TMI Blog2021 (4) TMI 1319X X X X Extracts X X X X X X X X Extracts X X X X ..... isallowance on excess process stock declared to bank - HELD THAT:- We have noted that ld. CIT(A) while passing the order followed the order of Tribunal in assessee s own case for A.Y. 2002-03 dated 09.04.2009.[ 2009 (9) TMI 999 - ITAT AHMEDABAD ] - Tribunal in assessee s own case and following the principles of consistency and more over the Ld. CIT(A) granting relief to the assessee by following the order of Tribunal, therefore, we do not find any infirmity in the order passed by Ld. CIT(A). Hence, we affirm the order passed by Ld. CIT(A). In the result this ground of appeal is dismissed. Addition made on account of commission paid on sale - HELD THAT:- We have noted that ld. CIT(A) while passing the order held that that ad-hock disallowance by A.O. is not justified. We have further on similar ground of appeal in assessee s own case similar relief was granted to assessee in appeal for A.Y. 2010-11 to 2012-13 [ 2020 (12) TMI 215 - ITAT SURAT ] Addition made on account of Other Expenses - CIT-A deleted the addition - HELD THAT:- We have noted that ld. CIT(A) while passing the order followed the order of Tribunal in assessee s own case for A.Y. 2002-03 [ 2009 (9) TMI 9 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stry expenses of ₹ 89,60,112/- and granting relief of ₹ 85,38,112/- without appreciating the facts that the assessee incurred loss in agricultural Income and as per Section 14A, the expenditure in relation to the Income which is not includable in totals Income is not allowable? 2- Whether on the facts and circumstances of case and in law, the Ld CIT(A) is justified in deleting the addition made by the Assessing officer no account of unexplained creditors of ₹ 9,70,460/- without appreciating the facts that the AO rightly applied Section 41(1) of the IT Act ? 3- Whether on the facts and circumstances of case and in law, the Ld CIT(A) is justified in deleting the addition made by the Assessing officer on account excess Process Stock declared to the Bank without appreciating the facts that the Assessing officer rightly made addition on after finding difference in stock with the Bank with ₹ 12,58,580/- ? 4- Whether on the facts and circumstances of case and in law, the Ld CIT(A) is justified in deleting the addition made by the Assessing officer on account commission paid on sale without appreciating the facts that the assessee failed to justify th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vised return, the assessee claimed loss of ₹ 834 crore and book profit at loss of ₹ 119 crore. The Return of Income was selected for scrutiny. The assessment was completed under section 143(3) of the Act on 28.12.2016. The Assessing Officer (AO) while passing the assessment was order made a number of additions of the disallowances as mentioned on page no.35 36 of the assessment order. 3. On appeal before the ld. CIT(A), the assessee was given substantial relief. The addition made by the AO and on appeal deleting / restricting the various additions are summarized in the following chart: Sr. No. Nature of Additions/disallowances Addition by A.O. Rs. Addition deleted/sustained by Ld.CIT(A) to the extent of Rs. 1. Social Forestry Expenses ₹ 89,60,112/- Deleted to the extent of ₹ 85,38,112/- 2. Adjustment u/s. 145A of the I.T.Act ₹ 26,66,677/- Not under appeal 3. Adjustment u/s. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ns of Tribunal or Higher Courts in assessee s own case. The ld. CIT(A) while granting relief to the assessee has referred and relied on the decision of the Tribunal in assessee s own case for earlier hearing. The ld. Sr. Counsel further submits that this fact is duly accepted by Revenue in the statement of facts, filed before this Tribunal. The Revenue has further stated in its statement of facts that this appeal is filed to keep the issue alive, as per Revenue the issues have not attained finality as the appeal filed by the revenue against the decisions of Tribunal is pending before the Hon'ble High Court or they may file further appeal against the order of Tribunal in A.Y. 2010-11 and 2012-13. 