TaxTMI 
TaxTMI 
2015 (4) TMI 1242
X X X X Extracts X X X X
X X X X Extracts X X X X
.... erred on facts and in law in confirming the addition of Rs. 8,79,05,9087- made by the Ld. A.O. in the hands of the appellant ignoring the facts of the instant case that the expenses incurred by the appellant on temporary errection/accommodation is fully allowable expenditure. 2. The Ld. CIT(A) erred on facts and in law in confirming the addition of Rs. 22,60,18,330/-made by the Ld. A.O. in the hands of the appellant ignoring the facts of the present case. 3. The Ld. CIT(A) erred on facts and in law in confirming the addition of Rs. 11,55,272/-made by the Ld. A.O. in the hands of the appellant without appreciating the facts of the present case that the expenses pertaining to prior period were accrued crystallized during the relevant year and are fully allowable. 4. The Ld. CIT(A) erred on facts and in law in not providing the appellant reasonable and sufficient opportunity to have its say and to make compliances of the reasons being relied upon by him in making addition in the hands of the appellant. 5. The appellant reserves it right to advance such other grounds before or at the hearing, which it may consider fit and appropriate, for which it c....
X X X X Extracts X X X X
X X X X Extracts X X X X
....observed that the assessee has not given any details relating to the nature of such camp construction. Having relied upon the judgment of the Hon'ble Gawhati High Court in the case of CIT vs. Sibson Construction & Co., 221 ITR 468, the Assessing Officer has allowed depreciation at 7.5% i.e. Rs. 82,41,179/- and made disallowance of the extra claim of Rs. 10,16,41,206/- as revenue expenditure and added the same to the income of the assessee. 7. Assessee preferred an appeal before the ld. CIT(A) with the submission that the structures consist of temporary site accommodation and general site arrangements and are eligible for 100% depreciation. It was also contended that the rate of 7.5% adopted by the Assessing Officer does not exist in the Statute at present. The ld. CIT(A) re-examined the claim of the assessee and being convinced with the explanations of the assessee, he was of the view that the cost of site accommodation needs to be allowed equally to the life of the project i.e. five years and therefore the cost would be spread over five years. He accordingly computed the allowable expenditure at 1/5th of the total claim of Rs. 10,98,82,385/- which comes to Rs. 2,19,76,477/-....
X X X X Extracts X X X X
X X X X Extracts X X X X
....iled before the ld. CIT(A). The ld. counsel for the assessee has submitted that in earlier assessment years, no disallowance of this nature was ever made though assessments were framed under section 143(3) of the Act. In support of his contention, the ld. counsel for the assessee has placed reliance upon the assessment orders for assessment years 2004-05 to 2008-09, in which no disallowance under this head was ever made. The ld. counsel for the assessee has further contended that following the rule of consistency, no disallowance can be made in the impugned assessment year. 10. The ld. D.R., on the other hand, has placed reliance upon the order of the Assessing Officer. Besides, it was also contended that the assessee has not furnished complete details before the lower authorities and the expenses thereof; whereas the ld. counsel for the assessee has submitted that the accounts of the assessee are duly audited and complete details were furnished before the Assessing Officer. 11. Having carefully examined the orders of the lower authorities in the light of the rival submissions and the documents placed on record, we find that the assessee has been conducting similar nature of ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....a revenue expenditure claimed under this head at Rs. 24,59,61,124/- was disallowed and added to the income of the assessee. 15. The assessee has preferred an appeal before the ld. CIT(A) with the submission that the expenses relating to shuttering, centering, scaffolding, etc. are allowable at 100%, as these items are nothing but consumable stores which would either be used in the construction or written off as and when it becomes necessary. 16. The ld. CIT(A) re-examined the claim of the assessee and being partly convinced with it, he allowed depreciation at 15% and restricted the addition to Rs. 22,60,18,330/-. 17. Aggrieved, the assessee as well as the Revenue are in appeal before the Tribunal. 18. During the course of hearing, the ld. counsel for the assessee has submitted that the assessee is engaged in the construction of bridges, flyovers, underways and similar projects on a large scale. All the activities require shuttering, centering, scaffolding, etc. which may be elaborated as a false work erected to give temporary support to concrete structure and it is removed after the concrete gains strength. It also includes temporary support structures for frame-work us....
X X X X Extracts X X X X
X X X X Extracts X X X X
....order of the Tribunal is also placed on record. 20. Having carefully examined the orders of the lower authorities in the light of the rival submissions, we find that no disallowance was made by the Assessing Officer in this regard during the earlier assessment years i.e. 2004-05 to 2008-09 though the assessments were framed under section 143(3) of the Act. Copies of the assessment orders are placed at pages 102 to 110 of the compilation of the assessee. 21. We have also carefully examined the order of the Tribunal in the assessee's own case pertaining to assessment year 1995-96 which is available at pages 33 to 42 of compilation of the assessee filed along with appeal memo, in which the Tribunal has followed its earlier order for assessment year 1988-89 and has directed the Assessing Officer to allow 100% depreciation on the cost of shuttering, centering, scaffolding, etc. This order was passed on 31.1.2011 and nothing is placed before us on behalf of the Revenue with regard to any contrary views taken by the Tribunal or the High Court on this issue in the assessee's case. 22. Our attention was also invited to the fact that the assessee has been debiting a particular amoun....
