9911796707
TMI Blog2024 (3) TMI 1195X X X X Extracts X X X X X X X X Extracts X X X X ..... city. 2. That on the facts and circumstances of the case and in law, the Ld. CIT(A) had failed to appreciate the analysis undertaken by the TPO while concluding the said transaction were not at the arm's length. 3. That on the facts and circumstances of the case and in law, the Ld. CIT(A) had failed to appreciate that, even if we consider the electricity board rate i.e. rate at which assessee purchases power from the distributors, for transfer pricing purpose, adequate adjustment has to be made for the costs which the distributors incurs towards transmission of power and other additional costs for arriving at arm's length price. 4. That on the facts and circumstances of the case and in law, the Ld. CIT(A) had erred in deleting the downward adjustment made by the TPO/AO pertaining to the exaggerated profit of captive power generating unit by claiming higher rate than the cost price or market price as determined in tariff order of electricity board for independent power generating units. 5. Whether on the facts and circumstances of the case as well as in Law, the Ld. CIT(A) erred in holding that deduction u/s 80IA of the IT Act will be allowed as claimed by the assessee. 6. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of appeal before or at the time of hearing." 3. Ground Nos.1 to 5 - A perusal of the above reproduced grounds No. 1 to 5 of the appeal would reveal that the sole issue raised by the revenue through these grounds is relating to the action of the CIT(A) in deleting the addition of Rs. 124,76,75,528/- made by the Assessing Officer on account of transfer pricing adjustment in respect of the price of the power transferred by the section 80IA eligible captive power plant of the assessee to the non-eligible manufacturing units of the assessee and thereby, reducing the claim of deduction claimed by the assessee u/s 80IA of the Income Tax Act. 3.1 Both the ld. representatives have submitted that the Ground No.1 to 5 are covered in favour of the assessee by various decisions of the Tribunal in the own cases of the assessee in relation to earlier assessment years. The ld. counsel for the assessee, in this respect, has submitted that earlier the issue was decided vide common order of the Tribunal dated 25.08.2017 passed in the own cases of the assessee in ITA No.971/Kol/2012 and Others. Thereafter, the issue has been consistently decided in favour of the assessee. The ld. counsel, in this r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es and energy charge in accordance with the statutory parameters and norms in respect of power generated by Rajasthan Rajya Vidyut Utpadan Nigam at its different generating stations and supplied to electricity distribution companies. The tariff was separately determined for each generating station based on different elements of cost incurred at each such station. For the State of Madhya Pradesh, the ld. AO referred to an order dated March 3, 2010 passed by the Regulatory Commission of that State determining, in accordance with the statutory parameters and norms, the fixed charges and energy charges for each generating station of the Madhya Pradesh Power Generating Company Limited which it could charge in respect of electricity supplied to electricity distribution companies. The working made by the ld. AO on such basis resulted in losses for both the power plants. As such, the ld. AO held that no deduction was available to the assessee under section 80IA. On appeal, the ld. CIT(A) accepted the assessee's working and granted relief to it following the order dated August 25, 2017 of this Hon'ble Tribunal in the assessee's own case for the assessment years 2008-09 and 2009-10. 11.2. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... This Hon'ble Tribunal thus concluded that the assessee did not commit any error in adopting such prices for working out the amount eligible for deduction under section 80IA of the Act. 11.3. The Hon'ble Tribunal by an order dated September 13, 2017 for the assessment year 2010-11 (Page 153, at Pp 159- 162 of the Paper Book, paragraph 3 at paragraphs 13-16) followed the said decision for the assessment years 2008-09 and 2009-10 on this issue. 11.4. It is further submitted that against the said decision of the Hon'ble Tribunal dated August 25, 2017 for the assessment years 2008-09 and 2009-10 the department preferred appeal before the Hon'ble Calcutta High Court under section 260A of the Act, being ITA No. 125/2019 (Question (iii)-Page 11 at page 25 of the Compilation of Case Laws). The Hon'ble High Court, by an order dated September 12, 2019 (Page 9-10 of the Compilation of Case Laws) was pleased not to admit the appeal on this issue. The department also preferred appeal against the decision of the Hon'ble Tribunal dated September 13, 2017 for the assessment year 2010-11 before the Hon'ble Calcutta High Court under section 260A of the Act, being ITA No. 124/2019 (Memorandum of a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t, 2003 (hereinafter referred to as "the 2003 Act") repealed the erstwhile legislation and the new legislation came into force on June 10, 2003. The 2003 Act was applicable and in force during the previous years relevant to the Asst Years 2009-10. It was also pointed out before the Tribunal as per the provisions of the 2003 Act and the regulations made in terms thereof by the States of Madhya Pradesh and Rajasthan, it was open to an assessee having a captive power plant to sell electricity even to a consumer at a mutually agreed rate. In other words, under the provisions of the 2003 Act and the regulations made there under it is not the position that a captive power plant can sell electricity only to a distribution company or a company which is engaged in both generation and distribution. The Tribunal after making reference to the various provisions of the Electricity Act 2003 and the determination of Tariff under the new legislation in the state of Rajasthan and Madhya Pradesh, as claimed by the Assessee before the AO, came to the following conclusions: "5.6. We have heard the rival submissions and perused the materials available on record including the paper book and the releva ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... commit any error in adopting such price for working out the amount eligible for deduction u/s 80IA of the Act." 14. After coming to the conclusion that the decision of the Hon'ble Calcutta High Court in the case of ITC Ltd. (supra) would not be applicable to the case of the Assessee, the Tribunal thereafter went into the question as to what would be appropriate rate to the adopted as sale price by the TPP unit of the Assessee to its Cement manufacturing units. The Tribunal thereafter referred to the decision of the Hon'ble Supreme Court in the case of Thiru Arooran Sugars Ltd. v CIT, (1997) 227 ITR 432 (SC), as to the meaning of the word "Market Price" wherein in the context of market price of sugarcane which was also a commodity whose price was subject to control by the Government held that the price at which a manufacturer buys sugarcane must be taken to be the market price. The Hon'ble Supreme held that if the price is controlled by the Sugarcane Control Order, the controlled price will be taken as the market price, because it is at this price that a willing buyer and a willing seller are expected to transact business. The Tribunal agreed with the submission of the Assessee th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... apply to the present AY also. Respectfully following the order of the Tribunal we allow grounds 2 to 4 & 6 raised by the assessee in its appeal and dismiss ground no. l raised by the revenue in its appeal." 