue has been disposed off on merits, the legal issue regarding the validity of reopening is left open and not adjudicated. 8. Coming to AY 2011-12 we note that similar issue of additional ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... their commitment to society. According to the assessee it had made these donations for smooth running of business activity and claimed that it is allowable u/s. 37(1) of the Act. After perusal of the reply of the assessee, the AO was of the opinion that the assessee company has made payments to various local clubs and organizations as subscription/donation and this kind of expenses does not qualify for deduction under the Act. Further, according to AO, the donation to Ram Krishna Mission and Bharat Sevasram Sangha the assessee failed to furnish any proof in support of its claim of deduction, therefore, the entire amount under the head was disallowed and Rs.17 lacs was added to the total income of the assessee. Oh appeal, the Ld. CIT(A) has restricted the disallowance at 50% of the claim. Aggrieved, the revenue as well as the assessee is before us. 14. We have heard rival submissions and gone through the facts and circumstances of the case. We note that the donations were given to local clubs as well as to Ram Krishna Mission and Bharat Sevasram Sangha, which has been disallowed by AO. On appeal die Ld CIT(A) gave partial relief by allowing 50% of the expenditure claimed as do ..... X X X X Extracts X X X X X X X X Extracts X X X X
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