2019 (4) TMI 218

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....l, to the extent they were aggrieved. Both the appeals were considered together and the Tribunal, as per Annexure C common order dated 22.08.2008 finalised the matter, which is sought to be challenged by the Revenue in this appeal. 2. Heard Mr. Christopher Abraham, the learned Standing Counsel for the Department and Mr.Joseph Markose, the learned Sr.Counsel for the Assessee. 3. Though the matter was admitted ordering notice on 02.04.2009, no substantial question of law is seen framed by this court. The Revenue has suggested some questions as involving substantial questions of law. As put forth by the learned Standing Counsel, there are as many as 8 questions of law which are dealt with as given below: 4. i) Whether the club expense of Rs. 23,14,415/- met by the Assessee is entitled to be deducted as business expenses or should it be treated as personal expenditure? The said expense admittedly is towards procuring membership for the Assessee in the 'club' for arranging various comforts and convenience to whom it is intended. It does not include any expense towards the facilities availed or the various items consumed in the club. 5. This issue has already been dealt wit....

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....ssessee under any circumstance. The said finding on fact is not assailable under any circumstance and we hold it against the Revenue." 7. iii) Whether the deletion of the addition of Rs. 85,98,867/- representing concealment of income by selling good tyres as defective second tyres is correct? This issue was dealt with in detail and it was answered against the Revenue as per our verdict in I.T.Appeal No.973 OF 2009. The relevant portion of the said verdict is extracted below for easy reference "The Assessing Officer found that, in respect of the unit of the Assessee at Baroda, in Gujarat, the quantum under this head was only about 1% of the total production; whereas in respect of the unit at Athani in Kerala, it was nearly 2.5%. According to the Assessing Officer, the disparity was quite disproportionate and the reason might be the sale of 'good tyres' branding them as 'defective/second quality tyres'. In the said circumstance, the Assessing Officer restricted the quantum to 1%, as reckoned in respect of the Gujarat unit and made addition to the requisite extent. In the appeal filed by the Assessee, the Commissioner (Appeals) found that there cannot be any addi....

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....Chairman and Managing Director of some other companies as well, who are housed in the building in question and as such, the dis-allowance/restriction to an extent of 50% came to be sustained. We do not find any reason to interdict the said finding and reasoning and no substantial question of law (but for a question of fact) is brought to our notice. It stands answered against the Revenue. 10. vi) On interpretation of S.43A, is the Tribunal right in holding that depreciation claim of Rs. 1853559/- is allowable in respect of the fluctuation in the value of foreign currency without actual payment of the increased liability? This question has been answered against the Revenue, as per our verdict passed in I.T.Appeal Nos.1347 of 2009. As it stands so, it is declared accordingly and the relevant portion of the said verdict is extracted below: "It is brought to the notice of this Court that the issue stands squarely covered in favour of the Assessee, by virtue of the rulings rendered by the Supreme court in Commissioner of Income Tax,Delhi vs. Woodward Governor India P.Ltd [312 ITR 254 (SC) and Oil and Natural Gas Corporation Ltd, Dehradun, through Managing Director vs. Commissioner....

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....tments are made by the Assessing Officer to the profits of business computed by the Assessee in its return of income the assessed profit is to be considered for the purpose of computing deduction u/s.80HHC. He also relied on the decision of the Madras High Court in the case of K.S.Subbiah Pillai & Co. (India)(P) ltd. vs. CIT reported in 260 ITR 304. 23.3 We have heard rival submissions and considered the facts and materials on record. We find force in the contention of the learned representative of the Assessee and adopting his arguments as our reasonings, we dismiss this ground of appeal of the revenue." This Court does not find any reason to interdict the order passed by the Tribunal, as no substantial question is brought to our notice. 12. viii) Is not the order of the Tribunal erroneous in allowing depreciation on the written down value worked out by Commissioner of Income Tax (Appeals) for the assessment year 1993-94? It is to be noted that, the 'written down value' may change, depending upon the foreign exchange fluctuations. The situation is resulted, as consequential to the mandate of Section 43A of the Income Tax Act. We find no ground to interfere with the....