Hindustan Petroleum Corporation Ltd., MUMBAI V. Jt.CIT SP.Range 56,

ITA 1294/MUM/2001

• Counselvise Citation: [2012] 119 COUNSELVISE.COM (IT) 8810 (ITAT-MUMBAI)
• Duration Of Justice: 11 year(s) 6 month(s) 21 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 26-09-2012
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: G
• Next Hearing Date: 13-09-2012
• Assessment Year: 1997-1998
• Appeal Filed On: 07-03-2001
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: J D MISTRY SENIOR
• Section: 43B; 37(1)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH G, MUMBAI BEFORE SHRI P.M. JAGTAP, ACCOUNTANT MEMBER AND SHRI VIVEK VARMA, JUDICIAL MEMBER ITA NO. 1294/MUM/2001 (ASSESSMENT YEAR: 1997-98) HINDUSTAN PETROLEUM CORPORATION LTD., 17, JAMSHEDJI TATA ROAD, MUMBAI -400 020 PAN/GIR: SR.56/II-2 VS. JT. COMMISSIONER OF INCOME TAX SPECIAL RANGE 56, CHARNI ROAD, MUMBAI -400 002 (APPELLANT) (RESPONDENT) APPELLANT BY : MR. J.D. MISTRY, SENIOR ADVOCATE RESPONDENT BY : MR. PAVAN VED DATE OF HEARING: 12-09-2012 DATE OF PRONOUNCEMENT: 26-09-2012 O R D E R PER VIVEK VARMA, JM: THE APPEAL ARISES FROM THE ORDER OF CIT(A)-1, MUMBAI, DATED 01.01.2001. THE ASSESSEE HAS FILED ITS GROUNDS OF APPEAL ALON GWITH FROM NO. 36, WHICH WERE NARRATIVE. THE ASSESSEE, VIDE LET TER DATED 23.12.2009 HAS FILED CONCISE GROUNDS, IN PLACE OF THE GROUNDS FILED ORIGINALLY. WE, THEREFORE, ARE ADJUDICATING ON THE CONCISE GR OUNDS, FILED ON 23.12.2009. GROUND NO. 1: PROVISION TOWARDS POST RETIREMENT MEDICAL BENEFIT - RS. 1,36,12,000/- ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE C IT(A) ERRED IN CONFIRMING THE DISALLOWANCE AMOUNTING TO RS. 1,36,1 2,000/-, CLAIMED U/S 37(1). HINDUSTAN PETROLEUM CORPORATION LTD. ITA NO. 1294/MUM/2001 2 2. IN THE COURSE OF ASSESSMENT PROCEEDINGS, THE AO CALLE D FOR AN EXPLANATION AS TO WHY POST RETIREMENT MEDICAL BENEFIT CLAIM ED AT RS. 1,36,12,000/-, BE NOT DISALLOWED. THE AO, AFTER CONSIDERING THE REPLY OF THE ASSESSEE, DISALLOWED THE PROVISION CREATED BY THE A SSESSEE. TO MAKE THE DISALLOWANCE, HE USED THE REASONING TAKEN BY HIM FOR DISALLOWING THE PROVISION FOR LEAVE ENCASHMENT, WHEREIN, THE A O HAD HELD THE EXPENSE TO BE AN UNASCERTAINED LIABILITY, BEING CON TINGENT IN NATURE. 3. AGGRIEVED, THE ASSESSEE PREFERRED AN APPEAL BEFORE TH E CIT(A), WHO TOO, HELD THAT IT WAS CASE OF UNASCERTAINED LIABILITY A ND THEREFORE COULD NOT BE ALLOWED. WHILE DISALLOWING THE PROVISION FOR EXPENS E, THE CIT(A), KNOCKED OFF THE ADDITION MADE BY THE AO ON ACCOUNT OF LEAVE ENCASHMENT, BEING THE BASIS FOR MAKING THE ADDITION UNDER THIS HEAD. 4. AGGRIEVED, THE ASSESSEE IS NOW BEFORE THE ITAT. 5. BEFORE US, THE SENIOR COUNSEL SUBMITTED THAT SINCE TH E VERY BASIS ITSELF HAS BEEN KNOCKED OFF, THE REASON TO SUSTAIN TH E DISALLOWANCE DOES NOT SURVIVE. HE ALSO SUBMITTED THAT THE DEPARTMENT HAS NOT FILED ANY APPEAL AGAINST THE DECISION OF THE CIT(A) O N LEAVE ENCASHMENT. 