DCIT, New Delhi V. M/s. Ircon International Ltd., New Delhi

ITA 1491/DEL/2010

• Counselvise Citation: [2020] 111 COUNSELVISE.COM (IT) 7253 (ITAT-DELHI)
• Duration Of Justice: 9 year(s) 9 month(s) 24 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-01-2020
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: C
• Next Hearing Date: 03-05-2017
• Assessment Year: 2004-2005
• Appeal Filed On: 06-04-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Depreciation; Search and seizure; Double taxation relief; Opportunity of being heard; Earning of tax free income; Retrospective amendment; Bad and doubtful debts; Capital expenditure; Rule 8D; Set aside; Capital Gains
• Section: 244A; 14A; 115JB; 37(1); 143(1); 80IA; 208; 10(33); 10(33); 13; 22; 10; 154

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL, DELHI C BEN CH, NEW DELHI BEFORE SHRI N.K. BILLAIYA, ACCOUNTANT MEMBER, AND SHRI KULDIP SINGH, JUDICIAL MEM BER ITA NO. 977/DEL/2010 [A.Y 2004-05] ITA NO. 2220/DEL/2011 [A.Y 2005-06] IRCON INTERNATIONAL LIMITED, VS. DY. C.I.T. PALIKA KENDRA, CIRCLE 11(1) R.K. PURAM SECTOR-XIII, NEW DELHI NEW DELHI PAN: AAACI 0684 H ITA NO. 1491/DEL/2010 [A.Y 2004-05] ITA NO. 2449/DEL/2011 [A.Y 2005-06] DY. C.I.T. VS. IRCON INTERNATIONAL LIMITED CIRCLE 11(1) PALIKA KENDRA NEW DELHI R.K. PURAM SECTOR-XIII NEW DELHI PAN: AAACI 0684 H (APPLICANT) (R ESPONDENT) ASSESSEE BY : SHRI RAKESH GU PTA. ADV SHRI SOMIL AGARWAL, ADV DEPARTMENT BY : SHRI J.K. MISHRA, CIT-DR DATE OF HEARING : 28.01.2020 DATE OF PRONOUNCEMENT : 30.01.2020 2 ORDER PER BENCH :- THE ABOVE CAPTIONED SET OF TWO CROSS APPEALS BY THE ASSESSEE AND REVENUE ARE PREFERRED AGAINST THE VERY SAME ORDER O F THE LD. CIT(A) V, NEW DELHI DATED 14.01.2010 PERTAINING TO ASSESS MENT YEAR 2004-05 AND AGAINST THE ORDER OF THE LD. CIT(A) XIII, NEW D ELHI DATED 04-03-2011 FOR ASSESSMENT YEAR 2005-06. SINCE ALL THESE APPEA LS PERTAIN TO SAME ASSESSEE INVOLVING COMMON ISSUES AND WERE HEARD TOG ETHER, THESE ARE BEING DISPOSED OF BY THIS COMMON ORDER FOR THE SAKE OF CONVENIENCE AND BREVITY. ITA NO. 977/DEL/2010 [ASSESSEES APPEAL] A.Y. 2004- 05 2. GROUND NO. 1 WITH SUB GROUND RELATES TO THE DISA LLOWANCE OF DEPRECIATION AMOUNTING TO RS. 10,29,903/- ON THE MA CHINERY PARTS CAPITALIZED IN THE EARLIER YEARS. 3. FACTS ON RECORD SHOW THAT DURING THE COURSE OF S CRUTINY ASSESSMENT PROCEEDINGS, THE ASSESSING OFFICER NOTIC ED THAT THE ASSESSEE HAS CHANGED ITS METHOD OF ACCOUNTING. ON PERUSAL OF THE CHANGE, THE ASSESSING OFFICER FOUND THAT THE ASSESS EE COMPANY HAS 3 ADDED BACK AN AMOUNT OF RS. 97.65 LAKHS IN ITS COMP UTATION OF INCOME AND CLAIMED DEPRECIATION @ 25%. THE ASSESSING OFFI CER FOUND THAT IN ASSESSMENT YEARS 2001-02 TO 2003-04, A SIMILAR ISSU E AROSE WHERE THE CLAIM OF DEPRECIATION WAS DENIED, AS THE MACHINERY SPARES WHICH WERE IN STOCK WERE NOT PUT TO USE, THOUGH CAPITALISED TO PLANT AND MACHINERY. 4. THE ASSESSING OFFICER FURTHER OBSERVED THAT INN SO FAR AS THE ALTERNATIVE CLAIM RAISED BY THE ASSESSEE ON ACTUAL CONSUMPTION BASIS OF MACHINERY SPARES IS CONCERNED, SINCE COMPLETE DETAI LS WHICH SHOW MACHINERY SPARES OF RS. 3,74,269/- HAVE BEEN CONSUM ED DURING THE YEAR, ALTERNATIVE CLAIM OF THE ASSESSEE TO THE EXTE NT OF RS. 3,74,269/- WAS ALLOWED AND BALANCE CLAIM OF DEPRECIATION WAS D ENIED AS WAS DONE IN THE EARLIER ASSESSMENT YEARS. 5. THE ASSESSEE CARRIED THE MATTER BEFORE THE LD. C IT(A) BUT THE LD. CIT(A) CONFIRMED THE FINDINGS OF THE ASSESSING OFFI CER. 6. BEFORE US, THE LD. COUNSEL FOR THE ASSESSEE FAIR LY CONCEDED THAT IN EARLIER YEARS, THE TRIBUNAL HAS DECIDED THE ISSUE A ND THE FINDINGS MAY BE FOLLOWED. 4 7. PER CONTRA, THE LD. DR RELIED UPON THE FINDINGS OF THE LD. CIT(A). 8. WE HAVE GIVEN THOUGHTFUL CONSIDERATION TO THE OR DERS OF THE AUTHORITIES BELOW. WE FIND THAT A SIMILAR ISSUE W AS CONSIDERED BY THE CO-ORDINATE BENCH IN ASSESSEES OWN CASE IN ITA NO. 1825/DEL/2005, 705/DEL/2006 AND 3804/DEL/2008 FOR ASSESSMENT YEARS 2001-02 TO 2003-04. THE RELEVANT FINDINGS OF THE CO-ORDINATE BENCH READ AS UNDER: 11.9 BEFORE US, THE ASSESSEE HAS FAILED TO DEMO NSTRATE WHETHER THE SPARE PARTS WHICH ARE USED WHEN A MACHI NE MALFUNCTIONS, HAS BROUGHT INTO EXISTENCE A NEW ASSE T OR GIVEN ENDURING BENEFIT TO THE ASSESSEE. IN ABSENCE OF SAT ISFYING THE REQUIREMENT FOR CONSTITUTING A MACHINERY SPARE AS C APITAL EXPENDITURE AS LAID DOWN IN THE ABOVE DECISIONS OF THE HONBLE SUPREME COURT, EXPENDITURE INCURRED ON MACHINERY RE PAIRS CAN NOT BE ALLOWED AS CAPITAL EXPENDITURE AND CONSE QUENT DEPRECIATION CLAIMED ALSO CANNOT BE ALLOWED. THUS T HE GROUND NUMBER 1(A) OF THE APPEAL IS DISMISSED. 