11.5. Since the issues raised before us are squarely covered by the decision of this Tribunal in assessee's own case for preceding assessment year i.e. AY 2010-11 and Revenue being unable to controvert this fact by placing any other binding precedence in its favour, we fail to find any infirmity in the finding of ld. CIT(A). Thus, common ground no. 2 for AY 2011- 12 & AY 2012-13 raised by the Revenue is dismissed." 9.4. We, further, observe that ld. CIT(A) after considering the facts of the case for the year under appeal as well as the decision of this Tribunal in assessee's own case for the preceding years deleted the addition towards transfer pricing adjustment of Rs. 107,46,72,729/- observing as follows: "08. FINDINGS & DECISION: 1. I have carefully considered the action of the Ld. TPO as also equally carefully perused the submissions made by the Ld. A.Rs, and the documents available in the Paper Book filed by the appellant. The claim of the appellant for deduction u/ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Hon'ble Calcutta High Court in ITC Limited reported in (2015) 64 Taxman.com 214 wherein the Hon'ble Court had held that the CPPs were not permitted to sell power to anyone else but to power distribution companies and that too at the controlled rates notified by the regulatory authorities. The Ld. TPO also took into consideration the fact that during the relevant year the appellant itself had sold 3,32,891 units generated by CPP in Rajasthan on IEX where per unit price realized was Rs. 4.95. Keeping in view these facts and documents the Ld. AO concluded that the rates adopted by the appellant at Rs. 6.76/6.85 per unit & Rs. 6.79/Rs.6.84 per unit for the CPPs at Rajasthan & Madhya Pradesh was excessive and did neither represent fair market value nor the ALP of the power supplied by CPP. On the contrary he adopted Rs. 4.13 per units Rs. 2.45 per unit as the ALP for the power generated by Units located in the States of Rajasthan & Madhya Pradesh respectively. 3. Per contra, the Ld. AR of the appellant has made detailed submissions rebutting the Ld. TPO's conclusion, which have extensively been extracted in the earlier paragraphs. From the foregoing the question to be d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o be reliable data because the facts indicate that such sale was more in nature of reducing effective cost of generation by selling the excess power generated rather than incurring the generation loss. On the contrary however, in the case of CPP at Rajasthan also it is noted that the cement manufacturing undertaking to which the eligible unit supplied power, had procured substantial quantity of power throughout the year from unrelated enterprise i.e. SEB and therefore the tariff at which the said AE, i.e. non-eligible unit purchased power from SEB represented reliable internal CUP. I therefore find that even after introduction of domestic transfer pricing provisions to specified domestic transactions and becoming applicable to the appellant, the ratio laid down by the Hon'ble ITAT, Kolkata in the appellant's own case for AYs 2008-09 & 2009-10 remains equally valid. 5. For the reasons set out in the foregoing therefore I hold that the methodology and benchmarking performed by the appellant (also judicially approved by higher judicial forums in its own case) was justified. Accordingly the Ld. AO/TPO is directed to delete the transfer pricing adjustment and further direct th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tic specified transactions. Accordingly the TPO recommended adjustment to the tune of Rs. 6,75,22,00,000/- and the AO passed the draft assessment accordingly. According to the assessee the internal CUP has to be used for the determination of ALP at which the non-eligible units/manufacturing units procured the power from unrelated party i.e. SEB. Now the issue before us whether the CUP method can be applied to bench mark specified domestic transactions of transferring power by CPPs to non eligible units. We have also perused the provisions as contained in Rule 10B of the Income Tax Rules which provide as to where the CUP can be and has to be applied. We observe from the said rule 10B that we have to see the price at which the property, goods or service has been acquired under similar market conditions. It is also settled that choice of tested party is of lesser significance for the purpose of application of CUP method but instead key factor in application of CUP is product comparability and similar market conditions. Further the CUP method can be classified into two categories i.e. internal CUP method and external CUP method. Under internal CUP method the transactions between the AE ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nit of the assessee was considered to be the fair market value / transfer price of power supplied by the eligible unit to the non-eligible unit. Before us, the Ld. A.R also argued that non-eligible units has to be held as a tested party and AALC at which the power was purchased by the tested party from SEB/ third party is the most appropriate ALP to bench mark the transfer of power supplied by eligible unit to noneligible unit. The said view of the assessee is squarely covered by the two decisions of Hon'ble Benches namely Star Paper Mills Ltd. vs. DCIT (supra) and DCIT vs. Balrampur Chini Mills Ltd. (supra). Having considered the ratio laid down, we are of the view that there is no infirmity in the order of Ld. CIT(A) which is a very reasoned and speaking order passed after following the decision of various Hon'ble High Courts and decision of Co-ordinate Benches of the Tribunal. We have also noted the arguments advanced by the Id DR that average rate of Rs. 3.47 per unit as calculated on the basis of sale data of power by independent CPPs /IPPs as determined by various tariff orders should be taken as ALP however can not overlook the fact that the said transactions did not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r of the assessee by the above decision of the Tribunal in the own case of the assessee for earlier assessment years. Therefore, respectfully following the same, for the sake of consistency, this issue is decided in favour of the assessee and against the revenue. Ground Nos.1 to 5 of Revenue's appeal are hereby dismissed. 5. Ground No.6 - Vide Ground No.6, the revenue has assailed the order of the CIT(A) in allowing the claim of balance additional depreciation of Rs. 12,19,30,258/-. 