9911796707
TMI Blog2023 (10) TMI 1397X X X X Extracts X X X X X X X X Extracts X X X X ..... peals) erred in upholding the action of the Assessing Officer in not allowing an amount of Rs. 6193.10 lacs representing expenses incurred on rehabilitation of people/villagers & payments to State Government for obtaining use of land for mining purpose for a limited period. 1(b) That on the facts and circumstances of the case, the learned CIT(Appeals) erred in not appreciating that expenditure represents payments made to State Government for obtaining use of land for mining purpose for a limited period is an allowable revenue expenditure. 1(c) That no the facts and circumstances of the case, the learned CIT (Appeals) erred in not appreciating that expense incurred on rehabilitation of people/villagers is revenue in nature hence allowable. 1(d) Without prejudice to above grounds no. 1(a) to 1(c), the learned CIT(Appeals) should have directed the Assessing Officer to allow income tax depreciation on such expenditure. 2. That on the facts and circumstances of the case, the learned CIT(Appeals) erred in confirming disallowance of Rs. 1.21 lacs on account of guest house expenses. 3(a) That on the facts and circumstances of the case, the learned CIT(Appeals) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on for leave encashment. 4. The assessee has also taken the additional ground filed on 29.04.2019 as ground No. 1E, which reads as under :- 1(E) Disallowance of Amortization of land rehabilitation. "1E. Without prejudice to our contention that the deduction is a revenue expenditure allowable dully in AY 2009-10, in view of the decision of the Hon'ble ITAT, Cuttack in East India Minerals Limited Vs. JCIT (ITA No. 224/CTK/2012), the assessee company should be permitted to claim the said expenditure over the limited period of the lease of land for mining," 5.1 Brief facts of the case are that the assessee is a Public Sector Undertaking, a domestic company, in which the public are substantially interested. It is wholly owned subsidiary of Coal India Ltd. The assessee company is engaged in the activities relating to the development of mines and extraction of coal from various mines under its control and sale of coal. The assessee had filed its original return of income electronically for the year A.Y. 2009-2010 on 25.09.2009 declaring a total income of Rs. 17,45,54,12,238/- and income u/s. 115JB at Rs. 18,09,19,45,593/-. Later on, the assessee also ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the denial of claim of depreciation has been made on misinterpretation of law and the applicability thereof. Explanation to Section 32(1)(ii) leans in favour of the assessee to the extent that it is the actual action of put to use which entitles the assessee to claim depreciation. A straight line method of claiming the writing off of lease hold rights for the period of lease cannot be denied to the assessee for the simple reason it being intangible asset has been written off which pertains to land being a intangible asset. It is nobody's case that the land either belonged to the lessee or to the Government. This simply indicates that a depletion of the land against the payment of premium it was leased has to be claimed after capitalization thereof by the assessee which is for the purpose of its main business. All expenses are incurred for the purpose of business and are incidental to the holding of rights were claimed u/s. 32(1)(ii) being the license to carry out the mining therefore could not be denied insofar as the Government and the lessee are in control of the asset. The definition of depreciation therefore has been misconstrued for the purpose of allowing deduction ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at the issue raised by the assessee in the additional ground number '1E' qua "Amortization of Land compensation and rehabilitation expenses", as referred herein above, which was allowed to the assessee for statistical purposes, have been admitted vide Appeal No. TAXC/10/2020 by Hon'ble High court against the order Tribunal in ITA 141/NAG/2001 and is pending for adjudication. Under such circumstances, de hors any specific direction of the Hon'ble High court qua the issue in hand, following the principle of consistency, the observation of the Tribunal in assessee's own case hold good and, thus, needs to be followed. Once the issue will be decided by Hon'ble High court, the same will be binding to be adhered to. 5.8 Our aforesaid view is duly fortified by the order of Co-ordinate Bench of ITAT, Delhi, "D" Bench, in the case of Concentrix CVG Customer Management Group Inc. Vs, DCIT ( International Taxation), IT Appeal Nos. 1086 and 1281 (Delhi) of 2022 dated 06.03.2023 reported in [2023) 151 taxmann.com 412 (Delhi-Trib.) wherein it is observed that the assessee may be agitating the same issue before Ld. High Court however, as of today the relevant observations and findings of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... & Rehabilitation Expenses 5.10 At the outset, on perusal of the chart provided by the assessee, it is found that with regard to this issue, the ld. AR of the assessee has made a reference to the decision of the coordinate bench of the Tribunal in assessee's own case for A.Y. 1997-1998 in ITA No. 141/NAG/2001, order dated 10.05.2019 and for A.Y. 1998-1999 in ITA No. 187/JAB/2008, order dated 06.11.2019. Ld. CIT-DR also submitted that in both the decisions of the coordinate bench of the Tribunal, the issue has been held against the assessee. Therefore, ld. CIT-DR submitted that following the consistency, this issue also be decided in favour of the revenue. 5.11 We have considered the rival submission and perused the relevant documents on record. On perusal of the order of the coordinate bench of the Tribunal in assessee's own case for A.Y. 1997-1998 in ITA No. 141/NAG/2001, order dated 10.05.2019, in para 11, the Tribunal has dismissed this issue after observing as under :- "11. We have perused the case records and heard the rival contentions and given considerable thought to the judicial pronouncements placed before us on record. That while perusi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rom the case of R.J. Trivedi (supra) and, therefore the said decision cannot help the assessees case. Reliance was also placed by the learned counsel for the assessee on the decision of Honble Supreme Court in the case of Gotan Lime Syndicate v. CIT (supra) wherein the payment of royalty was made by the assessee in relation to the raw material, i.e., limestone to be obtained from mines taken on lease and the same was not referable to the acquisition of the mining lease. Considering these facts, the Honble Apex Court found the said expenditure incurred in relation to the raw material, which was going to be excavated or extracted by the assessee, and accordingly treated the same as revenue expenditure. The facts in the present case, however, are different inasmuch as the impugned expenditure has been incurred by the assessee-company to acquire the surface rights as well as the right to possession in respect of the leasehold land for enduring benefits and the same being not in the revenue field, the decision in the case of Gotan Lime Syndicate has no application to the facts of the present case. As regards the reliance placed by the learned counsel for the assessee on the decision of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... interest in respect of relocated villages which were built up and handed over to the villagers and ultimately became the property of the said villagers. In this regard, we may observe that the said expenditure on rehabilitation and relocation of the villages was incurred by the assessee-company to acquire the right to possession in the leasehold land in respect of surface rights obtained by it and the very purpose of incurring the said expenditure was to acquire such rights in the said immovable property. This being so, it cannot be said that the said expenditure did not result in the acquisition of enduring benefits in the capital asset, the rights or interest in the relocated villages notwithstanding. 11.9. In the case of Assam Bengal Cement Co. Ltd. v. CIT (supra) relied upon by the revenue, the Honble Apex Court observed that the aim and object of the expenditure would determine the character of expenditure whether it is a capital or revenue and the source or the manner of payment would then be of no consequence. In the present case, the expenditure was incurred by the assessee-company with aim and object to acquire the surface rights as well as the right to possession in r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Moolchand Suganchand (supra) has been distinguished by the Honble Apex Court in its subsequent decision in the case of Bikaner Gypsums Ltd. v. CIT (supra). A perusal of the subsequent judgment of the Honble Apex Court, however, reveals that the facts involved in the case of R.B. Seth Moolchand Suganchand (supra) were found to be totally different from the facts involved in the case of Bikaner Gypsums Ltd. inasmuch as in the latter case the expenditure was incurred by the assessee for the removal of a restriction which was obstructing his business operation of mining within a particular area. We have already observed that the existence of village was not obstructing the mining operations of the assessee-company and the expenditure in question was incurred to acquire the right to possession in respect of the leasehold land to facilitate the enjoyment of surface rights. Moreover, as the said acquisition resulted into accrual of enduring benefits to the assessee-company for the balance period of lease, the same has to be treated as capital expenditure, as held by the Honble Supreme Court in the case of Assam Bengal Cement Co. Ltd. v. CIT (supra). As such, considering all the facts of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... contrary information or decision on the issue but to uphold the findings recorded by the ld. CIT(A) in this regard. Accordingly, we dismiss the Ground No. 1 of the assessee. Ground No. 2 : Disallowance of Guest House Expenses 5.13 The AO during the course of hearing found that though the assessee has filed the details or expenditure station wise in respect of guest houses for Rs. 94.71 lakhs but he could not produce the register/records of occupants. It was also noted that the assessee could not establish with the evidence that its guest houses are being wholly and exclusively used as transit camp for the officers/employees of the assessee company during their tours as claimed in the written submissions. Accordingly, the AO restricted the claim of the assessee company to 50% of the total expenditure. In appeal, the CIT(A) further reduced and restricted the addition made by the AO to Rs. 1.21 lakhs on account of failure to establish the expenditure fully to the extent claimed in the profit and loss account. 5.14 At the outset, ld. CIT-DR submitted that the coordinate bench of the Tribunal in assessee's own case for A.Y. 2008-2009 in ITA No. 05/BLPR/ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Respectfully following the above observations of the coordinate bench of the Tribunal, we do not see any reason to interfere with the findings recorded by the ld. CIT(A). Thus, this ground raised by the assessee is dismissed. Ground No. 3: Disallowance of repair and maintenance expenditure on assets not belonging to company (roads etc.) 5.16 Ld. AR before us submitted that the assessee incurred an aggregate sum of Rs. 954.62 lakhs on assets not belonging to the assessee. The operational area of the assessee stretches across vast landscapes, roads, tunnels, culverts, lights etc. belonging to the State Government pass through such area which are extensively used by the assessee for the purpose of its business. As the roads, etc. are vital to the operations of the assessee, the said roads etc. are maintained by the assessee depending upon requirement. The benefit of such maintenance ensures to the business of the assessee inasmuch that it results in faster and smooth movement which is essential considering the vast area over which the operations of the assessee are carried out. Such expenses are dully accounted for and approved by the CAG. In this regard, ld. AR referred ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... "The amount of Rs. 50,000 was contributed by the assessee under the Sugarcane Development Scheme towards meeting the cost of construction of roads in the area around the factory. Now, there can be no doubt that the construction of roads in the area around the factory was considerably advantageous to the business of the assessee, because it facilitated the running of its motor vehicles for transportation of sugarcane so necessary for its manufacturing activity. It is not as if the amount of Rs. 50,000 was contributed by the assessee generally for the purpose of construction of roads in the State of Uttar Pradesh, but it was for the construction of roads in the area around the factory that the contribution was made and it cannot be disputed that if the roads are constructed around the factory area, they would facilitate the transport of sugarcane to the factory and the flow of manufactured sugar out of the factory. The construction of the roads was, therefore, clearly and indubitably connected with the business activity of the assessee and it is difficult to resist the conclusion that the amount of Rs. 50,000 contributed by the assessee towards meeting the cost of con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e to the fact that the assessee has made the contribution of Rs. 3.57 crores during the relevant previous year to Burdwan Zilla Parishad for the purpose of up-gradation/construction of a link road from its mines at Sarasthali to the Barabani railway station in order to facilitate transportation of coal mined so that the business of the assessee could be conducted more efficiently and profitably. There is also no dispute to the fact that the said road is a public road and belongs to the Burdwan Zilla Parishad and the assessee is not owner of the road. In view of the settled position on the issue, we find that the sum of Rs. 3.57 cr. incurred during the relevant previous year by the asses 'see towards contribution for up-gradation/construction of the link road belonging to the Burdwan Zilla Parishad is allowable as revenue expenditure in the year under appeal having been incurred wholly and exclusively for the purpose of the business of the Company. We, accordingly, uphold the order of CIT(A) allowing the claim of deduction of the sum of Rs. 3.57 cr. as revenue expenditure. This issue of the revenue's appeal is dismissed." 