ACIT, CHENNAI V. Anand Transport, CHENNAI

ITA 1269/CHNY/2013

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 4407 (ITAT-CHENNAI)
• Duration Of Justice: 3 year(s) 11 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 31-05-2017
• Appeal Filed By: Department
• Order Result: Partly Allowed
• Bench Allotted: B
• Next Hearing Date: 15-03-2017
• Assessment Year: 2009-2010
• Appeal Filed On: 07-06-2013
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: DR MILIND MADHUKAR BHUSARI
• Assessee Lawyers: G BASKAR
• Keywords: Depreciation; Proportionate interest; Additional evidence; Permanent establishment; Commercial expediency
• Section: 80G

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH, CHENNAI . . . , !.. # $%, ' () BEFORE SHRI N.R.S. GANESAN, JUDICIAL MEMBER AND SHRI D.S. SUNDER SINGH, ACCOUNTANT MEMBER ./ ITA NOS.2293 & 2294/MDS/2016 + ,+ / ASSESSMENT YEARS : 2010-11 & 2011-12 & ./ ITA NO.1269/MDS/2013 + ,+ / ASSESSMENT YEAR : 2009-2010 THE ASSISTANT COMMISSIONER OF INCOME TAX, NON-CORPORATE CIRCLE 1(1) FORMERLY KNOWN AS BUSINESS CIRCLE-1, CHENNAI V. M/S ANAND TRANSPORT, NO.1, 9 TH STREET, DR. RADHAKRISHNAN SALAI, MYLAPORE, CHENNAI - 600 004. PAN : AAFA 1037 D (.// APPELLANT) (01.// RESPONDENT) ./ ITA NOS.2298 & 2299/MDS/2016 + ,+ / ASSESSMENT YEARS : 2010-11 & 2011-12 M/S ANAND TRANSPORT, NO.1, 9 TH STREET, DR. RADHAKRISHNAN SALAI, MYLAPORE, CHENNAI - 600 004. V. THE ASSISTANT COMMISSIONER OF INCOME TAX, BUSINESS CIRCLE-1, NEW JURISDICTION: THE DEPUTY COMMISSIONER OF INCOME TAX, NON-CORPORATE CIRCLE 1(1), CHENNAI. (.// APPELLANT) (01.// RESPONDENT) 2 3 4 /REVENUE BY : DR. MILIND MADHUKAR BHUSARI, CIT +56 3 4 /ASSESSEE BY : SHRI G. BASKAR, ADVOCATE # 3 6' / DATE OF HEARING : 15.03.2017 78, 3 6' / DATE OF PRONOUNCEMENT : 31.05.2017 2 I.T.A. NOS.2293 & 2294/MDS/16 I.T.A. NOS.2298 & 2299/MDS/16 I.T.A. NO.1269/MDS/13 / O R D E R PER N.R.S. GANESAN, JUDICIAL MEMBER: BOTH THE ASSESSEE AND REVENUE HAVE FILED APPEALS AGAINST THE RESPECTIVE ORDERS OF THE COMMISSIONER OF INCOME TAX (APPEALS)-2, CHENNAI, FOR THE ASSESSMENT YEARS 2010 -11 AND 2011- 12. THE REVENUE HAS ALSO FILED APPEAL FOR THE ASSE SSMENT YEAR 2009-10. SINCE COMMON ISSUES ARISE FOR CONSIDERATI ON IN ALL THESE APPEALS, WE HEARD THESE APPEALS TOGETHER AND DISPOS ING OF THE SAME BY THIS COMMON ORDER. LETS FIRST TAKE REVENUES APPEAL FOR ASSESSMENT YEAR 2009- 10. 