11.10 THE 2 ND ISSUE RAISED IS CAN THE DEPRECIATION BE ALLOWED ON MACHINERY IN READY TO USE CONDITION, THOUGH ACTU ALLY NOT PUT TO USE. 5 11.11 ON THIS ISSUE, THE LD. COUNSEL HAS REFERRED T O THE DECISIONS IN THE CASE OF NATIONAL THERMAL POWER COR PORATION LIMITED VERSUS CIT (SUPRA) AND CIT VS YAMAHA MOTOR INDIA PRIVATE LIMITED(SUPRA) TO SUPPORT THE CONTENTION TH AT DEPRECIATION IS ALLOWABLE ON THE ASSET KEPT READY F OR USE BUT NOT ACTUALLY USED. BUT IN THE INSTANT CASE AS WE HA VE ALREADY HELD THAT MACHINERY SPARES DOES NOT CONSTITUTE CAPI TAL EXPENDITURES AND THUS THE ISSUE OF WHETHER THE SAME WERE READY FOR USE OR ACTUALLY USED IS NOT RELEVANT IN T HE FACTS OF THE CASE. THIS GROUND OF THE APPEAL NO 1(B), IS ACC ORDINGLY DISMISSED. 11.12 THE 3 RD ISSUE WHICH HAS BEEN RAISED BY THE ASSESSEE IS THAT IN THE EVENT DEDUCTION TOWARDS DEPRECIATION ON MACHINERY SPARE IS NOT ALLOWED, DEDUCTION MAY BE AL LOWED ON THE BASIS OF THE ACTUAL CONSUMPTION OF THE SPARES. IT HAS BEEN MENTIONED BY THE ASSESSEE THAT IN ASSESSMENT Y EAR 2002-03 ALSO THE ASSESSEE HAS BEEN ALLOWED DEDUCTIO N ON THE BASIS OF THE ACTUAL CONSUMPTION OF THE MACHINERY SP ARES. IN OUR OPINION, THIS PRAYER OF THE ASSESSEE IS JUSTIFI ED AS THE MACHINERY SPARES WHICH HAVE BEEN CONSUMED IN REPAIR OF FIXED ASSET, SATISFIES THE REQUIREMENT OF SECTION 37(1) O F THE ACT AND ACCORDINGLY, GROUND NO.1(C) OF THE APPEAL OF TH E ASSESSEE IS ALLOWED.. 6 9. AS MENTIONED ELSEWHERE, DURING THE YEAR UNDER CO NSIDERATION, THE ASSESSING OFFICER HIMSELF HAS ALLOWED THE CLAIM IN RESPECT OF MACHINERY SPARES CONSUMED DURING THE YEAR. THEREFO RE, WE DO NOT FIND ANY REASON TO INTERFERE WITH THE FINDINGS OF T HE LD. CIT(A). GROUND NO. 1 WITH ITS SUB GROUND IS, ACCORDINGLY, DISMISSE D. 10. GROUND NO. 2 RELATES TO THE DISALLOWANCE OF RS. 28,04,000/- MADE U/S 14A OF THE INCOME-TAX ACT, 1961 [HEREINAFTER RE FERRED TO AS 'THE ACT']. 11. WHILE SCRUTINISING THE RETURN OF INCOME, THE AS SESSING OFFICER NOTICED THAT THE ASSESSEE HAS EARNED DIVIDEND INCOM E OF RS. 7.38 CRORES, WHICH HAS BEEN CLAIMED AS EXEMPT U/S 10(33) OF THE ACT. THE ASSESSING OFFICER FURTHER NOTICED THAT INCOME FROM TAX FREE BONDS OF RS. 51,00,760/- HAS ALSO BEEN CLAIMED EXEMPT U/S 10 (15) OF THE ACT. THE ASSESSING OFFICER WAS OF THE FIRM BELIEF THAT P ROVISIONS OF SECTION 14A SQUARELY APPLY ON THE FACTS OF THE CASE. THE A SSESSEE WAS ASKED TO SHOW CAUSE AS TO WHY REASONABLE DISALLOWANCE OF EXP ENSES SHOULD NOT BE MADE FOR EARNING EXEMPT INCOME. 7 12. IN ITS REPLY, THE ASSESSEE STRONGLY CONTENDED T HAT NO DISALLOWANCE SHOULD BE MADE AS THE ASSESSEE HAS NOT INCURRED ANY EXPENDITURE IN EARNING EXEMPT INCOME. 13. NOT CONVINCED WITH THE REPLY OF THE ASSESSEE, T HE ASSESSING OFFICER WAS OF THE OPINION THAT CERTAIN PORTION OF THE ADMINISTRATIVE EXPENSES SHOULD GO TOWARDS EARNING OF EXEMPT INCOME AND, ACCORDINGLY, ATTRIBUTED THE ADMINISTRATIVE EXPENSES TOWARDS EARNING OF DIVIDEND INCOME IN PROPORTION TO TAX FREE INCOME TO TOTAL RECEIPTS AND COMPUTED THE DISALLOWANCE OF RS. 28.04 LAKHS. 14. THE ASSESSEE CARRIED THE MATTER BEFORE THE LD. CIT(A) BUT WITHOUT ANY SUCCESS. 15. BEFORE US, THE LD. COUNSEL FOR THE ASSESSEE REI TERATED WHAT HAS BEEN STATED BEFORE THE LOWER AUTHORITIES. 16. PER CONTRA, THE LD. DR STRONGLY SUPPORTED THE F INDINGS OF THE ASSESSING OFFICER. 8 17. WE HAVE GIVEN THOUGHTFUL CONSIDERATION TO THE ORDERS OF THE AUTHORITIES BELOW. AT THE VERY OUTSET, WE HAVE TO STATE THAT RULE 8D OF THE RULES HAS BEEN HELD TO BE APPLICABLE FROM ASSES SMENT YEAR 2008- 09. THEREFORE, FOR THE YEAR UNDER CONSIDERATION, T HERE IS NO FORMULA TO COMPUTE THE DISALLOWANCE. HOWEVER, AT THE SAME TIM E, WE ARE OF THE VIEW THAT REASONABLE EXPENDITURE SHOULD BE DISALLOW ED FOR EARNING EXEMPT INCOME. THOUGH THE ASSESSING OFFICER HAS AT TRIBUTED THE ADMINISTRATIVE EXPENSES ON THE RATIO OF THE TAX FRE E INCOME TO TOTAL RECEIPTS AND COMPUTED THE DISALLOWANCE AT RS. 28.04 LAKHS, BUT WE ARE OF THE OPINION THAT SUCH COMPUTATION IS ON THE HIGH ER SIDE. WE, THEREFORE, DIRECT THE ASSESSING OFFICER TO RESTRICT THE DISALLOWANCE TO RS. 15 LAKHS WHICH SHOULD MEET THE ENDS OF JUSTICE. THE ASSESSEE WILL GET RELIEF OF RS. 13.04 LAKHS. ACCORDINGLY, GROUND NO. 2 WITH SUB GROUNDS IS PARTLY ALLOWED. 18. GROUND NO. 3 WITH SUB GROUND RELATES TO ADDITIO N MADE BY THE ASSESSING OFFICER TOWARDS INTEREST RECEIVED ON PROV ISIONAL ASSESSMENT U/S 143(1) OF THE ACT AMOUNTING TO RS. 44.90 LAKHS. 