97. We are of the view that the issue i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not filed by assessee and this fact has not been controverted by the Ld. AR before us. We find that in order of Tribunal (supra) in paras 107 to 112 had similarly remitted this issue back to the file of Assessing Officer. The relevant findings of Tribunal are as under:- "112. We have perused the case records and heard the rival contentions. The records suggest that no documentary evidences as called for by the Assessing Officer were filed by the assessee to prove the genuineness of the transactions. The Assessing Officer is not definitely an Authority to say to the assessee how to run its business but at the same time the Assessing Officer is a responsible custodian of Revenue to examine, consider or judge the various aspects of the expenditure claimed by the assessee to come to the conclusion whether expenditure has been incurred wholly and exclusively for, business purposes or otherwise even partial. In the absence of complete and verifiable details, the Revenue Authorities cannot verify the genuineness of transactions of a particular expenditure which has happened exactly in the present case. The Ld. AR of the assessee submitted that TDS has been deducted u/s. 194C of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd genuineness of the transactions with regard to ESM companies, the assessee has not furnished requisite details before the Assessing Officer and that for the reasons as opined by the Hon'ble Delhi High Court, the power to call for details is an inherent power with the Assessing Officer within the scheme of Income Tax Act. That further the claim of TDS deduction u/s. 194C of the Act by the assessee, no evidence was furnished before us to demonstrate the payment of taxes after TDS deduction. In view of the matter, we set aside the order of the Ld. CIT(Appeals) on this issue and restore the matter back to the file of Assessing Officer to verify whether necessary TDS have been deducted and other issues, regarding the genuineness of the transactions. Needless to say the Assessing Officer shall grant reasonable opportunity of hearing to the assessee in accordance with law and adjudicate the issue afresh. The assessee is directed to furnish requisite documents /details before the Assessing Officer as called for by the Assessing Officer. In case, the assessee fails to furnish necessary documents, the Assessing Officer shall be at liberty to decide the issue as per materials a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... provisions of Section 43B(f) of the Act and accordingly he disallowed and added the same to the total income of the assessee. In appeal, the ld. CIT(A) observed that in view of the statutory provisions of section 43B(f) of the Act and in view of the pendency of the civil appeal before the Hon'ble Supreme Court challenging the judgment of Hon'ble Calcutta High Court wherein the provisions of the Section 43B(f) being arbitrary are struck down, the AO is justified in denying provision for leave encashment as admissible expenditure and upheld the view taken by the AO. The Hon'ble Supreme Court also decided the issue in favour of the revenue in the case of Union of India Vs. Exide Industries limited, reported in (2020) 425 ITR 1 (SC) holding therein that, "an employer seeking deduction from tax liability in advance, in name of discharging liability of leave encashment, without actually extending such payment to employee as and when time for payment arises may lead to abhorrent consequences, it is this mischief clause (f) of section seeks to subjugate and thus is constitutionally valid". Therefore, considering the prayer of the assessee and in view of the judgment of the Hon'ble Supreme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and officials etc. who have utilized the guest house. 3 That on the facts and in the circumstances of the case, the learned CIT(A) erred in law and on fact in deleting the addition amounting to Rs. 6796.88 lakhs which had been made by disallowing the expenditure incurred on social overheads (fuel & Power) in spite of the facts on record that the assessee company failed to furnish the mode of electricity charges recovered from the employees, furnish types of quarters, electricity points in each type of quarter, rates of electricity per unit charged by CBDT and recovered from the employees before the AO 4. That on the facts and in the circumstances of the case, the learned CIT(A) erred in law and on fact in deleting the addition amounting to Rs. 1570. 23 lakhs which had been made by disallowing the expenditure incurred on grant of schools and educational institutions in spite of the facts on record that during the course of assessment proceedings the assessee company failed to furnish the break up of the above expenses. It is also pertinent to mention here that the assessee company also failed to explain whether the above expenses were in lieu of reimbursement of tuit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oal itself being durable in nature cannot be debited to the profit & loss account. Further, the assessee has made provision to the future removal of overburden and the provision made is not crystallized into the liability and also to devoid of any particular year. 10. That the Ld CIT(A)'s order being erroneous, perverse and contrary to the facts on record, the same may be reversed while that of the AO restored. 11. That the appellant Assessing Officer reserves the right to amend, modify or add any of the grounds of appeal preferred. 6.2 Though the revenue has raised as many as 11 grounds of appeal in Form 36, however, ld. CIT-DR has argued that the ld. CIT(A) has erred in deleting the following additions/disallowances :- i) Disallowance of community Development Expenditure; ii) Disallowance of Guest House Expenses; iii) Disallowance of expenditure on assets not belonging to company (roads etc.); iv) Addition made on coal transportation expenses paid to ESM companies; v) Disallowance of social overheads fuel & power; vi) Disallowance of grants to schools and institutions; vii) Disallowance of welfare expenses-LPG; viii) Provision for land reclamati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .05.2019, have allowed the issue in favour of the assessee, rendering the following observations :- 54. We have heard the rival contentions and perused the record. We find that the issue of allowance of expenditure towards Community Development is squarely covered by the decision of Nagpur Bench of Tribunal in the case of South Eastern Coalfields Ltd. Vs. JCIT in ITA Nos.18 to 22/Nag/2001, for assessment years 1989-90, 1990-91, 1994- 95, 1995-96 and 1996-97, order dated 28.02.2002. The Tribunal has deliberated on this issue vide paras 18.1 to 18.6 and decided the issue in favour of assessee by holding as under: "18.4. We have considered the rival submissions and also perused the relevant material on record, We have also gone through the various case laws cited by the learned representatives of both, the sides. It is observed that the expenditure incurred by the assessee-company for providing basic amenities like road widening, street lighting, better drinking water facilities, etc. for the residential areas in and around the company's area of operations in which mainly the workers of the assessee-company were residing, was disallowed by the AO considering that the same has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fore the Hon'ble Jurisdictional High Court in ITA No. TAXC/11/2020 against the order of ITAT in ITA No. 22/JAB/2002 dated 10th May, 2019 and the same has been admitted for adjudication, however, no specific direction are issued pertaining to the issue, therefore, till the issue is decided by the Hon'ble High Court, the decision of Tribunal following the principle of consistency shall prevail and thus, has been followed. Ground No. 2: Disallowance of Guest House Expenses 6.8 This issue has already been decided by us while deciding the ground No. 2 in appeal of the assessee in ITA No. 201/BIL/2012(supra) for the assessment year 2009-2010, wherein we have held that the disallowance made by Ld AO was restricted by the ld. CIT(A), is just and proper which does not require any interference. Therefore, following the reasoning given by us in the case of the assessee for A.Y. 2009-2010 above, we also uphold the findings recorded by the ld. CIT(A) in restricting the addition made by the AO on account of the expenditure claimed by the assessee on guest house, this ground of revenue is dismissed in terms of our aforesaid observations. Ground No. 3 Disallo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e and canteens, office consumption, pumps and filtration plants, parks and gardens, etc. These expenses also include expenses incurred on electricity supplied to the residential quarters of its employees. With regard to electricity provided to the residential quarters of the employees, ld. AR of the assessee submitted that as per National Coal Wage agreement entered from time to time, executive and nonexecutive employees, 1 % of basic salary (after allowing a deduction of Rs. 100 from basic monthly salary / wage) is deducted as cost of electricity supplied to their residence as this is as per the terms of the employment. Accordingly, ld. AR submitted that the claim of the deduction under this head mainly pertains to the electricity expenditure incurred on common areas of township as mentioned above. The AO found that the quantum of non-business expenditure on this account will be less than 50% of total claim. Accordingly, he disallowed 50% of the total expenditure claimed under this head. It is further submitted by the ld. AR that the decision of the ld. CIT(A) of deleting the entire addition does not require any interference. The Assessee also recovers 1 % of basic salary tow ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s instead of 50% disallowed by him. We therefore direct accordingly. Thus, the ground No. 3 raised by Revenue is partly allowed. 6.12 In view of the observations made by the coordinate bench of the Tribunal above, we are of the opinion that the disallowance of 50% made by the AO is on higher side which is restricted to 25%. The CIT(A) has not discussed the issue in detail and only relied on its earlier order and allowed the claim of the assessee, which in our opinion, is not justified and sustainable. Accordingly, we set aside the order of CIT(A) and restrict the disallowance to 25% as against 50% made by the AO. Thus, we partly allow this ground of revenue. 6.13 Apropos, status of the issue pertaining to social overheads-fuel and power, the department has preferred an appeal before the Hon'ble Jurisdictional High Court in ITA No. TAXC/23/2020 against the order of ITAT in ITA No. 03/BLPR/2012 for the A.Y. 2008-09, however, the admission of the same was not reflected on the website of Hon'ble High Court as on 31st July, 2023, therefore, till the issue is admitted and decided by the Hon'ble High Court, the decision of Tribunal following the principle of consist ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt year 2002-03. Further, the Ld. CIT(A) observed that this issue has been decided in favour of Western Coalfields Limited in its order ITA No. 486/NAG/1996 dated 04.04.2002 for the assessment year 1992-93. Aggrieved by the order of CIT(A), Revenue is now in appeal. 66. Before us, Ld. DR supported the order of Assessing Officer. 67. The Ld. AR on the other hand reiterated the submissions made before lower authorities and further submitted that this issue is squarely covered by the decision of the Co-ordinate Bench of the Tribunal, Nagpur in ITA No. 18/Nag/2001 &Ors dated 18.02.2002 in favour of the assessee. He thus supported the order of CIT(A). We have perused the case records and heard the rival contentions. We find that the similar issue has been faced by the Co-ordinate Bench of the Tribunal and this issue was decided in favour of the assessee by the Tribunal in the case mentioned aforesaid (supra.) by observing as under: "13.3. The learned Departmental Representative has contended before us that only the contribution made towards the recognised provident fund, approved gratuity fund or superannuation fund is an allowable expenditure, but the expenditure inc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 6.16 Apropos, status of the issue pertaining to grants to schools and institutions, the department has preferred an appeal before the Hon'ble Jurisdictional High Court in ITA No. TAXC/23/2020 against the order of ITAT in ITA No. 03/BLPR/2012 for the A.Y. 2008-09, however, the admission of the same was not reflected on the website of Hon'ble High Court as on 31st July, 2023, therefore, till the issue is admitted and decided by the Hon'ble High Court, the decision of Tribunal following the principle of consistency shall prevail and thus, has been followed. Ground No. 5: Disallowance of welfare expenses-LPG: 6.17 Both the parties submitted that this issue has been decided by the coordinate bench of the Tribunal in assessee's own case in ITA No. 187/JAB/2008 & Ors, wherein specifically this issue was dealt with in A.Y. 2008-2009 in ITA No. 03/BLPR/2012, order dated 06.11.2019, wherein the Tribunal has dismissed this ground of revenue after having the following observations :- 74. We have perused the case records and heard the rival contentions. We have also given considerable thought to the findings of the Ld. CIT(A). We find that as per the Nat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 003-2004, has allowed this issue in favour of the assessee. In view of the above, we are of the opinion that the assessee is eligible for deduction of expenses incurred on the assets not belonged to the assessee. This ground of appeal of the revenue is dismissed in terms of our observations in ground No. 3 of the assessee's appeal in ITA No. 201/BIL/2012 for the assessment year 2009-2010. Ground 7: Provision for land reclamation/Exp. On reclamation of mining land & disallowance of expenditure on plantation of trees: 6.21 Both these issues are raised in ground No. 7 of the appeal by revenue which have already been decided by the Tribunal in assessee's own case in ITA No. 187/JAB/2008 & Ors, wherein specifically these issues were dealt with in A.Y. 2008-2009 in ITA No. 03/BLPR/2012, order dated 06.11.2019, wherein the Tribunal has rejected the claim of revenue raised under this ground after having the following observations :- "77. The issue raised in ground No. 7 is with regard to disallowance of expenses on trees plantation and others. 