2016 (8) TMI 610

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....of law for our consideration: "(a) Whether on the facts and in the circumstance of the case and in law, the Tribunal was justified in deleting the disallowance made on account of survey charges amounting to Rs. 19,75,520/without appreciating that the assessee is following Mercantile System of accounting and the said amount has been shown as receivables in the books of account and is not allowable as per the provisions of the Act? (b) Whether the Tribunal was justified in law in confirming the decision of CIT(A) in deleting the disallowance of deprecation in respect of underlying assets, without appreciating that the lease transactions were transactions of finance/ loan only? (c) Whether on the facts and circumstan....

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....res would be deducted out of dividend income?". 3 Re: Question (a): (i) The Respondent-Assessee was engaged to implement the port Development Programme of the State of Maharashtra. For the aforesaid purpose, the Respondent-Assessee had incurred expenses with regard to the survey, preparing of offer documents, evaluation of bids for the development of minor ports etc., These expenses were to be recovered by the Respondent-Assessee from the successful bidder as and when the contracts were awarded on acceptance of the tender. These expenses were incurred in the subject Assessment Year. The Assessing Officer held by order dated 31st March, 2000 that as the Respondent-Assessee was following a Mercantile System of Accounting and these expen....

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....sessee. Our attention is drawn to the impugned order of the Tribunal which allowed the Respondent-Assessee's appeal by following the decision of the Apex Court in ICDS Ltd., v/s. CIT 350 ITR 227. (ii) Mr. Kotangle, learned Counsel appearing for the Revenue very fairly states that the issue raised by the Revenue herein stands concluded against the Revenue by the decision of the Apex Court in ICDS Ltd., (supra). (iii) In the above view, the question (b) as formulated for our consideration, does not give rise to any substantial question of law. Hence, not entertained. 5 Re: Question (c): (i) This question pertains to deprecation claimed by the Respondent-Assessee on its assets covered by sale and lease back agreements entered i....

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....ssessing Officer to decide the nature of transactions on examination of the sale and lease agreement entered into by the Respondent-Assessee with its lessees. This remand was with a specific direction that the Assessing Officer would examine the sale and lease back transactions entered into by the Respondent-Assessee with the three parties and decide the issue afresh, keeping in view the decision of the Delhi High Court in CIT v/s. Cosmo Films Ltd., 338 ITR 266. (iv) Mr. Kotangle, learned Counsel appearing for the Revenue has not even attempted to show us as to why the decision of the Delhi High Court in Cosmo Films Ltd., (supra) should not be taken into consideration while determining the nature of the transactions entered into by the R....