19. AN IDENTICAL ISSUE WAS CONSIDERED BY THE CO-ORD INATE BENCH IN ASSESSMENT YEARS 2001-02 TO 2003-04 [SUPRA]. THE R ELEVANT FINDINGS OF THE CO-ORDINATE BENCH READ AS UNDER: 9 18.5 WE HAVE HEARD RIVAL SUBMISSION OF THE PARTIE S AND PERUSED THE RELEVANT MATERIAL ON RECORD. THE ISSUE IN DISPUTE IN THE CASE IS COVERED BY THE DECISION OF THE SPECIAL BENCH IN THE CASE OF AVADA TRADING COMPANY (P) LTD. (SUPRA). THE TRIBUNAL (SUPRA) CLEARLY HELD THAT WHEN THE ASSESSEE RECEIVE D REFUND UNDER INTIMATION UNDER SECTION 143(1) OF THE ACT, A N ENFORCEABLE DEBT WAS CREATED IN FAVOUR OF THE ASSESSEE IN RESPE CT OF THE INTEREST DUE ON SUCH REFUND AND THUS INCOME ACCRUED AS THE RIGHT TO RECEIVE WAS ACQUIRED. THE RELEVANT FINDING OF TH E TRIBUNAL IS REPRODUCED AS UNDER: 9. THE MAIN CONTENTION OF THE ASSESSEE'S COUNSEL I S THAT SUCH RIGHT IS CONTINGENT AS THE INTEREST SO RECEIVE D CAN BE VARIED OR WITHDRAWN AFTER THE ASSESSMENT UNDER S. 1 43(3). WE ARE UNABLE TO ACCEPT SUCH CONTENTION OF ASSESSEE FOR THE REASONS GIVEN HEREAFTER. ACCORDING TO THE DICTI ONARY MEANING, A RIGHT OR AN OBLIGATION CAN BE SAID TO BE CONTINGENT WHEN SUCH RIGHT OR OBLIGATION IS DEPENDE NT ON SOMETHING NOT YET CERTAIN. ACCORDING TO S. 244A. TH E ONLY CONDITION FOR GRANT OF INTEREST IS THAT THERE MUST BE A REFUND DUE TO ASSESSEE UNDER ANY PROVISION OF THE A CT. THERE IS NO OTHER CONDITION IN THE SAID PROVISION A FFECTING SUCH RIGHT. THEREFORE, THE MOMENT A REFUND BECOMES DUE TO ASSESSEE, AN ENFORCEABLE DEBT IS CREATED IN FAVO UR OF ASSESSEE AND ASSESSEE ACQUIRES A RIGHT TO RECEIVE T HE INTEREST. SUB-S. (3) OF S. 244A ONLY AFFECTS ITS QUANTIFICATION UNDER CERTAIN CIRCUMSTANCES AND NOT THE RIGHT OF INTEREST. THE HON'BLE SUPREME COURT IN THE CASE OF CIT VS. SHRI GOVERDHAN LTD. (1968) 69 ITR 675 (S C) HAS OBSERVED AT P. 681 THAT ONCE A DEBT IS CREATED, THEN THE LIABILITY CANNOT BE SAID TO BE CONTINGENT MEREL Y BECAUSE IT IS TO BE QUANTIFIED AT LATER DATE. UNDER S. 10 244A, EVEN THE INTEREST IS QUANTIFIED IMMEDIATELY WHENEVER A REFUND IS ISSUED. IN OUR VIEW, THE RIGHT TO GRANT INTEREST IS ABSOLUTE SINCE EXISTENCE OF SUCH RIGHT IS NOT DEPENDENT ON ANY EVENT. FOR EXAMPLE, ASSESSEE I S GRANTED INTEREST OF RS. 1,000 ON THE DATE OF GRANTI NG REFUND. SUBSEQUENTLY, UNDER S. 244A(3), IT IS REDUC ED TO RS. 600 BY VIRTUE OF ASSESSMENT UNDER S. 143(3). CA N IT BE SAID THAT RIGHT TO INTEREST DID NOT ACCRUE ON THE D ATE OF REFUND ? IN OUR OPINION, THE RIGHT OF INTEREST CAME INTO EXISTENCE ON THE DATE OF REFUND BY VIRTUE OF S. 244 A(1) THOUGH ITS QUANTIFICATION MAY OR MAY NOT VARY DEPEN DING UPON THE OUTCOME OF ASSESSMENT. 18.6 HOWEVER THE TRIBUNAL, FURTHER HELD THAT IN CA SE SUBSEQUENTLY, THE SAID INTEREST IS WITHDRAWN, THE S AID INTEREST INCOME CAN BE RECTIFIED UNDER SECTION 154 OF THE AC T. THE RELEVANT FINDING OF THE TRIBUNAL IS REPRODUCED AS U NDER: 14. IT HAS BEEN APPREHENDED BY ASSESSEE'S COUNSEL T HAT ASSESSEE WOULD BE WITHOUT REMEDY IF THE INTEREST IS REDUCED BY VIRTUE OF ASSESSMENT UNDER S. 143(31. THIS APPREHENSION, IN O UR OPINION, IS UNFOUNDED. IF INTEREST IS REDUCED BY VIRTUE OF SUB- S. (3) OF S. 244A ON ACCOUNT OF ASSESSMENT UNDER S. 143(3), THE INTEREST GRANTED IN EARLIER YEAR GETS SUBSTITUTED AND IT IS THE REDUCED AMOUNT OF INTEREST THAT WOULD FORM PART OF INCOME O F THAT YEAR. THUS, IT WOULD AMOUNT TO MISTAKE RECTIFIABLE UNDER S. 154 OF THE ACT. IN OUR OPINION, IF THE BASIS, ON WHICH INCOME WAS ASSESSED IS VARIED OR CEASES TO EXIST, THEN SUCH ASSESSMENT WOU LD BECOME ERRONEOUS AND CAN BE RECTIFIED. THIS CAN BE EXPLAIN ED WITH AN 11 EXAMPLE. FOR INSTANCE, LAND IN A VILLAGE BELONGING TO VARIOUS PERSONS IS ACQUIRED BY GOVERNMENT FOR SOME DEVELOPM ENT WORKS AND THE COMPENSATION IS AWARDED BY THE COLLECTOR WI TH INTEREST, IF ANY. BUT ONE OF THE LAND HOLDERS CHALLENGES THE ACQUISITION PROCEEDINGS IN THE HIGH COURT AND LATER ON SUCCEEDS AS THE ACQUISITION IS DECLARED ILLEGAL. BY VIRTUE OF SUCH HIGH COURT ORDER, SUCH COMPENSATION HAS TO BE RETURNED AND GOVERNMENT WILL HAVE TO RESTORE THE LAND TO THE VILLAGERS. THEREFORE, IF CAPITAL GAIN HAS BEEN ASSESSED IN THE HANDS OF SOME OF THE PERSONS W HERE LANDS WERE ACQUIRED, SUCH ASSESSMENT WOULD BECOME PATENTL Y ERRONEOUS, AS THE BASIS ITSELF HAS CEASED TO EXIST. SUCH ASSES SMENT WOULD, THEREFORE, AMOUNT TO MISTAKE, WHICH, IN OUR OPINION , CAN BE RECTIFIED. SIMILARLY, ANY INCOME ASSESSED MAY BECOM E NON-TAXABLE BY VIRTUE OF RETROSPECTIVE AMENDMENT AND CONSEQUENT LY, ERRONEOUS ASSESSMENT CAN BE RECTIFIED. THEREFORE, I N OUR HUMBLE OPINION, IF THE INTEREST GRANTED UNDER S. 244A(1) I S VARIED UNDER SUB-S. (3) OF SUCH SECTION, THEN THE INTEREST ORIGI NALLY GRANTED WOULD BE SUBSTITUTED BY THE REDUCED/INCREASED AMOUN T AS THE CASE MAY BE. THUS, INCOME ON ACCOUNT OF INTEREST IF ASSESSED CAN BE RECTIFIED UNDER S. 154. 18.7 IN VIEW OF THE ABOVE FINDING OF THE TRIBUNAL (SUPRA), WE RESTORE THE ISSUE IN DISPUTE TO THE FILE OF THE LD. ASSESSING OFFICER FOR VERIFYING THAT THE INTEREST GRANTED UND ER SECTION 143 (1) IN RELATION TO ASSESSMENT YEAR 2000-01 IN THE P REVIOUS YEAR CORRESPONDING TO ASSESSMENT YEAR UNDER CONSIDERATIO N, BUT SAME HAS BEEN SUBSEQUENTLY WITHDRAWN UNDER SECTION 143(3 ) OF THE ACT 12 PASSED IN FINANCIAL YEAR 2003-04 AND DECIDE THE ISS UE IN ACCORDANCE WITH LAW AFTER PROVIDING ADEQUATE OPPORT UNITY OF BEING HEARD TO THE ASSESSEE. IN THE RESULT, THE GRO UND NO. 8 OF THE APPEAL IS ALLOWED FOR STATISTICAL PURPOSES. 