TaxTMI 
TaxTMI 
2022 (2) TMI 1517
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.... 2013-14 are as under - "1. "On the facts and in the circumstances of the case and in law, the Ld. CIT(A) erred in allowing relief to the assessee relying on the decision of the Hon'ble Delhi High court in cases of Joint investment (P) Ltd. vs CIT (2015) 372 ITR (Del) & Cheminvest Ltd vs CIT (2015) 61 Taxman.com 118 (Delhi), without appreciating the fact that the disallowance was done in accordance with of section 14A r.w.s. Rule 8D and without regard to the clarification on legislative intent supplied by CBDT circular 5/2014." 2. "On the facts and in the circumstances of the case and in law, the Ld. CIT(A) erred in deleting the disallowance of Corporate Guarantee Commission claimed by the assessee without appreciating the facts correctly." 3. "On the facts and in the circumstances of the case and in law, the Ld. CIT(A) erred in allowing the claim of foreign exchange loss on forward contracts as business loss, without appreciating the facts related to the specific provisions of section 43(5) of LT. Act whereby the loss was held to be speculative." 4. "On the facts and in the circumstances of the case and in law, the Ld. CIT(A) erred in deleting t....
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....me Tax and the Income Tax Appellate Tribunal, Nagpur. On hearing the learned Counsel for the Department and on perusal of the impugned orders, it appears that both the Authorities have recorded a clear finding of fact that there was no exempt income earned by the assessee. While holding so, the Authorities relied on judgment of the Delhi High Court in Income Tax Appeal No. 749/2014, which holds that the expression "does not form part of the total income" in Section 14A of the Income Tax Act, 1961 envisages that there should be an actual receipt of the income, which is not includible in the total income, during the relevant previous year for the purpose of disallowing any expenditure incurred in relation to the said income. The Income Tax Appellate Tribunal held that the provisions of Section 14A of the Income Tax Act, 1961 would not apply to the facts of this case as no exempt income was received or receivable during the relevant previous year. It is not the case of the Assessing Officer that any actual income was received by the assessee and the same was includible in the total income. In the facts of the case. the Authorities held that since tile investments made by the assessee ....
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....ed the submissions of the Ld.AR. 7. Considered the rival submissions and material placed on record, we observe from the record that identical issue is decided in favour of the assessee for the A.Y.2012-13. While deciding the issue, the Coordinate Bench of the Tribunal in ITA.No. 983/Mum/2018 dated 30.09.2019 held as under: - "10. We have carefully perused the material on record in the light of the rival contention of the parties. As pointed out by the Ld. counsel for the assessee, the coordinate Bench has decided the identical issue in favour of the assessee in assessee's own case ITA No. ITA No. 4577/Mum/2015 and CO. No.87/Mum/2017 for A.Y. 2011-12 by upholding the findings of the first appellate authority vide which the Ld. CIT(A) had deleted the addition of the difference between 0.75% and 3% of the total amount of guarantee. The findings of the Ld. CIT(A) read as under:- "5.3 I have considered the facts of the case and the appellant's submissions. I find that the Hon'ble ITAT in its order dated 07.08.2017 in ITA No. 4577/Mum/2015 and CO. No.87/Mum/2017 for A.Y. 2011-12 has decided the issue in favour of the appellant by holding as under: "6....
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....e other hand, Ld. DR has fairly accepted the submissions of the Ld.AR. 10. Considered the rival submissions and material placed on record, we observe from the record that identical issue is decided in favour of the assessee for the A.Y.2012-13. While deciding the issue, the Coordinate Bench of the Tribunal in ITA.No. 983/Mum/2018 dated 30.09.2019 held as under: - "13. We have carefully perused the material on record in the light of the rival contention of the parties. As pointed out by the Ld. counsel for the assessee, the coordinate Bench has decided the identical issue in favour of the assessee in assessee's own case 1262/Muni/2011, 6629/Muni/2012 and 6271/Mum/2014 for A.Y.s 2009-10 & 2010-11 by upholding the findings of the first appellate authority vide which the Ld. CIT(A) had deleted the addition made by the AO, rejecting the claim of the assessee. The findings of the Ld. CIT(A) read as under: - "6.3 I have considered the facts of the case and the appellant's submissions. I find that the Hon'ble ITAT in its combined order dated 07.06.2016 in ITA Nos. 1262/Muni/2011, 6629/Muni/2012 and 6271/Mum/2014 for A.Y.s 2009-10 & 2010-11 has discussed the iss....
