TaxTMI 
TaxTMI 
2013 (10) TMI 540
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....e head miscellaneous expenses. Therefore, the Assessing Officer was right in disallowing 1/7TH of the total expenses incurred by the assessee. 3. The Ld. CIT(A) has erred in law and on facts in directing the Assessing Officer to allow Canvet Credit of Rs.7380899/- to the assessee. 3.1 The Ld. CIT(A) has erred in law and on facts in not appreciating the fact that any duty / tax pertaining to capital goods have to be part of the total cost of the capital goods on which the assessee can claim depreciation and hence the same amount can not be allowed as revenue deduction. 4. The Ld. CIT(A) has erred in law and on facts in deleting the disallowance of Rs.1526518/- made out of courier charges. 4.1 The Ld. CIT(A) has erred in law and on facts in not appreciating the fact that the assessee has failed to furnish any supporting evidence before the Assessing Officer in respect of the above expenses. The Ld. CIT(A) has further erred in not appreciating the fact that the assessee has not doing any export business and the expenses has been incurred on behalf of sister concern 5. The Ld. CIT(A) has erred in law and on....
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....ying reasonableness of the facility provided by its sister concern. Thus, he prayed to confirm the order of the A.O. However, the learned counsel for the appellant contended that these payments were made to the sister concern, namely, Jay Infa Trade Pvt. Ltd for utilizing the service of its sister concern. The payments were reasonable. Keeping in view the number of facilities provided by it. Similar addition were made in A.Y.2003-04, 2007-05 and 2005-06 which has been deleted by the Hon'ble ITAT in ITA No.780/Ahd/2008 for A.Y:2005-06. ITA No.1607/Ahd/2007 for A.Y:2003-04 and ITA No.4063/Ahd/2007 for A.Y.2004-05 in ground no.1 for both years wherein in Hon'ble ITAT Ahmedabad 'B' Bench has decided the issue in favour of the assessee, therefore, he requested to dismiss the appeal of the revenue on this ground. 5. We have heard the rival submissions and perused the material available on record. The facts of the case is identical to the earlier years where also same services were used by the appellant and payment was made to these services to sister concern. The Coordinate ITAT Ahmedabad 'B' Bench in A.Y.2003-04, 20004-05 and in A.Y. 2005-06 has decided this issue in favour for the a....
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....ully. There is no dispute about the fact that the expenses pertaining to conveyance, motor car, advertisement etc., have been booked under this head. The appellant has not provided complete details to the Assessing Officer during the assessment proceedings. The nature of these expenses is that the possibility of part thereof being incurred for the purposes other than the business could not be ruled out. Therefore, keeping in view the totality of facts and surrounding circumstances a disallowance of Rs.6,00,000/- under this head is hereby confirmed." 8. The Revenue is before us and learned D.R. contended that the assessee's expenses compare to its turn over were abnormal and the AO was reasonable to estimate the non-business purposes expenses at Rs.13,07,470/-, i.e., 1/7 of total. However, the CIT(A) has confirmed only Rs.6,00,000/- on the basis of non-business purposes, which cannot be ruled out. Thus, he prayed to confirm the order of the AO. 9. At the outset, learned counsel for the appellant contended that in A.Y:2004-05 and 2005-06, the AO had allowed miscellaneous expenses fully. The Hon'ble ITAT has set aside this issue to the AO where as CIT(A) has confirmed the additi....
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....llowed both the grounds, i.e., Miscellaneous Expenses and Disallowance of courier expenses be set aside. Learned AR for the assessee has further contended that in fact Rule 27 enables respondent to support the order on the ground decided against him. Here, the assessee is supporting the order on the basis that no further disallowance is required. The findings of CIT(A) can be challenged if no appeal has been filed. He further relied upon the decision of Hon'ble Gujarat High Court rendered in Dahod Sahkari Kharid Vechan Sangh Ltd. V/s CIT reported in 282 ITR 321 Guj, and 227 ITR 779 and claimed disallowance made by the CIT(A) at Rs. 6 lac is not warranted and his order is not congruent from the earlier orders of Hon'ble ITAT read with the earlier orders passed by the AO, therefore, he requested to allow the other expenditure confirmed by the CIT(A) or set aside both the issue to the AO. 10. We have heard the rival contention and perused the material available on record. Identical issue has been considered by the Coordinate Bench in A.Y.2004-05 wherein it was held as under: "On one hand, the Revnue had vehemently argued that the first appellate authority had grante....
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....ity of hearing to both the sides. We hold accordingly. Resultantly, this ground of the Revenue may be treated as allowed but for statistical purposes." We have perused the facts of case and gone through the Co-ordinate Bench decision on this issue for A.Y. 04-05, this ground of appeal is required to re-adjudicate. Accordingly, we set aside this issue to the CIT(A) after providing reasonable opportunity to the both parties. 11. The ground no.3 of appeal is against to allow CENVAT Credit of Rs.73,80,899/-. The AO observed that the appellant had added the sum of Rs.48,63,468/- in original return. However, these were withdrawn in revised return. The assessee had not considered the above amount of excise duty on capital goods at all but at the same time claimed further deduction of a sum of Rs.25,17,431/- under 'Service Tax and Excise Duty. The AO gave a reasonable opportunity of being heard on this issue which was replied by the assessee. The appellant claimed before the AO that they have included the element of excise duty in raw material, opening stock, sales and purchase. The MODVAT credit in respect of the capital goods is available for set off against excise duty payable on ....