20. RESPECTFULLY FOLLOWING THE FINDINGS OF THE CO-O RDINATE BENCH, WE DIRECT ACCORDINGLY. GROUND NO. 3 WITH SUB GROUND I S TREATED AS ALLOWED FOR STATISTICAL PURPOSES. 21. GROUND NO. 4 RELATES TO DISALLOWANCE OF DEDUCTI ON FROM INCOME EARNED FROM PE IN FOREIGN COUNTRIES AND NOT CHARGEA BLE TO TAX UNDER DTAA AMOUNTING TO RS. 34.55 CRORES IN COMPUTING THE BOOK PROFIT FOR THE PURPOSE OF SECTION 115JB OF THE ACT. 22. THE UNDERLYING FACTS IN ISSUE ARE THAT THE ASSE SSEE EXCLUDED DTAA INCOME EARNED FROM ITS PROJECT IN BANGLADESH, MALAY SIA AND UNITED KINGDOM ON THE GROUND THAT THE DTAA INCOME IS NOT T AXABLE IN INDIA AND CONSEQUENTLY, THE COMPANY IS NOT OBLIGED TO PAY TAX UNDER MAT ON THE SAID INCOME. THE ASSESSING OFFICER WAS OF THE FIRM BELIEF THAT THE ADJUSTMENT REQUIRED TO BE DONE ARE SPECIFIED IN THE PROVISIONS OF SECTION 115J OF THE ACT AND THERE IS NO PROVISION U NDER THE SAID CLAUSES TO REDUCE BOOK PROFIT FROM DTAA. IT WAS FURTHER OB SERVED THAT SIMILAR 13 ADJUSTMENTS WERE MADE IN ASSESSMENT YEAR 2001-02 TO 2003-04 WHICH WERE CONFIRMED BY THE LD. CIT(A). THE ASSESSING OF FICER, ACCORDINGLY, MADE ADJUSTMENT OF RS. 34.55 CRORES. 23. THE ASSESSEE CARRIED THE MATTER BEFORE THE LD. CIT(A) BUT WITHOUT ANY SUCCESS. 24. BEFORE US, THE LD. COUNSEL FOR THE ASSESSEE FAI RLY CONCEDED THAT IN EARLIER ASSESSMENT YEARS, THE ASSESSEE HAS LOST THE APPEAL. 25. PER CONTRA, THE LD. DR STRONGLY SUPPORTED THE F INDINGS OF THE LD. CIT(A). 26. WE HAVE GIVEN THOUGHTFUL CONSIDERATION TO THE ORDERS OF THE AUTHORITIES BELOW. THERE IS NO DISPUTE IN SO FAR A S THE FACTS ARE CONCERNED, WHICH ARE MENTIONED HEREINABOVE. THE RE LEVANT FINDINGS OF THE LD. CIT(A) READ AS UNDER: '14.3 I HAVE CAREFULLY THE FACTS OF THE CASE. I FIN D THAT THE APPELLANT HAS REDUCED THE INCOME OF RS. 21,94,13,81 4/- EARNED IN MALAYSIA AS PER THE DTAA WHILE COMPUTING ITS BOOK P ROFIT U/S 115JA. I AM NOT CONVINCED BY THE CONTENTION OF THE APPELLANT 14 THAT SINCE THE INCOME EARNED IN MALAYSIA IS NOT TAX ABLE IN INDIA BY VIRTUE OF THE DTAA BETWEEN INDIA AND MALAYSIA, I T IS NOT REQUIRED TO PAY TAX EVEN UNDER MAT ON SUCH INCOME. THE PROVISIONS OF SECTION 115JA OVERRIDE ALL OTHER PROV ISIONS OF THE ACT, SINCE SUB-SECTION (1) THEREOF BEGINS WITH THE NON-OBSTANTE CLAUSE STATING AS 'NOTWITHSTANDING ANYTHING CONTAIN ED IN ANY OTHER PROVISIONS OF THIS ACT ' THE RELIANCE BY THE APPELLANT ON THE DECISION OF THE HON'BLE MADRAS HIGH COURT IN TH E CASE OF CIT VS. VRSRM FIRM AND OTHERS (1994) 208 ITR 400 (M AD) IS RATHER MISPLACED; THE HON'BLE COURT WAS EXAMINING T HE LEGAL STATUS OF THE DTAA WHEN IT HELD THAT TAX TREATIES H AVE TO BE CONSIDERED TO BE MINI LEGISLATIONS CONTAINING IN TH EMSELVES ALL THE RELEVANT ASPECTS OR FEATURES WHICH ARE AT VARIANCE WITH THE GENERAL TAXATION LAWS OF THE RESPECTIVE COUNTRIES. THE OBSERVATIONS OF THE HON'BLE COURT ARE IN RELATION T O THE COMPUTATION OF 'TOTAL INCOME' UNDER THE PROVISIONS OF THE INCOME TAX ACT, TAKING INTO CONSIDERATION THE PROVI SIONS OF THE RELEVANT DTAA. NONE OF THE DTAAS PROVIDE FOR COMPUT ATION OF 'BOOK PROFIT' UNDER THE PROVISIONS OF SECTION 115JA OF THE ACT. FOR THIS REASON ALONE, AS HELD BY THE HON'BLE COURT , THE BASIC TAX LAWS IN FORCE IN THE COUNTRY (115JA) WILL GET A TTRACTED SINCE THERE IS NO SPECIFIC PROVISION IN THE DTAA AS REGAR DS THE COMPUTATION OF 'BOOK PROFIT' FOR THE PURPOSE OF LEV Y OF MINIMUM ALTERNATIVE TAX (MAT). THEREFORE, THERE IS NO MERIT IN THE CLAIM OF THE APPELLANT SINCE SECTION 115JA IMPOSES TAX ON THE BOOK PROFIT, WHICH IS COMPUTED FOR THE PURPOSE OF COMPAN IES ACT. 15 THE PLAIN READING OF SECTION 115JA OF THE ACT MAKES IT OBVIOUS THAT NONE OF THE CLAUSES (I) TO (IX) OF THE EXPLANA TION THERETO PROVIDE FOR REDUCTION IN RESPECT OF THE INCOME WHIC H MAY BE EXEMPT BY VIRTUE OF THE APPLICATION OF THE DTAA. TH E HON'BLE SUPREME COURT IN THE CASE OF APOLLO TYRES LIMITED V S. CIT (255 ITR 273) HAVE HELD THAT THE BOOK PROFIT AS COMPUTED FROM THE BOOKS OF ACCOUNTS MAINTAINED IN ACCORDANCE WITH THE COMPANIES ACT IS SACROSANCT AND IT CAN BE ADJUSTED ONLY FOR M AKING INCREASES AND REDUCTIONS AS SPECIFICALLY PROVIDED I N THE EXPLANATION TO THE SAID SECTION. IT HAS BEEN CATEGO RICALLY HELD THAT APART FROM THE ADJUSTMENT AS PROVIDED IN THE E XPLANATION, NO ADJUSTMENTS CAN BE MADE TO THE BOOK PROFIT AS PE R THE COMPANIES ACT. THE EXCLUSION OF INCOME UNDER THE DT AA IS NOWHERE PROVIDED IN THE SAID EXPLANATION. IF IT WER E THE INTENTION OF THE LEGISLATURE TO PROVIDE REDUCTION I N RESPECT OF THE INCOME UNDER THE DTAA, IT WOULD HAVE BEEN SPECI FICALLY PROVJLE/J.7B,Y-YVAY OF ANOTHER CLAUSE BELOW THE SA ID EXPLANATION TO THE SECTIONAL 115JA. I, THEREFORE, F IND MERIT IN THE VIEW OF THE AO THAT THE APPELLANT IS NOT ENTITL ED TO CLAIM REDUCTION IN RESPECT OF THE INCOME COVERED BY DTAA (RS. 34,55,50,226/-) ORDER OF THE AO ON THIS GROUND IS ACCORDINGLY UPHELD'. 