2. THE FIRST ISSUE ARISES FOR CONSIDERATION IS DISA LLOWANCE UNDER SECTION 40(A)(I) OF THE INCOME-TAX ACT, 1961 (IN SH ORT 'THE ACT'). 3. DR. MILIND MADHUKAR BHUSARI, THE LD. DEPARTMENTA L REPRESENTATIVE, SUBMITTED THAT THE PAYMENT MADE BY THE ASSESSEE TO M/S JALDHI OVERSEAS PVT. LTD. TO THE EXTENT OF ` 33.92 CRORES WAS DISALLOWED BY THE ASSESSING OFFICER ON THE GROUND T HAT TAX WAS NOT DEDUCTED. THE CIT(APPEALS), HOWEVER, ALLOWED THE C LAIM OF THE 3 I.T.A. NOS.2293 & 2294/MDS/16 I.T.A. NOS.2298 & 2299/MDS/16 I.T.A. NO.1269/MDS/13 ASSESSEE ON THE GROUND THAT M/S JALDHI OVERSEAS PVT . LTD. HAS NO PERMANENT ESTABLISHMENT IN INDIA. THE CIT(APPEALS) HAS ALSO FOUND THAT THE PERMANENT ESTABLISHMENT OF M/S JALDH I OVERSEAS PVT. LTD. IS AT SINGAPORE. REFERRING TO EXPLANATION TO SECTION 195(1) OF THE ACT, THE LD. D.R. SUBMITTED THAT THE PAYMENT MA DE BY THE ASSESSEE TO M/S JALDHI OVERSEAS PVT. LTD. IS TAXABL E IN INDIA, THEREFORE, IRRESPECTIVE OF THE PERMANENT ESTABLISHM ENT OF THE NON- RESIDENT, THE PAYMENT IS TAXABLE. THEREFORE, ACCOR DING TO THE LD. D.R., THE ASSESSEE IS LIABLE TO DEDUCT TAX. THE LD . D.R. FURTHER SUBMITTED THAT THE ASSESSEE HAS NOT FILED ANY APPLI CATION UNDER SECTION 195A OF THE ACT BEFORE THE ASSESSING OFFICE R. 4. ON THE CONTRARY, SHRI G. BASKAR, THE LD.COUNSEL FOR THE ASSESSEE, SUBMITTED THAT THE VERY SAME ISSUE WAS CO NSIDERED BY THE MADRAS HIGH COURT IN THE ASSESSEE'S OWN CASE IN ANAND TRANSPORT (P.) LTD. V. ACIT (2015) 370 ITR 524. TH E MADRAS HIGH COURT FOUND THAT AN IDENTICAL PAYMENT MADE TO M/S J ALDHI OVERSEAS PVT. LTD. WAS HELD TO BE NOT FALLING WITHIN THE AMB IT TO DEDUCT TAX. IN VIEW OF THIS DECISION OF MADRAS HIGH COURT, ACCORDI NG TO THE LD. COUNSEL, THE CIT(APPEALS) HAS RIGHTLY DELETED THE A DDITION MADE BY THE ASSESSING OFFICER. 4 I.T.A. NOS.2293 & 2294/MDS/16 I.T.A. NOS.2298 & 2299/MDS/16 I.T.A. NO.1269/MDS/13 5. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS ON EITH ER SIDE AND PERUSED THE RELEVANT MATERIAL AVAILABLE ON RECORD. AS RIGHTLY SUBMITTED BY THE LD.COUNSEL FOR THE ASSESSEE, THE M ADRAS HIGH COURT IN THE ASSESSEE'S OWN CASE FOR ASSESSMENT YEA R 2010-11, CONSIDERED THE ISSUE IN A WRIT PROCEEDING AND THE D IVISION BENCH OF THE HIGH COURT FOUND THAT