6. The brief facts relating to the issue are that the assessee purchased and installed new plant and machinery in the preceding year but put to use the same for a period less than 180 days in that year. In view of the 2nd Proviso to section 32(1) of the Act, for the assessment year 2014-15, the assessee claimed only 50% initial depreciation and the remaining 50% was claimed in the assessment year, in question, i.e. A.Y 2015-16. The Assessing Officer disallowed the claim on the ground that initial depreciation is available only in the year of purchase and cannot be claimed in the subsequent year. The Commissioner of Income Tax (Appeals) allowed the claim of the assessee by following the decision of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Book-paragraphs 7 at 7.2) and for the assessment year 2010-11 by an order dated September 13, 2017 (Page 180 at Pp 182-185 of Paper Book paragraphs 46 at 52-53). The orders of this Hon'ble Tribunal for the assessment years 2008-09, 2009-10 and 2010-11 were passed after taking into consideration the judgment of the Hon'ble Karnataka High Court in CIT v. Rittal India (P) Limited, (2016) 380 ITR 423 (Karn). Subsequently, the Hon'ble Madras High Court in CIT vs. Shri T.P. Textiles (P.) Ltd., [2017] 394 ITR 483 (Mad) [Page 1 at Pp 4-8 of Compilation of Case Laws] has agreed with the Hon'ble Karnataka High Court. The issue is thus covered in favour of the assessee. We find that this Tribunal in assessee's own case for AY 2010-11 dealt with this issue and decided in assessee's favour observing as follows: "52. Aggrieved by the order of CIT(A) the assessee has raised ground no. l before the Tribunal. At the time of hearing both the parties agreed that identical issue came up for consideration in assessee's own case in ITA No.971/Kol/2012, 942/Kol/2013, 298 & 329/Kol/2013 for A.Y.2008-08 and 2009-10 order dated 25.8.2017. This Tribunal on the identical issue held as follows: "7.2. We ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... actual cost of such machinery or plant shall be allowed as deduction under clause (ii)". The word "shall" used in the said clause is very significant. The benefit which is to be granted is 20 per cent, additional depreciation. By virtue of the proviso referred to above, only 10 per cent, can be claimed in one year, if plant and machinery is put to use for less than 180 days in the said financial year. This would necessarily mean that the balance 10 per cent, additional deduction can be availed of in the subsequent assessment year, otherwise the very purpose of insertion of clause (iia) would be defeated because it provides for 20 per cent, deduction which shall be allowed. It has been consistently held by this court, as well as the apex court, that the beneficial legislation, as in the present case, should be given liberal interpretation so as to benefit the assessee. In this case, the intention of the legislation is absolutely clear, that the assessee shall be allowed certain additional benefit, which was restricted by the proviso to only half of the same being granted in one assessment year, if certain condition was not fulfilled. But, that, in our considered view, would not res ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing portion of additional depreciation in the asst years 2008-09 and 2009-10 and accordingly the grounds raised by the assessee in this regard are allowed." 53. Respectfully following the decision of the Tribunal the assessee is entitled to additional depreciation (remaining portion). Thus ground no. 1 raised by the assessee is allowed." 10.2. Since the issues raised before us are squarely covered by the decision of this Tribunal in assessee's own case for preceding assessment year i.e. for AY 2010-11 referred above and Revenue being unable to controvert this fact by placing any other binding precedence in its favour, we fail to find any infirmity in the finding of ld. CIT(A). Thus, common ground no. 1 for AY 2011-12 & AY 2012-13 raised by the Revenue is dismissed." 8.1. Since the issues raised before us are squarely covered by the decision of this Tribunal in assessee's own case for preceding assessment year i.e. for AY 2011-12 & 2012-13 referred above and Revenue being unable to controvert this fact by placing any other binding precedence in its favour, we fail to find any infirmity in the finding of ld. CIT(A). Thus, common ground no. 1 for AY 2013-14 & 2014-15 regarding c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he earlier assessment years. He, in this respect, has relied upon the latest decision of the Tribunal 07.02.2023 passed in ITA Nos.2142&2143/Kol/2018 in relation to Assessment Years 2013-14 & 2014-15, wherein, the identical ground raised by the department has been dismissed by the Tribunal relying upon the earlier decision of the Tribunal in the own case of the assessee. The relevant part of the order of the Tribunal dated 07.02.2023 (supra) is reproduced as under: "Revenue's common Ground no. 3 for AY 2013-14 & 2014-15 relating to the claim of compensation paid for obtaining limestone connected to mining activity: 10. We have heard rival contentions and perused the records placed before us. We find that this Tribunal in assessee's own case for AY 2011- 12 & 2012-13 dealt with this issue and decided in assessee's favour observing as follows: "12. We have heard rival contentions and perused the records placed before us. The third common ground in the Department's appeal relates to disallowance of the assessee's claim for deduction of Rs. 35,79,586/- on proportionate basis of the compensation paid in connection with the mining activity for obtaining limestone used as raw materi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... epartment preferred appeals before the Hon'ble Calcutta High Court against the orders of this Hon'ble Tribunal for the assessment years 2007-08 [ITAT 80/2015 and GA 1714/2015 - Page 47 at 52 - Question 2(c) of the Compilation of Case Laws] and for the assessment year 2010-11 [ITA 124/2019-Supplementary Affidavit affirmed by the Department - Page 36 at Page 43 - Question 14(c) of the Compilation of Case Laws]. The Hon'ble High Court, by orders dated September 26, 2019 (Pages 45-46 of the Compilation of Case Laws) and March 11, 2020 (Page 29 at Page 30 of the Compilation of the Case Laws) respectively, was pleased not to admit the said appeals filed by the department on this issue for the assessment years 2007-08 and 2010-11. Further, this issue was not raised by the department before the Hon'ble Calcutta High Court in ITA No. 125/2019 preferred for the assessment years 2008-09 and 2009-10 (Page 11 at Pp 23-25 of the Compilation of Case Laws). We find that this Tribunal in assessee's own case for AY 2010-11 dealt with this issue and decided in assessee's favour observing as follows: "19. We have already seen that the Assessee is also in the business of manufacturing of cement. Lime ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e AO by following the order of the Tribunal in ITA No. 1936/Kol of 2010. Aggrieved by the order of the CIT(A), the revenue has raised Gr.No.2 before the Tribunal. 