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TMI Blog2024 (6) TMI 1288X X X X Extracts X X X X X X X X Extracts X X X X ..... AC/S/250/2022-23/1045062316(1) 30/08/2022 2009-10 2. ITBA/NFAC/S/250/2022-23/1044871759(1) 23/08/2022 2011-12 3. ITBA/NFAC/S/250/2022-23/1044871971(1) 23/08/2022 2012-13 4. ITBA/NFAC/S/250/2022-23/1044555810(1) 08/08/2022 2013-14 5. ITBA/NFAC/S/250/2022-23/1044838255(1) 23/08/2022 2014-15 The assessee has also filed the captioned Cross Objections (C.Os. No. 08, 09, 10, 11 & 12/Viz/2023). The assessee also filed cross appeal I.T.A. No.203/Viz/2022 (AY: 2011-12) against the order of the Ld. CIT(A)-NFAC, Delhi vide DIN & Order No. ITBA/NFAC/S/250/2022-23/1044871759(1), dated 23/08/2022 arising out of the order passed u/s. 143(3) of the Income Tax Act, 1961 ["the Act"]. Since the issues raised in all the Revenue's appeals are identical, so also the Cross Objections raised by the assessee are identical, for the sake of convenience, all these appeals are clubbed, heard together and disposed off in this consolidated order. Appeal wise adjudication is given in the following paras of this order. ITA No. 188/Viz/2022 (AY: 2013-14) 2. This appeal filed by the Revenue against the order of the Ld. CIT(A)-NFAC for the AY 2013-14. 3. Briefly stated the facts of the case are ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d by the order of the Ld. CIT(A)-NFAC, the Revenue is in appeal before us by raising the following grounds of appeal: "1. The order of the Ld. CIT(A)is erroneous both on facts and in law. 2. The Ld. CIT(A) has erred in deleting the addition made by the Ld. AO towards prior period expenses of Rs. 8,41,04,723/- though same do not pertains to the year under consideration. 3. The Ld. CIT(A) erred in allowing the claim of prior period expenses even though the AO made a finding that the assessee has not made out a case that the expenditure is allowable in the current year under consideration. 4. The appellant craves leave to add or delete or amend or substitute any ground of appeal." 5. Grounds No.1 and 4 are general in nature and they need no adjudication. 6. Grounds No.2 & 3 pertain to the deletion of addition made by the Ld. AO towards prior period expenses of Rs. 8,41,04,723/-. At the outset, the Ld. AR submitted that the issue of prior period expenses has already been considered by the Hon'ble ITAT, Visakhapatnam Bench in the assessee's own case for the AY 2002-03 and 2015-16 in favour of the assessee. The Ld. AR submitted copy of the order of the ITAT, Visakhapatnam Bench ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sessment year 2007-08. Assessing Officer is thus directed to delete the addition made of Rs. 216.66 lakhs." 8. Ld. DR did not bring any material to contradict the findings of the Ld. CIT(A). We therefore do not find any infirmity in the order passed by the Ld. CIT(A) and hence reject ground no.3 of the Revenue. In the result, the appeal filed by the Revenue is dismissed." 9. Further, we also observed that it has been consistently held in favour of the assessee by the ITAT, Visakhapatnam Bench for the earlier years in the assessee's own case. In this regard, we also extract below the findings of the Hon'ble ITAT, Visakhapatnam Bench for the AY 2002-03 in the assessee's own case: "4. Having heard the rival submissions and from a careful perusal of the orders of the authorities below, we find that assessee has offered the prior period income along with the expenditure during the impugned assessment year. The assessing officer has accepted the prior period income in this year but disallowed the prior period expenditure. This action of the assessing officer is not proper as he has to take into the account the status as a whole and not to make a pick and choose. We however, carefull ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stated the facts of the case are that the assessee filed its return of income for the AY 2011-12 on 26/09/2011 declaring a total income of Rs. NIL after set-off of carry forward loses of Rs. 298,36,33,885/-. The assessee has paid MAT of Rs. 43,88,02,107/-. The return was summarily processed u/s. 143(1) of the Act and thereafter it was selected for scrutiny and statutory notices u/s. 143(2) and 142(1) of the Act along with the questionnaire were issued and served on the assessee. The assessee's Representative appeared from time to time before the Ld. AO and filed various submissions. Considering the assessee's submissions, the Ld. AO made addition towards prior period expenses amounting to Rs. 5,62,78,000/- and disallowance u/s. 40(a)(ia) of the Act towards demurrage charges amounting to Rs. 73,31,800/-. Aggrieved by the additions made by the Ld. AO, the assessee preferred an appeal before the Ld. CIT(A)-NFAC. 17. On appeal, the Ld. CIT(A)-NFAC considering the submissions made by the assessee's Authorized Representative and following the orders of the ITAT, Visakhapatnam Bench on the issues in the assessee's own case, the Ld.CIT(A)-NFAC partly allowed the appeal of the assessee. Ag ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... applicable to various foreign shipping companies and the provisions of section 194C and 195 will not apply. The Ld. AR vehemently argued that since these payments are made to various foreign shipping companies, section 194I has no application. He therefore pleaded that the Ld. AO has erred in invoking the provisions of section 194I of the Act thereby disallowing the expenditure u/s. 40(a)(ia) of the Act. Further, the Ld. AR referred to page 126 of the paper book wherein the copy of the sample invoice has been produced for verification before the Ld. Revenue Authorities which states that the detention charges are payable to foreign shipping companies in foreign currency. He therefore pleaded that the order of the Ld. CIT(A)-NFAC be upheld. 21. Per contra, the Ld. DR heavily placed reliance on the order of the Ld. AO and argued that demurrage charges are in the nature of ground rent payable. He also referred to Explanation to section 194I of the Act wherein "any other agreement" has been mentioned and hence this agreement for detention of goods amounts to rental charges attracting the provisions of section 194I of the Act. He therefore pleaded that the order of the Ld. AO be upheld ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lved in these appeals as well as similarity of the grounds raised by the Revenue in both the appeals, our adjudication given on the grounds raised by the Revenue for the AY 2011-12 mutatis mutandis applies to the grounds raised in the AY 2012-13 also. Accordingly, the appeal of the Revenue for the AY 2012-13 is dismissed. 27. In the result, appeal of the Revenue (ITA No.199/Viz/2022) is dismissed. ITA No.202/Viz/2022 (AY 2009-10) 28. This appeal filed by the Revenue against the order of the Ld. CIT(A)-NFAC for the AY 2009-10. 29. In this appeal, the Revenue has raised the following grounds of appeal: "1. The order of the Ld. CIT(A) is erroneous both on facts and in law. 2. The Ld. CIT(A) erred in deleting the addition made by the Ld. AO towards prior period expenses of Rs. 54,43,79,000/- though same do not pertains to the year under consideration. 3. The Ld. CIT(A) erred in allowing the claim of prior period expenses even though the AO made a finding that the assessee has not made out a case that the expenditure is allowable in the current year under consideration. 4. The Ld. CIT(A) erred in deleting the addition made by the AO towards demurrage charges of Rs. 1,73,000 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... filed its return of income for the AY 2011-12 on 26/09/2011 declaring a total income of Rs. NIL after set-off of carry forward loses of Rs. 298,36,33,885/-. The assessee has paid MAT of Rs. 43,88,02,107/-. The return was summarily processed u/s. 143(1) of the Act and thereafter it was selected for scrutiny and statutory notices u/s. 143(2) and 142(1) of the Act along with the questionnaire were issued and served on the assessee. The assessee's Representative appeared from time to time before the Ld. AO and filed various submissions. Considering the assessee's submissions, the Ld. AO made addition towards prior period expenses amounting to Rs. 5,62,78,000/- and disallowance u/s. 40(a)(ia) of the Act towards demurrage charges amounting to Rs. 73,31,800/-. Aggrieved by the additions made by the Ld. AO, the assessee preferred an appeal before the Ld. CIT(A)-NFAC. 36. On appeal, the Ld. CIT(A)-NFAC considering the submissions made by the assessee's Authorized Representative and following the orders of the ITAT, Visakhapatnam Bench on the issues in the assessee's own case, the Ld.CIT(A)-NFAC partly allowed the appeal of the assessee. However, the Ld. CIT(A)-NFAC denied the TDS credit as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is not reflected in the Form-26AS. This instruction was issued by the CBDT to eliminate the hardships faced by the assessee in the initial assessment years during the implementation of Form-26AS. Therefore, we are inclined to remit the matter to the file of the Ld. AO and direct the assessee to produce the original Form-16A before the Ld. AO for verification. The Ld. AO is directed to verify the genuineness of the credit for TDS and thereby grant credit if it is found to be correct. Accordingly, Ground No.2 raised by the assessee is allowed for statistical purposes. 40. Ground No.3 pertains to charging of interest u/s. 234C of the Act amounting to Rs. 1,98,38,798/-. The Ld. AR submitted that the assessee received the restructuring package on 23/3/2011 which is subsequent to the due dates for the payment of advance tax liability. The Ld. AR further submitted that since the assessee was not sure about the granting of the restructuring of the package, the assessee could not take into consideration the grant to be received and hence there is a short fall for the payment of advance tax liability which leads to charging of interest u/s. 234C of the Act. The Ld. AR submitted that the det ..... X X X X Extracts X X X X X X X X Extracts X X X X
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