6. THE SENIOR COUNSEL, FURTHER POINTED OUT THAT POST RE TIREMENT MEDICAL BENEFIT COMES ALONG THE SERVICE CONTRACT, THEREFOR E, THE LIABILITY ON THE COMPANY BECOMES FINAL AND ASCERTAINED, THE M OMENT AN EMPLOYEE SIGNS SERVICE AGREEMENT WITH THE COMPANY. HE FURTHER POINTED OUT THAT NOT ONLY, IT IS THE POLICY OF THE COMPAN Y, BUT IT IS HINDUSTAN PETROLEUM CORPORATION LTD. ITA NO. 1294/MUM/2001 3 DIRECTION FROM THE GOVERNMENT OF INDIA. HE DREW OUR ATT ENTION TO THE OFFICE MEMORANDUM DATED 26.11.2008, NO. 2 (70)/08-DPE(WC) ISSU ED BY MINISTRY OF HEAVY INDUSTRIES & PUBLIC ENTERPRISES (APB 3 7 AND RELEVANT PORTION AT PAGES 45 REVERSE SIDE), WHEREIN POIN T (V) READS , SUPERANNUATION BENEFITS: CPSES WOULD BE ALLOWED 30% OF BASIC P AY AS SUPERANNUATION BENEFITS, WHICH MAY INCLUDE CONTRIBUTOR Y PROVIDENT FUND (CPF), GRATUITY, PENSION AND POST-SUPERANNUATION ME DICAL BENEFITS. THE CPSES SHOULD MAKE THEIR OWN SCHEMES TO MANAGE THESE FUNDS OR OPERATE THROUGH INSURANCE COMPANIES ON FIX ED CONTRIBUTION BASIS. THE AMOUNT OF PENSION, GRATUITY AND POST RETI REMENT BENEFIT WILL BE DECIDED BASED ON THE RETURNS FROM THE SCHEMES TO BE OPERATED. THE PENSION AND MEDICAL BENEFITS CAN BE EXTENDED TO THO SE EXECUTIVES, WHO SUPERANNUATE FROM THE CPSE AND HAVE PUT IN A MAXIMUM OF 15 YEARS OF SERVICE IN THE CPSE, PRIOR TO SUPERANNUATION . HE ALSO DREW OUR ATTENTION TO THE ACTUARIAL VALUATION OF THE POST RETIREM ENT MEDICAL LIABILITY, WHICH HAD BEEN MADE AS ON 31.03.1997, WHEREIN THE LIABILITY WORKED OUT AT RS. 5,96,02,548. 7. THE SENIOR COUNSEL, BASING HIS ARGUMENTS, SUBMITTED THA T EXPENSE HAS BEEN RIGHTLY PROVIDED FOR BY THE ASSESSEE AND SHOULD BE ALLOWED. 8. THE DR, RELIED ON THE DECISIONS OF THE REVENUE AUTHORITIES. HINDUSTAN PETROLEUM CORPORATION LTD. ITA NO. 1294/MUM/2001 4 9. WE HAVE HEARD THE ARGUMENTS OF THE TWO SIDES AND P ERUSED THE IMPUGNED ORDERS AND THE MATERIAL PLACED BEFORE US. THE P OST RETIREMENT MEDICAL BENEFIT IS A PROVISION, WHICH HAS BECOME A MUST FOR ALL THE CONCERNS, SPECIALLY WHERE THERE ARE HEALTH HAZARD S. IT IS BECAUSE OF THESE REASONS, THE GOVERNMENT HAS NOTIFIED TH AT POST RETIREMENT MEDICAL BENEFIT BE ALLOWED. WE HAVE SEEN FROM THE PAPERS APPENDED IN THE APB THAT A SERVICE CONTRACT IS WORDED IN SUCH A WAY THAT THESE BENEFITS ARE INTEGRAL PART OF THE CONTRACTS AND THE