TaxTMI 
TaxTMI 
2015 (5) TMI 1278
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....er dated 29.12.2006. 2. The sole issue in this appeal of assessee is against the order of CIT(A) confirming the action of the Assessing Officer in disallowing the amortised miscellaneous expenses of Rs. 76,81,390/- written off in the books of account in (@ 1/10th of Rs. 7,68,13,902/- being the net realizable value of the advance made against capital goods) as per specific direction of Hon'ble jurisdictional High Court vide order dated 16-10-2001. For this, assessee has raised following concise ground:- "2. For that in view of the facts and circumstances of the case the Assessing Officer was wholly wrong and unjustified in disallowing the amortised miscellaneous expenses of Rs. 76,81,390/-, written off in the books of a/c @ 1....
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....e Ld. CIT(A) were wholly unreasonable, uncalled for and bad in law. 4. For that in view of the facts and circumstances of the case the Assessing Officer was wholly wrong and unjustified in disallowing the aforesaid miscellaneous expenses of (i) Rs. 76,81,390/- and (ii) Rs. 3,08,876/-, totally ignoring the Hon'ble Calcutta High Court's aforesaid order dt. 216.10.2001 approving the scheme of amalgamation of two companies with the transferee/amalgamated assessee company with specific and binding direction given to the assessee to write off the said expenses in 10 equal installments as miscellaneous expense. Action of the AO in disallowing the expenses and that of the Ld. CIT(A) in allowing partial relief were wholly unreasonable, ....
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....red at net realizable value and differential of book value of the advance and accordingly, realizable value was credited to the transferee account as miscellaneous expenses. According to AO, these misc. expenses is a capital item and to be disallowed. For this he recorded the following findings: "The item credited in the balance sheet as 'miscellaneous expenditure' is a capital item, thus, amortization to this capital expenditure does not cover sec. 36(2) of as loss u/s. 28. It is not covered u/.s. 35D, neither can the assessee claim depreciation u/s. 32(1)(ii) treating it an intangible asset, as it does not have any interest value out of which income can be generated in future. Therefore, the sum of Rs. 76,81,390/- is disallowed a....
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....-03 vide order dated 21st February, 2008, wherein it is held as under: "Heard learned Counsel for the appellant. Perused the order passed by the Tribunal. It appears to us that the Tribunal dealt with the matter extensively and specifically stated as follows: "We have carefully considered the arguments of both the sides and perused the material placed before us. We find that the CIT has invoked jurisdiction on the premises that the AO had not made proper enquiries as to the sum of Rs. 76,81,390/- of advance written off and Rs. 3,08,876/- of goodwill arising on amalgamation being written off as miscellaneous expenditure is not allowable and as such the action of the AO rendered the assessment order bad in law and prejudicia....