2024 (3) TMI 1117

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....44B of the Income-tax Act, 1961 (in short 'the Act') dated 28.09.2022 for the assessment year 2020-21. The revenue has assailed the impugned order on the following grounds of appeal: "1. Whether on the facts and in the circumstances of the case and in law, the ld. NFAC was justified in deleting the disallowed VAT expenses amounting to Rs. 95,03,71,530/- added by the A.O. The disallowance is bad in law and uncalled for and may kindly be sustained." 2. Although the registry, by referring in the Form 36 provided by the Department had pointed out a delay of 465 days but on being confronted Ld.DR had clarified that no delay is therein involved. Our attention was drawn by the Ld. DR to the date of passing of the impugned order of the ....

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....rdinate Bench of the Tribunal, Raipur in assessee's own case for the A.Ys.2015-16, 2016-17 and 2017-18 vide ITA Nos. 38, 39 & 40/RPR/2021 dated 12.12.2022. Findings of the Tribunal in the aforesaid case on the issue under consideration relying upon the law laid down by the Hon'ble Apex Court in the case of Kerala State Beverages Manufacturing & Marketing Corporation Ltd. Vs. ACIT, Circle- 1(1), Civil Appeal No.11 of 2022 (SC), dated 03.01.2022 (SC) dated 03.01.2022 are culled out as under: "12. We have given a thoughtful consideration to the aforesaid issue in hand, and find substance in the claim of the Ld. AR that the issue involved in the present appeal is squarely covered by the judgment of the Hon'ble Supreme Court in ....

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....ame. In sum and substance, in its aforesaid order, the Hon'ble Apex Court had observed that "tax" unlike "gallonage fee", "license fee" etc. would not fall within the realm of the disallowances contemplated u/s. 40(a)(iib) of the Act. In so far the claim of the Ld. DR that the term "VAT" is a misnomer, as the same in substance is not a "tax" but "license fee", "privilege fee" etc. which in the preceding years was collected by the State Government from the assessee company, and that the change in the nomenclature to such collection was prompted with an ulterior motive to evade the rigors of disallowance contemplated under sub-clause (iib) of Section 40(A) of the Act that was made available on the statute vide the Finance Act, 2013 w.e.f. 01.....

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....ve, the aforesaid judgment of the Hon'ble High Court of Kerala had thereafter been approved by the Hon'ble Supreme Court in the case of Kerala State Beverages Manufacturing & Marketing Corporation Ltd. Vs. ACIT, Circle-1(1), Civil Appeal No.11 of 2022 (SC), dated 03.01.2022, and the Hon'ble Apex Court had categorically observed that though the "gallonage fee", "license fee" etc. paid by the assessee would fall within the purview of Section 40(a)(iib) of the Act, but the same would not be the position in so far the payment of "tax" was concerned. Considering the aforesaid judgment of the Hon'ble Apex Court, we are of the considered view that the same in fact supports the claim of the assessee that the provisions of Section 40(a)(iib) would n....