THE INCOME EARNED BY M/S JALDHI OVERSEAS PVT. LTD. IS TAXABLE AT SINGAPORE. MOREOV ER, THE HIGH COURT OBSERVED THAT DOUBLE TAXATION AVOIDANCE AGREE MENT BETWEEN GOVERNMENT OF INDIA AND SINGAPORE WOULD COM E TO RESCUE OF M/S JALDHI OVERSEAS PVT. LTD. THEREFORE, IT WAS ULTIMATELY CONCLUDED BY THE HIGH COURT THAT THE PAYMENT MADE B Y THE ASSESSEE TO M/S JALDHI OVERSEAS PVT. LTD. WILL NOT COME WITHIN THE AMBIT OF DEDUCTION AT SOURCE. IN VIEW OF THIS FIND ING OF MADRAS HIGH COURT, THIS TRIBUNAL IS OF THE CONSIDERED OPINION T HAT THE CIT(APPEALS) HAS RIGHTLY DELETED THE ADDITION MADE BY THE ASSESSING OFFICER. 6. THE NEXT ISSUE ARISES FOR CONSIDERATION IS DISAL LOWANCE OF PROPORTIONATE INTEREST ON THE ADVANCE MADE TO SISTE R CONCERN, NAMELY, M/S MGM LOGISTICS AND SHIPPING PVT. LTD. 5 I.T.A. NOS.2293 & 2294/MDS/16 I.T.A. NOS.2298 & 2299/MDS/16 I.T.A. NO.1269/MDS/13 7. DR. MILIND MADHUKAR BHUSARI, THE LD. DEPARTMENTA L REPRESENTATIVE, SUBMITTED THAT THE ASSESSEE ADVANCE D A SUM OF ` 20 CRORES TO M/S MGM LOGISTICS AND SHIPPING PVT. LT D., THEREFORE, THE ASSESSING OFFICER FOUND THAT THE BORROWED FUNDS WERE DIVERTED FOR NON-BUSINESS PURPOSE. ACCORDINGLY, HE DISALLOW ED ` 1.36 CRORES. ON FURTHER APPEAL BY THE ASSESSEE, THE CIT(APPEALS) ALLOWED THE CLAIM OF THE ASSESSEE ON THE GROUND THAT THERE WAS COMMERCIAL EXPEDIENCY IN ADVANCING ` 20 CRORES BY THE ASSESSEE. ACCORDING TO THE LD. D.R., M/S MGM LOGISTICS AND SHIPPING PVT. L TD. ENTERED INTO A JOINT VENTURE AGREEMENT IN A LISTED BUSINESS WITH M/S PR DEVELOPERS & BUILDERS PVT. LTD. THE ASSESSEE IS IN THE TRANSPORT BUSINESS. ACCORDING TO THE LD. D.R., THE MONEY WAS ADVANCED TO M/S MGM LOGISTICS AND SHIPPING PVT. LTD. FOR ENTERI NG INTO A JOINT DEVELOPMENT BUSINESS WITH ANOTHER COMPANY WHICH IS TOTALLY NOT CONNECTED WITH THE ASSESSEES BUSINESS. THEREFORE, ACCORDING TO THE LD. D.R., THE ADVANCE MADE BY THE ASSESSEE CANN OT BE CONSTRUED FOR BUSINESS PURPOSE. THE AGREEMENT ENTE RED INTO BETWEEN M/S MGM LOGISTICS AND SHIPPING PVT. LTD. AN D M/S PR DEVELOPERS & BUILDERS PVT. LTD. HAD ALREADY EXPIRED AND BARRED BY LIMITATION. MOREOVER, THERE WAS VIOLATION OF RULE 46A OF THE INCOME- 6 I.T.A. NOS.2293 & 2294/MDS/16 I.T.A. NOS.2298 & 2299/MDS/16 I.T.A. NO.1269/MDS/13 TAX RULES, 1962. ACCORDING TO THE LD. D.R., THE AS SESSING OFFICER WAS NOT GIVEN ANY OPPORTUNITY TO EXAMINE THE SO-CAL LED AGREEMENT WHICH WAS SAID TO BE PRODUCED BEFORE THE CIT(APPEAL S). 