78. Brief facts relating to the issue are that the assessee had claimed a sum of Rs. 650.94 lakhs an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... decided by the Hon'ble High Court, the decision of Tribunal following the principle of consistency shall prevail and thus, has been followed. Ground No. 8: Coal transportation expenses paid to ESM companies: 6.24 This issue has already been considered by us while deciding the appeal of the assessee in Ground No. 4 wherein we have remitted the issue to the file of AO for determining the allowability of expenses in view of the direction given in the earlier orders of the Tribunal as stated supra. Thus, this ground of revenue is allowed for statistical purposes in terms of our observations in ground No. 4 of the assessee's appeal in ITA No. 201/BIL/2012 for the assessment year 2009-2010. Ground No. 9: Disallowance of claim for OBR adjustment. 6.25 The ground No. 9 of revenue's appeal have already been decided by the Tribunal in assessee's own case in ITA No. 187/JAB/2008 & Ors, wherein specifically these issues were dealt with in A.Y. 2008-2009 in ITA No. 03/BLPR/2012, order dated 06.11.2019, wherein the Tribunal following the decision of the Jabalpur Bench of the Tribunal in the case of Northern Coalfields Ltd., reported in 59 taxman ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... penditure eligible only for amortization under section 35D. In any case, there is nothing on record to establish, or even suggest, that expenses incurred on removal of overburden at the surface level, which were capital expenditure in nature, have been claimed as revenue deduction on the strength of coal mining in another piece of land within that coal mine. 41. In view of these discussions, as also bearing in mind entirety of the case, we consider it fit and proper to direct the Assessing Officer to delete the disallowance of Rs 2,05,616.72 lakhs. The assessee gets the relief accordingly." Respectfully following the same parity of reasoning as rendered in the above-mentioned decision (supra), we decide this issue in favour of assessee and against the Revenue. We further find that the expenditure was allowed by Revenue to the assessee in the past. Thus, the ground No. 9 raised by the Revenue is dismissed. 6.26 Respectfully following the above observations of the Tribunal, this ground of revenue is dismissed. 6.27 Apropos, status of the issue pertaining to claim for overburden removal adjustment, the department has preferred an appeal before the Hon'ble Jurisdictional ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ere provision and not actual expenses and, therefore, he disallowed the same. On first appeal, the action of the AO was upheld by the Ld CIT(A). 7.4 Ld AR of the assessee submitted that the assessee had created provision towards fatal accident under the actuarial valuation. Similar, provisions were created in subsequent years for the liabilities towards employee benefits payments being part of the employees' compensation. He also referred to the Workmen Compensation Act, 1923 enacted by the Parliament which is inter alia, applicable for the Coal Industries. Referring to Section 3 of Chapter-II of the said Act, which contains details of the liability of the employer and compensation and also section 4 of the said Chapter, which enumerates that the amount of compensation, payable by the employer, he submitted that the provision for compensation made by the assessee is as per the provisions of the Act. He also submitted that on fatal accidents, the National Coal Wage Agreement VIII (NCWAVIII) provides for payment of Rs. 45,000/- over and above the amount payable under Workmen Compensation Act. Further, on the Coal India Foundation Day ceremony held on 1st November, 2007, the Hon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e deduction." 7.5 To support the aforesaid arguments, Ld AR, relied on the following judicial pronouncements: i) CIT vs Insilco Ltd, (2009) 320 ITR 322 (Delhi) ii) Rotork Controls Ltd vs CIT, (2009) 314 ITR 62 (SC) follows Metal Box India Ltd. (73 ITR 53 (SC), iii) PCIT vs Nokia India Pvt Ltd., [2018] 98 taxmann.com 415(Delhi) iv) DCIT vs PFC Ltd (ITA No. 50/Del/2014) order dated 13.5.2016 v) The Tinplate company of India ltd vs DCIT (ITA No. 1070/Kol/2018) vi) Bharat Earth Movers vs CIT, (2000) 245 ITR 428 (SC) 7.6 The Ld. AR also submitted copy of sample actuarial report in support of contention that the company is following scientific basis for valuation of the liability. 7.7 In reply, ld CIT DR supported the orders of the lower authorities. He further submitted that since this was a provision and not actual payment, thus cannot be allowed under the settled position of law. 7.8 We have considered the rival submissions. It is not in dispute that the assessee has created the provision towards fatal accident under the actuarial valuation done by Coal India Limited, i.e., the parent entity of the assessee. To examine the scope of admissibility of a p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d its present value is fairly discounted is deductible from the gross receipts while preparing the P&L a/c. It is recognised in trading circles and we find no rule or direction in the Bonus Act which prohibits such a practice." 6. In the case of Shree Sajjan Mills Ltd. (supra), the Supreme Court was examining the provision made by the assessee towards gratuity under the IT Act, 1961. The Supreme Court, after noticing the judgment in Metal Box Company (supra), crystallized its analysis at p. 599 and made the following observations : "It would thus be apparent from the analysis aforesaid that the position till the provisions of s. 40A (7) were inserted in the Act in 1973 was as follows : 1 to (4) .............. 5 Provision made in the P&L a/c for the estimated present value of the contingent liability properly ascertained and discounted on an accrued basis as falling on the assessee in the year of account could be deductible either under s. 28 or s. 37 of the Act." 7. The Division Bench of this Court, while considering deductibility of a provision for warranties made by an assessee, which dealt in computers in the case of CIT vs. Hewlett Packard India (P) Ltd. by its judg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nate with the entitlement earned by the employees, was entitled to deduction out of gross receipts for the accounting year during which the provision is made for that liability. The principle which emerges from these decisions is that if the historical trend indicates that large number of sophisticated goods were being manufactured in the past and in the past if the facts established show that defects existed in some of the items manufactured and sold then the provision made for warranty in respect of the army of such sophisticated goods would be entitled to deduction from the gross receipts under Section 37 of the 1961 Act. It would all depend on the data systematically maintained by the assessee. It may be noted that in all the impugned judgments before us the assessee(s) has succeeded except in the case of Civil Appeal Nos. of 2009 - Arising out of S.L.P.(C) Nos.14178-14182 of 2007 - M/s. Rotork Controls India (P) Ltd. v. Commissioner of Income Tax, Chennai, in which the Madras High Court has overruled the decision of the Tribunal allowing deduction under Section 37 of the 1961 Act. However, the High Court has failed to notice the "reversal" which constituted part of the data sy ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng to disallowance of provision created on account of actuarial valuation of employee's compensation on fatal accident, after going through the aforesaid decision placed by the Ld. AR in support of assessee's contention to allow the provision made during the year based on actuarial valuation report. On perusal of the judgment in the case of Insilco (supra) and Rotork (supra), it is observed that both these judgments have followed the judicial principle laid down by the Hon'ble Apex Court in the case of Bharat Earth Movers Vs. CIT, (2000) (supra) and Metal Box India Ltd. (1969) (supra). Both these judgments were passed prior to 1st April, 2002 i.e. effective date of the insertion of clause (f) in Section 43B of the IT Act, 1961 . Clause (f) of Section 43B was discussed and deliberated upon by the Hon'ble Apex Court in the case of Union of India vs M/s Exide Industries Ltd. (2020) 425 ITR 1 (SC), wherein the judgment in the case of Bharat Earth Movers (supra) was also considered and finally has laid down ruling that after the amendment in Section 43B effective from 2002, the payment for the benefit of employees payable by the assessee as an employer in lieu of any leave at the credit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... purpose of clause (f). 32. At the outset, we observe that both the grounds are ill founded. In the basic scheme of Section 43B, there is no direct or indirect limitation upon the power of legislature to include only particular type of deductions in the ambit of Section 43B. To say that Section 43B is restricted to deductions of a statutory nature would be nothing short of reading the provision in a purely imaginative manner. As already discussed above, from 1983 onwards, Section 43B had taken within its fold diverse nature of deductions, ranging from tax, duty to bonus, commission, railway fee, interest on loans and general provisions for welfare of employees. An external examination of this journey of Section 43B reveals that the legislature never restricted it to a particular category of deduction and that intent cannot be read into the main Section by the Court, while sitting in judicial review. Concededly, it is a provision to attach conditionality on deductions otherwise allowable under the Act in respect of specified heads, in that previous year in which the sum is actually paid irrespective of method of accounting. 33. Further, it be noted that the broad objective of e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... esent issue in the hand i.e. provision for employee compensation of fatal accident. Accordingly, we are of the considered view that provision made for employee's compensation on fatal accident on the basis of actuarial valuation should be allowed in the year of actual payment. Since the details pertaining to actuarial valuation as well as actual payment of any compensation to employees on fatal accident were not furnished before us, also in order to work out the admissible figure i.e. the amount actually paid, verification of accounting records, working of actuarial valuation and examination of supporting evidence has to be undergone therefore, in all equality the matter merits to be restored back to the file of the A.O to re-adjudicate the issue in terms of our aforesaid observations. Needless to say, the A.O shall in the course of set-aside proceedings afford a reasonable opportunity of being heard to the assessee. Consequently, Ground No. 2 of the assessee's appeal is allowed for statistical purposes. Ground No. 3 : Disallowance of depreciation on Apollo Hospital Building; 7.13 Ld A.R. of the assessee submitted that the assessee had claimed depreciation on building ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion on leased assets". He further submitted that in view of the agreement between SECL and Apollo Hospital, it is clear that SECL is the owner of the building leased to the hospital and is entitled to claim depreciation. The Ld. AR of the assessee placed before us a written submissions marked as "Enclosure M" and the same is extracted as under: "The Assessee claimed depreciation for the above-mentioned years on its hospital building provided to Apollo Hospital for running its hospital. Initially, the assessee itself wanted to set up and run the hospital. accordingly, at the request of the assessee company, the State Government allotted land to it at Lingidiah, Bilaspur only for constructing hospital on 23.01.1990 on lease of 30 years. The Government allotted total 19 acres of land consisting of 12.72 acres for construction of hospital building and 6.28 acres for construction of residential quarters of doctors, nurses, para medical staff and all others, who relate to the hospital. The assessee company decided to approach professionally run hospital group for better achievement of its objectives of providing advanced medical treatment and quality medical care to its employees. I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssessee's point of view is NOT of renting of the property simplicitor but transaction is of transfer of licence to run hospital, which was granted to it by the State Government for better attainment of its objective of providing advanced medical treatment to its employees. 6) For the assessee, renting of property is incidental and consequential. Renting of property is not the assessee company's dominant objective. Providing advanced medical care to its employees to fulfil its obligation under National Coal wage Agreement is its dominant objective under this agreement. 7) Perusal of the different causes of the assessee's rent agreement with Apollo Hospital shows that assessee was primarily interested in proper running of the hospital and not at all on getting return from space rented by it. 8) Attention is invited to clause 5.10 of the agreement, which grants right to access the hospital to the assessee company's Chief Medical Officer, Chief Engineer (Civil) or their authorised representative into the Hospital. 