27. ON A CAREFUL PERUSAL OF THE FINDINGS OF THE FIR ST APPELLATE AUTHORITY [SUPRA], WE DO NOT FIND ANY ERROR OR INFI RMITY WHICH CALLS FOR OUR INTERFERENCE. ACCORDINGLY, GROUND NO. 4 IS DIS MISSED. 16 28. GROUND NO. 5 RELATES TO THE ADDITIONS MADE WHIL E COMPUTING BOOK PROFIT U/S 115JB OF THE ACT ON ACCOUNT OF PROVISION FOR BAD AND DOUBTFUL DEBTS, PROVISION FOR DOUBTFUL ADVANCES AND PROVISION FOR LOSS ON ACCOUNT OF INVESTMENT. 29. AN IDENTICAL ISSUE WAS CONSIDERED BY THE CO-ORD INATE BENCH IN ASSESSMENT YEARS 2001-02 TO 2003-04 [SUPRA]. THE R ELEVANT FINDINGS OF THE CO-ORDINATE BENCH READ AS UNDER: 20.7 WE HAVE HEARD RIVAL SUBMISSION AND PERUSED T HE RELEVANT MATERIAL ON RECORD. WE FIND THAT IN THE CASE OF PHI LIPS CARBON BLACK LTD (SUPRA) FOLLOWING THE DECISION OF THE HON BLE KARNATAKA HIGH COURT IN THE CASE OF YOKOGAWA INDIA LTD (SUPRA ),THE ISSUE OF NO ADDITION OF THE AMOUNT OF PROVISION FOR DOUBT FUL DEBT/ADVANCES IN THE EVENT OF SAME IS REDUCED FROM TOTAL DEBTS AND ONLY NET BALANCES SHOWN IN THE BALANCE SHEET, H AS BEEN RESTORED BACK BY THE TRIBUNAL TO THE FILE OF THE AS SESSING OFFICER FOR VERIFICATION OBSERVING AS UNDER: 9. VIS-A-VIS THE CLAIM IN RESPECT OF PROVISION FOR BAD AND DOUBTFUL DEBTS, RELEVANT SCHEDULE 7 OF ITS BALANCE- SHEET IS REPRODUCED HEREUNDER:- SCHEDULE 7 SUNDRY DEBTORS (UNSECURED) 17 DEBTS OUTSTANDING FOR A PERIOD EXCEEDING SIX MONTHS CONSIDERED GOOD 4,446.29 4,263.29 DOUBTFUL 1063.70 439.00 LESS : PROVISION 1063.70 439.00 4,446.20 4,263.29 OTHER DEBTS CONSIDERED GOOD 18,920.26 1 7,948.30 33,366.55 22,211.59 IT IS NOT CLEAR WHETHER THE TOTAL DEBTS OF RS.23,36 6.55 LAKHS IS AFTER DEDUCTING THE PROVISION OF RS.1,063.70 LAKHS. THE AMOUNT OF RS.624.70 LAKHS CONSIDERED BY THE ASSESSING OFFI CER FOR ADDITION IS OBVIOUSLY DIFFERENCE BETWEEN OPENING PR OVISION OF RS.439 LAKHS AND CLOSING PROVISION OF RS.1063.70 LA KHS, MENTIONED IN THE ABOVE SCHEDULE. IF THE PROVISION D EBITED BY ASSESSEE IS INDEED DEDUCTED FROM THE TOTAL DEBTS AN D ONLY THE NET BALANCE SHOWN IN THE BALANCE-SHEET THEN BY VIRT UE OF DECISION OF THE HONBLE KARNATAKA HIGH COURT IN THE CASE OF YOKOGAWA INDIA LTD. (SUPRA) THERE CANNOT BE ANY ADD ITION OF SUCH AMOUNT UNDER SECTION 115JB OF THE ACT. HOWEVER, AS MENTIONED BY US, THIS ASPECT IS NOT CLEAR. HENCE WE ARE OF TH E OPINION THAT THE ISSUE REGARDING PROVISION FOR DOUBTFUL DEBTS RE QUIRES A FRESH LOOK BY THE ASSESSING OFFICER. WE, THEREFORE, SET ASIDE THE ORDER OF AUTHORITIES BELOW IN SO FAR AS THIS AS PECT IS CONCERNED, AND REMIT THE MATTER BACK TO THE FILE OF ASSESSING OFFICE FOR CONSIDERATION AFRESH IN ACCORDANCE WITH LAW. 18 20.8 THE ISSUE IN DISPUTE BEING IDENTICAL AND NEED VERIFICATION AT THE END OF THE ASSESSING OFFICER, W E FEEL IT APPROPRIATE TO RESTORE THIS ISSUE TO THE FILE OF TH E LD. ASSESSING OFFICER FOR DECIDING AFRESH IN ACCORDANCE WITH LAW AFTER PROVIDING ADEQUATE OPPORTUNITY OF BEING HEARD TO TH E ASSESSEE. IN THE RESULT, THE GROUND NO. 10 OF THE APPEAL OF T HE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. 30. RESPECTFULLY FOLLOWING THE FINDINGS OF THE CO-O RDINATE BENCH, WE DIRECT ACCORDINGLY. GROUND NO. 5 IS TREATED AS ALL OWED FOR STATISTICAL PURPOSES. 31. GROUND NO. 6 RELATES TO DISALLOWANCE OF RS. 47 LAKHS MADE WHILE COMPUTING BOOK PROFIT AS PER SECTION 115JB OF THE A CT ON SALE OF FIXED ASSET. 32. AN IDENTICAL ISSUE WAS CONSIDERED BY THE CO-ORD INATE BENCH IN ASSESSMENT YEARS 2001-02 TO 2003-04 [SUPRA]. THE R ELEVANT FINDINGS OF THE CO-ORDINATE BENCH READ AS UNDER: 23.3 WE HAVE HEARD THE RIVAL SUBMISSION AND PERUSE D THE RELEVANT MATERIAL ON RECORD. THE HONBLE BOMBAY HIG H COURT IN THE CASE OF VEEKAYLAL INVESTMENT COMPANY PRIVATE LI MITED (SUPRA) HELD THAT WHILE COMPUTING THE BOOK PROFIT U NDER THE 19 COMPANIES ACT, THE ASSESSEE HAS TO INCLUDE CAPITAL GAINS FOR COMPUTING THE BOOK PROFIT UNDER SECTION 115J OF THE ACT. THE RELEVANT FINDING OF THE HONBLE HIGH COURT IS REPRO DUCED AS UNDER : 7. WE FIND MERIT IN THIS APPEAL. ACCORDING TO S. 1 153(1), IN THE CASE OF AN ASSESSEE BEING A COMPANY IF THE TOTA L INCOME IS LESS THAN 30 PER CENT OF ITS BOOK PROFITS THEN THE TOTAL INCOME OF SUCH COMPANY SHALL BE DEEMED TO BE AN AMOUNT EQUAL TO 30 PER CENT OF SUCH BOOK-PROFIT AND SUCH INCOME SHALL BE CHARGEABLE TO TAX. THAT, THE ASSESS EE HAS TO FIRST COMPUTE THE TOTAL INCOME IN ACCORDANCE WIT