LIABILITY GETS ATTACHED, THE MOMENT A SERVICE CONTRACT IS SIGNED, INDUCTING A NEW EMPLOYEE. THE ARGUMENT OF SENIOR COUNSEL IS, THEREFORE , WELL FOUNDED. WE SHALL ALSO, REFER TO THE CASE OF BHARAT EARTH M OVERS LTD. VS CIT REPORTED IN 245 ITR 428, WHEREIN THE HONBLE SUP REME COURT HAS HELD THAT LEAVE ENCASHMENT IS NOT A CONTINGENT LIABILIT Y. TAKING THE SAME CUE, THAT POST RETIREMENT MEDICAL BENEFIT IS ALSO A LIAB ILITY WHICH GETS ATTACHED TO THE COMPANY THE MOMENT, THE SERVICE CONTRACT IS SIGNED, WE HOLD THAT THE REVENUE AUTHORITIES ERRED IN DISA LLOWING THE PROVISION UNDER THIS HEAD. HAVING HELD SO IN PRINCIPLE, NEITHE R WE HAVE BEEN ABLE TO GATHER THE YEAR WISE BREAKUP OF THE ACTUA RIAL VALUATION MADE BY THE ACTUARY AS ON 31.03.1997, NOR THE SENIOR C OUNSEL, WAS ABLE TO APPRISE US ON THE VALUATION, PERTAINING TO THE YEA R UNDER CONSIDERATION. 10. TAKING INTO ACCOUNT THE ABOVE REASON, WE DEEM IT FIT TO RESTORE THE ISSUE TO THE FILE OF THE AO, WHO SHALL CALL FOR THE YEAR WISE VALUATION AND THEN ALLOW THE CLAIM ACCORDINGLY. WE, THEREFORE, SET ASID E THE ORDER HINDUSTAN PETROLEUM CORPORATION LTD. ITA NO. 1294/MUM/2001 5 OF THE CIT(A) ON THIS ISSUE AND DIRECT THE AO TO ALLOW THE CLAIM OF PROVISION AFTER VERIFICATION OF THE ACTUARYS REPORT PERTAIN ING TO THE CURRENT YEAR. GROUND NO. 2: RIGHT TO USE TECHNICAL KNOW HOW - DISALLOWANCE OF 1 00% CLAIM U/S 37(1) AND ALLOWANCE OF 1/6TH U/S 35 AB : RS. 4, 33,49,942/- THE CIT(A) ERRED IN CONFIRMING THE DISALLOWANCE OF RS. 4,33,49,942/- TOWARDS RIGHT TO USE TECHNICAL KNOW H OW U/S 37(1) AND ALLOWING ONLY 1/6TH U/S 35AB. 11. IN THE COURSE OF ASSESSMENT PROCEEDINGS, THE AO NOTICED THAT THE ASSESSEE HAD CLAIMED RS. 5,20,19,930 ON ACCOUNT OF TECHNI CAL KNOW HOW FEE U/S 37(1). THE AO, DISAGREED TO THE CLAIM U/S 37(1), B UT HE CONSIDERED THE EXPENSE TO BE ALLOWED ON DEFERRED BASIS U /S 35AB TO BE SPREAD OVER IN 6 YEARS. HE, THEREFORE, ALLOWED RS. 86,69,988 AND DISALLOWED THE BALANCE OF RS 4,33,49,942. THE AO, HOWEVER, DID NOT ALLOW RS. 86,69,988, AS THE ISSUE WAS DISPUTED BY THE ASSES SEE IN APPEAL AND THE AO WAS CATEGORICAL IN OBSERVING, THE SAID CLAIM WILL BE CONSIDERED FOR ALLOWANCE AS AND WHEN THE MATTER BECOM ES FINAL AT THE APPELLATE STAGE. 12. THE ASSESSEE APPROACHED THE CIT(A) ON THE IMPUGNED ISSUE, WHO FOLLOWING THE ASSESSEES OWN CASE FROM ASSESSMENT YEARS 1994-95 AND 1995-96, DISALLOWED RS. 4,33,49,942. 13. THE ASSESSEE IS BEFORE THE ITAT ON THIS ISSUE. 