7. Ground No.1 relates to deleting the disallowance of Social Forestry and depreciation on at use for social forestry. The ld. Sr. Counsel for the assessee submits that similar issue arose in assessee s own case for A.Y. 2002-03 and the Tribunal while deciding by common order for A.Y. 2002-3 to 2004-05 decided the issue if favour of assessee. The ld. CIT(A) while granting relief to the assessee relied on the decision of Tribunal in assessee s own case for A.Y. 2002-03 in order dated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ,43,140/-. The assessee has claimed the deduction of the said expenditure. The explanation of the assessee was that since the assessee is manufacturing Pulp Board, therefore, the bamboo and the hardwood are the major raw material required for the manufacturing. However, the AO was not convinced and following the past history of the case, the said expenditure was disallowed. When the matter was carried before the First Appellate Authority, learned CIT(A) has followed an order of the Tribunal and thereafter directed the AO to rework the disallowance in accordance with the directions laid down by the Tribunal. With these brief background, we have been informed that on identical facts ITAT 'C' Bench Ahmedabad for A.Y. 2008- 09 in an appeal of the assessee bearing ITA No.2262/Ahd/2011 and Cross Appeal bearing ITA No.2505/Ahd/2011 vide an order dated 24th of May, 2012 has held vide paragraph no.31 at page 9 that the ground in required to be decided against the assessee. Even the learned CIT(A) has followed an earlier order of the Tribunal dated 4.9.2009, wherein the quantification was made as under: Following out order for the assessment year 2002-03 only the expense ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xplained Creditors of ₹ 9,70,460/-. The ld. Sr. Counsel for the assessee submits that ld.CIT(A) while granting relief to the assessee relied on the decision of Tribunal in assessee s own case for A.Y. 2005-06 in ITA No. 4027 4080/Ahd/2008 dated 04.02.2011. These principles were followed in appeal for subsequent year in A.Y. 2010-11 to 2012-13 in order dated 04.11.2020. 12. On the other hand, the ld.CIT-DR for the Revenue submits that he strongly relied upon the order of AO. 13. We have considered the contention of both the parties and gone through the order of the ld.CIT(A). We have noted that ld.CIT(A) while passing the order followed the order of Tribunal in assessee s own case for A.Y. 2005-06 dated 04.02.2011. We have further noted that by following the order of Tribunal similar relief was granted to assessee in appeal for A.Y. 2010-11 to 2012-13 by passing the following order : 11. We have heard the considered the submission of both the parties and have gone through the orders of lower authorities. We have noted that on almost similar fact on similar ground of appeal in appeal for assessment year 2009-10, the coordinate bench of Tribunal passed the following ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ITR 518 (S.C.) and in the case of Kesaria Tea Co. Ltd. reported in 254 ITR 434 (S.C.), even a unilateral entry passed by the assessee by writing back the liability will not amount to cessation of liability. However, after the amendment of Section 41(1) by way of insertion of Explanation to this extent, these two judgments of Hon'ble Apex Court will not be applicable where the assessee has written back the liability but where assessee has not written back the liability in the books, Section 41(1) cannot be invoked as per those judgment of Hon'ble Apex Court even after the insertion of Explanation (1) in Section 41(1). These two judgments of Hon'ble Apex Court will not be applicable where the assessee has written back the liability but where assessee has not written back the liability in the books Section 41(1) cannot be invoked as per these two judgments of Handle Apex Court even after the insertion of Explanation (1) to Section 41(1) of the Act. Since in the present case, assessee has not written back the liability in question, provisions of Section 41(1) cannot be invoked and hence, we decline to interfere in the order of ld. CIT(A) on this issue. Ground No.1(d) of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 15. We have heard the considered the submission of both the parties and have gone through the orders of lower authorities. We have noted that on almost similar fact on similar ground of appeal in appeal for assessment year 2005-06, in order dated 04.09.2009, the coordinate bench of Tribunal passed the following order; 31.5 we have considered the rival submissions and produce the material on record. It is not known what basis the assessing officer and the learned CIT(A) has given the funding that there is a difference in terms of quantity in a stock a statement submitted to the bank and what is recorded in the books. We however, restore the matter to the file of assessing officer to verify the statementsJ-1,J-4 J-7 and any other statement which is in the possession of AO pointing out the difference in a stock in terms of quantity. If there is no such statement depicting difference in terms of quantities, no addition is called for but where there is any document in possession of AO showing stock in quantity on a particular date and on comparison with the books it result in unfavorable difference against the assessee, the same will be shown to the assessee and after confron ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ollowing order : 25.We have considered the submission of both the parties and gone through the orders of authorities