8. ON THE CONTRARY, SHRI G. BASKAR, THE LD.COUNSEL FOR THE ASSESSEE, SUBMITTED THAT DURING THE COURSE OF APPEL LATE PROCEEDING, THE ASSESSEE ALSO FILED A STAY PETITION PRAYING FOR RECOVERY OF OUTSTANDING AMOUNT DURING THE PENDENCY OF APPEAL BE FORE THE CIT(APPEALS). ACCORDING TO THE LD. COUNSEL, THE CI T(APPEALS), IN FACT, GAVE A COPY OF AGREEMENT TO THE ASSESSING OFF ICER SHRI K. ROHAN RAJ. THE SAID SHRI ROHAN RAJ ALSO APPEARED B EFORE THE CIT(APPEALS) AND ADMITTED THAT THE SAID COPY OF AGR EEMENT WAS AVAILABLE WITH HIM. THEREFORE, ACCORDING TO THE LD . COUNSEL, IT CANNOT BE SAID THAT THERE WAS VIOLATION OF RULE 46A . FURTHERMORE, THE ASSESSEE-FIRM ADVANCED THE BORROWED FUNDS TO SI STER COMPANY WHEREIN THERE ARE COMMON SHAREHOLDERS AND PARTNERS FOR THE PURPOSE OF ENGAGING IN BUSINESS JOINTLY WITH OTHER COMPANY. SINCE THE PARTNERS OF THE ASSESSEE-FIRM AND DIRECTORS OF M/S MGM LOGISTICS AND SHIPPING PVT. LTD. ARE COMMON, ACCORD ING TO THE LD. COUNSEL, THERE WAS COMMERCIAL EXPEDIENCY IN ADVANCI NG MONEY, 7 I.T.A. NOS.2293 & 2294/MDS/16 I.T.A. NOS.2298 & 2299/MDS/16 I.T.A. NO.1269/MDS/13 THEREFORE, THE CIT(APPEALS) HAS RIGHTLY ALLOWED THE CLAIM OF THE ASSESSEE. 9. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS ON EITH ER SIDE AND PERUSED THE RELEVANT MATERIAL AVAILABLE ON RECORD. THE ASSESSEE ADMITTEDLY IS A PARTNERSHIP FIRM AND THE MONEY WAS ADVANCED TO M/S MGM LOGISTICS AND SHIPPING PVT. LTD., WHEREIN THE P ARTNERS OF THE ASSESSEE-COMPANY AND SOME OF THE DIRECTORS/SHAREHOL DERS ARE COMMON. THE QUESTION ARISES FOR CONSIDERATION IS W HETHER MERELY BECAUSE THERE WERE SOME PARTNERS OF ASSESSEE FIRM A ND SHAREHOLDERS OF M/S MGM LOGISTICS AND SHIPPING PVT. LTD. ARE COOMON, CAN IT BE CONSIDERED TO BE A SISTER CONCERN OF THE ASSESSEE? THIS FACT WAS NOT EXAMINED BY ANY OF THE AUTHORITIES BELOW. 10. MOREOVER, WHEN THE AGREEMENT SAID TO BE ENTER ED INTO BY M/S MGM LOGISTICS AND SHIPPING PVT. LTD. AND M/S PR DEVELOPERS & BUILDERS PVT. LTD. FOR JOINT BUSINESS WAS FILED B EFORE THE CIT(APPEALS), THE CIT(APPEALS) OBSERVED IN THE IMPU GNED ORDER THAT A COPY OF THE SAID AGREEMENT WAS GIVEN TO SHRI ROHAN RAJ, THE ASSESSING OFFICER. RULE 46A REQUIRES THE