22. At the time of hearing, it was brought to our notice that identical issue was considered by the Tribunal in assessee's own case for A.Y.2008-09 and 2009-10 in ITA Nos. 971/Kol/2012 & 298/Kol/.2013 and this tribunal on an identical issue held as follows: "2.2. We have heard the rival submissions. We find that the issue under dispute is squarely covered by the decision of this tribunal in assessee's own case for the Asst Year 2006-07 wherein it was held that "We have heard the parties and perused the material placed on record. The I A. Counsel for the assessee has elaborated the facts of the case making reference of several decisions of Tribunal and Hon'ble Supreme Court and High Courts. After careful consideration of the same and evidences filed on record and in the paper book, we find that the assessee is required to pay compensation as determined by the local authority/ court to the persons whose rights are infringed because of the mining activity. We also observe that Ld. CIT(A) has properly analysed the f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... decided in favour of the assessee and against the revenue. Ground No.7 of Revenue's appeal is hereby dismissed. 11. Ground No.8 - Vide Ground No.8, the revenue has assailed the decision of the CIT(A) in holding that the amount received by the assessee of Rs. 31,86,63,403/- as industrial promotion assistance from the State Govt. is capital in nature as against the observation of the Assessing Officer that the same was a revenue receipt liable to taxation. The ld. counsel, in this respect, has submitted that the assessee undertook expansion of its cement unit in Durgapur, West Bengal at a cost of about Rs. 100 crore and increased the manufacturing capacity from 0.6 million tonnes per annum to 1.6 million tonnes per annum. The expansion was practically a new unit. Commercial production post-expansion commenced in December, 2005. The said expansion undertaken by the assessee qualified as a Mega Project under the 2000 Scheme(Incentive scheme) because of the extent of investment. In terms of the said Incentive Scheme, the assessee was entitled to industrial promotion assistance which was quantified at 75% of the sales tax paid in the preceding year. The amount of assistance was to be a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... evelopment subsidy in the nature of a capital receipt. On reference, the High Court set aside the order of the Tribunal. On further appeal by assessee Hon'ble SC held while distinguishing the decision of Hon'ble M.P. High Court on identical facts- "34. The Madhya Pradesh High Court in the case of CIT v. Dusad Industries 162 ITR 734, dealt with a case where Government had framed a scheme for granting sales tax subsidies to industries set up in backward areas. The High Court was of the view that the object of the scheme was not to supplement the profits made by industries. In that view of the matter, the High Court held that the subsidies given under the said scheme by the Government to newly set up industries were capital receipts in the hands of the industries and could not be taxed as revenue receipts. In that case, 75 per cent of the sales tax paid in a year for a period of five years from the day of starting of production was to be given back by the Government to the industry concerned. The High Court was of the view that obviously the subsidy was given by way of an incentive for capital investment and not by way of addition to the profits of the assessee as was clear from t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and perused the records placed before us. We find that this Tribunal in assessee's own case for AY 2011- 12 & 2012-13 has dealt with this issue and decided in assessee's favour observing as follows: "13. We have heard rival contentions and perused the records placed before us. The fourth common ground of the Department's appeal relates to the assessee's claim that industrial promotion assistance of Rs. 16,94,84,638/- received from the West Bengal State Government is a capital receipt and cannot be subjected to tax. The said amount was received by the assessee in terms of the West Bengal Incentive Scheme, 2000 (hereinafter referred to as "the 2000 Scheme") for expansion undertaken at the assessee's Durgapur Cement Works involving an investment of about Rs. 100 crore. 13.1. The material facts are that the assessee undertook expansion at its cement unit in Durgapur, West Bengal at a cost of about Rs. 100 crore and increased the manufacturing capacity from 0.6 million tonnes per annum to 1.6 million tonnes per annum. The expansion was practically a new unit. Commercial production post-expansion commenced in December, 2005. The said expansion undertaken by the assessee qualified as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion (Page 9-10 of the Compilation of Case Laws). 13.4. The identical question involving the 2000 Scheme came up for consideration recently before the Hon'ble Calcutta High Court in PCIT vs. Budge Budge Refineries Limited, (2022) 139 taxmann.com 124 (Calcutta) and the revenue's appeal against the order of the Hon'ble Tribunal was dismissed. We find that this Tribunal in assessee's own case for AY 2010-11 dealt with this issue and decided in assessee's favour observing as follows: "29. At the time of hearing, it was agreed by both the parties that identical issue was considered by this Tribunal in assessee's own case in A.Y.2008-09 and 2009-10 in ITA Nos. 971/Kol/2012 and ITA No.942/Kol/2013, 298/Kol/2013 and 329/Kol/2013 and this tribunal in its order dated 25.8.2017, on the aforesaid issue held as follows: "4.3. We have heard the rival submissions and perused the materials available on record including the paper book containing the entire West Bengal Incentive Scheme 2000 and eligibility certificate issued by the competent authority approving the expansion of existing unit thereby approving the fact of assessee falling under the category of 'Mega Unit' under the said scheme. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Rajasthan Sales Tax Scheme, 1998 was received explains the purpose of the scheme as incurring capital expenditure for installation of plant and machinery and for eligible for fixed capital investment. Even the issue of assessee is covered in its favour by Tribunal's decision in assessee's own case all along from AYs 2002-03 to 2006-07. It is not brought to our notice by the Revenue that the matter has been decided by Hon'ble Calcutta High Court, despite a query from the Bench. In such circumstances, and taking a consistent view, we hold that the CIT(A) has rightly treated the sales tax subsidy receipt as 'capital in nature'. 