H THE IT ACT AND IF THE TOTAL INCOME IS LESS THAN 30 PER CENT OF THE BOOK PROFIT THEN THE ASSESSEE HAS TO PREPARE A P&L A/C FOR THE PREVIOUS YEAR IN ACCORDANCE WITH PART I I AND III OF SCH. VI TO THE COMPANIES ACT. IN OTHER WORDS , A PLAIN READING OF S. 1153 SHOWS THAT IF THE ASSESSEE IS A COMPANY AND ITS TOTAL INCOME UNDER THE IT ACT IS LE SS THAN 30 PER CENT OF ITS BOOK PROFITS THEN, FICTIONALLY, IT WILL BE DEEMED THAT ITS TOTAL INCOME CHARGEABLE TO TAX WOUL D BE AN AMOUNT EQUAL TO 30 PER CENT OF SUCH BOOK PROFITS . HENCE, IN SUCH A CASE, THE TOTAL INCOME OF THE ASSE SSEE IS FIRST REQUIRED TO BE COMPUTED UNDER THE IT ACT AND IF THE TOTAL INCOME SO COMPUTED IS LESS THAN 30 PER CENT O F THE BOOK PROFITS THEN THE P&L A/C SHALL HAVE TO BE PREP ARED IN ACCORDANCE WITH PART II AND PART III OF SCH. VI OF THE COMPANIES ACT. THE IMPORTANT THING TO BE NOTED IS T HAT 20 WHILE CALCULATING THE TOTAL INCOME UNDER THE IT ACT , THE ASSESSEE IS REQUIRED TO TAKE INTO ACCOUNT INCOME BY WAY OF CAPITAL GAINS UNDER S. 45 OF THE IT ACT. IN THE CIRCUMSTANCES, ONE FAILS TO UNDERSTAND AS TO HOW IN COMPUTING THE BOOKS PROFITS UNDER THE COMPANIES ACT , THE ASSESSEE-COMPANY CANNOT CONSIDER CAPITAL GAINS FOR THE PURPOSES OF COMPUTING BOOK PROFITS UNDER S. 115J OF THE ACT. FURTHER, UNDER CL. (2) OF PART II OF SCH. VI T O THE COMPANIES ACT WHERE A COMPANY RECEIVES THE AMOUNT O N ACCOUNT OF SURRENDER OF LEASEHOLD RIGHTS, THE COMPA NY IS BOUND TO DISCLOSE IN THE P&L A/C THE SAID AMOUNT AS NON- RECURRING TRANSACTION OR A TRANSACTION OF AN EXCEPT IONAL NATURE IRRESPECTIVE OF ITS NATURE I.E. WHETHER CAPI TAL OR REVENUE. THAT, IT WOULD BE INAPPROPRIATE TO DIRECTL Y TRANSFER SUCH AMOUNT TO CAPITAL RESERVE [SEE COMPAN IES ACT BY A. RAMAIYA, P. 1669 (FOURTEENTH EDN.]. SUCH RECEIPTS ARE ALSO COVERED BY CL. 2(B) OF PART II OF SCH. VI OF THE COMPANIES ACT WHICH, INTER ALIA, STATES THAT P&L A/C SHALL DISCLOSE EVERY MATERIAL FEATURE, INCLUDING CR EDITS OR RECEIPTS AND DEBITS OR EXPENSES IN RESPECT OF NON- RECURRING TRANSACTIONS OR TRANSACTIONS OF AN EXCEPT IONAL NATURE. LASTLY, EVEN UNDER CL. 3(XII)(B) PROFITS OR LOSSES IN RESPECT OF TRANSACTIONS NOT USUALLY UNDERTAKEN BY T HE COMPANY OR UNDERTAKEN IN CIRCUMSTANCES OF EXCEPTION AL OR NON-RECURRING NATURE SHOWS CLEARLY THAT CAPITAL GAI NS SHOULD BE INCLUDED FOR THE PURPOSES OF COMPUTING BO OK PROFITS. THAT, CAPITAL GAINS WOULD CERTAINLY BE ONE OF THE 21 VARIOUS ITEMS WHOSE INFORMATION IS REQUIRED TO BE G IVEN TO THE SHARE HOLDERS UNDER THE SAID CL. 3 (XII)(B). SO ALSO, THE DISCLOSURE IS REQUIRED TO BE MADE IN RESPECT OF INV ESTMENT IN THE CAPITAL OF A PARTNERSHIP FIRM IF THE COMPANY IS A PARTNER ON THE DATE OF THE BALANCE SHEET (SEE P. 16 51 OF THE COMPANIES ACT BY A. RAMAIYA [FOURTEENTH EDN.]. SIMILARLY, PROFITS OR LOSSES ON SUCH INVESTMENTS AR E ALSO REQUIRED TO BE DISCLOSED. [SEE CL. 3(XII)(A) OF PAR T II OF SCH. VI OF THE COMPANIES ACT]. 23.4 AS THE LD. CIT(A) HAS FOLLOWED A BINDING PREC EDENT ON THE ISSUE IN DISPUTE, WE DO NOT FIND ANY ERROR I N THE ORDER OF THE LD. CIT(A) ON THE ISSUE IN DISPUTE AND ACCORDIN GLY, WE UPHOLD THE SAME. THE GROUND NO. 14 OF THE APPEAL OF THE AS SESSEE IS ACCORDINGLY DISMISSED. 33. RESPECTFULLY FOLLOWING THE FINDINGS OF THE CO-O RDINATE BENCH, WE DIRECT ACCORDINGLY. GROUND NO. 6 IS DISMISSED. 34. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS AL LOWED IN PART FOR STATISTICAL PURPOSES. ITA NO. 1491/DEL/2010 [REVENUES APPEAL] A.Y. 2004- 05 35. GROUND NO. 1 IS GENERAL IN NATURE AND NEEDS NO ADJUDICATION. 22 36. GROUND NO. 2 RELATES TO THE DELETION OF DISALLO WANCE OF DEDUCTION U/S 80IA OF THE ACT AMOUNTING TO RS. 26.71 CRORES M ADE BY THE ASSESSING OFFICER. 37. THE CLAIM OF DEDUCTION CAME UP FOR ADJUDICATION FOR THE FIRST TIME IN ASSESSMENT YEAR 2000-01 AND THE CO-ORDINATE BENCH IN ITA NO. 2596/DEL/2004 HELD AS UNDER: 3.5 CONSIDERING THE ARGUMENTS ADVANCED BY THE PA RTIES AND .AFTER GOING THROUGH THE ORDERS AND MATERIAL PLACED BEFORE US, WE HOLD AS UNDER REGARDING THE CLAIM OF DEDUCTION U/S 801A, IT IS SE EN THAT APPELLANT IS A COMPANY AND HAS ENTERED INTO CONTRAC TS WITH VARIOUS CENTRAL GOVERNMENT, STATE GOVERNMENT, STATE GOVERNMENT AND LOCAL AUTHORITY AND OTHER STATUTORY BODIES. A CLOSE READING OF THE AGREEMENT (FOR INSTANCE AGRE EMENT WITH MSRDC ENCLOSED IN THE PAPER BOOK) CLEARLY SHOW S THAT APPELLANT DEVELOPED THE INFRASTRUCTURE FACILITY AND HAS NOT ACTED MERELY AS CONTRACTOR AS SOUGHT TO BE MADE OUT BY ASSESSING OFFICER AND C1T (APPEALS). THE OXFORD DIC TIONARY DEFINES THE TERM DEVELOPER AS A PERSON THAT DESIGNS AND CRATE NEW PRODUCTS, WHEREAS CONTRACTOR IS A PERSON OR A C OMPANY THAT HAS A CONTRACT TO DO WORK OR TO PROVIDE GOODS OR SERVICES. VARIOUS CLAUSES OF THE ABOVE