9) The learned AO in none of the assessment orders of any of the years, has assessed rental income as "income from house property". Disallowance o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... these use of these assets or facilities by its employees facilitates efficient conduct of business. On the same ground, Apollo Hospital facilitates assessee company's business smoothly by providing quality healthcare to its employees. Further, for the assessee company, providing hospital facility is not only a welfare measure but mainly fulfilment of its obligation undertaken under the Wage Agreement. The assessee has let out its business asset of hospital building to be used as hospital building for the purposes of its business. Hence, rental income received for fulfilling its business purpose is assessee's business income. Reliance is placed on following decisions: * CIT v National Newsprint & Paper Mills Ltd [(1978) 114 ITR 388 (MP)] * CIT v Mcleod & Co Ltd [(1993) 203 ITR 290 (Calcutta)] * Vyline Glass Works Ltd v ACWT [(2012) 20 taxmann.com 32 (Chennai)] Argument 4 TDS made by the Hospital u/s 194I is not relevant for deciding head of Income of the receipt in the hands of the recipient. In the following cases, Income was assessed as "income from Business" even though the payer had deducted tax under section 194 I. This is because, section 194 I r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rongly supported the orders of the AO and ld CIT(A). He submitted that the rent being paid by M/s. Apollo Hospital is shown as business income and not income from house property. He placed reliance on the decision of Hon'ble Karnataka High Court in the case of CIT vs D.R. Puttanna Sons Pvt Ltd., 162 ITR 468. He also relied on the decision of the Hon'ble Madras High Court in the case of CIT vs Ideal Garden Complex Pvt Ltd., 340 ITR 609 (Mad), wherein, it is held that depreciation claimed on the hospital buildings is not admissible deduction. He urged that the addition made by the AO is worthy to be confirmed. 7.16 We have considered the rival submissions. In the present case, the assessee company had leased out the building for a period of 30 years to M/s. Apollo Hospital for treatment of its employees and dependent. On perusal of the assessment order as well as the lease deed, we observe that the assessee company is the licensor having absolute possession of all the place and parcel of land about 19 acres together with building and other construction thereon including additional construction and other super structures under construction at Lingiah, Bilaspur. The licensor had partl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... circumstances, we are of the considered view that the license fee is in the nature of rental income earned by the assessee and therefore, the same should be charged for tax under the head "income from house property". Our view is supported by the view of Hon'ble Apex Court in the case of Universal Plast Limited Vs. CIT, (supra). Accordingly, the decision of the Ld. CIT(A) with respect to disallowance of depreciation on Apollo Hospital building is justified and thus, needs no interference. Thus, ground of appeal No. 3 is dismissed so far as disallowance of depreciation on Apollo hospital building is concerned, in terms of our aforesaid observations. 7.17 Before parting with, we are adverting to the alternative prayer of the assessee pertaining to granting of consequential relief wherein it was the plea of the assessee that alternatively if the assessment of rent receipt from Apollo hospital as "income from house property" is upheld then the Ld. AO may be directed to grant consequential relief of 30% standard deduction of income from house property. Reliance was placed in the case of CIT Vs. Ramnath Goyenka, 2001, 252 ITR 653, 654 ( Mad.) wherein, it has been held that the Tri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... IT in ITA No. 475/Nag/2007 dated 10.8.2009, wherein, it is held that the nature of the expenditure as compensation in lieu of employment. To support his arguments, he also relied on the decision of the Co-ordinate Bench of Cuttack Tribunal in the case of NALCO vs DCIT, 110 TTJ 948 (CTC), Hon'ble Delhi High Court in the case of Airport Authority of India vs CIT, 340 ITR 407(Del) and the decision of Hon'ble Calcutta High Court in the case of Shyam Burlap Co Ltd., 380 ITR 151 (Cal). 7.19 In reply, ld CIT DR submitted that since the payment was connected with the acquisition of land, hence, the AO was right in treating the expenditure as capital in nature. He dutifully supported the order of the ld CIT(A). 7.20 We have considered the rival submissions. A perusal of the orders of the lower authorities shows that the assessee had incurred the expenditure on account of land revenue as compensation paid to displaced persons in lieu of their employment. For smooth functioning of the assessee's business the assessee has to incur such expenses on a continuing basis and, therefore, the expenditure incurred by the assessee is revenue in nature. The Full Bench of the Hon'ble Delhi High Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f India, (supra) and Shyam Burlap Company Ltd. Vs. CIT (supra), we are of the opinion that if the amounts have been incurred by the assessee and these are admissible deduction being arisen out of business necessity and commercial expediency, thus, the same is to be allowed as revenue expenditure. However, on perusal of the order of Ld. CIT(A) in Ground No. 8, it was the observation that before A.O, the assessee has submitted that the expenditure was incurred on account of acquisition of land. When the issue was discussed and deliberated before the Ld. CIT(A), the Ld. AR of the assessee submitted that certain rehabilitation expenses and resettlement cost incurred for concerned displaced persons and other expenditure incurred on acquisition of land like compensation in lieu of employment and same are treated as revenue expenditure. From such facts coming out from the orders of the revenue authorities, it is not clear whether the expenditure booked under the head "miscellaneous expenditure" was for acquisition of land or towards compensation in lieu of employment. This aspect needs to be examined. Therefore, in the interest of natural justice, the issue demands and justifies bein ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ds upon making a demand and its acceptance by the assessee and such liability has been actually claimed and paid in the later previous years, it cannot be disallowed as deduction merely on the basis that the accounts are maintained on mercantile basis and that it relates to a transaction of the previous year. The true profits and gains of a previous year are required to be computed for the purpose of determining tax liability. The basis of taxing income is accrual of income as well as actual receipt. If for want of necessary material crystallizing the expenditure is not in existence in respect of which such income or expenses relate, the mercantile system does not call for adjustment in the books of account on estimate basis. It is actually known income or expenses, the right to receive or the liability to pay which has come to be crystallized, which is to be taken into account under the mercantile system of maintaining books of account." In the case of Commissioner of Income Tax Vs. Modipon Ltd. (2011) 334 ITR 102 (Delhi) wherein it has held that "had this expense were booked in earlier year, the assessee would have paid lower taxes. In any case, there is no loss of revenue" ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he expenses u/s. 40(a)(ia) of the Act on the ground that the assessee have not deducted tax at source on said expenses. The CIT(A) in appeal confirmed the order of the AO and stated that the amendment in Section 40(a)(ia) of the Act was brought in Finance act, 2012 and, hence, it is applicable from the 1st April, 2013 and accordingly, it is prospective rather than retrospective in nature. Ld. CIT(A) also stated that, otherwise also, the assessee failed to furnish the proof that the deductees, who have filed their respective income tax return u/s. 139 of the Act and, they had considered such income for computing their total income in their income tax return and have paid tax due on such income declared by them. 7.29 Ld. AR before us submitted that it is trite law that where a provision is curative or merely declaratory/clarificatory of provisions of law shall be applied retrospectively. Accordingly ld. AR submitted that in the interest of justice the assessee company's claim may be accepted or, alternatively the assessee may be granted an opportunity to furnish requisite evidence before the ld. AO that the deductees have filed their respective income tax return u/s. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... apital receipt. During the course of assessment proceedings, the AO noticed that the liquidated damages received from various parties is compensation for the loss of profit during to belated supply of the machineries and hence, the AO treated the same as revenue in nature. It was also noted by the AO that the assessee did not provide nature and details of the liquidated damages penalty received and the assessee could not explain as to how late delivery of machinery delayed its production. The ld. CIT(A) confirmed the findings of the AO observing that the assessee could not file any documents to substantiate the fact that the liquidated damages are capital in nature. 7.35 On perusal of the assessment order as well as appellate order along with the written submission filed by the assessee in the paper book marked as Enclosure-O, it is discernible that the assessee neither during the course of assessment proceedings nor before the ld. CIT(A) has provided any documents to substantiate its claim that the liquidated damages are capital in nature. Even before the Tribunal, ld. AR has only relied on the case laws and findings therein, the same is extracted as under: "D. Assessee's argum ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rting documents as to how the liquidated damages are capital in nature, and since many of the other grounds in the present appeals are being restored to the file of the A.O in the interest of justice, we find it appropriate to provide the assessee one more opportunity to substantiate its claim by submitting relevant information/ evidence before the A.O., with the direction to Ld. AO to re-adjudicate the issue in light of our observations. Needless to say, the A.O shall in the course of set-aside proceedings afford reasonable opportunity of being heard to the assessee. Thus, ground No. 10 raised by the assessee is allowed for statistical purposes in terms of our aforesaid observations. Ground Nos. 11 & 12 : Short grant of TDS & TCS credit without any explanation and levy of interest u/s. 234 B,C,D of the Act. 7.37 The issues are with regard to short grant of TDS/TCS credit without any explanation and levy of interest u/s. 234B, 234C & 234D of the Act are consequential in nature, which do not need separate adjudication. 7.38 In the result appeal of the assessee in ITA No. 401/BIL/2014 for A.Y. 2010-11 is partly allowed for statistical purposes in terms of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt of expenditure on grant to school and institutions. This ground of revenue is similar to the ground No. 4 raised by the revenue in its appeal for A.Y. 2009-2010 in ITA No. 204/BIL/2012, wherein we have dismissed this ground of revenue after following the reasoning and observations given by the coordinate bench of the Tribunal in ITA No. 18/NAG/2001, order dated 18.02.2002. In view of the above, we also respectfully following the same, dismiss this ground of revenue and uphold the findings given by the ld. CIT(A) in this regard. Ground No. 4 : addition on account of social overheads, expenditure on power and fuel 8.5 This ground relates to deleting the addition made on account of social overheads, expenditure on power and fuel. This ground of revenue is similar to the ground No. 3 raised by the revenue in its appeal for A.Y. 2009-2010 in ITA No. 204/BIL/2012, wherein we have restricted the disallowance to 25% as against 50% made by the AO. Respectfully following the reasoning given in the appeal of revenue in A.Y. 2009-2010, this ground of revenue is partly allowed. Ground No. 5 : addition made on account of corporate social r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e claim of expenses under the head CSR. However, while the information pertaining to name, address and TDS in respect of CSR was called for, no such details were furnished by the assessee. The Ld. AO further stated that under such circumstances, veracity of expenses remained unconfirmed, the reliability of expenses incurred under the head CSR was also doubtful. With all such observations, the claim of the assessee was not allowed by the A.O. On perusal of appellate order, it is not discernible as to whether ld. CIT(A) has verified the required documents, which were sought by the AO during the course of assessment proceedings, which was the main cause for the disallowance. Therefore, we cannot take the finding of Ld CIT(A) on proper examination and appreciation of the facts, thus are unable to endorse the view taken by the ld. CIT(A) on the basis of theoretical submissions of the assessee in deleting the disallowance made by the AO without addressing the issues raised by A.O while making the addition under the head in doubt. Accordingly, we left with no option but to restore this issue to the file of AO for verification and examination of the issue afresh and the assessee is directe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 9.1 This appeal is filed against the order of Ld. CIT(Appeals), Bilaspur dated 23.12.2016 in turn arising from the order of the Ld. AO i.e. ITO, Circle-1(1), Bilaspur u/s. 143(3) r.w.s.147 dated 30.07.2015. The Grounds of appeal raised by the assessee are as under: "1(a) That on the facts and in the circumstances of the case, the Learned Commissioner of Income Tax (Appeals) ['Ld. CIT(Appeals)'] has erred in not appreciating that the order passed by the Learned Assessing Officer ('Ld. AO') under section 143(3)/147 of the Income Tax Act. 1961 (Act') dated 30 July 2015 was bad in law, void ab initio and liable to be struck down. 1(b) That on the facts and in the circumstances of the case, the Ld. AO erred in initiating the reassessment proceedings on mere change of opinion, based on the information/ materials relating to depreciation which was already furnished to the Ld. AO during the course of the original assessment proceedings itself and therefore, the order passed by the Ld. AO under section 143(3)/147 of the Act is erroneous, law, void ab initio and liable to be struck down. 2(a) That on the facts and in the circumstances of the case, the Ld. CIT ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... micals Ltd v DCIT [(2014) 367 ITR 405 (Bom)] (Para 14) * Monarch & Quershi Builders v UO! [(2021) 133 taxmann.com (Bom)] (Para 13) * Pfizer Ltd V ACIT [(2022) 134 taxmann.com 97 (Bom)] (para 4) * Commissioner of Income Tax v