CIT(APPEA LS) TO GIVE AN 8 I.T.A. NOS.2293 & 2294/MDS/16 I.T.A. NOS.2298 & 2299/MDS/16 I.T.A. NO.1269/MDS/13 OPPORTUNITY TO THE ASSESSING OFFICER TO CONTRADICT THE CONTENTS OF ADDITIONAL EVIDENCE FILED BEFORE HIM. MERE FURNISH ING OF A COPY OF AGREEMENT WOULD NOT BE SUFFICIENT FOR COMPLIANCE OF RULE 46A OF INCOME-TAX RULES, 1962. THIS TRIBUNAL IS OF THE C ONSIDERED OPINION THAT THE CIT(APPEALS) OUGHT TO HAVE GIVEN AN OPPORT UNITY TO EXAMINE THE CONTENTS OF AGREEMENT. SINCE SUCH AN O PPORTUNITY WAS NOT GIVEN, THIS TRIBUNAL IS OF THE CONSIDERED OPINI ON THAT THE MATTER NEEDS TO BE RE-EXAMINED. ACCORDINGLY, THE ORDERS O F THE AUTHORITIES BELOW ARE SET ASIDE AND THE ISSUE OF DISALLOWANCE O F ` 1.36 CRORES TOWARDS INTEREST ON THE AMOUNT BORROWED AND ADVANCE D TO M/S MGM LOGISTICS AND SHIPPING PVT. LTD. IS REMITTED BA CK TO THE FILE OF THE ASSESSING OFFICER. THE ASSESSING OFFICER SHALL RE-EXAMINE THE MATTER AFRESH IN THE LIGHT OF THE AGREEMENT SAID TO BE ENTERED INTO BY THE ASSESSEE AND ALSO EXAMINE WHETHER M/S MGM LOGIS TICS AND SHIPPING PVT. LTD. IS A SISTER COMPANY OF THE ASSES SEE-FIRM MERELY BECAUSE THERE WERE COMMON PARTNERS/SHAREHOLDERS. 11. IN THE RESULT, REVENUES APPEAL IN I.T.A. NO. 1 269/MDS/2013 IS PARTLY ALLOWED FOR STATISTICAL PURPOSES. 9 I.T.A. NOS.2293 & 2294/MDS/16 I.T.A. NOS.2298 & 2299/MDS/16 I.T.A. NO.1269/MDS/13 12. NOW COMING TO ASSESSMENT YEAR 2010-11, THE FIRS T GROUND IN THE REVENUES APPEAL IS DEPRECIATION CLAIMED BY THE ASSESSEE ON BOAT JETTY. 13. DR. MILIND MADHUKAR BHUSARI, THE LD. DEPARTMENT AL REPRESENTATIVE, SUBMITTED THAT THE ASSESSEE HAS ERE CTED JETTY FOR TRANSPORT OF IRON ORE IN ENNORE PORT TRUST. ACCORD ING TO THE LD. D.R., THE STRUCTURE CANNOT BE CONSTRUED AS TEMPORARY STRU CTURE, THEREFORE, NOT ELIGIBLE FOR 100% DEPRECIATION. 14. ON THE CONTRARY, SHRI G. BASKAR, THE LD.COUNSEL FOR THE ASSESSEE, SUBMITTED THAT THIS ISSUE WAS EXAMINED BY THIS TRIBUNAL FOR ASSESSMENT YEAR 2005-06 IN I.T.A. NO.737/MDS/20 14. THIS TRIBUNAL FOUND THAT THE JETTY ERECTED BY THE ASSESS EE IS ONLY A TEMPORARY STRUCTURE, THEREFORE, ELIGIBLE FOR DEPREC IATION AT THE RATE OF 100%. IN FACT, AN APPEAL WAS FILED BY THE REVENUE BEFORE MADRAS HIGH COURT IN TCA 82 OF 2017. THE MADRAS HIGH COUR T, AFTER REFERRING TO DICTIONARY MEANING OF THE WORD JETTY FOUND THAT JETTY IS NOTHING BUT A STRUCTURE WHICH IS USED EITHER AS A L ANDING STAGE, A SMALL PIER, A BRIDGE OR A STAIRCASE OR A CONSTRUCTI ON, BUILT INTO THE 10 I.T.A. NOS.2293 & 2294/MDS/16 I.T.A. NOS.2298 & 2299/MDS/16 I.T.A. NO.1269/MDS/13 WATER TO PROTECT THE HARBOUR. FINALLY, THE MADRAS HIGH COURT CONFIRMED THE ORDER OF THIS TRIBUNAL. 15. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS ON EIT HER SIDE AND PERUSED THE RELEVANT MATERIAL AVAILABLE ON RECORD. AS RIGHTLY SUBMITTED BY THE LD.COUNSEL FOR THE ASSESSEE, THIS TRIBUNAL IN THE ASSESSEE'S OWN CASE, FOR THE ASSESSMENT YEAR 2005-0 6, EXAMINED THIS ISSUE ELABORATELY AND FOUND THAT THE ASSESSEE ERECTED A TEMPORARY STRUCTURE FOR LOADING AND UNLOADING OF GO ODS IN ENNORE PORT TRUST, THEREFORE, ELIGIBLE FOR 100% DEPRECIATI ON. THE ORDER OF THIS TRIBUNAL FOR ASSESSMENT YEAR 2005-06 WAS CONFI RMED BY THE MADRAS HIGH COURT. THEREFORE, THIS TRIBUNAL DO NOT FIND ANY REASON TO INTERFERE WITH THE ORDER OF THE LOWER AUTHORITY AND ACCORDINGLY THE SAME IS CONFIRMED. 16. THE NEXT GROUND RAISED BY THE REVENUE IS DISALL OWANCE MADE BY THE ASSESSING OFFICER UNDER SECTION 40(A)(I ) OF THE ACT IN RESPECT OF PAYMENT MADE TO M/S JALDHI OVERSEAS PVT. LTD. 17. WE HAVE HEARD DR. MILIND MADHUKAR BHUSARI, THE LD. DEPARTMENTAL REPRESENTATIVE AND SHRI G. BASKAR, THE LD.COUNSEL FOR THE ASSESSEE. THE LD.COUNSEL FOR THE ASSESSEE POINTED OUT THAT 11 I.T.A. NOS.2293 & 2294/MDS/16 I.T.A. NOS.2298 & 2299/MDS/16 I.T.A. NO.1269/MDS/13 THE ASSESSEE IN FACT WITHDREW THIS GROUND OF APPEAL ON THE BASIS OF THE JUDGMENT OF MADRAS HIGH COURT IN THE ASSESSEE'S OWN CASE FOR ASSESSMENT YEAR 2010-11 IN A WRIT PROCEEDING AND TH E CIT(A) HAS NOT ADJUDICATED THIS GROUND AT ALL. THEREFORE, THE APPEAL FILED BY THE REVENUE IS NOT MAINTAINABLE. THIS TRIBUNAL IS OF T HE CONSIDERED OPINION THAT WHEN THE MADRAS HIGH COURT IN A WRIT P ROCEEDING FOUND THAT THE PAYMENT MADE BY THE ASSESSEE TO M/S JALDHI OVERSEAS PVT. LTD. WILL NOT COME WITHIN THE AMBIT OF DEDUCTION AT SOURCE, THE GROUND OF APPEAL RAISED BY THE REVENUE HAS NO MERIT AT ALL. ACCORDINGLY, THE SAME IS DISMISSED. 