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....d contracts entered into by the assessee with banks, in the course of its manufacturing and export business of fruit pulp and allied items, were in order to safeguard itself against possible future foreign exchange tosses on account of exports sale proceeds receivable, due to fluctuation in price of different commodities and which contracts were backed by confirmed export orders for dealing of goods manufactured or traded by it. These transactions were not speculative in nature and the resultant foreign exchange losses were consequently not speculative losses but allowable business losses. Such contracts are directly from and incidental to the assessee's business of manufacture and export of fruit pulp and allied products and therefore, in our view, do not represent speculative transactions. Therefore, the concept of delivery and non- delivery thereof is of no consequence and is irrelevant in the context of the facts of the case on hand. As long as the aforesaid transactions of foreign exchange forward contracts are concerned, they are directly linked with the assessee's business of manufacture and export of twit pulp and allied items, in our considered view, by no stretch ....
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....;s 2009- 10 and 2010-11 respectively were business losses and directing the AO to allow the same calls for no interference from us and we therefore confirm an uphold the same. Consequently, Revenue's grounds No. 1(a) and (b) for A. Y. 2009-10 and ground No. 2 for A. Y. 2010-11 are dismissed." Respectfully following the above decision of the Hon'ble ITAT in the appellant's own case, the disallowance of Rs. 2,03,90,644/- on account of foreign exchange is deleted. This ground of appeal is allowed." 14. The Ld. CIT(A) has decided the issue in question by following the decision of the Tribunal rendered in assessee's case referred above. The revenue has not pointed out any change in the facts and the circumstances of the present case. We, therefore do not find any reason to interfere with the findings of the Ld. CIT(A) which is in accordance with the decision of the coordinate Bench. Hence, we uphold the findings of the Ld. CIT(A) and dismiss this ground of appeal of the revenue and further direct the AO to delete the addition." 11. Respectfully following the above decision and following the principle of consistency, the view taken by the Tribunal in A.Y. 2012-13....
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....e case and in law, the Ld. CIT(A) erred in allowing relief to the assessee without appreciating the fact that late payments of employee's contribution to EPF is not an allowable deduction u/s 36(1)(va) rws 2(24)(x)." 15. With regard to above ground which is in respect of delayed payments of employee PF/ESIC u/s. 2(24)(x) r.w.s. 36(1)(va) 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 Assessment Year 2011-12 and decided the issue in favour of the assesse and against the department. On the other hand, Ld. DR has fairly accepted the submissions of the Ld.AR. 16. Considered the submissions and material placed on record, we observe from the record that identical issue is decided in favour of the assessee for the A.Y.2011-12. While deciding the issue, the Coordinate Bench of the Tribunal in ITA.No. 4577/Mum/2015 dated 07.08.2017 held as under: - "7.1 On this issue, the Assessing Officer disallowed Rs. 3,72,619 received from employees as contribution to Provident Fund by holding that the payment is not made to the relevant fund before the due date ....
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.... Court in the case of Sesa Goa Limited vs. JCIT (423 ITR 426) the deduction of education and secondary higher education cess of Rs. 3,48,889, computed on the income assessed as per the order passed under Section 143 (3) of the Act and as modified on giving effect of the order passed under section 250 and section 254 of the Income Tax Act, be allowed as expenditure deductable under section 40(a)(ii) r.w.s 28 (i) of the Act. 3. The appellant craves to leave to add, to alter or amend the additional grounds of cross appeal on or before the hearing." 20. Assessee filed additional ground in the cross objections with the following prayer: - "The Respondent hereby make the humble request to the Honorable Members to grant the permission to include the additional ground of appeal in the cross appeal which is being filed in the above mentioned ITA. The additional ground of appeal arise out of the decision of - 1. Honorable Jurisdictional High Court in the case of Sesa Goa Limited vs. JCIT (423 ITR 426) 2. Honorable High Court of Rajasthan in the case of Chambal Fertilizers Limited vs. PCIT in ITA No 52/2018 3. Honorable ITAT, Mumbai, "J....
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.... 3. Honorable ITAT, Mumbai, "J" Bench in the case of Asian Paints Limited vs. Additional Commissioner of Income Tax in ITA No 2754 /MUM/2014 4. Atlas Cocoa (India) Ltd vs. ACIT - ITA No.1470/PUNE/2010 5. Rekitt Benckiser (I) P Ltd vs. DCIT (2020) 117 taxmann.com 519 (Kol) 25. Considered the rival submissions and material placed on record, we observe that the issue of claim of deduction of education cess and higher education cess are decided by the Hon'ble Bombay High Court in the case of Sesa Goa Limited vs. JCIT (supra) in favour of the assessee. The relevant facts are as under: - "41. Besides, we note that in the present case, though the claim for deduction was not raised in the original return or by filing revised return, the Appellant - Assessee had indeed addressed a letter claiming such deduction before the assessment could be completed. However, even if we proceed on the basis that there was no obligation on the Assessing Officer to consider the claim for deduction in such letter, the Commissioner (Appeals) or the ITAT, before whom such deduction was specifically claimed was duty bound to consider such claim. Accordingly, we are unab....