Rubix Trading (P.) Ltd [(2019) 108 taxmann.com 177 (SC)). Change of opinion on reappraisal of same facts The reasons to believe provided to the assessee [Page 1-2 of Supplementary PB filed on 28 October 2019] refer to details of additions in plant and machinery and additional depreciation claimed thereon provided by the assessee company before the AO during assessment proceedings. It is settled that for taking an action under section 147 of the Act, it is vital for the Assessing Officer to have valid reason(s) for reopening an assessment and such reasons should not be based on mere change of opinion. Further reliance is also placed on Rasalika Trading and Investment Company Private Limited Vs DCIT [(2014) 365 ITR 447] wherein the Hon'ble Delhi High Court held that re-assessment proceedings cannot be initiated based upon stale information which was available at the time of the original assessment proceedings u/s 143(3). Assessee's duty ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Newspaper Society vs CIT [(1979) 119 ITR 996 COL A Ground 1: Disallowance of additional depreciation on merits The Assessee has claimed additional depreciation u/s 32(1)(iia) of the Act on Caterpillars and 240 Tonne Dumpers treating them as machineries. Items like Caterpillars or 240 tonne Dumpers have special tyre adopted for use in the enclosed premises of the mining areas only. Therefore, as per the provisions of the Motor Vehicles Act 1988, these items as described are not vehicles within the ambit of the Motor Vehicles Act 1988. The dumpers have specialised tyres called 'Off the Road' (OTR), which are not fit for using in regular roads. Section 2(28) of the Motor Vehicle Act reads as: "motor vehicle" or "vehicle" means any mechanically propelled vehicle adapted for use upon roads whether the power of propulsion is transmitted thereto from an external or internal source and includes a chassis to which a body has not been attached and a trailer; but does not include a vehicle running upon fixed rails or a vehicle of a special type adapted for use only in a factory or in any other enclosed premises or a vehicle having less than four wheels fitted with engine capacity ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2007) 294 ITR 310 (Delhi)] copy placed as Attachment D7 * JCIT v Cognizant Technology Solutions India Pvt Ltd [TS-06-SC-2023] dated 03.01.2023 copy placed as Attachment D8 * CIT vs. Gotan Lime Stone Khanij Udyog [(2008) 299 ITR 0368 (Raj HC)] copy placed as Attachment D9 . * Commissioner of Income Tax Vs. Bajrang Enterprises [(2004) 134 Taxman 0659 (Mad HC)] copy placed as Attachment D10 * Commissioner of Income Tax Vs. Sibson Construction & Co. [(1 997) 90 Taxman 0175 (Gauhati HC)] copy placed as Attachment D11 * Agrawal Flooring Stone Co Vs. CIT (1995) 216 ITR 757 ( Raj.) Copy placed as Attachment D12 * ITO v Ghuge & Co (1993) [47 TTy 33 (Pune)} 9.4 While submitting the aforesaid written submissions the Ld. AR further drew our attention to Page 166 of the paper book containing questionnaire dated 16.10.2012 issued by the A.O during the original assessment proceedings u/s. 143(3). According to question No. 54 and 55, the A.O has specifically asked following queries: "54. Please refer to Annexure 5 of TAR. Considering the fact that assessee in the business of coal mining please justify the higher rate of depreciation on vehicles. 55. Please refer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ns, Ld. AR requested to hold the reassessment proceedings initiated u/s. 147 as bad in law and void ab initio. 9.6 On the other hand, the Ld. CIT-DR vehemently supported the orders of the revenue authorities. 9.7 We have considered the rival submissions, perused the material available on record and case laws placed before us for our consideration. Admittedly, the issue pertaining to disallowance of additional depreciation on caterpillars and Dumpers was reopened and assessed by way of reopening u/s. 147 of the Act and the assessment was done on account of audit objection. The validity of the reopening of assessment has been challenged by the assessee on account of change of opinion including other contentions that if there is no observation by the Ld. AO in the assessment order the same cannot be reason for drawing an adverse opinion against the assessee. The contention of the assessee was that once the material which was the foundation for reopening of assessment was available with the A.O during the original assessment proceedings u/s. 143(3), the same becomes stale information, therefore, based on such information, reassessment proceedings cannot be initiated. W ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Act has categorically mentioned that he has reason that income chargeable to tax has escaped assessment within the meaning of Section 147 of the Act. Consequently, the argument by the Ld. AR based on certain judgments referred to (supra) which are distinguishable from the facts of the present case, accordingly the claim of the assessee that there was change of opinion is not found to be substantiated and thus, the same is rejected. With respect to the contention of the assessee that information available at the time of original assessment proceedings, following the order of Hon'ble Delhi High Court in the case of Rasalika (supra) that the reopening proceedings based upon stale information which was available at the time of original assessment and in fact, appears to have been used by the A.O at the relevant time during the completion of proceedings u/s. 143(3) of the Act, found to be misplaced as in the present case, there was no whisper about the availability and use of such information by the A.O which was the basis for reopening of the assessment, therefore, the ratio of law laid down by the Hon'ble Delhi High Court in the case of Rasalika (supra) cannot rescue the c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the income chargeable to tax has escaped assessment. The reasons recorded by the A.O has no mention about the audit objection; therefore, even if the reopening is prompted by the Audit objection but was based on analysis of information available in the form of audited accounts of the assessee and not merely on the basis of audit objection. Under such circumstances, the plea of the Ld. AR that reassessment proceedings cannot be initiated on the basis of audit objection, does not survive. 9.9 The second contention of the Ld. AR on merits regarding the disallowance of additional depreciation that the Assessee has claimed additional depreciation u/s 32(1)(iia) of the Act on Caterpillars and 240 Tonne Dumpers treating them as machineries. Items like Caterpillars or 240 tonne Dumpers have special tyre adopted for use in the enclosed premises of the mining areas only. Therefore, as per the provisions of the Motor Vehicles Act 1988, these items as described are not vehicles within the ambit of the Motor Vehicles Act 1988. The dumpers have specialised tyres called 'Off the Road' (OTR), which are not fit for using in regular roads. Ld. AR also drew our attention to Section 2(28 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion & Co. [(1997) 90 Taxman 0175 (Gauhati HC)] Agrawal Flooring Stone Co v CIT [1995] 216 ITR 757 (Raj); and ITO v. Ghuge & CO (1993) [47 TTJ 33 (Pune)] 9.12 On the other hand, ld. CIT-DR relied on the orders of the authorities below. 9.13 We have considered the rival submissions, perused the relevant material available on record and case laws relied upon by the assessee. The issue to be decided on the merits is that whether the additional depreciation u/s. 32(1)(iia) is allowable on caterpillers and 240 Dumpers treating them as machineries. To under the applicability of Section 32(1)(iia) of the Act, the provision of the said section from the Act is extracted as under: "In the case of any new machinery or plant (other than ships and aircraft), which has been acquired and installed after the 31st day of March 2005, by an assessee engaged in the of manufacture or production of any article or thing for in the business of generation or generation and distribution of power], a further sum equal to twenty per cent of the actual cost of such machinery or plant shall be allowed as deduction under clause (ii): Provided that no deduction shall be allowed in respect of- (A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... who used dumpers within their mining premises to the effect that the dumpers are vehicles not adapted for use upon roads and, therefore, are outside the Scope of the Taxation Act and held that these dumpers run on tyres, in marked contrast to chain plates like caterpillars or military tanks. It was also held that by the use of rubber tyres it is evident that they have been adapted for use on roads, which means they are suitable for being used on public roads and on the mere fact that they are required at places to run at a particular speed is not to detract from the position otherwise clear that they are adapted for use on roads. The very nature of these vehicles make it clear that they are not manufactured or adapted for use only in factories or enclosed premises. The mere fact that the dumpers or rockers as suggested are heavy and cannot move on the roads without damaging them is not to say that they are not suitable for use on roads. The word 'adapted' in the provision was read as 'suitable' in Bolani Ores Case by interpretation on the strength of the language in Entry 57 List II of the Constitution. On the fact situation, therefore, it must be held that dumpers ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Hon'ble Mumbai High Court Western Coalfields Ltd. (supra) based on the principle of law guided by the Hon'ble Apex Court in the case of Baloni Ors Ltd. (supra) is squarely applicable in the facts and circumstances of the present case. We, thus, hold that the disallowance on account of additional depreciation made by the Ld. AO and confirmed by the Ld. CIT(Appeals) is on right footing and thus, sustained. In the result, Grounds No. 2(a) (b) & (c) are dismissed in terms of our aforesaid observations. 9.16 With regard to request of the assessee qua the consequential depreciation by effecting the requisite changes in WDV in the block of assets when the Dumpers are held as ineligible for additional depreciation, in the interest of substantial justice revenue is duty bound to grant the assessee consequential relief of normal depreciation by computing the closing WDV of the block of assets removing the effect of additional depreciation from the relevant assessment year. 9.17 In the result, appeal of the assessee in ITA No. 162/BIL/2017 (AY:2010-2011) is dismissed in terms of our aforesaid observations. ITA No. 115/BIL/2015 (AY : 2011-2012) (Assessee's Appeal) 10.1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation of revised return 10.4 This issue is with regard to non-consideration of revised return. This ground has not been pressed by the ld. AR, as has been noted in the chart provided before us during the course of hearing. Therefore, we dismiss this ground as not pressed. Ground No. 2: Disallowance of Land Compensation & Rehabilitation Expenses. 10.5 This issue of disallowance of Land Compensation & Rehabilitation Expenses has already been decided by us in favour of the revenue while considering the appeal of the assessee in Ground No. 1 for A.Y. 2009-2010 in ITA No. 201/BIL/2012, wherein we have dismissed the ground of assessee following the reasonings given by the earlier orders of the coordinate bench of the Tribunal. Respectfully following the same, we uphold the findings of the ld. CIT(A) and dismiss this ground of assessee. Ground No. 3 : Disallowance of expenditure on accumulated liquidated damages penalty. 10.6 This issue of disallowance of expenditure on accumulated liquidated damages penalty has already been decided by us while considering the appeal of the assessee in Ground No. 10 for A.Y. 2010- 2011 in ITA No. 401/BIL/201 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the assessee, the obligatory requirement of the assessee stands fulfilled. Thus, such amount is not a mere provision and has been claimed as business expenditure and as also advised by the holding company, Coal India Limited. For AY 2011-12 to 2014-15, the Escrow A/c could not be created due to absence of the notification of the procedural modalities, and hence, the corresponding provision, though created, could not be deposited into the Escrow Account during the respective years. The communication in this regard was issued by Coal India Limited on 26 June 2013 (photocopy enclosed as Attachment I1) and the Escrow account was during Nov 2014, after obtaining necessary internal board and other approvals (obtaining quotes from banks, signing formalities, etc.). The funds pertaining to these years (i.e. AY 2011-12 to 2014-15) along with the amount provisioned for AY 2015-16 was credited to the Escrow A/c in FY 2014-15 (i.e. AY 2015-16). The claim of deduction made in AY 2015-16 was specific to the amount set-aside for the AY 2015-16. For the subsequent years (i.e. AY 2016-17 to AY 2017-18), the company has deposited the amount of the provision created in the respective years in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ision and without appreciating that the funds were actually deposited to the Escrow A/c. Further, the Learned AO inferred that since the said funds will be used for mine closure activities to the extent of the requirement, the Assessee has ownership and control over the funds so created. C. Decision of the CIT(A) and its basis (page numbers of the appellate orders of the respective years are as in the above table) On appeal, the learned CIT(A) held that a provision is a liability which can be measured only by using a substantial degree of estimation. It is recognised when an enterprise has a present obligation as a result of the past event, it is probable that an outflow can be made on amount of the obligation. If these conditions are not met, no provision can be recognized by relying on the decision in the case of Rotork Controls India Pvt Ltd [(2009) 314 ITR 62], Accordingly, he confirmed the disallowance as according to him, this was unascertained liability. D. Assessee's arguments before the Hon'ble Tribunal The learned AO has disallowed the provision mainly on aground that assesses company during the year did not open the Escrow account and therefore, control ov ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the addition made by the learned AO may