9911796707
TMI Blog2023 (11) TMI 279X X X X Extracts X X X X X X X X Extracts X X X X ..... upreme Court in the case of Miscellaneous Application No. 665 of 2021 in SMW(C ) No. 3 of 2020, the period of filing appeal during the COVID-19 pandemic is to be excluded for the purpose of counting the limitation period. In view of this, the appeal is treated as filed within the limitation period. We find that there was no delay in filing the appeal as per the Hon'ble Supreme Court's order (supra), therefore the appeal is taken for adjudication. 3. Ground no. 1 raised by the assessee is general in nature and therefore, needs no specific adjudication. 4. The issue raised in ground nos. 2, 3 & 4 are different, however, the adjudication of these grounds depends on the fact that whether the excise duty has to be deducted from the exporter fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assessee to its AEs abroad. As submitted before us the issue needs examination at the end of the AO and accordingly, we restore this issue to the file of the AO with the direction to re-adjudicate ground nos. 2, 3 & 4 in the light of our above observations. Therefore, ground nos. 2, 3 & 4 raised by the assessee are allowed for statistical purposes. 8. The issue raised in ground no. 5 is against the adjustment of transfer price of the assessee's international transactions of payment of royalty to the AEs amounting to Rs. 1,70,19,072/-. Ld. Counsel for the assessee at the outset, submitted that the issue is squarely covered by the decision of the Coordinate Bench of the Tribunal in assessee's case for the AY 2010-11, 2011-12, 2012-13 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the ground that the issue is subjudice before the Hon'ble Apex Court. Ld. Counsel for the assessee submitted that subsequently, the Hon'ble Apex Court in the case of Union of India and others Vs. Excise Industries Ltd. in Civil Appeal No. 3545/2009 dated 24.04.2020 has upheld the constitutional validity of leave encashment disallowance u/s 43B of the Act meaning thereby that the deduction is not allowable to the assessee on the basis of provisions created. However, Ld. Counsel for the assessee submitted that the actual payment which is made by the assessee on account of leave encashment has to be allowed. Ld. A/R stated that out of the total disallowance, as stated earlier, Rs. 63,13,389/- was paid towards the existing liability wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssessee stated that the issue is squarely covered by the decision of the Coordinate Bench in assessee's own case in ITA No. 1957/KOL/2017 for AY 2013-14 and ITA Nos. 407 & 418/KOL/2015 for AY 2010-11 & 2011-12 wherein the Coordinate Bench has held that the provisions of Section 40A(9) of the Act are not attracted where the claim is made u/s 37(1) of the Act pertaining to the club expenses. Ld. A/R therefore, stated that the issue may be allowed following the decisions of the Coordinate Bench as these are the expenses which are wholly and exclusively made for the purpose of business of the assessee. 15. A perusal of the decision of the Coordinate Bench reveals that the issue has been decided by the Coordinate Bench in favour of the asse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1 is allowed for statistical purposes.
21. The issue raised in ground no. 12 is against the wrong calculation done by the AO of business loss available for set off of Rs. 11,66,92,236/- instead of Rs. 17,93,96,054/- assessed as per the assessment order.
22. After hearing the rival contentions and perusing the material on record, we are of the view that the issue needs to be examined at the level of the AO and the AO is directed to decide the same and compute the business loss available for set off correctly. Therefore, ground no. 12 raised by the assessee is allowed for statistical purposes.
23. In the result, the appeal filed by the assessee is allowed for statistical purposes.
Kolkata, the 14th September, 2023. X X X X Extracts X X X X X X X X Extracts X X X X
|