14. BEFORE US, THE SENIOR COUNSEL SUBMITTED THAT THE ISSU E HAS NOW BEEN FINALLY SETTLED BY THE COORDINATE BENCH AT MUMBAI IN ITS OWN CASE IN ORDER COVERING ASSESSMENT YEARS 1992-93 TO 1995-96: HINDUSTAN PETROLEUM CORPORATION LTD. ITA NO. 1294/MUM/2001 6 10. ACCORDINGLY, WE DISMISS THE GROUND NUMBER 1 FO R THE ASSESSMENT YEAR 1993-94 BEING NOT PRESSED AND THE A SSESSING OFFICER IS DIRECTED TO ALLOW THE CLAIM UNDER SECTIO N 35AB TO THE EXTENT OF 1/6TH OF THE AMOUNT FOR THE ASSESSMENT YE ARS 1993- 94, 1994-95 AND 1995-96 AS IT WAS ALLOWED IN THE FI RST YEAR. 15. DR RELIED ON THE ORDERS OF THE REVENUE AUTHORITIES. 16. RESPECTFULLY FOLLOWING THE ORDER OF THE COORDINATE BEN CH IN THE ASSESSEES OWN CASE, WE SET ASIDE THE ORDER OF THE CI T(A) ON THIS ISSUE AND DIRECT THE AO TO ALLOW THE CLAIM U/S 35AB TO THE EXTE NT OF 1/6TH OF THE AMOUNT CLAIMED (AS ALLOWED BY THE AO IN THE ASSESSMENT ORDER). 17. THE GROUND IS, THEREFORE, PARTLY ALLOWED. GROUND NO. 3: DISALLOWANCE OF EXPENDITURE ON 20 POINT PROGRAMME RS. 1,82,82,9L0/- ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, CIT(A) ERRED IN DISALLOWING THE EXPENDITURE INCURRE D U/S 37(1) TOWARDS 20 POINT PROGRAMME AMOUNTING TO RS. 1,82,82 ,910/-. 18. AT THE TIME OF HEARING, THE SENIOR COUNSEL SUBMITTED THAT THE ISSUE IS IDENTICAL AND COVERED BY THE ORDER OF COORDINATE BENCH COVERING ASSESSMENT YEARS 1992-93 TO 1995-96, WHERE A FTER A DETAILED DISCUSSION, THE HONBLE COORDINATE BENCH AS ALLOWED THE CLA IM OF EXPENDITURE, FOLLOWING THE EARLIER ORDER OF THIS TRIBUNAL, WE DECID E THIS ISSUE IN FAVOUR OF THE ASSESSEE AND AGAINST THE REVENU E. 19. DR RELIED ON THE ORDER OF THE REVENUE AUTHORITIES 20. RESPECTFULLY FOLLOWING THE ORDERS OF THE COORDINATE BE NCH COVERING ASSESSMENT YEARS 1992-93 TO 1995-96, WE ALLOW THE GRO UND. 21. GROUND IS ALLOWED. GROUND NO. 4: PARTIAL DISALLOWANCE OF EXCISE/CUSTOM DUTY PAID DUR ING THE YEAR AND INCLUDED IN CLOSING INVENTORY U/S 43B RS . 32,75,47,943/- ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW CIT(A) ERRED IN DISALLOWING THE APPELLANTS CLAIM O F EXCISE/CUSTOM HINDUSTAN PETROLEUM CORPORATION LTD. ITA NO. 1294/MUM/2001 7 DUTY PAID OF RS. 32,75,47,943/AND INCLUDED IN CLOSI NG INVENTORY U/S 43B.. 22. THE SENIOR COUNSEL SUBMITTED THAT THE ISSUE IS COVER ED BY THE ORDER OF THE COORDINATE BENCH OF ITAT AT MUMBAI, FOR THE YEARS COVERING ASSESSMENT YEARS 1992-93 TO 1995-96 IN PARA 13, THE TRIBUNAL HELD: 13. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AS WE LL AS RELEVANT MATERIAL ON THE COURT. AT THE OUTSET, WE N OTE THAT FOR THE ASSESSMENT YEAR 1989-90 IN ORDER REPORTED I N 96 ITD 186, THIS TRIBUNAL HAS CONSIDERED AND DECIDED I T THIS ISSUE IN PARA 12 AND 13 AS UNDER: 12. IN THE SECOND GROUND OF APPEAL, THE ASSESSEE IS AGGRIEVED THAT THE CIT (A) ERRED IN CONFIRMING THE PARTIAL DISALLOWANCE OF EXCISE / CUSTOM DUTY PAID DURING TH E YEAR AND INCLUDED IN THE CLOSING INVENTORY UNDER SE CTION 43B, THEREBY IGNORING THE RATIO OF GUJARAT HIGH COU RT IN THE LAKHANPAL NATIONAL LTD. VS. ITO [1986] 162 ITR 240. LEARNED REPRESENTATIVE FAIRLY AGREE THAT THE ISSUE IS NOW COVERED IN FAVOUR OF THE ASSESSEE, BY HONBLE SUPRE ME COURTS JUDGMENT IN THE CASE OF BERGER PAINTS INDIA LTD. V. CIT [2004] 266 HR 99. RESPECTFULLY FOLLOWING THE SAME, WE UPHOLD THE CONTENTION OF THE ASSESSEE AND DIRECT THE ASSESSING OFFICER TO ALLOW DEDUCTION FOR ENTIRE AMO UNT OF EXCISE DUTY AND CUSTOM DUTY PAID BY THE ASSESSEE IRRESPECTIVE OF THE EXCISE DUTY AND CUSTOM DUTY INC LUDED IN THE VALUATION OF ASSESSEES CLOSING STOCK AT THE END OF THE ACCOUNTING YEAR. THE ASSESSEE GETS RELIEF ACCORDINGLY. 14. FOLLOWING THE EARLIER ORDER OF THIS TRIBUNAL, W E DECIDE THIS ISSUE IN FAVOUR OF THE ASSESSEE AND AGAINST TH E REVENUE. 23. DR RELIED ON THE ORDERS OF THE REVENUE AUTHORITIES. 24. RESPECTFULLY FOLLOWING THE EARLIER YEARS ORDER, WE DECIDE THE ISSUE IN FAVOUR OF THE ASSESSEE. GROUNDS NO. 5 & 6: 5. DISALLOWANCE OF TELEPHONE AND TELEGRAM EXPENSES ON GUEST HOUSE RS. 48,532/- ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE THE CIT(A) ERRED IN CONFIRMING THE DISALLOWANCE OF EXPENSES OF RS. HINDUSTAN PETROLEUM CORPORATION LTD. ITA NO. 1294/MUM/2001 8 48,532/- IN THE NATURE OF RENT AND LOCAL CALL CHARG ES ON TELEPHONE CLAIMED U/S 37(1) KEPT AT GUEST HOUSE WHI CH IS NOT IN THE NATURE OF MAINTENANCE OF GUEST HOUSE. 6. ENTERTAINMENT EXPENSES DEDUCTION FOR EMPLOYEES ACCOMPANYING GUEST 25% ALLOWED AGAINST THE CLAIM OF 50% RS. 1,31,692/- CIT(A) ERRED IN ALLOWING ONLY 25% AS AGAINST THE APPELLANTS CLAIM OF 50% TOWARDS ENTERTAINMENT EXPENSES TOWARDS EMPLOYEES ACCOMPANYING THE GUESTS. 25. AT THE TIME OF HEARING, THE SENIOR COUNSEL PLEADED TH AT BOTH THE ABOVE DISALLOWANCES HAVE BEEN MADE IN THE HANDS OF THE ASSESSEE, WHICH IS A COMPANY, BUT HE SUBMITTED THAT TAKING INTO ACC OUNT THE RELEVANT PROVISIONS PREVAILING AT THAT TIME, PERTAINING TO A SSESSMENT YEAR 1997-98, AN APPROPRIATE VIEW MAY BE TAKEN. THE DR ON THE OTHER HAND, SUPPORTED THE ORDERS OF THE REVENUE AUTHORITIES AND ALSO SUBMITTED THAT THE REVENUE AUTHORITIES, SPECIALLY THE CIT (A), HAD BEEN MORE THEN REASONABLE TO MAKE A STRUCTURED DISALLOWANCE. 26. WE HAVE HEARD THE ARGUMENTS OF EITHER SIDE AND FIN D THAT BOTH THESE GROUNDS PERTAIN TO EXPENSES INCURRED/CONNECTED WITH GUEST HOUSE AND GUESTS ACCOMPANYING THE EMPLOYEES. THE FACTS HAVE BEEN ELABORATED IN THE IMPUGNED ORDER, AS TO WHY THE ABOVE E XPENSES HAVE BEEN SUSTAINED. WE ENDORSE THE FINDINGS OF THE CIT(A) ON BO TH THESE DISALLOWANCES, WHICH ALSO IS SUPPORTED BY THE ASSESSEES C ASE, DATED 29.09.1999, WHERE THE DISALLOWANCE HAD BEEN CONFIRMED. 