be deleted. Without prejudice to the above contention that the claim for the AY 2011-12 to 2014-15 should be allowed being an ascertained liability, if the Hon'ble Bench takes an adverse view for these years and upholds that the claim for these years should be disallowed in absence of the amount credited to the Escrow A/c, the Assessee humbly prays that a direction be given the corresponding deduction be granted, in the year in which such amount was deposited to the Escrow A/c. E. Case laws relied on * Udaipur Mineral Development Syndicate Pvt. Ltd v. DCIT [261 ITR 706] * M/s Manganese Ore (I) Ltd [(2013) ITA No 123/Nag/2012] - copy placed as Attachment I2 * Hon'ble Bombay High Court in M/s Manganese Ore (I) Ltd (PB Page 228-229, PB of AY 2012-13- ITA 102/RPR/2017) * CIT v. Gogte Minerals [(1996) 220 ITR 29] * PCIT vs Rajasthan States Mines and Minerals Ltd [ITA 151/2016] (Para 5) - copy placed as Attachment I3 * PCIT vs Rajasthan States Mines and Minerals Ltd [ITA 39/2019] - copy placed as Attachment I4 * Barmer Lignite Mining Co v DCIT [ITA No 510/JP/2017 dated 12.10.2017] (Para 15) - copy placed as Attachmen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in which such amount was deposited to the escrow account. We found substance in such contention of the assessee that the deduction should be allowed in the year in which such amount was deposited in the escrow account or when the actual expenditure the impugned head has actually been incurred. In view of such observations, we are of the opinion that matter may be restored to the file of AO to verify and examine as to whether the expenditure incurred during the year under consideration. It is also not clear as to whether the amount has been credited to escrow account or not. Therefore, we restore this issue to the file of AO to grant corresponding deduction in the year in which such amount was actually incurred by depositing the same to the escrow account. This issue is allowed for statistical purposes. Ground No. 5 : disallowance on account of actuarial valuation of employee compensation 10.10 This issue of disallowance on account of actuarial valuation of employee compensation has already been decided by us while considering the appeal of the assessee in Ground No. 2 for A.Y. 2010-2011 in ITA No. 401/BIL/2014, wherein we have set aside this issue following ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . However, application of Rule 37BA cannot be stretched to deny credit of taxes paid when income is declared without seeking relatable TDS credit in the same year because of the genuine reasons. Therefore, as per the amended provisions, once the TDS was deducted, a credit of the same to be given to the Assessee, irrespective of the year to which it relates. Reliance is placed on: * Kartik Vijaysinh Sonavano v DCIT [(2021) 132 taxmann.com 293 (Gujarat)] * ACIT v Om Prakash Gattani [(2001) 117 Taxman 549 (Gauhati)] Yashpal Sahni v Rekha Hajarnavis [(2007) 165 TAXMAN 144 (Bom)] * ACIT v Peddu Srinivasa Rao, [ITA 324/Vizag/2009 dated 03.03.2011] (para 8 to 10) * Vijay Bhavani Constructions Pvt Ltd v DCIT [(2017) 9 ITR (Trib) 99 (Hyd)] (para 9 to 12.1) * Sadbhav Engineering Ltd v DCIT, [ITA no 610, 1834, 1835, 2053, 2054 and 2055/Ahd/2009 dated 19.12.2013] (para 23 to 26) * Greatship (India) Ltd v DCIT, [ITA 5562/Mum/2018 dated 08.01.2020] (para 6 and 7) * Supreme Renewable Energy Ltd v ITO [(2010) 3 ITR (Trib) 339 (Chennai)] (para 6 to 10) * AO cannot recover taxes from assessee, if deductor does not deposit taxes. - Ashok Kumar Chowatia v JCIT [(2021) 128 ta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fering income to tax on receipt basis, which was not proper. It is clear from the assessment order as well as the appellate order that the assessee had claimed the credit of TDS without offering the corresponding income to the income tax and, therefore, both the authorities have rightly denied the TDS credit by virtue of provision of section 199 of the Act read with rule 37BA of the IT Rules, 1962. Ld. AR of the assessee also could not brought to our notice any cogent evidence to substantiate its claim that the corresponding income has been offered to tax. In view of the above, we uphold the findings accorded by both authorities below, in this regard. However, we direct the AO to grant TDS credit in the year in which corresponding income is declared by the assessee. Thus, this issue is partly allowed for statistical purposes. Ground No. 7 : Part: disallowance of provision for leave encashment 10.14 This ground relates to provision for leave encashment. This issue has already been considered by us while deciding the appeal of the assessee in Ground No. 5 for A.Y. 2009-2010 in ITA No. 201/BIL/2012, wherein considering the prayer of the assessee and in view of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rest income from the above deposits. The Assessee by relying on the Court decisions argues that if credit of tax deducted in its name is not granted to it, then there would be unjust enrichment by the Department because offering of corresponding income depends on the factors different form making of TDS because assessee may not offer income may not offered because set-oof losses, operation of DTAA, income deducted on assessee's capital receipt etc. The detailed Note is as under: A. Facts [Interest on Disputed Deposits of Coal Customers] During the AY 2011-12, the Learned Aa has made an addition of Rs. 21,12,000 on account of interest W.r.t. disputed deposits of coal customers, which consists of the disallowance of reversal of interest made by the Assessee of Rs. 11,37,248, which was declared as its income in the earlier years and reversed during the impugned year under the head "prior period" and addition of Rs. 9,75,024 pertaining to interest accrued in the current year but was not offered to tax by the Assessee. Thus, the learned Aa made the total addition of Rs. 11,37,248 and of Rs. 9,75,025 totalling Rs. 21,12,000. The assessee h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... total addition of Rs. 34,51,91,000, which consists of the disallowance of reversal of interest of Rs. 20,74,91,000, which was earned by the assessee from the fixed deposits made from tax collected by it w.r.t. MPGATSAVA under "Madhya Pradesh Rural Infrastructure and Road Development Act, 2005" credited and offered to tax in earlier years and addition of Rs. 13,77,00,000 accrued in the current year but not offered to tax. (Ref para 12.9 of the assessment order for the AY 2011-12) The assessee company was required to collect taxes from its customers under "Madhya Pradesh Rural Infrastructure and Road Development Act, 2005" on behalf of the State Government of MP. Taxes collected by the assessee company could not be handed over to the MP Government because some of the customers challenged the constitutional validity of the Act in the Court. Subsequently, the assessee company invested the collected tax amount in "Corporate Liquid Term Deposits." The assessee earned total interest of Rs 20,94,71,000 over the years, which it duly declared every year as its income in its return of income and paid tax on it. The case between M/s Jai Prakash Associates Ltd v State of M ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 1,95,36,000. This addition consisted of interest of Rs. 89,04,691 reversed during current year, which was offered to tax in the earlier years. Whereas, amount of Rs. 1,06,31,310 represented interest accrued during the year but was not offered to tax. (Ref para 12.14 of the assessment order for AY 2011-12) Thus, total addition of interest on the amounts collected under Madhya Pradesh Rural Infrastructure and Road Development Act, 2005 and Terminal Tax to income works out to be Rs 36,47,27,000 = (Rs 20,74,91,000+Rs 13,77,00,000+ Rs 89,04,691+ Rs 1,06,31,310) for the AY 2011-12. In the AY 2012-13 and 2013-14, the Assessee has credited the relevant interest income to the Profit and Loss statement and have booked corresponding liability by debiting the Profit and Loss statement. D. AO's reasons for making disallowance or addition (para numbers of the assessment orders of the respective years are as in the above table) The learned AO stated that the assessee did not enclose the copy of the opinion given by the Solicitor General of India along with its reply submitted to the learned AO. He stated that in his opinion, the ASG has clearly stated that the Age ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er reference not brought on to record, auditor's comment in TAR regarding effect of such change in accounting not filed. Similarly, the assessee had a right to receive interest that has arisen out of such deposits during the accounting year under consideration and there is no such evidence on record to conclusively prove that such a right is not present and therefore, non-disclosure of interest without having final verdict of the court is not justified. Wr.t. Interest on terminal tax deposits, Ld. CIT(A) upheld to the learned AO's application of section 438 of the Act, without appreciating that the interest did not pertain to assessee's any liability under the terminal tax legislation. F. Assessee's arguments before the Hon'ble Tribunal The Assessee's arguments consist in following parts: * Whether interest income earned from FDs made out of money not belonging to the assessee, can constitute its income? * TDS credit claimed by the assessee on interest income declared in the years prior to AY 2011-12 and consequences on reversal of interest * TDS credit claimed by the assessee in the years subsequent to the AY 2011-12 but corresponding inco ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stion whether the liability is actually barred by limitation, is not a matter which could be decided by considering the assessee's case alone but it is a matter which has to be decided only if the creditor is before the concerned authority. In the absence of the creditor, it is not possible for the authority to come to a conclusion that the debt was barred and had become unenforceable. There may be circumstances which may enable the creditor to come with a proceeding for enforcement of the debt even after expiry of the normal period of limitation as provided in the Limitation Act. The principle that expiry of period of limitation prescribed under the Limitation Act cannot extinguish the debt but it will only prevent the creditor from enforcing the debt is well-settled." Further, in the case of PCIT v New World Synthetics Ltd [(2018) 97 Taxmann.com 399 (Delhi)] held that non-payment of outstanding liability which is admitted and acknowledged as due and payable by an assessee does not indicate remission or cessation of liability. The assessee company acknowledges its debt towards purchasers of coal and towards the Government for the taxes collected on its behalf. Therefore, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... see) as listed under: * In CIT v Bhooratnam & Co [(2013) 357 ITR 396 (AP)] honourable High Court held as under: "The Revenue cannot be allowed to retain tax deducted at source without credit being available to anybody. If credit of tax is not allowed to the assessee, and the joint venture has not filed a return of income, then credit of the TDS cannot be taken by anybody. This is not the spirit and intention of law." * Delhi ITAT in the case of Escorts Ltd vs DCIT [(2007) 15 SOT 368] held that "Credit for TDS must in every case be given to the assessee from whose income tax was deducted at source and paid to the credit of the Central Government. If the recipient of the income considers that he is not liable to tax in respect of the income, wholly or partly, therefore, does not disclose the amount of such income in his return, the IT Department cannot refuse to give credit merely by contending that the income had not been disclosed in the return filed by the assessee for the assessment year. The assessee may as per relevant provisions of IT Act, consider the income either as not taxable in his hands or as being relatable to a different assessment year and he may even cla ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... T v. Peddu Srinivasa Rao [ITA 324Nizag/2009], in this case, the learned AO denied the TDS credit, which was made on mobilisation Advance received by the assessee because the same being on capital account, income was not declare by the assessee. The Hon'ble ITAT after considering the amended section 199 of the Act held that "10. . we are of the view that once the TDS was deducted and paid to the Central Government, a credit of the same should be given to the assessees in order to avoid all sorts of complications in the year of deduction of the TDS" * The Mumbai IT AT in its recent case of Hampi Expressways Pvt Ltd vs DCIT [ITA No. 895/Mum/2022 dated 18 October 2022] had the occasion to adjudicate on a similar issue where the Assessee was raising invoices to its client, NHAI on the basis of invoices received from its subcontractor, without any markup. Since the transactions with the NHAI were of the same amount as that of transactions with the Sub-Contractor, the balance in the above said ledger account was 'Nil'. On account of back-to-back arrangement and there was no profit accruing to the Assessee. With this background, after considering the amended section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tice dated 27 August 2013 issued by the Collector (Mining Branch), Anuppur Page 207 Copy of order of the Hon'ble Supreme Court in Jai Prakash Associates v State of MP & ORS (Civil Appeal No 4745 of 2006) Page 212 Copy of submission dated 28 November 2013 filed before the learned AO Page 226 Opinion of Shri Altaf Ahmed, Additional Solicitor General. 10.17 Ld. CIT-DR strongly supported the orders of revenue authorities, however, have also submitted that this issue should be restored to file of AO for fresh adjudication of the issue pertaining to the claim made by the assessee. 