18. NOW COMING TO ASSESSEES APPEAL FOR 2010-11, TH E FIRST GROUND OF APPEAL IS WITH REGARD TO DISALLOWANCE OF INTEREST ON THE ADVANCE MADE TO M/S MGM LOGISTICS AND SHIPPING PVT. LTD. 19. WHILE CONSIDERING THIS ISSUE FOR ASSESSMENT YEA R 2009-10 IN REVENUES APPEAL, THIS TRIBUNAL REMITTED THE MATTER BACK TO THE FILE OF THE ASSESSING OFFICER. SINCE THE FACTS ARE IDEN TICAL FOR ASSESSMENT YEAR 2010-11 ALSO, THIS ISSUE IS REMITTE D BACK TO THE FILE OF THE ASSESSING OFFICER WITH SAME DIRECTION. 12 I.T.A. NOS.2293 & 2294/MDS/16 I.T.A. NOS.2298 & 2299/MDS/16 I.T.A. NO.1269/MDS/13 20. THE NEXT ISSUE ARISES FOR CONSIDERATION IS DISA LLOWANCE UNDER SECTION 40(A)(I) OF THE ACT IN RESPECT OF PAYMENT M ADE TO PORT TRUST. 21. SHRI G. BASKAR, THE LD.COUNSEL FOR THE ASSESSEE , SUBMITTED THAT THE PORT TRUST, IN FACT, INCLUDED THIS AMOUNT IN THE RETURN OF INCOME AND PAID THE TAXES. THEREFORE, THERE CANNOT BE ANY DISALLOWANCE IN THE HANDS OF THE PRESENT ASSESSEE. 22. ON THE CONTRARY, DR. MILIND MADHUKAR BHUSARI, T HE LD. DEPARTMENTAL REPRESENTATIVE, SUBMITTED THAT THIS IS SUE MAY BE REMITTED BACK TO THE FILE OF THE ASSESSING OFFICER FOR VERIFICATION. 23. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS ON EIT HER SIDE AND PERUSED THE RELEVANT MATERIAL AVAILABLE ON RECORD. THE ASSESSING OFFICER DISALLOWED THE CLAIM OF THE ASSESSEE TO THE EXTENT OF ` 83,77,966/- UNDER SECTION 40(A)(I) FOR NON-DEDUCTIO N OF TAX AT SOURCE. NOW THE ASSESSEE CLAIMS THAT CHENNAI PORT TRUST PAID THE TAXES BY INCLUDING THE AMOUNT RECEIVED FROM THE ASS ESSEE IN THEIR RETURN OF INCOME. THEREFORE, AS RIGHTLY SUBMITTED BY THE LD. DEPARTMENTAL REPRESENTATIVE, THE MATTER NEEDS TO BE VERIFIED. ACCORDINGLY, THE ORDERS OF THE AUTHORITIES BELOW AR E SET ASIDE AND THE ISSUE OF DISALLOWANCE OF ` 83,77,966/- UNDER SECTION 40(A)(I) OF 13 I.T.A. NOS.2293 & 2294/MDS/16 I.T.A. NOS.2298 & 2299/MDS/16 I.T.A. NO.1269/MDS/13 THE ACT IS REMITTED BACK TO THE FILE OF THE ASSESSI NG OFFICER. THE ASSESSING OFFICER SHALL RE-EXAMINE THE ISSUE AFRESH AND FIND OUT WHETHER THE RECIPIENT, NAMELY, CHENNAI PORT TRUST H AS PAID THE TAXES ON THE AMOUNT RECEIVED BY THEM AND THEREAFTER DECIDE THE SAME IN ACCORDANCE WITH LAW, AFTER GIVING A REASONA BLE OPPORTUNITY TO THE ASSESSEE. 24. THE NEXT ISSUE ARISES FOR CONSIDERATION IS DISA LLOWANCE MADE BY THE ASSESSING OFFICER UNDER SECTION 80G OF THE A CT. 25. THE ASSESSING OFFICER DISALLOWED ` 3,08,500/- ON THE GROUND THAT THE ASSESSEE COULD NOT SUBSTANTIATE THE PAYMEN T BY PRODUCING NECESSARY EVIDENCE. THE CIT(APPEALS) CONFIRMED THE SAME SINCE THERE WAS NO MATERIAL EVIDENCE. EVEN BEFORE THIS T RIBUNAL, NO MATERIAL WAS PRODUCED. THEREFORE, THE DISALLOWANCE MADE UNDER SECTION 80G OF THE ACT IS CONFIRMED. 