X X X X Extracts X X X X
X X X X Extracts X X X X
....r. In the absence of any evidence, we find no merit in the contentions of the assessee. Accordingly, we confirm the order of the ld. CIT(A) who has rightly dealt with the issue. 27. Accordingly these appeals are disposed of. I.T.A. No. 266/LKW/2013: 28. This appeal is preferred by the Revenue against the order of the ld. CIT(A) on a solitary ground that the ld. CIT(A) has erred in law and on facts in deleting the addition of Rs. 10,01,685/- made by the Assessing Officer by way of disallowances of expenses claimed for payment under the head pension contribution for employees of the Corporation. 29. At the very outset, the learned Counsel for the assessee has submitted that the tax effect involved in this appeal is less than the prescribed monetary limit, therefore, the Department ought not to have filed this appeal in view of the instructions issued by C.B.D.T. 30. The Learned D. R. did not controvert the above fact. 31. It is noticed that Section 268A of the Act has been inserted by the Finance Act, 2008 with retrospective effect from 1.4.1999. The provisions contained in section 268A read as under:- "268A. (1) The Board may, from time to time, issue orde....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ld. CIT(A) has confirmed the addition of the prior period expenses for the reason that the expenses were not crystallized in the impugned assessment year. 35. In these cases, the assessee has claimed prior period expenses on the ground that they were crystallized in the impugned assessment year, but no evidence was either placed before the Assessing Officer or before the ld. CIT(A). Even before the Tribunal no evidence is placed in order to establish that these prior period expenses have been crystallized in the impugned assessment year. 36. Identical issue has already been examined by us in the foregoing paras wherein we have held that disallowance on account of prior period expenses deserves to be confirmed in the absence of any documentary evidence in order to establish that the prior period expenses have been crystallized in the impugned assessment year. Following the view taken in the foregoing appeals, we confirm the order of the ld. CIT(A) in this regard. 37. Accordingly, both the appeals of the assessee are dismissed. I.T.A. No. 157 & 255/LKW/2014: 38. These are cross-appeals by the assessee as well as the Revenue against the order of the ld. CIT(A) for asses....
X X X X Extracts X X X X
X X X X Extracts X X X X
....g the disallowance made out of temporary site accommodation expenses to Rs. 5,34,01,092/- as against Rs. 7,35,38,013/-made by the AO by allowing relief of Rs. 2,01,36,921/-. The CIT(A) failed to appreciate that in the absence of any details the A.O, was justified in allowing depreciation at the general rate prescribed for buildings instead of allowing the entire expenditure as a deduction. The CIT(A) has allowed the assessee to write off 1/5th of the expenses claimed in this year, which is not permissible as per the Income Tax Act. The action of the A.O. is justified in view of the decision of Hon'ble Gawhati high Court in the case of CIT vs. Sibson Construction & Co. 221 ITR 468. 2. The CIT(A) has erred in law and on facts in allowing deduction u/s 80IA of the IT. Act, 196.1 at Rs. 7,62,89,122/- to the assessee ignoring the fact that the above claim of deduction has not been substantiated by the assessee during the assessment proceedings and is not allowable as per provision of Section 80AB of the IT. Act, 1961. 41. Ground No.1 in the Revenue's appeal in I.T.A. No. 157/LKW/2014 and grounds No.4 & 5 in the assessee's appeal in I.T.A. No. 255/LKW/2014 relates to the ....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... CIT(A) who has rightly allowed the claim of the assessee under section 80-IA of the Act. Accordingly, we confirm the order of the ld. CIT(A) on this issue. 47. In the assessee's appeal in I.T.A. No. 255/LKW/2014, ground No.1 relates to the addition of 12.80 crores made by the Assessing Officer having disallowed the provision for "foreseen loss" made by the assessee in its books of account. 48. In this regard, the facts borne out from the record are that the assessee has made provision for "foreseen loss" at Rs. 12.80 crores in its books of account, but it was disallowed by the Assessing Officer having noted that the assessee could not file any evidence on the basis of which it has created the provision for "foreseen loss". 49. An appeal was preferred before the ld. CIT(A), but the disallowance was confirmed by the ld. CIT(A), as the assessee could not place satisfactory evidence to justify the creation of provision for "foreseen loss" in its books of account. 50. Now the assessee is before us with the submission that it has created the provision as per guidelines issued by the Institute of Chartered Accountants of India through Accounting Standard-7, therefore, the sam....