TaxTMI 
TaxTMI 
TaxTMI 
2022 (3) TMI 1654
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....the facts and in the circumstances of the case, fertilizers subsidy received under Nutrient Based Subsidy (NBS) Policy by the Appellant ought to be treated as capital receipt after considering the purpose test and hence not chargeable to tax in computing income as per normal provisions and Book Profit u/s 115JB the Income-tax Act. 3.0 That on the facts and in the circumstances of the case, subsidy received under Status Holder Incentive Scripts (SHIS) by the Appellant ought to be treated as capital receipt after considering the purpose test and hence not chargeable to tax in computing income as per normal provisions and Book Profit u/s 115JB the Income-tax Act. 4.0 That the appellant craves leave to add, to amend, modify, rescind, supplement or alter any of the Grounds stated here-inabove, either before or at the time of hearing of this appeal. 3. Assessee raised following additional grounds in its appeal: - "1) On the facts and circumstances of the case and in law, the CIT(A) ought to have held that the assessee is eligible for deduction under section 80-IA of the Act in respect of profits and gains derived by the undertakings engaged in generation of steam. 2) On the ....
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....rned dividend income of Rs. 58,88,059/- and claimed exemption. The AO computed the disallowance u/s 14A r.w.r. 8D amounting to Rs. 68,06,776/-. The AO added the said sum to the book profit u/s 115JB of the Act holding that since the said expenditure is held to be incurred in relation to the income not forming part of the total income, the same is required to be added to the book profit u/s 115JB of the Act. The Ld. CIT(A) confirmed the action of AO. The Ld. counsel submitted that the Ld. CIT (A) has wrongly confirmed the action of the AO ignoring the decision of the Special Bench of the ITAT Delhi in the case of ACIT vs. Vireet Investments Pvt. Ltd. 82 taxmann.com 415 (Delhi-Trib. SB) in which it has been held that computation under clause F of Explanation 1 to section 115JB (2) is to be made without resorting to the computation as contemplated under section 14A r.w.r. 8D of the Income Tax Rules. The Ld. counsel further submitted that since the findings of the Ld. CIT (A) are contrary to the law laid down by the Special Bench of the Tribunal aforesaid, the same is liable to be set aside. 4. On the other hand, the Ld. Departmental Representative supported the order passed by the ....
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....Act in respect of steam, Ld. AR of the assessee brought to our notice that the issue in appeal has been considered by the Co-ordinate Bench of this tribunal in assessee's own case for the A.Y. 2011-12 in M.A.No. 256/Mum/2020 arising out of ITA.No. 5077/Mum/2017 dated 31.07.2020 (Copy of the order is placed on record) and submitted that Tribunal has set aside the matter to the file of the Assessing Officer and Ld. Counsel for the assessee requested the same may be adopted for the appeal under consideration. 11. Ld. DR has fairly accepted the submissions of the Ld.AR. 12. Considered the submissions and material placed on record, we observe from the record that identical issue is decided for the A.Y. 2011-12. Coordinate Bench of the Tribunal in M.A.No. 256/Mum/2020 arising out of ITA.No. 5077/Mum/2017 dated 31.07.2020 has set aside the issue to the file of the Assessing Officer, while holding so it held as under: - "3. We have perused the material on record in the light of the submissions made by the counsel for the applicant. As pointed out by the Id. counsel, the Tribunal has omitted to give findings on the additional grounds raised by the applicant/assessee, which is in our con....
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....dditional grounds of appeal raised by the assessee. Since, the assessee has filed these grounds for the first time before the Tribunal, we deem it necessary to send these grounds to the AO for deciding the same. Accordingly, we send these grounds to the AO with the direction to decide these grounds after affording a reasonable opportunity of being heard to the assessee." 17. Respectfully following the above decision and following the principle of consistency, the view taken by the Tribunal in A.Y. 2011-12 is respectfully followed, accordingly, ground raised by the assessee is allowed for statistical purpose. ITA No. 3583/MUM/2018 (A.Y. 2014-15) - REVENUE APPEAL 18. Revenue has raised following grounds in its appeal: - "1. "On the facts and in the circumstances of the case and in law, the Ld. CIT(A) erred in appreciating the findings of the AO that some of the most important criteria for claiming deduction was not satisfied. It is ascertained that during the same period power distribution companies purchased 14407 Million units of power from various power generation companies in Gujarat at an average rate of Rs.4.22 per unit. Whereas, the assessee prepared its standalone acco....