below. We have noted that the assessing officer made ad-hock disallowance. The contention of assessee that similar commission expenses were allowed in earlier years was not examined or discarded by the assessing officer. The assessee provided the complete details regarding sale and the commission paid to the dealers as recorded by learned CIT(A) in para 12.2 of his order. The genuineness of the expenses was not doubted by the assessing officer. Considering the fact that genuine business expenses are allowable, and the learned CIT(A) after considering the fact that in earlier years similar commission expenses were allowed, allowed relief to the assessee. Before us no contrary fact or evidence is brought to take other view. Therefore, we do not find any reason to interfere with the order of learned CIT(A), which we affirm. In the result this ground of appeal is dismissed. 22. Considering the consistent decisions of the Tribunal in assessee s own case and following the principles of consistency and more over the Ld. CIT(A) granting relief to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... essee s own case and following the principles of consistency and more over the Ld. CIT(A) granting relief to the assessee by following the order of Tribunal, therefore, we do not find any infirmity in the order passed by Ld. CIT(A). Hence, we affirm the order passed by Ld. CIT(A). In the result this ground of appeal is dismissed. 27. Ground No.6 relates to deleting the addition made on account of Employee Welfare Expenses of ₹ 92,55,000/-. The ld. Sr. Counsel for the assessee submits that ld. CIT(A) while granting relief to the assessee by taking view that adhoc disallowance by A.O. is not justified. The Ld. Sr Counsel further submits that in assessee s own case for A.Y. 2010-11 to 2012-13, similar ground of appeal was dismissed in order dated 04.11.2020. Accordingly the ld. Sr. Counsel submits that the issue is also squarely covered in favour of assessee. 28. On the other hand, the ld.CIT-DR for the Revenue submits that he strongly relied upon the order of AO. 29. We have considered the contention of both the parties and gone through the order of the ld.CIT(A). We have noted that ld.CIT(A) while granting relief to the assessee by taking view that ad-hoc disallowa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the order of Tribunal similar relief was granted to assessee in appeal for A.Y. 2010-11 to 2012-13 by passing the following order : 37. We have considered the rival submissions of the parties and perused the order of the lower authorities. The assessing officer made adjustment by taking view that there is no provision for any adjustment in respect of MAT credit to the profit and loss accounts and the same is required to be reduced from the net profit for computing book profit and accordingly added to the book profit. The ld CIT(A) granted relief to the assessee by following the order of his predecessor for AY 2009-10. 38. The Special Bench of Delhi Tribunal in ACIT Ss Vireet investment [2017] 82 taxmann.com 417 (Delhi- Tribunal SB) held that computation under clause (f) of Explanation 1 to section 115JB(2), is to be made without resorting to computation as contemplated under section 14A. Considering the aforesaid discussions, we do not find any merit in this ground of appeal. In the result this ground of appeal is also dismissed. 34. Considering the consistent view of the Tribunal in assessee s own case in appeal for A.Y. 2002-03 to 2004-05 dated 09.04.2009, which w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng before learned CIT(A) the assessee contended that the issue regarding the non-with-holding tax on commission paid to non-resident is now settled by honorable Supreme Court in case of CIT versus Toshoku Limited (supra), wherein it has been held by the Apex Court that commission amounts, which were earned by the non-resident for services rendered outside India cannot be deemed to be income which has neither accrued nor arise in India. The non-resident to whom such commissions were paid in the year under consideration does not have any business connection or permanent establishment in India and therefore, no income accrue or arise or deem to arise in India in terms of section 9(1)(i) of the Act. Such income is not chargeable to tax India as per section 195 of the Act. The learned CIT(A) following the decision of honorable Supreme Court in CIT versus Toshoku Limited (supra) deleted the entire disallowance. No contrary fact or law is brought to notice to take any other view, thus we affirm the order of learned CIT(A). In the result this ground of appeal is dismissed. 38. Considering the consistent view of the Tribunal in AY 2010- 11 to 2012-13 and thereby following the principle ..... X X X X Extracts X X X X X X X X Extracts X X X X
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