10.18 On perusal of the assessment order as well as the appellate order along with the submissions of the assessee, according to which during the A.Y. 2011-12 the assessee has reversed the income on account of interest received on disputed deposits of coal customers for Rs. 11,37,248/- which was declared as income in the earlier year and reserved during the impugned year under the head "prior period". The interest accrued during the current year for Rs. 9,75,024/- was also not offered to tax by the assessee. Both these figures in aggregate were added back to the income of the assessee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... est is also payable on the amount lying in credit with SECL and, if so at what should be the reasonable rate? 3. What precaution/safeguards is to be taken for securing discharge of SECL's financial liability in the event of refunding the amount? I have perused the order of Hon'ble the Supreme Court dated 1.1.8.1994 and the Special Leave Petition No. 7841/1992 - South Eastern Coalfields Ltd. & ors. Vs. Subhash Kumar Gupta & anr, and the order made thereafter on 25.11.1997 in the same matter. A perusal of these two orders would cl indicate that the Querist, who were petitioners in these proceedings were not required to surrender the amounts deposited with them on behalf of 21 brick kiln units to the respondents in these proceedings, who are Shri Subhash Kumar Gupta and Shri Basant Kumar Jain. The order of 11.8.1994 clearly reflects that the position taken by the Querist that they will be willing to refund the deposit directly to the actual users, i.e., the brick kiln owners, rather than the respondents, who claim to act as the del credere agents:, The Court accepted the stand of the petitioners (Querist) and directed that the amount of deposit be disbursed amongst ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rs of the petitioner who were allegedly in collusion with the respondents had been suspended and complaints had been registered and First information Reports lodged with the police. The investigation was in progress. He further submitted that as far as the petitioner's office record is concerned, it showed that it had received from 21 different applicants separate bank drafts of varying amounts. The office record does not show that the amounts were paid by the two respondents herein on whose behalf the request is being made for the refund of the amount. In the circumstances, he contended that if the amount deposited in the Court is paid over to the respondents, the petitioner will not be validly discharged of its liability to the 21 applicants who had paid the amounts. However, he submitted that without prejudice to all Its contentions, the petitioner was willing to make payment individually to the 21 applicants against their valid receipts. The learned counsel for the respondents equally vehemently opposed this suggestion and contended that since the 21 applicants have filed. their Individual affidavits in this Court stating In categorical terms that the amounts were paid by t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ating in the aforesaid orders by Hon'ble the Supreme Court, I do not see how S/Shri Subhash Kumar Gupta and Basant Kumar Jain can lay claim to the payment of interest on the amount of deposit in law. I would, therefore, advise the Querist not to consider the request for payment of any interest on the amount of deposit in the event the Querist decide to make the refund of the deposit to them. In regard to question 3, 1 am of the opinion that it is for the claimants of the deposit to assert and establish their rights by adducing credible evidence and the Querist in the meantime would be entitled to retain the money in terms of the directions made by Hon'ble Supreme Court in its order dated 25.11.1997 directing the committee of the General Manager,. District Industries Centre, Sheopuri and .he District Collector-cum-District Magistrate, Sheopuri, to refund the money forthwith to the Querist, If, after the Querist is satisfied upon evidence adduced by S/Shri Subhash Kumar Gupta and Basant Kumar Jain that they are entitled to the release of the amount of deposit, the Querist must, before actually releasing the amount of deposit, secure bonds of indemnity from them against any ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ist decide to make the refund of deposit to them. It is further advised that till the time the claimants of the deposit would be able to assert and establish their rights by adducing credible evidence the querist in the meantime would be entitled to retain the money in terms of directions accorded by Hon'ble Supreme Court in its order dated 25.11.1997. In view of such advisory provided by the Ld. Addl. Solicitor General of India, the assessee is not liable to pay any interest to the identified claimants of the deposits a/w the amount of deposit retained by the assessee at the time of refund of the same in compliance to the order of Hon'ble Apex Court. Accordingly, the interest income received by the assessee on such deposits which would not be a liability for the assessee in any eventuality, the same should be considered as income of the assessee company. However, since the assessee company has perceived a different interpretation from the impugned opinion that the interest income earned on the deposits of third parties cannot constitute its income. If such perception of the assessee company is validated in that case, the right and fair approach would be that, the assessee company ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of that income. Further, Section 162 provides that the assessee company would be able to recover the amount of taxes so paid from such person at the time of settlement. In terms of the aforesaid observations that the assessee company who had holds the deposits and has received interest income under trust on behalf of third parties is held to be representative assessee as per the provisions of Sections 160 r.w.s. 161 & 162 of the Act and therefore, the assessment of the assessee shall be completed under the provisions of said sections. For the sake of clarity provisions of section 160, 161 and 162 are carved out as under: Representative assessee. 160. (1) For the purposes of this Act, "representative assessee" means- (i) ...... (ii) ...... (iii) ...... (iv) ....... (v) in respect of income which a trustee appointed under an oral trust receives or is entitled to receive on behalf or for the benefit of any person, such trustee or trustees. Explanation 1.-A trust which is not declared by a duly executed instrument in writing [including any wakf deed which is valid under the Mussalman Wakf Validating Act, 1913 (6 of 1913),] shall be deemed, for the purposes of cl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by him. (2) Where any person is, in respect of any income, assessable under this Chapter in the capacity of a representative assessee, he shall not, in respect of that income, be assessed under any other provision of this Act. Right of representative assessee to recover tax paid. 162. (1) Every representative assessee who, as such, pays any sum under this Act, shall be entitled to recover the sum so paid from the person on whose behalf it is paid, or to retain out of any moneys that may be in his possession or may come to him in his representative capacity, an amount equal to the sum so paid. (2) Any representative assessee, or any person who apprehends that he may be assessed as a representative assessee, may retain out of any money payable by him to the person on whose behalf he is liable to pay tax (hereinafter in this section referred to as the principal), a sum equal to his estimated liability under this Chapter, and in the event of any disagreement between the principal and such representative assessee or person as to the amount to be so retained, such representative assessee or person may secure from the Assessing Officer a certificate stating the amount to be s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... owance of expenditure on account of land revenue. 10.26 This issue relates to disallowance of expenditure on account of land revenue. This issue has already been decided by us in Ground No. 4 in ITA No. 401/BIL/2014 for A.Y. 2010-11, wherein respectfully following the judicial precedence, we have allowed this issue directing the AO to allow the claim of the assessee subject to the verification in terms of our observations in ground No. 4 of the said appeal. Accordingly, this ground of appeal is allowed for statistical purposes. Ground No. 11 : disallowance of coal transportation expenses paid to ESM companies. 10.27 This ground relates to disallowance of coal transportation expenses paid to ESM companies. This issue has already been decided by us while considering the similar ground raised in assessee's appeal in Ground No. 4 for A.Y. 2009-2010 in ITA No. 201/BIL/2012, wherein following the decision of coordinate bench of the Tribunal, as accepted by both the parties, in assessee's own case for A.Y. 1998-1999 in ITA No. 187/JAB/2008, order dated 06.11.2019, has remitted the issue back to the file of AO for determining the allow ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nbsp;204/BIL/2012 8, 9 & 10. General in nature No adjudication requires. 11.2 In the result, appeal of the revenue in ITA No. 103/BIL/2015 is partly allowed for statistical purposes in terms of our aforesaid observations. ITA No. 102/BIL/2017 (AY: 2012-2013) (Assessee's appeal) 12.1 On perusal of the grounds of appeal in ITA No. 102/BIL/2017 (AY : 2012-2013) filed by the assessee, it is found that the following effective grounds raised by the assessee were similar to the grounds raised by assessee/revenue in the assessee's case for the earlier years, therefore, instead of deciding those issues again we are furnishing hereunder a table showing grounds of present appeal covered by our decision in the respective grounds of appeals already decided in terms of our observations hereinabove. Accordingly, our decision rendered in the foregoing paras of this order under respective grounds of the appeal No. referred in the table below will mutatis mutandis applicable and accordingly, are disposed off. The ground which were not covered by our aforesaid observations, are dealt with separately after the table as mentioned in remark column. Ground No o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2010-11 Ground No. 4 : Disallowance u/s. 14A read with rule 8D; 12.2 Ld. AR before us submitted that in the instant case, the assessee had 8.5% tax-free bonds, which it had to accept as one time settlement of the dues from the electricity Boards, however, the AO observed that for handling investments in mutual fund of such proportion, there has to be man, material and management. Therefore, the AO expected that for leach of these activities, the assessee has incurred cots on personnel, overheads and other related costs. Accordingly, the AO made disallowance u/s. 14A by invoking Rule 8D. The CIT(A) upheld the above findings of the AO. It was the submission that the AO has considered the expenditure relatable to earning tax-free income from investments made in mutual funds for the disallowance u/s. 14A of the Act. It was submitted that the AO has not compared year-end investment value with the amount of the dividend earned in a year. It was further submitted by the ld. AR that the AO has invoked Rule 8D without recording satisfaction merely by making general observation and without examining correctness of its accounts and the facts in the light of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the same copy-paste text in all 3 years after changing only figures, show learned AO's lack of application of mind and mechanical approach. Such conclusion cannot be considered as satisfaction arrived at by considering the facts of the year. Therefore, disallowance made u/s 14A be deleted on account of the learned AO's failure to satisfy mandatory pre-condition of recording satisfaction before making disallowance u/s 14A. Relance is placed on following decisions: * PCIT v TV Today Network Ltd (2022) 141 taxmann.com 275 (Delhi), - copy placed as Attachment S1 * Kesoram Industries Ltd v PCIT (2022) 441 ITR 642 (Cal), - copy placed as Attachment S2 * PCIT v Bajaj Finance Ltd (2019) 110 taxmann.com 303 (Bombay), - copy placed as Attachment S3 * PCIT v Hindusthan Aeronautics Ltd (2022) 143 taxmann.com 357 (Karnataka), - copy placed as Attachment S4 The learned AO has not established proximate nexus between the expenditure to be disallowed and investments he learned AO has failed to establish proximate nexus between the expenditure to be disallowed and investments. In absence of fulfilling mandatory pre-condition of "determination of expenditure incurred in relation to su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2017 (Assessee's appeal) Page 10 Balance sheet showing 'Reserves and Surplus" Page 36 Investment in Mutual Funds, Note-14 12.3 Ld. CIT-DR, on the other hand, relied on the orders of the authorities below and has specifically drawn our attention at Para 7.7 of the assessment order wherein, the Ld. AO after considering various judgments, had calculated the amount of addition u/s. 14A read with clause (ii) & (iii) of Rule 8D, also Ld. AO has categorically mentioned that the provision of statute is very clear and the assessee deliberately tried to circumvent disallowance of expense in order evade higher tax liability. Penalty u/s. 271(1)(c) of the Act was also separately initiated. Therefore, the order of the A.O cannot be said to be without satisfaction and thus, the addition made deserves to be sustained. 12.4 We have heard the rival submissions, perused the material available on record and case laws relied upon by the both the parties. In the submissions of the assessee, the allegation was made that the Ld. AO has used same text while making the addition u/s. 14A after changing only the figures, this shows that there was lack of application of mind under mechani ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r contentions, failing which, revenue would be at liberty to decide the issue as per law. Thus, the ground No. 4 is partly allowed for statistical purposes in terms of our observations hereinabove. Ground No. 15 : Disallowance of expenditure on computer software 12.6 It was submitted by the ld. AR that the computer software purchased by the assessee during the year are mainly annual licensing software, which are required to be renewed every year or every two years. Further, the expenditure incurred by the assessee on acquiring the computer software are not of enduring nature. During the course of assessment proceedings, the AO observed that the computer software is an asset and eligible for 60% tax depreciation, hence, he added back 40% of the cost of the computer software to the total income of the assessee for the year under consideration. The CIT(A) upheld the order of the AO stating that the computer software is an asset and eligible for 60% tax depreciation and, hence, 40% of the cost of the computer software should be added back to the total income of the assessee. On perusal of the assessment order, it is found that the assessee has claimed the entire expenses f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... p;204/BIL/2012 for A.Y. 2009-10 3 to 6. Disallowance of CSR Expenses 5 of ITA No. 382/BIL/2014 for A.Y. 2010-11. 