TMI Blog2023 (10) TMI 81X X X X Extracts X X X X X X X X Extracts X X X X ..... raise not merely additional legal submissions before the appellate authorities but is also entitled to raise additional claims before them. To that extent the order of Ld.CIT (A) is perverse by not adjudicating the matter on merits and dismissed on technical grounds itself. Therefore ground no. 1 raised by the assessee is allowed and stand of Ld.CIT (A) is set aside. Allowability of sales promotion expenses incurred on doctors for prescribing appellant company s product - HELD THAT:- This issue has deliberated in detail by the honorable apex court in the case of Apex Laboratories Ltd [ 2022 (2) TMI 1114 - SUPREME COURT] - Although the similar issue has been decided in appellants own case by the co-ordinate bench of ITAT Mumbai for the AY 2015-16 and 2016-17 [ 2021 (5) TMI 1073 - ITAT MUMBAI] but in the light of decision of honorable apex court in the case of Apex Laboratories (supra) there is no rescue to the assessee and amount of sales promotion expenses is disallowable. Hence, this ground of appeal raised by the assessee is dismissed. Taxability of difference between deferral sales tax liability and its prepayment at its NPV - chargeable to tax u/s. 41 or u/s. 28(iv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lant on merits by simply holding that once appellant has not made a claim in its return of income, it is not open to the appellant to make a claim subsequently during the course of assessment proceedings, when the claim was adjudicated by the AO in the assessment order and rejected on the merits. 1.2. On the facts and in the circumstances of the case and in law the learned CIT (A) has travelled beyond the subject matter of the appeal and has erred in not adjudicating the grounds of appeal on the merits of the matter. 1.3. It is submitted and prayed that the learned CIT(A) ought to have adjudicated upon each of the grounds raised by the appellant and ought to have decided various issues considering submissions made by the appellant and the judicial pronouncements on the subject without simply rejecting all written submissions II. Deduction for Sales Promotion Expenses of Rs 28, 75, 17,266/- incurred on doctors for prescribing Appellant Company's Products: 2.1. On the facts and in the circumstances of the case and in law the learned Commissioner of Income-tax (Appeals) [CIT(A) ] has erred in upholding the action of the Assessing Officer [AO] of not allow ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t accepting the contention of the appellant that Cess of Rs. 42,23,186/- paid by the Appellant on Dividend Distribution Tax is allowable as a deduction not being hit by the provisions of section 40(a)(ii) of the Act. 5.2. On the facts and in the circumstances of the case and in law, the learned CIT (A) has erred in holding that once the appellant has not made a claim in its return of income, it is not open to the appellant to make a claim subsequently during the course of assessment proceedings or the appellate proceedings. VI. The appellant craves leave, to add, to alter to amend, to modify, and /or to delete any of the above grounds of appeal as may be necessary. Additional grounds of appeal: 1. Taxation of Export Incentives under the Merchandise Exports from India Scheme ( MEIS ) Rs. 48,57,84,707/-: 1.1 The Appellant submits that the Learned AO ought to have held that the amount of Rs. 48,57,84,707/- received by the Appellant as Export Incentives under the Merchandise Exports from India Scheme ( MEIS ) is a capital receipt not taxable under the provisions of the Act. 1.2 The Appellant submits that the amount of Rs 48, 57, 84,707/- recei ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... this technical ground itself. Assessee being further aggrieved with this order of Ld.CIT (A) preferred this appeal before us. We have thoroughly gone through the order of AO, order of the Ld.CIT (A) and submissions of the assessee at various stages. 3. Ground no. 1 pertains to authority of Ld.CIT (A), by not entertaining the claims of the assessee raised first time before the AO and then before the Ld.CIT (A). For sake of clarity and better appreciation of the matter we are reproducing herein below the relevant extracts of the decisions of honorable apex court in the case of Goetze India Ltd. (supra). The question raised in this appeal relates to whether the appellant- assessee could make a claim for deduction other than by filing a revised return. The assessment year in question was 1995-96. The return was filed on 30-11-1995 by the appellant for the assessment year in question. On 12-1-1998, the appellant sought to claim a deduction by way of a letter before the Assessing Officer. The deduction was disallowed by the Assessing Officer on the ground that there was no provision under the Income-tax Act to make amendment in the return of income by modifying an application at ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by not adjudicating the matter on merits and dismissed on technical grounds itself. Therefore ground no. 1 raised by the assessee is allowed and stand of Ld.CIT (A) is set aside. This ground of appeal is allowed for statistical purposes as the claim of the assessee is admitted by this bench to be adjudicated on merits. 6. Ground no. 2 pertains to allowability of sales promotion expenses incurred on doctors for prescribing appellant company s product. This issue has deliberated in detail by the honorable apex court in the case of Apex Laboratories Ltd Vs CIT 442 ITR 1(S.C). Although the similar issue has been decided in appellants own case by the co-ordinate bench of ITAT Mumbai for the AY 2015-16 and 2016-17 vides ITA NO. 4784 and 4785/Mum/2019 dated 25-05-2021 but in the light of decision of honorable apex court in the case of Apex Laboratories (supra) there is no rescue to the assessee and amount of sales promotion expenses is disallowable. Hence, this ground of appeal raised by the assessee is dismissed. 7. Ground no.3 pertains to taxability of difference between deferral sales tax liability and its prepayment at its NPV u/s. 28(iv) of the Act. On this matter we have ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urt in the matter of CIT Vs Balkrishna Industries Ltd. (2017) 88 Taxxmann.com 273 (S.C). in view of the above decision this amount of Rs. 3,77,47,870/- is neither chargeable to tax u/s. 41 nor u/s. 28(iv) as the same is not a remission or cessation of liability for the purposes of Sec. 41 nor covered by Sec. 28(iv) as the same is not a non-monetary benefit which can be covered in sec 28(iv). Sec 28(iv) comes into picture only when sum value of benefit or perquisite arising from business or profession. Here in this case there is no benefit of perquisite arising to assessee by virtue of this arrangement. It is further to be noted that sec 28(iv) of the act has been amended by the finance act 2023 w.e.f A.Y 2024-25 which covers cash or in kind or partly in cash or partly in kind. This amendment clearly strengthens the contention of the assessee that in the year under consideration the same was not covered by section 28(iv). It is further held that revenue is not supposed to take advantage of assessee ignorance about treatment of any particular receipt/expenditure. Entries in the books of accounts are not the decisive factor as has been held by honorable apex court in the case of Keda ..... X X X X Extracts X X X X X X X X Extracts X X X X
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