26. NOW COMING TO REVENUES APPEAL FOR ASSESSMENT Y EAR 2011- 12, THE FIRST ISSUE ARISES FOR CONSIDERATION IS WIT H REGARD TO DEPRECIATION ON THE TEMPORARY ERECTION, NAMELY, JET TY. THE SECOND ISSUE ARISES FOR CONSIDERATION IS IN RESPECT OF PAY MENT MADE TO M/S JALDHI OVERSEAS PVT. LTD. 14 I.T.A. NOS.2293 & 2294/MDS/16 I.T.A. NOS.2298 & 2299/MDS/16 I.T.A. NO.1269/MDS/13 27. BOTH THE ISSUES WERE EXAMINED FOR THE ASSESSMEN T YEAR 2009-10. BY FOLLOWING THE JUDGMENT OF MADRAS HIGH COURT, THIS TRIBUNAL ALLOWED THE CLAIM OF THE ASSESSEE FOR ASSE SSMENT YEAR 2009-10 IN THE EARLIER PART OF THIS ORDER. FOR THE SAME REASON, THIS TRIBUNAL DO NOT FIND ANY REASON TO INTERFERE WITH T HE ORDER OF THE LOWER AUTHORITY AND ACCORDINGLY THE SAME IS CONFIRM ED. 28. NOW COMING TO ASSESSEES APPEAL FOR ASSESSMENT YEAR 2011-12, THE ONLY ISSUE ARISES FOR CONSIDERATION IS DISALLOWANCE OF INTEREST PAID ON ADVANCES MADE TO SISTER COMPANY. 29. THIS ISSUE WAS ALSO DEALT WITH ELABORATELY IN T HE EARLIER PART OF THIS ORDER FOR ASSESSMENT YEAR 2009-10 AND 2010- 11. THIS TRIBUNAL HAS REMITTED BACK THE MATTER TO THE FILE O F THE ASSESSING OFFICER FOR RECONSIDERATION. FOR THE YEAR UNDER CO NSIDERATION ALSO, FOR THE REASON STATED FOR ASSESSMENT YEARS 2009-10 AND 2010-11 IN THE EARLIER PART OF THIS ORDER, THE ORDERS OF THE A UTHORITIES BELOW ARE SET ASIDE AND THE ISSUE IS REMITTED BACK TO THE FIL E OF THE ASSESSING OFFICER. 15 I.T.A. NOS.2293 & 2294/MDS/16 I.T.A. NOS.2298 & 2299/MDS/16 I.T.A. NO.1269/MDS/13 30. IN THE RESULT, THE REVENUES APPEALS IN I.T.A. NOS.2293, 2294/MDS/2016 & 1269/MDS/2013 AND THE ASSESSEES AP PEAL IN I.T.A. NOS.2298/MDS/2016 ARE PARTLY ALLOWED FOR STA TISTICAL PURPOSES & I.T.A. NO.2299/MDS/2016 IS ALLOWED FOR STATISTICA L PURPOSES. ORDER PRONOUNCED ON 31 ST MAY, 2017 AT CHENNAI. SD/- SD/- ( ! . . # $% ) ( . . . ) (D.S. SUNDER SINGH) (N.R.S. GANESAN) ' / ACCOUNTANT MEMBER /JUDICIAL MEMBER /CHENNAI, : /DATED, THE 31 ST MAY, 2017. KRI. 3 06$; <;,6 /COPY TO: 1. +56 /ASSESSEE 2. 01./ /RESPONDENT 3. # =6 () /CIT(A)-2, CHENNAI 4. PRINCIPAL CIT-1, CHENNAI 5. ;> 06 /DR 6. !+ ? /GF.