7 & 8 Disallowance of expenditure on planation of trees & Disallowance of environmental expenses; 7 of ITA No. 204/BIL/2012 for A.Y. 2009-10 9. Disallowance of Expenditure on assets not belonging to company (roads. Etc. 3 of ITA No. 201/BIL/2012 for A.Y. 2009-10 10. Disallowance of coal transportation expenses paid to ESM companies; 4 of ITA No. 201/BIL/2012 for A.Y. 2009-10 13.2 Thus, the appeal of the revenue in ITA No. 98/BIL/2017 for A.Y. 2012-2013 is partly allowed for statistical purposes. ITA No. 103/BIL/2017(Assessee's Appeal for A.Y. 2013-2014) 14.1 On perusal of the grounds of appeal in ITA No. 103/BIL/2017 (AY : 2013-2014) filed by the assessee, it is found that the following effective grounds raised were similar to the grounds raised by assessee/revenue in the assessee's case for the earlier years, therefore, instead of deciding those issues again we are furnishing hereunder a table showing grounds of present appeal covered by our dec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the ensuing paras of this order 15. Levy of interest u/s. 234B, 234C and 234D of the Act. 12 of ITA No. 401/BIL/2014 A.Y. 2010-11 Ground No. 10 : disallowance of land crop compensation. 14.2 It was submitted by the ld. AR that heavy blasting conducted in the coal mines by the assessee to loose coal and remove overburden, there may be subsidence in nearby agricultural areas and cracks may get developed in soil bed. As a result of the same, crop grown by the adjacent villages to the mine boundary get damaged / land becomes unsuitable for cultivation. The revenue authorities of the state, along with the company officials, visit the field to make a survey, on the basis of which, the actual damages are determined at the Minimum support price / average yield of the relevant crop. The state revenue authorities pass an order for payment of compensation, basis which the assessee makes payment. The AO disallowed the said Land crop compensation expenses incurred by the Assessee on the premise that the said expenses were not incurred towards "expenditure incurred for profit-earning apparatus", rather the Assessee had incurred the said expenditure to earn it th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... see's own case and in the case of M/s. Western Coalfields Ltd. (supra) i.e. sister concern of the assessee in different manner, which suggests that the facts under these two appeals were on different footings and therefore, the facts in the present case needs to be examined whether those are similar with the nature and facts similar to which one of these two orders. In such facts and circumstances, it would be appropriate to send this issue back to the file of the A.O to verify the nature of the expenditure incurred, if the same is in lieu of employment which helps the assessee company to avoid recurring revenue expenditure in the nature of salary and other administrative legal hassles, then the same would be considered as revenue in nature and should be treated as an allowable expenditure. On the contrary, in case the expenditure is found to be for acquisition of land or any rights of capital nature then the same should be treated as capital expenditure, not admissible as expenditure for the relevant year, this view of our is supported by the decision of Co-ordinate Bench of ITAT, Nagpur in the case of Western Coalfields Ltd. dated 10.08.2009 (supra), para 16, wherein ITAT has obs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the assessee did not produce documentary evidence to show that-such expenditure was connected with, revenue mines and in the very next Jine, he has stated that even though these conditions were fulfilled but the approval of the Board of Directors was not there. Both these findings are self-contradictory and rather show a state of uncertainty In the mind of the A.O. which makes It a case of mere doubt only and for this reason, the claim of the assessee that impugned expenditure was Incurred In respect of revenue mines cannot be rejected. Once it is so held that there remains no controversy as regards to the allowability of this expenditure.- Having stated so, however, we are further of the opinion that nature of expenditure for the purpose of Act, can not be decided by the Board of Directors, hence, this reasoning of Revenue authorities Is also not correct. We also do not find any merit in the contention Of the td; D.R. that Chis expenditure was connected . with acquisition of land, hence, of capital nature firstly because it has been paid In lieu of employment and secondly In case actual employment for normal operations, this-expenditure would have been allowed as revenue expendi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y's commercial asset therefore income earned from commercial asset is assessed as income from business, with the result, depreciation should be allowed. Ld. AR also placed following case laws to support his contentions :- Reliance is placed on the following decisions: * Universal Plast Ltd v CIT [(1999) 237 ITR 454 (SC)], copy placed as Attachment M1 * CEPT v Shri Lakshmi Silk Mills Ltd [(1951) 20 ITR 451 (SC)], copy placed as Attachment N1 * Scientific Instrument Co Ltd V CIT [(2011) 14 taxmann.com 157 (All)], copy placed as Attachment N2 * ITO v Ultravision Associates, [ITA No 337/Rjt/2013 dated 09.03.2016], copy placed as Attachment N3 14.7 Ld. CIT-DR on the other hand, relied on the orders of the authorities below. 14.8 We have considered the rival submissions, perused the material evidence placed before us including judicial pronouncements relied upon by the assessee as well as the orders of both the authorities below. On verification of the lease agreement produced during the course of assessment proceedings, the AO found that the railway siding was given on a lease for a period of 20 years to M/s Aryan Coal Beneficiation Pvt. Ltd. New Delhi. As per the AO it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g grounds of present appeal covered by our decision in the respective grounds of appeals already decided in terms of our observations hereinabove. Accordingly, our decision rendered in the foregoing paras of this order under respective grounds of the appeal No. referred in the table below will mutatis mutandis applicable and accordingly, are disposed off. The ground which were not covered by our aforesaid observations, are dealt with separately after the table as mentioned in remark column. Ground No of ITA No. 99/BIL/2017 Grounds of appeal Covered by corresponding grounds of ITA Remarks 1. Disallowance of expenditure under the head grants to schools and institutions; 4 of ITA No. 204/BIL/2012 A.Y. 2009-10 2. Disallowance of expenses on social overheads-fuel & power 3 of ITA No. 204/BIL/2012 A.Y. 2009-10 3 to 6. Disallowance of CSR Expenses; and 5 of ITA No. 382/BIL/2014 A.Y. 2010-11 7 to 10. Disallowance of expenditure on planation of trees and disallowance of environmental expenses; 7 of ITA No. 204/BIL/2012 for A.Y. 2009-10 11. Disallowance of Expenditure on assets not belonging t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r of the ld. CIT(A) deserves to be upheld. 15.4 We have considered the rival submissions, perused the material evidence carefully. On perusal of the order of the ld. CIT(A) we found that the ld. CIT(A) has allowed the claim of the assessee after having the following observations :- Decision - Since the welfare expenses are included as environmental expenses, sustainable development expenses and tree plantation, the issue is in the nature of earlier issues on social welfare and tree plantation expenses which had been under litigation for earlier years and my predecessor had been allowing in all assessment years. Respectfully following their decisions, I have to decide the case on principle of consistency. The Ld. AO has not appreciated the fact that the assessee has to cut the trees and also to plant them after mining, hence, assessee succeeds and the addition made by the AO is hereby deleted. 15.5 On careful perusal of the above observations of the ld. CIT(A), allowing the expenditure incurred under the guidelines issued by the Ministry of Heavy Industries and Public Enterprises, following the same Coal India Limited, the parent company of the Assessee had issued a communicati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mpensation & rehabilitation expenses; 1 of ITA No. 201/BIL/2012 A.Y. 2009-10 5A. Amortization of land rehabilitation expenses. 1E of ITA No. 201/BIL/2012 A.Y. 2009-10 6. Disallowance on accumulated liquidated damages penalty; 10 of ITA No. 401/BIL/2014 for A.Y. 2010-11 7. Disallowance of provision made for mine closure 4 of of ITA No. 115/BIL/2015 A.Y. 2011-12 8. Disallowance of claim for OBR adjustment; 9 of ITA No. 204/BIL/2012 A.Y. 2009-10 9. Disallowance of depreciation on Appollo Hospital Building; 3 of ITA No. 401/BIL/2014 for A.Y. 2010-11 10. Disallowance of sustainable development as Cap. Expenditure. 8 & 10 of ITA No. 99/BIL/2017 A.Y. 2013-14 11. Disallowance of expenditure on assets not belonging to company (roads. Etc.); 3 of ITA No. 201/BIL/2012 A.Y. 2009-10 12. Disallowance of expenditure towards payment to Coal India Sports Promotion Fund; Adjudiated in ensuing paras of this order 13. Disallowance of coal transportation expenses paid to ESM companies; 4 of ITA No. 201/BIL/2012 A.Y. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... icable to the case of a public sector company, whether it is under the control of the State Government or the Central Government. In fact, many public sector companies are not formed just to make profit alone, but are supposed to achieve larger objectives for the society and the State. Section 37(1) is the residuary provision provided under the Income-tax Act enabling the assessee engaged in business to claim all expenditure laid out or expended wholly and exclusively for the purposes of the business. By making payment of the service charges, the assessee-company had discharged only the obligation under the Governmental orders. It could not carry on business by violating the Government's Orders and remain as a defaulter to the Government. Therefore, on the face of it, payment of service charges to the Government was a business expenditure and it was paid every year and the payment are mandatory for carrying on the business." 16.3 Ld. CIT DR supported the order of authorities below. 16.4 On perusal of the both the orders of the authorities below, we found that the assessee could not substantiate its claim either before the AO or before the CIT(A). According to the revenue aut ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by our decision in the respective grounds of appeals already decided in terms of our observations hereinabove. Accordingly, our decision rendered in the foregoing paras of this order under respective grounds of the appeal No. referred in the table below will mutatis mutandis applicable and accordingly, are disposed off. Ground No of ITA No. 188/RPR/2017 Grounds of appeal Covered by corresponding grounds of ITA Remarks 1. Disallowance of expenses on grants to schools and institutions. 4 of ITA No. 204/BIL/2012 A.Y. 2009-10 2. Disallowance of expenses on social overheads-fuel & power; 3 of ITA No. 204/BIL/2012 A.Y. 2009-10 3 to 6. Disallowance of CSR Expenses; 5 of ITA No. 382/BIL/2014 A.Y. 2010-11 7 to 9 Disallowance of expenditure on planation of trees and disallowance of environmental expenses; 7 of ITA No. 204/BIL/2012 A.Y. 2009-10 10. Disallowance of Expenditure on assets not belonging to company (roads.) Etc. 3 of ITA No. 201/BIL/2012 A.Y. 2009-10 11. Disallowance of coal transportation expenses paid to ESM companies; 4 of ITA No. 201/BIL/2012 A.Y.&nbs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , the appeal of the assessee in ITA No. 169/RPR/2018 for A.Y. 2015-2016 is partly allowed for statistical purposes. ITA No. 171/RPR/2018 (Department's Appeal for A.Y. 2015-2016) 19.1 On perusal of the grounds of appeal in ITA No. 171/RPR/2018 (AY : 2015-2016) filed by the revenue further concise and submitted in form a chart, it is found that the following effective grounds raised were similar to the grounds raised by assessee/revenue in the assessee's case for the earlier years, therefore, instead of deciding those issues again we are furnishing hereunder a table showing grounds of present appeal covered by our decision in the respective grounds of appeals already decided in terms of our observations hereinabove. Accordingly, our decision rendered in the foregoing paras of this order under respective grounds of the appeal No. referred in the table below will mutatis mutandis applicable and accordingly, are disposed off. Ground No of ITA No. 171/RPR/2018 Grounds of appeal Covered by corresponding grounds of ITA Remarks 1. Disallowance of expenses on grants to schools and institutions. 4 of ITA No. 204/BIL/2012 A.Y. 2009-10 &n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lding 3 of ITA No. 401/BIL/2014 A.Y. 2010-11 7 Disallowance of coal transportation expenses paid to ESM companies; 4 of ITA No. 201/BIL/2012 A.Y. 2009-10 8. Disallowance of Write off/Depreciation of Railway Siding leased out to Aryan Coal Beneficiation (ACB) 14 of ITA No. 103/BIL/2017 A.Y. 2013-14 20.2 Thus, the appeal of the assessee in ITA No. 33/RPR/2019 for A.Y. 2016-2017 is partly allowed for statistical purposes. ITA No. 54/RPR/2018 (Department's Appeal for A.Y. 2016-2017) 21.1 On perusal of the grounds of appeal in ITA No. 54/RPR/2018 (AY : 2016-2017) filed by the revenue further concise and submitted in form a chart, it is found that the following effective grounds raised were similar to the grounds raised by assessee/revenue in the assessee's case for the earlier years, therefore, instead of deciding those issues again we are furnishing hereunder a table showing grounds of present appeal covered by our decision in the respective grounds of appeals already decided in terms of our observations hereinabove. Accordingly, our decision rendered in the foregoing paras of this order under re ..... X X X X Extracts X X X X X X X X Extracts X X X X
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