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....ry at any time before or at the time of hearing of appeal." 19. With regard to Ground Nos. 1 to 3 which are in respect of deduction u/s. 80-IA of the Act, this issue is similar to the grounds of appeal raised by the assessee in ITA.No. 3695/Mum/2018 and the decision taken therein shall apply mutatis-mutandis. Accordingly, we remit the issue back to the file of the Assessing Officer. We order accordingly. 20. With regard to Ground No. 4 which is in respect of deduction u/s. 35(2AB) of the Act, Ld. AR of the assessee brought to our notice that the issue in appeal has been considered by the Co-ordinate Bench of this tribunal in assessee's own case for the A.Y. 2011-12 in ITA.No. 4943/MUM/2017 dated 31.07.2020 (Copy of the order is placed on record) and for the A.Y. 2012-13 and 2013-14, and submitted that the Tribunal has decided the issue in favour of the assessee and Ld. Counsel for the assessee requested the same may be adopted for the appeal under consideration. 21. Ld. DR has fairly accepted the submissions of the Ld.AR. 22. Considered the submissions and material placed on record, we observe from the record that identical issue is decided for the A.Y. 2011-12. While deciding....
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...., A.Y. 2005-06 and AY 2007-08 decided the ground in favour of the Appellant. There being no change in the facts and circumstances, respectfully following the decision of the then CIT (A), Mumbai where he following the decision in appellant's own case for A.Y. 2010-11, Appellant is eligible for deduction u/s 35(2AB). Thus, Ground No. 3 is allowed." 10. Since, the decision of the Ld. CIT (A) is in accordance with the decisions of the coordinate Benches rendered in the assessee's own case for the AYs 2003-04 to 2007-08 and since the revenue has not pointed out any change of facts and circumstances in the present case, we do not find any reason to interfere with the findings of the Ld. CIT (A). We therefore, affirm the findings of the Ld. CIT (A) and dismiss this ground of appeal of the revenue." Similarly, for the A.Y. 2012-13 and 2013-14, the Tribunal has upheld the order of the Ld.CIT(A) and dismissed the ground raised by the revenue. 23. Respectfully following the above decision and following the principle of consistency, the view taken by the Tribunal in A.Y. 2011-12 is respectfully followed, accordingly, ground raised by the revenue is dismissed. 24. With regard to Ground ....
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....11, the Ld. CIT (A) has rightly allowed the depreciation in the assessment year under consideration. The Ld. counsel accordingly submitted that there is no infirmity in the findings of the Ld. CIT (A). 18. We have heard the rival submissions and perused the material on record. As pointed out by the Ld. counsel for the assessee, the Ld. CIT (A) has decided this issue holding that since the depreciation was allowed in the earlier year in assessee's case, the assessee is entitled for the depreciation in the assessment year under consideration. The findings of the Ld. CIT (A) read as under:- "Ground No. 7 is against the disallowance of depreciation on unrealized forex loss of earlier years. The Ld. AR has submitted that Ld. AO has himself allowed the amount of depreciation on realized portion of foreign exchange losses of Rs. 4,40,91,189/- incurred in AY 2009-10. The Ld. AO for the earlier AY 2009-10 and AY 2010-11 has allowed depreciation of Rs. 66,13,678/- and Rs. 56,21,627/- respectively, but denied the depreciation on the same amount in AY 2011-12. On-going through the facts of the case and AO's order for AY 2009-10 and AY 2010-11, I find merits in the claim of the appellant ....
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....- "10. Vide ground No. 4 the assessee has challenged the action of the Ld. CIT(A) in upholding the disallowance made by the AO on account of the balance 10% of additional depreciation u/s 32(1)(iia) in respect of assets capitalized in the AY 2010-11. The Ld. counsel submitted before us that since this issue is covered in favour of the assessee in assessee's own cases for the assessment years 2009-10 and 2010-11, the impugned order passed by the Ld. CIT(A) is liable to be set aside. 11. The Ld. DR on the other hand admitted that the Tribunal has decided this issue in favour of the assessee in assessee's appeal for the earlier assessment years, however, supported the orders passed by the Ld. CIT(A). We have perused the material on record including the decision of the coordinate Benches in assessee's appeals. We notice that the coordinate Benches of the Tribunal have already decided the identical issue in favour of the assessee in assessee's appeals for the earlier assessment years. The coordinate Bench of the Tribunal has decided the identical issue in assessee's appeal ITA No. 4398/Mum/2016 A.Y. 2010-11 by following the decision of the coordinate Bench in assessee's case for....