REFERRED AGR EEMENT TO WHICH REFERENCE HAS BEEN MADE BY US LITTLE BELOW WO ULD SHOW THAT THE CONSTRUCTION RAIL OVER BRIDGE PROJECTION ( ROB) 23 AWARDED BY MSRDC TO THE APPELLANT IS NOTHING BUT DEVELOPMENT OF INFRASTRUCTURE FACILITY, WHICH WAS T O BE LEGALLY HANDED OVER TO THE RAILWAYS AND MSRDC AFTER THE PAY MENT WAS RECEIVED. VARIOUS CLAUSES OF THE AGREEMENT WOUL D SHOW THAT THE JOBS DONE BY THE APPELLANT WERE PLANNING, EXECUTION, CONSTRUCTION AND MAKING THE INFRASTRUCTURE FACILITY READY FOR OPERATIONS. LD. ASSESSING OFFICER HAS NOT POINTED O UT ANY SPECIFIC CLAUSES OF ANY AGREEMENT, WHICH SHOWS THAT ALL ATTRIBUTES OF DEVELOPMENT WERE NOT PRESENT. MAKING A BALD ASSERTION THAT ASSESSEE WAS A CONTRACTOR DOES NOT S ERVE ANY PURPOSE. MERELY USING THE TERMS CONTRACTOR IN THE A GREEMENT WOULD NOT MAKE ANY DIFFERENCE AS WHAT HAS TO BE SEE N IS THE SUBSTANCE. ANYBODY WHO ENTERS INTO A CONTRACT IS CL OSELY CALLED A CONTRACTOR BUT THAT DOES NOT MEAN THAT SUC H PERSON ENTERING INTO THE CONTRACT CANNOT BE DEVELOPER. THE OTHER AGREEMENT WITH MSRDC SHOWN TO US AS ONE AS INSTANCE CLEARLY SHOWS MAT APPELLANT WAS ENGAGED IN INVESTIGATION, P LANNING,, ORGANIZING AND CONSTRUCTION OF ROAD OVER BRIDGE WIT HIN THE STIPULATED TIME. IF THE ACTIVITIES UNDERTAKEN BY TH E APPELLANT CAN NOT BE TERMED AS DEVELOPMENT, WE ARE AFRAID THE N WHAT CAN BE CALLED DEVELOPMENT? THEREFORE, WE DO NOT HAV E ANY HESITATION IN HOLDING IN VIEW OF THE ARGUMENTS ADVA NCED FROM THE SIDES OF BOTH PARTIES AND DECISIONS RELIED UPON THAT APPELLANT WAS DEVELOPING INFRASTRUCTURE FACILITY AN D CLAIMED DEDUCTION U/S 80IA IN RESPECT OF INCOME DERIVED FRO M THE DEVELOPMENT OF INFRASTRUCTURE FACILITIES. EXPLANATI ON INSERTED BELOW SECTION 80IA(13) DOES NOT PREVENT DEVELOPERS IN CLAIMING DEDUCTION U/S 80IA(4). SIMILARLY SHOWING T HE RECEIPTS AS WORK RECEIPTS IN THE BOOKS OF ACCOUNTS OF THE AP PELLANT ALONE CANNOT DETERMINE THE CHARACTER OF THE APPELLA NT WHICH IN OUR OPINION WAS THAT OF DEVELOPMENT. THE ARGUMEN T OF REVENUE THAT INFRASTRUCTURE FACILITY SHOULD BE OWNE D BY THE APPELLANT IS ALSO MISPLACED IN VIEW OF ITO VS. CABL E 24 CONSTRUCTIONS 354 ITR 13 (GUJ.) AND VARIOUS DECISIO NS RELIED UPON BY THE LD. COUNSEL FOR THE APPELLANT. WE ALSO NOTE THAT THE LD. CIT (DR) TRIED TO RAISE ISSUES WHICH W?ERE NOT EVEN THE CASE OF THE ASSESSING OFFICER AND THIS IN OUR C ONSIDERED OPINION IS CLEARLY IMPRESSIBLE. CASE LAWS RELIED BY THE REVENUE ARE CLEARLY MISPLACED ON FACTS AND ARE CLEARLY DIST INGUISHABLE. SPECIAL BENCH DECISION IN THE CASE OF B. T. PATIL ( MUM.) 126 TTJ 577 WAS RECALLED LATER ON AS IT DID NOT CONSIDE R THE BINDING DECISION OF HONBLE BOMBAY HIGH COURT IN TH E CASE OF ABG 322 ITR 323 (BOM). ACCORDING TO THE ASSESSMENT ORDER, COPIES OF ALL THE AGREEMENTS WERE BEFORE ASSESSING OFFICER YET ASSESSING OFFICER CHOSE TO MAKE SWEEPING OBSERV ATION THAT THE ASSESSEE IS NOT DEVELOPER. SUCH SWEEPING A ND BALD ASSERTION CANNOT BE APPROVED BY US. THEREFORE, TAK ING INTO THE FACTS OF THE PRESENT CASE., WE ARE THE CONSIDER ED VIEW THAT APPELLANT IS ENTITLED TO CLAIM DEDUCTION 80IA, WHICH WAS WRONGLY DENIED. WE SET ASIDE THE ORDER OF THE. LD. CIT (APPEALS) AND DIRECT THE ASSESSING OFFICER TO ALLOW DEDUCTION: U/S 801A HAS CLAIMED BY THE APPELLANT. GROUND NO. 1 IS ALLOWED. 38. AS NO NEW FACTS HAVE BEEN BROUGHT ON RECORD FOR THE YEAR UNDER CONSIDERATION, RESPECTFULLY FOLLOWING THE FINDINGS OF THE CO-ORDINATE BENCH [SUPRA] WE DIRECT THE ASSESSING OFFICER TO AL LOW DEDUCTION U/S 80IA OF THE ACT AS CLAIMED BY THE ASSESSEE. THE FI NDINGS OF THE LD. CIT(A) ARE ACCORDINGLY CONFIRMED. GROUND NO. 2 IS DISMISSED. 39. GROUND NO. 3 RELATES TO THE DELETION OF ADDITIO N OF RS. 1.56 CRORES ON ACCOUNT OF PROVISION FOR MAINTENANCE EXPE NDITURE. 25 40. AN IDENTICAL ISSUE WAS CONSIDERED BY THE CO-ORD INATE BENCH IN ITA NO. 3805/DEL/2008. THE RELEVANT FINDINGS OF THE CO -ORDINATE BENCH READ AS UNDER: 62. GROUND NO. 5 THE APPEAL RELATES TO ADDITION O F RS.1,28,77,257/-DELETED BY THE LD. CIT(A) ON ACCOUN T OF PROVISION FOR MAINTENANCE EXPENSES. WE FIND THAT TH E LD. CIT(A) HAS VERIFIED THAT THE LIABILITY ON ACCOUNT O F MAINTENANCE EXPENSES ARISEN IN THE YEAR UNDER CONSI DERATION. THE LD. DR COULD NOT REBUT THIS FACTUAL FINDING OF LD. CIT(A). ACCORDINGLY WE DO NOT FIND ANY ERROR IN THE ORDER O F THE LD. CIT(A) IN DELETING THE DISALLOWANCE. THE GROUND OF THE APPEAL OF THE REVENUE IS ACCORDINGLY DISMISSED. 41. RESPECTFULLY FOLLOWING THE FINDINGS OF THE CO-O RDINATE BENCH, WE DO NOT FIND ANY ERROR OR INFIRMITY IN THE FINDINGS OF THE LD. CIT(A) ACCORDINGLY, GROUND NO. 3 IS DISMISSED. 42. GROUND NO. 4 RELATES TO THE DELETION OF DISALLO WANCE OF RS. 2.79 CRORES ON ACCOUNT OF PROVISION OF DEMOBILIZATION EX PENDITURE, PROVISION FOR MAINTENANCE AND PROVISION FOR OTHER EXPENSES. 