8. In respect to the issue of application of Explanation-10 to Sec.43(1) of the Act we find from the facts of the case that the Rajasthan Govt, has framed a incentive scheme i. e., R.S.T/C.S.T. Exemptions Scheme 1998 for encouragement of setting up of industrial project or expansion of existing industrial projects. It is also a fact that the maximum limit of the subsidy was restricted with reference to the value of fixed capital investment in land, building, plant & machinery but no part of the subsidiary was specifically intended to subsidiz ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er any law or by any other person, in the form of a subsidy or grant or reimbursement (by whatever name called), then, so much of the cost as is relatable to such subsidy or grant or reimbursement shall not be included in the actual cost of the asset to the assessee. It is further, provided thereunder, that where such subsidy or grant or reimbursement of such nature that it cannot be directly relatable to the asset acquired, so much of the amount which bears to the total subsidy or reimbursement or grant the same proportion as such asset bears to all the assets in respect of or with reference to which the subsidy or grant or reimbursement is so received, shall not be included in the actual cost of the asset to the assessee. In order to invoke Explanation 10, it is necessary to show that the subsidy was directly or indirectly used for acquiring an asset. This is again a question of fact. The relatable subsidy to such asset can be reduced from the cost only if it is found that the cost for acquiring that asset was directly or indirectly met out of the subsidy. Likewise in the proviso, it is necessary to show that the subsidy has been directly or indirectly used to acquire an asset bu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r the change in figure and Revenue being unable to controvert this fact by placing any other binding precedence in its favour, we fail to find any infirmity in the finding of ld. CIT(A). Thus, common ground no. 4 for AY 2013-14 & 2014-15 raised by the Revenue are dismissed." 14. So far as the reliance of the ld. DR on the decision of the Hon'ble Supreme Court in "Sahney Steel & Press Works Ltd. v. CIT" (supra) is concerned, it is to be noted that the said decision has subsequently been considered by the Hon'ble Supreme Court in the case of 'CIT-I Vs. M/s Chaphalkar Brothers, Pune and Others' in Civil Appeal Nos. 6513- 6514 of 2012 order dated 7.12.2017. The Hon'ble Supreme Court while deliberating on the earlier decisions of the Supreme Court in the cases of 'Sahney Steel & Press Works Ltd. Hyderabad Vs. CIT, A.P.-1, Hyderabad Vs. 1997 (7) SCC 765, 'CIT, Madras Vs. Pooni Sugars and Chemicals Limited' 2009 (9) SCC 337 and further of the Hon'ble J&K High Court in the case of 'Shri Balaji Alloys Vs. CIT' (2011) 333 ITR 335, has held that to gather any of the aforesaid receipts as to the same are capital or Revenue in nature, 'purpose test' is to be applied. If the purpose is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es for the entire family as a whole. It was noticed that these complexes are highly capital intensive and their gestation period is quite long and therefore, they need Government support in the form of incentives qua entertainment duty. It was also added that government with a view to commemorate the birth centenary of late Shri V. Shantaram decided to grant concession in entertainment duty to Multiplex Theatre Complexes to promote construction of new cinema houses in the State. The aforesaid object is clear and unequivocal. The object of the grant of the subsidy was in order that persons come forward to construct Multiplex Theatre Complexes, the idea being that exemption from entertainment duty for a period of three years and partial remission for a period of two years should go towards helping the industry to set up such highly capital intensive entertainment centers. This being the case, it is difficult to accept Mr. Narasimha's argument that it is only the immediate object and not the larger object which must be kept in mind in that the subsidy scheme kicks in only post construction, that is when cinema tickets are actually sold. We hasten to add that the object of the sche ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... holding that the amount received by the assessee as interests subsidy from the state government was capital in nature as against the revenue receipt treated by the Assessing Officer. 18. The ld. counsel for the assessee, in this respect, has submitted that the nature of the interest subsidy was same i.e. Capita Receipt as noted above in respect of investment incentives given by the Govt. and that even subsequently, the said interest subsidy was renamed as 'Capital Investment Subsidy' under the amended Rajasthan Investment Promotion Scheme, 2003 in respect of expansion undertaken at the assessee's Chanderia Cement Works. The ld. counsel has submitted that the issue is identical as raised vide Ground no.8 of the revenue's appeal. He, in this respect, has relied upon the latest decision of the Tribunal 07.02.2023 passed in ITA Nos.2142&2143/Kol/2018 in relation to Assessment Years 2013-14 & 2014-15, wherein, the identical ground raised by the department has been dismissed by the Tribunal, relying upon the earlier decision of the Tribunal in the own case of the assessee. The relevant part of the order of the Tribunal dated 07.02.2023 (supra) is reproduced as under: "Revenue's common ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 0 taxmann.com 239 (SC) as also the judgment of the Hon'ble Supreme Court in CIT v. Meghalaya Steels Limited, (2016) 383 ITR 217 (SC).The order dated August 25, 2017 for the assessment years 2008-09 and 2009-10 was followed by the Hon'ble Tribunal for the assessment year 2010- 11 decided by an order dated September 13, 2017 (Page 190 at pages 193-194 of the Paper Book - paragraphs 68 at 73-74). A still later decision in the assessee's favour is that of the Hon'ble Calcutta High Court in PCIT v. Ankit Metal and Power Limited, (2019) 416 ITR 591 (Cal) (Page 76 at Pp 84,86-87 of the Compilation of Case Laws). It is submitted that this ground is covered in favour of the assessee. We find that this Tribunal in assessee's own case for AY 2010-11 dealt with this issue and decided in assessee's favour observing as follows: "73. At time of hearing, it was agreed by the parties before us that identical issue arose for consideration in Assessee's own case for AY 2009-10 and in that year, the Hon'ble Tribunal in ITA No. 942/Kol/2013 and ITA No.329/Kol/2013 by its order dated 25.8.2017, held that the interest subsidy in question received under the very same scheme as in the present year, was a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of its decision in Ponni Sugars (supra) and further held that even if it was treated as a revenue receipt, then the assessee was entitled to deduction under section 80IB/80IC as profits derived from eligible business according to its judgment in CIT v Meghalaya Steels Ltd., (2016) 383 ITR 217 (SC). Hence respectfully following the said decision of the Hon'ble Supreme Court in Balaji Alloys supra, we hold that the interest subsidy is to be treated only as a capital receipt and accordingly the grounds raised by the assessee in this regard are allowed." 74. Respectfully following the decision of the Tribunal in Assessee's own case, we hold that the interest subsidy in question is a capital receipt not chargeable to tax. Thus, ground nos. 10 and 11 raised by the assessee are allowed." 