27. WE, THEREFORE, SUSTAIN THE DISALLOWANCES, AS COMPUTED BY THE CIT(A) AT RS. 48,532 AND RS. 1,31,692. GROUND NO. 7: DISALLOWANCE OF PROVISION FOR WRITE OFF OF STORES A ND SPARES - RS. 64,66,500/- HINDUSTAN PETROLEUM CORPORATION LTD. ITA NO. 1294/MUM/2001 9 THE CIT(A) ERRED IN CONFIRMING THE DISALLOWANCE OF RS. 64,66,500/- OF PROVISION MADE DURING THE YEAR TOWARDS STORES AN D SPARES TO BE WRITTEN OFF CLAIMED U/S 37(1). 28. IN THE YEAR UNDER CONSIDERATION, THE ASSESSEE HAD M ADE A PROVISION FOR WRITE OFF OF RS. 64,66,500 PERTAINING TO STORE AN D SPARES. ACCORDING TO THE AR, IN A COMPANY WHERE THERE IS A LOT O F WEAR AND TEAR AT REGULAR AND FAST INTERVALS, THESE SPARES AND STO RES ARTICLES HAD BECOME OBSOLETE AND UNUSABLE AND IT WAS NECESSARY, FOR T HE COMPANY TO WRITE THEM OFF. THEREFORE, IN ACCORDANCE WITH THE DECISIO N OF THE MANAGEMENT, THE PROVISION WAS MADE DURING THE YEAR AND CLAIMED. THE REVENUE AUTHORITIES TREATED THIS TO BE A CONTINGENT LIABILITY AND DISALLOWED THE CLAIM. 29. IT WAS POINTED OUT BY THE SENIOR COUNSEL THAT IN THE YEAR, WHEN THE AMOUNT WAS ACTUALLY WRITTEN OFF, I.E. ASSESSMENT YEAR 1 998-99, NO DEDUCTION WAS CLAIMED. THE SENIOR COUNSEL RELIED ON THE DEC ISIONS OF BHARAT EARTH MOVERS, VIJAYA BANK, TISCO AND PLEADED TH AT THE PROVISION WAS RIGHTLY CLAIMED BY THE ASSESSEE. 30. THE DR RELIED ON THE ORDERS OF THE REVENUE AUTHORITIES. 31. WE HAVE HEARD THE ARGUMENTS AND PERUSED THE ORDE R OF THE REVENUE AUTHORITIES. WE FIND THAT NOWHERE IN THE ORDER O F THE REVENUE AUTHORITY THERE IS AN OBJECTION TO THE FACT THAT THE PR OVISION HAD BEEN MADE TO WRITE OFF OLD, OBSOLETE, NON-USABLE AND NON MOVING ITEMS. THE OBJECTION IS ONLY TOWARDS THE FACT THAT THE PROVISION CA NNOT BE ALLOWED BECAUSE, ACCORDING TO THE REVENUE AUTHORITIES WRITE OFF CA N BE ONLY HINDUSTAN PETROLEUM CORPORATION LTD. ITA NO. 1294/MUM/2001 10 ALLOWED WHEN IT IS ACTUALLY WRITTEN OFF, TILL SUCH TIME, THERE IS NO FINALITY. 32. ON THE FACTS, WE ARE IN AGREEMENT WITH THE SENIOR COU NSEL THAT THE KIND OF ACTIVITY THAT IS PERFORMED BY THE GIANT CORPOR ATION LIKE THAT OF THE ASSESSEE, HUGE QUANTITY OF STORES AND SPARES BEC OME UNUSABLE AND BECAUSE OF WHICH PERIODICALLY THEY HAVE TO KEEP WRITIN G THEM OFF. WE HAVE ALSO SEEN THE ORDER OF COORDINATE BENCH AT LUC KNOW IN ITA NO. 497/LUC/2007, WHERE A SIMILAR ISSUE WAS ADDRESSED BY THE BENCH IN THE CASE OF ADITYA BIRLA NUVO LTD. VS ACIT AND A DETAILE D ORDER WAS PASSED. THE HONBLE CO-ORDINATE BENCH RELIED ON THE CASE OF CUTTACK BENCH IN THE CASE OF NATIONAL ALUMINIUM CO. LTD. VS DCIT RE PORTED IN 153 TAXMAN (AT) 162 AND IN THE CASE OF DIGITAL EQUIPMENT I NDIA LTD. VS DCIT, REPORTED IN 103 TTJ 329 (BANGALORE). 