TaxTMI 
TaxTMI 
2019 (7) TMI 2002
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.... year opted"? 2. Whether on the fact and the circumstance of the case and in law, the Ld.CIT(A) was justified in deleting the disallowance of Rs. 1,92,34,634/- in respect of 80IA of the I.T.Act without appreciating the fact that if all windmills were considered as one undertaking and profit and loss of all windwills are worked out after adjusting the losses from the profit of the units, the net result came to loss. 3. Whether on facts and circumstances of the case and low, the ld.CIT(A) was justified in deleting the disallowance in respect of 80IA of the I.T.Act without appreciating the fact that as per section (5) of section 80IA for the purpose of computation of the deduction, it has to be assumed that the only source of income of the assessee is the eligible business. The income or loss of this business alone is to be considered as if that were the only source. 4. Whether, on the fact and circumstances of the case and in laws, Ld.CIT(A) is justified in deleting the addition made by the AO u/s 14A of the IT Act without appreciating the facts the AO has rightly applied section 14A r.w.r. 8D in the case and made the disallowance of Rs. 5,01,943/- accordingly? 5. Whether on ....
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.... Mills (P) Ltd., [2017] 244 taxman 58 (SC). 7. We have heard the both the parties and gone through the records and orders of the authorities below. The very same issue came up for consideration before the Hon'ble ITAT in the assessee's own case for A.Y. 2011-12 in ITA No. 1751/Ahd/2013 by order dated 23.10.2017 has considered the issue. The Tribunal by following the assessee's own case for A.Y. 2010-11 in ITA no. 1749 & 1750 of 2013 dated 08.06.2017 and also by following the judgment of the Hon'ble High Court of Madras the case of ACIT vs. Velayudhaswamy Spinning Mills (P) Ltd., 341 ITR against the very same judgment of the Hon'ble Madras High Court the Revenue carried the matter in appeal before the Hon'ble Supreme Court. The Hon'ble Supreme Court dismissed the SLP (supra). The Tribunal has deleted the addition made by the Assessing Officer. For the sake of convenience relevant portion of the order is extracted as under: "Further, although on identical facts and grounds raised by appellant company's case for assessment year 2011-132 disallowance of deduction u/s.80IA(4) was upheld by my predecessor vide appellate order [Appeal No. CIT(A)II/CC.1/139/2012-13 dated 10.05.2013]. Ho....
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....nd the last day of the previous year TOTAL 5,01,943/- 11. On appeal, the ld.CIT(A) gave a finding that the assessee is having a share capital + reserves of 436 crores as on 31.03.2013 as against investment in shares / securities generating exempt income was only 8.05 crores. The ld.CIT(A) further gave a finding that the assessee is having a owned funds to the tune of 436 crores. Therefore, it has to be presumed that own funds are used for making investment yielding to exempt income. Further, above proposition he has relied on the jurisdictional High Court in the case of CIT vs. Torrent Power Ltd., [2014] 363 ITR 474 (Guj) and also CIT vs. Hitachi Home & Life Solutions (I) Ltd., [2014] 221 taxman 109 (Guj) directed the Assessing Officer to deleted the addition. We find from the order that the ld.CIT(A) that the assessee is having a owned funds to the extent of 436 crores as on 31.03.2013 investments made by the assessee to generate the exempt income only to the extent of 8.05 crores. Therefore, the ld.CIT(A) reasonable presumed that assessee has invested only own funds no borrowed funds. By considering the facts and circumstances of the case, we find that ....
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....servations made by the Assessing Officer gave a find that these expenses are genuine and has to allowed even in current year also. We find no reason to interfere with the order passed by the ld.CIT(A), therefore this ground raised by the Revenue is dismissed. 18. Ground No.5 relates to welfare expenses. In the assessment order the Assessing Officer has noted that the assessee has not fully vouched and some of the expenses were supported by the handmade vouchers not having complete address and names of the recipient. The Assessing Officer has asked the assessee to explain and submit before the Assessing Officer that the expenses are genuine in nature, therefore requested the Assessing Officer to allow the same. The Assessing Officer after considering the explanation of the assessee, he had made adhoc disallowance @ 15% of such expenses which works out to Rs. 5,87,790/- and added to the total income of the assessee. 19. On appeal, the ld.CIT(A) restricted the disallowance to 50% which works out to Rs. 298,895/- and granted partly relief to the assessee. 20. Before us, the ld.Departmental Representative has relied on the orders passed by the Assessing Officer and Authorised Represe....
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....,58,039/- granted relief of Rs. 6,39,550/- partly allowed the ground raised by the assessee. 29. On appeal, before us, the ld.Departmental Representative(DR) relied on the order passed by the Assessing Officer and DR supported the orders passed by the Assessing Officer. 30. The learned Authorised Representative relied on the orders passed by the ld.CIT(A). 31. We have heard both the sides, we find that the Assessing Officer has disallowed an amount of Rs. 17,97,589/- on the ground that there is an every possibility that the assessee has incurred the expenses claimed by him are in personal nature. 32. On appeal, the ld.CIT(A) restricted 15% to 10% granted relief to the assessee to the extent of Rs. 6,39,550/-. We have considered the assessment order and ld.CIT(A) order, we find that the relief granted by the ld.CIT(A) by restricting disallowance 15 % to 10% is reasonable and justified and no interference is called for. Therefore, ground raised by the Revenue is dismissed. 33. Ground No.6 relates to disallowance of interest for late payment of service tax amounting to Rs. 5,12,435/-. 34. In the assessment order, the Assessing Officer has noted that the claim made by the assesse....
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....ted the allowance to 50% granted relief to the extent of Rs. 2,14,575/-. We find that no reason to interfere with the order passed by the ld.CIT(A), therefore ground raised by the Revenue is dismissed. 42. Ground No.8 relates to disallowance on account of office expenses Rs. 12,51,000/-. In the assessment order the Assessing Officer has noted that the assessee claimed office expenses of Rs. 83,43,379/- in the Profit and Loss Account. 43. On perusal of the details of the expenses it is seen that expenses are not fully vouched all the expenses supported by the handmade vouchers which are not having name and address of the recipient. The Assessing Officer has asked the genuineness of the expenditure incurred by the assessee. 44. It was submitted that the expenses incurred in relation to the business of the assessee. The Assessing Officer after considering the explanation of the assessee he had disallowed 15% of the expenses which comes to 12,51,500/- the same is added to the total income of the assessee. 45. On appeal, the ld.CIT(A) restricted disallowance made by the ssessing Officer to 50% granted relief to the extent of Rs. 6,25,750/- and partly allowed the ground raised by the....