14.2. Since the issues raised before us are squarely covered by the decision of this Tribunal in assessee's own case for preceding assessment year i.e. AY 2010-11 and Revenue being unable to controvert this fact by placing any other binding precedence in its favour, we fail to find any infirmity in the finding of ld. CIT(A). Thus, common ground no. 5 for AY 2011- 12 & AY 2012-13 raised by the Revenue ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s of the Tribunal in the assessee's own case for the assessment years 2008-09 to 2010-11 directed the Assessing Officer to consider only those investments which yielded dividend income but excluding investments in subsidiary companies, for computing the disallowance under section 14A read with rule 8D(2)(iii). 21. Before us, the ld. DR has made the following submissions: "1. On this issue reliance is placed on Maxopp Investment Ltd. v. CIT, New Delhi [2018] 91 taxmann.com 154 (SC), wherein Hon'ble Supreme Court held inter alia in para 35 that "The aforesaid reasoning would be applicable in cases where shares are held as investment in the investee company, may be for the purpose of having controlling interest therein. On that reasoning, appeals of Maxopp Investment Limited as well as similar cases where shares were purchased by the assessees to have controlling interest in the investee companies have to fail and are, therefore, dismissed. I may be mentioned that in Maxopp Investment Ltd. [2011] 15 taxmann.com 390 (Delhi) [affirmed by SC as above] the Hon'ble High Court inter alia held in Para 31 of the judgement as under: If one examines sub-rule (2) of Rule 8D, we find that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g of the two judgements quoted above that the Ld.CIT(A) was not justified in directing the AO to compute the disallowance u/r 8D(2)(iii) by considering only the dividend bearing investments and by excluding the strategic investments. This decision deserves to be reversed and the lower authorities may, therefore, be directed accordingly." 22. The ld. counsel for the assessee, however, has submitted that the assessee had made investments out of its own funds in shares of companies and mutual funds. That the mutual fund investments of the assessee were not in equity-oriented funds and hence, the proceeds at maturity/redemption of the same were not exempt from taxation but would attract capital gains tax. That substantial amount was invested in mutual fund investments for which there was no provision of providing any dividend. That, some of the mutual fund schemes, however, have yielded dividend income, however, the said dividend was reinvested by the assessee without being actually receiving the same. He has further submitted that the assessee has made calculation of the suo moto disallowance of expenditure after consulting the accounts and after consideration of the aforesaid facts, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lowance of Rs. 6,40,792/- as expenditure incurred in relation to the exempt income. The disallowance offered by the assessee comprised salary and other employee related costs on proportionate basis as also establishment expenses. The ld. AO invoked rule 8D and worked out the disallowance at the rate of 0.5% of the average of the opening and closing values of investment amounting to Rs. 5,77,72,000/-. After deducting the disallowance of Rs. 6,40,792/- made by the assessee, the ld. AO disallowed Rs. 5,71,31,208/-. On appeal, the ld. CIT(A) following the decisions of the Hon'ble Tribunal in the assessee's own case for the assessment years 2008-09 to 2010-11 directed the ld. AO to consider all investments (excluding investments in subsidiary companies) which yielded dividend income for computing the disallowance under section 14A read with rule 8D(2)(iii). 15.2. Before us, ld. Counsel for the assessee stated that the material facts are that the assessee is in the business of manufacturing cement, jute goods, vinoleum, auto trim parts, etc. From time to time, the assessee makes investments out of its own funds in shares of companies and units of mutual funds. The assessee does not bor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nvestments (including in non-equity oriented mutual fund growth schemes) did not provide for payment of any dividend. Upon redemption/disposal of all such investments, the assessee would be liable for capital gains tax. The income from such investments is not exempt under the provisions of the Act. Even in respect of the assessee's investments in other schemes of mutual funds providing for payment of dividend, the assessee is liable for capital gains tax upon disposal/redemption of the units since such schemes are also not equity oriented. Similarly, in respect of the assessee's investments in unquoted equity shares of companies, it will have to pay capital gains tax upon disposal thereof. It is only the dividend received by the assessee in respect of the dividend schemes of the mutual funds which is not taxable in the assessee's hands because of payment of dividend distribution tax by the mutual funds. 15.5. Further ld. Counsel for the assessee submitted that in course of the assessment proceedings, the assessee submitted a detailed statement in respect of the expenditure of Rs. 6,40,792/- offered by it for disallowance as incurred in relation to the exempt dividend income. In t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment/maintenance of its investment portfolio. This is apparent from the findings of the ld. AO in paragraphs 11.2 and 11.3 at page 15 of the assessment order: "11.2 Carefully considering the above submission, contention of the assessee is partly accepted. Disallowance u/s. 14A is worked out by invoking Rule 8D of the IT Rules since it is applicable for current assessment. The amount of disallowance is worked out as follows: Opening value of investment : 114165.22 lacs Closing value of investment : 116920.91 lacs Average value : 115543.07 lacs 0.5% of the above : 577.72 lacs 11.3 In view of above Rs. 5.71,31,208/- [Rs. 5,77,72,000 less Rs. 6,40,792] is further disallowed u/s. 14A and added back to total income." It is submitted that ld. AO did not dispute the correctness of the assessee's computation of the expenditure to be disallowed. The only reason given by ld. AO for making the disallowance was that rule 8D was applicable for the assessment year. It is submitted even rule 8D stipulates that ld. AO can resort to sub-rule (2) only where ld. AO, having regard to the accounts of the assessee, is not satisfied with the correctness of the claim of expenditur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eory of apportionment, the AO needs to record satisfaction that having regard to the kind of the assessee, suo moto disallowance under Section 14A was not correct. It will be in those cases where the assessee in his return has himself apportioned but the AO was not accepting the said apportionment. In that eventuality, it will have to record its satisfaction to this effect. Further, while recording such a satisfaction, the nature of the loan taken by the assessee for purchasing the shares/making the investment in shares is to be examined by the Assessing Officer." [emphasis added] 15.8. Ld. Counsel for the assessee