33. ON GOING THROUGH THE VARIOUS DECISIONS, CIT VS TISCO, REPORTED IN 106 ITR 363 (BOM) AND QUITE RECENTLY THE DECISION OF H ONBLE APEX COURT IN THE CASE OF VIJAYA BANK VS CIT, REPORTED IN 3 23 ITR 166 (SC), IT HAS BEEN HELD THAT SUCH A CLAM IS ALLOWABLE EVEN TO NON BANKING BUSINESSES. 33. HOWEVER, TAKING AN ABUNDANT CAUTION, WE DIRECT THE A O TO ALLOW THE CLAIM ONLY AFTER VERIFICATION THAT NO DOUBLE ADVANTAGE IS TAKEN BY THE ASSESSEE BY MAKING THE CLAIM IN THE YEAR OF ACTUAL WR ITE OFF. IF THE ASSESSEE HAS NOT TAKEN ANY ADVANTAGE IN THE YEAR OF WRITE OFF, THE PROVISION AS MADE IN THE CURRENT YEAR STANDS ALLOWED. HINDUSTAN PETROLEUM CORPORATION LTD. ITA NO. 1294/MUM/2001 11 34. IN THE RESULT, THE ORDER OF THE CIT(A) IS SET ASIDE ON THE ISSUE WITH THE DIRECTION TO THE AO TO VERIFY THE CLAIM AND ALLOW THE SAME AS PER ABOVE DIRECTIONS. 35. THE GROUND IS TREATED AS ALLOWED FOR STATISTICAL PURPOSES. GROUND NO. 8: DISALLOWANCE OF CLAIM OF DEDUCTION U/S 80HH, 80I/IA ON LPG BOTTLING PLANTS RS. 9,35,20,000/- ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE CIT(A) ERRED IN CONFIRMING THE DISALLOWANCE OF RS. 9,35,20,000/- BEING THE CLAIM FOR DEDUCTION U/S 80HH, 801/801A TO WARDS LPG BOTTLING PLANT. 36. THE ISSUE IS COVERED BY THE ORDER OF THE COORDINAT E BENCH IN THE ASSESSEES OWN CASES COVERING ASSESSMENT YEARS 1992- 93 TO 1995-96. WE DO NOT INTEND TO TAKE A DIFFERENT VIEW. WE MUST MENTION THAT THE DR MADE A SUBMISSION ON THE POINT OF PACKAGING OF GAS, IN VOLVED IN THE BOTTLING UNIT, WHICH WAS ALSO FOUND TO BE COVERED IN TH E OVERALL ISSUE, AS DECIDED BY THE COORDINATE BENCH IN THE ASSESSEES OWN CAS E. 37. IN THE RESULT, WE SET ASIDE THE ORDERS OF THE REVEN UE AUTHORITIES AND DIRECT THE AO TO ALLOW THE DEDUCTIONS AS CLAIMED AT R S. 9,35,20,000. 38. THE GROUND IS ALLOWED. 39. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS TREATED AS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON THIS DAY OF 26 TH SEPTEMBER, 2012 SD/- SD/- ( P.M. JAGTAP ) ACCOUTANT MEMBER ( VIVEK VARMA ) JUDICIAL MEMBER MUMBAI, DATE : 26 TH SEPTEMBER, 2012 HINDUSTAN PETROLEUM CORPORATION LTD. ITA NO. 1294/MUM/2001 12 COPY TO:- 1) THE APPELLANT. 2) THE RESPONDENT. 3) THE CIT (A)-1 MUMBAI. 4) THE CIT MUMBAI CITY-I, MUMBAI, 5) THE D.R. G BENCH, MUMBAI. 6) COPY TO GUARD FILE. BY ORDER TRUE COPY ASSTT. REGISTRAR I.T.A.T., MUMBAI *CHAVAN