TaxTMI 
TaxTMI 
TaxTMI 
2019 (6) TMI 470
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....unds raised in both the appeals reads as under: - ITA No. 7351/Mum/2017 1. Whether on the facts and circumstances of the case and in law the Ld CIT(A) has erred in deleting the disallowance of Rs. 45,85,68,733/-made u/s 40(a)(ia) of the I T Act 1961 in respect of the local purchases without appreciating that the disallowance made by the AO was after analyzing the facts of the case and after concluding that the purchases were in nature of job work liable to the provision of tax deducted at source u/s 194C of the Act. 2. Whether on the facts and circumstances of the case and in law the Ld CIT(A) has erred in deleting the disallowance of Rs. 44,65,86,415/-made u/s 40(a)(ia) of the I T Act 1961 in respect of the import purchases without appreciating that the disallowance made by the AO was after analyzing the facts of the case and after concluding that the purchases were in nature of job work liable to the provision of tax deducted at source u/s 194C of the Act. 3. Whether on the facts and circumstances of the case and in law the Ld CIT(A) has erred in deleting the disallowance of Rs. 2,88,52,671/-made u/s 40(a)(ia) of the I T Act 1961 in respect of the freight payment on raw-m....
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....cts and in the circumstances of the case and in law the Ld CIT(A) was justified in holding that the deduction u/s. 80IB is admissible to the assessee without appreciating the fact that the assessee does not fulfill the condition laid down u/s. 80IB(2)(iv) of the Income Tax Act 1961? 9. Whether on the facts and in the circumstances of the case and in law, the Ld CIT(A) has in erred in deleting the disallowance deduction claimed of Rs. 81,96,759/- u/s. 80IA of the Act without considering the fact that the assessee did not set-off unabsorbed depreciation before making the claim in violation of the provision of section 80IA(5) of the Act when the law is very clear that brought forward unabsorbed depreciation has to be first adjusted against the profit of the undertaking and only such profit of the undertaking which are in excess of such unabsorbed depreciation can be allowed as deduction u/s. 80IA of the Act . 10. Whether on the facts and in the circumstances of the case and in law, the Ld CIT(A) is perverse in applying the decision of the Hon'ble Bombay High Court in assessee's own case for AY 2006-07 and 2007-08 when the Hon'ble Court's order was in the context of....
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.... in those years and the assessee was saddled with disallowances u/s. 40(a)(i) & 40(a)(ia) in those years. Since similar payments were made by the assessee during impugned AY, the same also called for similar disallowance. The details of these payments were as follows: - i) Trading purchase-local purchases Rs. 45,85,68,733/- ii) Trading purchase-Import purchases Rs. 44,65,86,415/- iii) Freight on raw material Rs. 2,88,52,671/- iv) Professional fee paid to foreign parties Rs. 1,24,96,386/- 3.3 The assessee vide submissions dated 12/02/2013, inter-alia, submitted that the issue of deduction of tax on account of trading purchases stood covered in assessee's favor by the order of the Tribunal for AY 2007-08 by way of dismissal of revenue's appeal whereas the revenue accepted the stand of Ld. CIT(A) in granting relief to the assessee in AY 2007-08 on account of payment made for freight on raw material. The arguments were raised for payment of professional fees to submit that the majority of payments were made to foreign parties for services rendered abroad. TDS was stated to be deducted against few payments whereas in few cases, it was submitted that TDS was not applicable due t....
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....e of dissatisfaction with assessee's working and applied Rule 8D mechanically as against the stipulations laid down in Section 14A(2). Therefore, Ld. AO was directed to accept the suo-moto disallowance offered by the assessee and delete the additional disallowance of Rs. 4.30 Lacs. 4.2 Upon due consideration, we find that the observations as well as conclusions of Ld. first appellate authority were quite reasonable and reasoned one. it was incumbent on the part of Ld.AO to form an opinion as to why the disallowance offered by the assessee, having regards to its accounts, was not satisfactory or correct. The aforesaid satisfaction of Ld. AO, is sine-qua-non before clothing Ld. AO the power to acquire jurisdiction u/r 8D. Therefore, finding no infirmity in the decision on this issue, we dismiss ground nos. 5 & 6. 5.1 Ground No.7 is related with deletion of addition of Rs. 213.09 Lacs u/s 28(iv) on account of discount received on Foreign Currency Convertible Bonds [FCCB] buyback. During assessment proceedings, it transpired that the assessee reduced its business income by an amount of Rs. 213.09 Lacs. This amount represent discount received by the assessee for FCCB buy-back. It was ....
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.... additions were deleted. Aggrieved, the revenue is in further appeal before us. 5.3 The Ld. AR has placed reliance on the following decisions, to further support the stand of Ld. first appellate authority: - No. Particulars Judicial Authority Citation 1. CIT V/s Mahindra & Mahindra Ltd. Hon'ble Supreme Court 255 Taxman 305 2. CIT V/s Xylon Holdings Pvt. Ltd. Hon'ble Bombay High Court 211Taxman 108 3. CIT V/s Santogen Silk Mills Ltd. Hon'ble Bombay High Court 57 Taxmann.com 208 4. Bombay Gas Co. Ltd. V/s ACIT Mumbai Tribunal 54 SOT 13 5. Cipla Investments Ltd. V/s ITO Mumbai Tribunal 33 SOT 317 5.4 Upon careful consideration, it emerges that the assessee has repurchased certain FCCB during impugned AY at a discount of 25%. The fact that the proceeds of these bonds was utilized partly for investment in foreign subsidiaries and partly for ongoing capitalization programs remain unrebutted before us. In fact, the RBI's terms of issue of bonds prohibits utilization of proceeds for trading purposes. The said facts lead us to form an opinion that the gains were on capital account. The Ld. AO, while making additions has invoked the provisions of Se....
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....nbsp; ** (iv) the value of any benefit or perquisite, whether convertible into money or not, arising from business or the exercise of a profession; ** ** &nb....
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.... by the department in all the earlier years. Keeping in view the same, the said deduction was disallowed in this AY also. The Ld. CIT(A), following the favorable decision of Tribunal for AY 2006-07 vide ITA No.3300/Mum/2009, allowed the deduction, against which the revenue is in further appeal before us. 6.2 Upon perusal, we find that the stated issue stood covered in assessee's favor by the earlier orders of the Tribunal, which Ld. first appellate authority has followed. The latest order of the Tribunal for AYs 2008-09 & 2009-10 also follows the consistent view taken by Tribunal in earlier years. Therefore, finding no difference in material facts, this ground stands dismissed. 7.1 Ground Nos.9 & 10 arises out of Rectification order passed u/s 154 by the Ld. CIT(A) on 30/10/2017 qua deduction u/s. 80IA. The assessee had claimed deduction u/s 80IA to the tune of Rs. 81.96 Lacs on account of windmills set up at different places in earlier AYs. The said deduction, in the opinion of Ld.AO, was claimed without considering the provisions of Section 80IA(5). The Ld. AO opined that since the assessee had unabsorbed depreciation in respect of said windmills, the same should have been firs....