further submitted that in Kesoram Industries Ltd. vs. PCIT [2022] 441 ITR 648 (Cal), the Hon'ble Calcutta High Court was pleased to hold as follows: "6. Two important issues have been pointed out in the aforementioned decision. Firstly that the provisions of section 14A has to be interpreted, particularly, the words that "in relation to the income" that does not form part of total income. Therefore, it was held that the principle of apportionment of expenses comes into play as that is the principle which is incorporated in section 14A of the Act. With regard to as t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nclusion on the amount of expenses that has to be disallowed as attributable or incurred in earning exempt income. It cannot therefore be said that once the AO rejects the mode of computation of disallowance u/s.14A of the Act as made by the Assessee, he has no other option but to resort to Rule 8D of the Rules". [emphasis added] 15.10. Ld. Counsel for the assessee that in the instant case, ld. AO not having expressed any dis-satisfaction with the assessee's claim of expenditure incurred in relation to exempt income, he was not entitled to invoke section 14A(2) or rule 8D(2)(iii). Where an assessee is engaged in multiple income earning activities and the same set of employees and infrastructure are used for all the activities, some taxable and some exempt, the common expenses incurred in respect of such employees and infrastructure have to be necessarily apportioned between the taxable and exempt activities. As held by the Hon'ble Supreme Court in CIT v. Walfort Share and Stock Brokers P. Ltd., (2010) 326 ITR 1(SC) and in Maxopp's case (supra), the principle of apportionment of expenses comes into play as that is the principle which is incorporated in section 14A of the Act. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Court's directions are given to ld. AO to consider only those investments which yielded dividend income for concluding the disallowance u/s 14A of the Act r.w. Rule 8D(3) of the I.T. Rules. Relevant finding of this Tribunal is reproduced below: "42 At the time of hearing both the parties agreed that identical issue was considered and decided by the tribunal in assessee's own case in ITA No.971/Kol/2012, 942/Kol/2013, 298 & 329/Kol/2013 for A. Y.2008-08 and 2009-10 in its order dated 25.8.2017 and this Tribunal on the identical issue held as follows: "3.3. We have heard the rival submissions and perused the materials available on record. The Id DR vehemently relied on the order of the Id AO. The ld. AR prayed that the disallowance made by the assessee voluntarily at Rs 4,00,096/- which was later revised to Rs 4,43,903/- based on the devotion of certain executives of the organization for managing the investment portfolio and other indirect expenses connected thereon, should be accepted and the ld. AO had not given any proper finding as to why the said disallowance was not proper. He simply resorted to computation mechanism provided in Rule 8D of the Rules and made disallowance th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he assessee's appeal, is restored to the file of the AO for recomputation in line with the direction given above. No disallowance under section 14A read with rule 8D(2)(i) and (ii) can be made in this case. We also find lot of force in the argument of the ld. AR that the investments made in subsidiaries would fall under the category of strategic investments as they are admittedly made only for the purpose of obtaining controlling interest in the said companies and not for the purpose of earning dividend income which is exempt. Hence they would stand differently from other regular investments. Reliance in this regard is placed on the decision of this tribunal in the case of Dy CIT vs Selvel Advertising (P) Ltd reported in (2015) 58 taxmann.com 196 (Kol Trib). We also find that the reliance placed in this regard by the Id A R on the decision of the Hon'ble Delhi High Court in the case of CIT vs Oriental Structural Engineers Pvt Ltd in ITA 605/2012 dated 15.1.2013 wherein it was held that It was the contention of the revenue that Rule 8D of the Income Tax Rules. 1962 had not been applied properly in respect of the assessment year 2008-09. This aspect has been considered by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is issue to the file of the Id AO with the direction to consider all investments (excluding investments in subsidiary companies) which yielded dividend income to the assessee for computing disallowance u/s 14A of the Act r.w. Rule 8D of the Rules. Accordingly the grounds raised in this regard are partly allowed for statistical purposes." 43. Respectfully following the aforesaid decision we partially uphold the order of CIT(A) and dismiss ground no.4 raised by the revenue and partly allow ground nos. 12 and 13 raised by the assessee and direct the AO to consider all investments (excluding investments in subsidiary companies) which yielded dividend income to the assessee for computing disallowance u/s 14A of the Act r.w. Rule 8D(2)(iii) of the Rules." 15.13. Since the issues raised before us are squarely covered by the decision of this Tribunal in assessee's own case for preceding assessment year i.e. AY 2010-11 and assessee fail to prove that there is change of facts in the years under appeal vis-à-vis preceding AY 2010-11 and also Revenue being unable to controvert by placing any other binding precedence in its favour, we fail to find any infirmity in the finding of ld. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... om the book profit u/s 115JB of the Act: 14. We have heard rival contentions and perused the records placed before us. We find that this Tribunal in assessee's own case for AY 2011- 12 & 2012-13 dealt with this issue and decided in assessee's favour observing as follows: "16. The seventh common ground of the Department's appeal is against the decision of the ld. CIT(A) directing the ld. AO to exclude the subsidy/incentive from book profit under section 115JB of the Act. The ld. AO rejected the assessee's claim to exclude the following incentives in computing Book Profit u/s 115JB of the Act: Particulars Amount (in Rs. ) Interest Subsidy received from Govt. of Rajasthan under Rajasthan Investment Promotion Scheme, 2003 Rs. 3,04,22,210 Incentive from Govt. of West Bengal in the form of Industrial Promotion Allowance Rs. 16,94,84,638 Total Rs. 19,99,06,848 The ld. AO held that the accounts were prepared in accordance with the provisions of Companies Act and these incentives were credited to Profit & Loss Account. Besides, the claim was not made through IT Return or Revised IT return and therefore fresh claim raised during the course of assessment proceedings was not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ear of a person who is a resident includes all income from whatever source derived which -" (emphasis added) The "total income" consists of all items of "income" as defined in clause (24) of section 2 of the Act. 16.2. What can be taxed u/s 115JB of the Act is the "total income" which is income as defined in section 2(24) of the Act chargeable under section 4 and computed in the manner laid down in section 115JB. What is not "income" within the meaning of section 2(24) is outside the purview of the Act; cannot form subject matter of the charge of tax under section 4; cannot form part of "total income" and cannot be subjected to tax either under the normal computation provisions or under section 115JB of the Act. The absence of provision in section 115JB of the Act for exclusion of such capital receipt credited to the profit and loss account cannot result in its taxation. 16.3. It is submitted by ld. Counsel for the assessee that this issue is now squarely covered in favour of the assessee by the judgment of the Hon'ble Calcutta High Court in PCIT vs. Ankit Metal & Power Ltd., [2019] 416 ITR 591 (Cal) [Page 76 of the Compilation of Case Laws]. The said decision also deals wi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sing authority to entertain a claim for deduction otherwise than by a revised return, and did not impinge on the power of the Appellate Tribunal under Section 254 of the Income Tax Act, 1961. The Hon'ble Supreme Court in the said decision held as follows: "..........In the circumstances of the case, we dismiss the Civil Appeal. However, we make it clear that the issue in this case is limited to the power of the Assessing Authority and does not impinge on the power of the Income Tax Appellate Tribunal under Section 254 of the Income Tax Act, 1961." This judgment was followed by our Court in the case of Britannia Industries Ltd. (supra) holding that Tribunal has the power to entertain the claim of deduction not claimed before the Assessing Officer by filing revised return. Respectfully following the aforesaid decision as well as the view already taken by us in this case that the aforesaid subsidies are capital receipt and not an 'income' and not liable to Tax Tribunal in exercise of its power under Section 254 of the Income Tax Act justified this claim though no revised return under Section 139 (5) of the Act was filed before the Assessing Officer. We answer both the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... perused the records placed before us. We find that this Tribunal in assessee's own case for AY 2011- 12 & 2012-13 dealt with this issue and decided in assessee's favour observing as follows: "17. The eighth common ground of the Department's appeal is against the deletion of upward adjustment made to book profit on account of the disallowance computed under section 14A read with rule 8D. The assessee had disallowed a sum of Rs. 6,40,792/- in the computation of its book profit in terms of clause (f) of Explanation 1 to section 115JB of the Act on account of expenditure relatable to exempt dividend income. Whilst working out the disallowance under section 14A of the Act read with rule 8D of the Rules under the normal computation provisions, ld. CIT(A) made a further disallowance of Rs. 5,71,31,208/-. The same disallowance of Rs. 5,71,31,208/- was made in the computation of book profit under section 115JB of the Act. On appeal, ld. CIT(A) held that the provisions of section 14A and rule 8D cannot be applied in the computation of book profit under section 115JB of the Act. He placed reliance on the judgment of the Hon'ble Calcutta High Court in CIT v. Jayshree Tea and Industries Limi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts under section 115JB of the Act cannot tamper with the profits as per profit and loss account prepared in accordance with the Companies Act except in the manner provided in Explanation 1 to section 115JB of the Act. Thus, it has been held that the additions made by the Assessing Officer while determining the book profits under section 115JB of the Act cannot be sustained. Any disallowance computed under section 14A of the Act pertain to computation of income under normal provisions of the Act and cannot be read into the provisions of section 115JB of the Act pertaining to computation of book profits by levy of Minimum Alternate Tax (MAT) and there is no express provision in clause (f) of Explanation 1 to section 115JB of the Act to that extent. For the aforementioned reasons, the third substantial question of law is answered against the revenue and in favour of the assessee." (emphasis added) 17.3. Respectfully following the judgments/decisions referred herein above, we fail to find any infirmity in the finding of ld. CIT(A) in deleting upward adjustment made to book profit for disallowance computed u/s 14A r.w. Rule 8D of the Rules. Thus, common ground no. 8 raised by the Rev ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to income to which [section 10 (other than the provisions contained in clause (3*) thereof) or [***] section 11 or section 12 apply; or]" 32. The ld. counsel for the assessee, in this respect, has submitted that the provisions of section 115JB are complete code in itself and therefore, the Assessing Officer cannot tinker with the book profits. However, we do not find force in the aforesaid contention of the ld. counsel for the assessee in this respect. It is to be pointed out that as per Explanation 1(f), the book profit means the profit shown in the statement of profit and loss account as increased by the amount of expenditure relatable to the exempt income. The said amount of expenditure has already been ordered to be determined as per our observations made above while adjudicating the issue relating to the disallowance u/s 14A vide Ground No.10 of the revenue's appeal. It has to be further noted that section 115JB in itself does not prescribe any procedure to calculate the expenditure relatable to exempt income earned by the assessee. The said provision has been separately and specifically placed in the Act u/s 14A of the Act. Therefore, the book profits of the assessee are lia ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appeal was dismissed subject to the said observation. 21.2. The Hon'ble Supreme Court in Union of India v. Exide Industries Limited, (2020) 425 ITR 1 (SC) upheld clause (f) of Section 43B of the Act as constitutionally valid (pages 220 - 249 of the Compilation of Case Laws). Therefore, in view of the judgment of the Hon'ble Supreme Court, deduction in respect of leave encashment is available only in the year of actual payment. It is then submitted by ld. Counsel for the assessee that ld. AO may be directed to allow deduction in respect of the amount actually paid on account of leave encashment during the previous year relevant to the AY 2013-14 & 2014-15. 21.3. We also find that this issue came for adjudication before this Tribunal in assessee's own case for AY 2011-12 & 2012-13 and the following was held by this Tribunal: "22.3. We also find that this issue came for adjudication before this Tribunal in assessee's own case for AY 2010-11 and the following was held by this Tribunal: "67. We have considered his submissions and are of the view that this liability is purely notional and cannot be allowed as deduction. It is an admitted position that there is no out flow on this ..... X X X X Extracts X X X X X X X X Extracts X X X X
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