26 43. WE FIND THAT A SIMILAR ISSUE WAS CONSIDERED BY THE CO-ORDINATE BENCH IN ASSESSEES OWN CASE IN ASSESSMENT YEAR 200 1-02. THE RELEVANT FINDINGS OF THE CO-ORDINATE BENCH READ AS UNDER: 16.8 AS REGARD TO THE RELIEF OF RS.2.67 CRORES ALL OWED BY THE LEARNED CIT(A) , AGAINST WHICH REVENUE IS IN APPEAL IN GROUND NO. 7, WE FIND THAT LEARNED CIT(A) HAS VERIF IED EACH AND EVERY PROVISION TO ASCERTAIN WHETHER THE LIABIL ITY HAD CRYSTALLISED DURING THE YEAR UNDER CONSIDERATION. T HIS FACTUAL FINDING HAS NOT BEEN REBUTTED BY THE LD. DR BEFORE US. IN ABSENCE OF ANY SUCH REBUTTAL TO SUBSTANTIATE GROUND S OF APPEAL BY THE REVENUE, WE DO NOT FIND ANY ERROR IN THE ORDER OF THE LEARNED CIT(A) IN DELETING THE PART OF DISAL LOWANCE OF PROVISION OF MOBILISATION EXPENSES AMOUNTING TO RS. 2.67 CRORES. THE GROUND NO. 7 OF THE APPEAL OF THE REVEN UE IS ACCORDINGLY DISMISSED. 17.6 WE HAVE HEARD RIVAL SUBMISSION OF THE PARTIES AND PERUSED THE RELEVANT MATERIAL ON RECORD. WE FIND TH AT THE LD. CIT(A) HAS SUSTAINED THE DISALLOWANCE DUE TO FAILUR E ON THE PART OF ASSESSEE IN SUBSTANTIATING WHETHER THE LIAB ILITY AROSE DURING THE YEAR UNDER CONSIDERATION AND ALSO FAILUR E TO SUBMIT NECESSARY DOCUMENTARY EVIDENCE IN SUPPORT OF THE CL AIM. BEFORE US ALSO, NO EVIDENCES HAVE BEEN FURNISHED BY THE ASSESSEE TO SUBSTANTIATE THE CLAIM WHETHER THE EXPE NSES CRYSTALLISED DURING THE YEAR. IN OUR OPINION, THE O RDER OF THE 27 LD. CIT(A) ON THE ISSUE IN DISPUTE IS WELL REASONED AND WE DO NOT FIND ANY INFIRMITY IN THE SAME. ACCORDINGLY, TH E FINDING OF THE LD. CIT(A) ON THE ISSUE IN DISPUTE IS UPHELD. T HE GROUND NO.7(A) OF THE APPEAL OF THE ASSESSEE GROUND NO. 8 OF THE APPEAL OF THE REVENUE, ARE DISMISSED. 44. RESPECTFULLY FOLLOWING THE FINDINGS OF THE CO-O RDINATE BENCH, WE DECLINE TO INTERFERE WITH THE FINDINGS OF THE LD. C IT(A) ACCORDINGLY, GROUND NO. 4 IS DISMISSED 45. GROUND NO. 5 RELATES TO DELETION OF DISALLOWANC E OF RS. 16.19 CRORES ON ACCOUNT OF FOREIGN EXCHANGE FLUCTUATION L OSS. 46. FACTS ON RECORD SHOW THAT THE ASSESSING OFFICER HAS DISALLOWED LOSS STATING THAT IT IS NOTIONAL IN NATURE. IT WAS STRONGLY AGITATED BEFORE THE LD. CIT(A) THAT THE LOSS ARISING ON ACCO UNT OF FOREIGN EXCHANGE FLUCTUATION CANNOT BE CALLED NOTIONAL SINC E THE FALL IN THE EXCHANGE RATE HAS ALREADY TAKEN PLACE IN THE ACCOUN TING YEAR. REFERENCE WAS MADE TO THE CBDT CIRCULAR 225/161/95/ ITA DATED 07.05.1996 WHEREIN THE BOARD HAS STATED THAT FOREIG N EXCHANGE FLUCTUATION GAIN EARNED BY THE PROJECT EXPORTERS HA S TO BE CONSIDERED 28 AS INCOME CHARGEABLE TO TAX IN THE YEAR IN WHICH TH E SAID GAIN ACCRUES/ARISES. 47. BY THE SAME ANALOGY, IT WAS CLAIMED THAT LOSS S HOULD ALSO BE ALLOWED AS DEDUCTIBLE EXPENDITURE IN THE YEAR IN WH ICH THE SAME ACCRUES OR ARISES. IT WAS BROUGHT TO THE NOTICE OF THE LD. CIT(A) THAT SIMILAR FOREX LOSS HAS BEEN ALLOWED IN ASSESSMENT Y EAR 1998-99 AND 2000-01. ON THE BASIS OF THIS, THE LD. CIT(A) DELE TED THE DISALLOWANCE MADE BY THE ASSESSING OFFICER. 48. BEFORE US, THE LD. DR COULD NOT BRING ANY DISTI NGUISHING DECISION IN FAVOUR OF THE REVENUE. 49. WE HAVE GIVEN THOUGHTFUL CONSIDERATION TO THE O RDERS OF THE AUTHORITIES BELOW. IT IS TRUE THAT IN ASSESSMENT YE AR 1998-99 AND 2000- 01 SIMILAR DISALLOWANCES WERE DELETED BY THE LD. CI T(A). IN FACT, IN ASSESSMENT YEAR 2000-01, THE ASSESSEES APPEAL TRAV ELLED UPTO THE TRIBUNAL BUT THE REVENUE HAS ACCEPTED THE FINDINGS OF HET LD. CIT(A). THEREFORE, ON THESE FACTS, WE DO NOT FIND ANY REASO N TO INTERFERE WITH THE FINDINGS OF THE LD. CIT(A). ACCORDINGLY, GROUN D NO. 5 IS DISMISSED. 29 50. IN THE RESULT, THE APPEAL OF THE REVENUE IS DIS MISSED. ITA NO. 2220/DEL/2011 [ASSESSEES APPEAL] A.Y. 2005 -06 51. GROUND NO. 1 RELATES TO DISALLOWANCE OF EXPENSE S U/S 14A OF THE ACT AMOUNTING TO RS. 2,75,827/-. 52. DURING THE YEAR, THE ASSESSING OFFICER NOTICED THAT THE ASSESSEE HAS EARNED DIVIDEND INCOME FROM TAX FREE BONDS AMOU NTING TO RS. 7.52 CRORES WHICH WAS CLAIMED AS EXEMPT U/S 10 OF THE AC T. INVOKING THE PROVISIONS OF SECTION 14A OF THE ACT, THE ASSESSING OFFICER PROPORTIONATELY DISALLOWED THE ADMINISTRATIVE EXPE NSES AS WAS DONE IN ASSESSMENT YEAR 2004-05 AND MADE ADDITION OF RS. 53 ,58,179/- 53. THE ASSESSEE CARRIED THE MATTER BEFORE THE LD. CIT(A) AND THE LD. CIT(A), AFTER ANALYSING THE EXPENDITURE INCURRED IN MEETINGS OF INVESTMENT COMMITTEE RESTRICTED THE DISALLOWANCE TO RS. 2,75,827/-. 54. BEFORE US, THE LD. COUNSEL FOR THE ASSESSEE COU LD NOT ADD ANYTHING NEW TO WHAT HAS BEEN STATED BEFORE THE AUTHORITIES BELOW. 30 55. ON THE OTHER HAND, THE LD. DR STATED THAT THE R EVENUE IS ALSO IN APPEAL FOR RELIEF GIVEN BY THE LD. CIT(A). IT IS T HE SAY OF THE LD. DR THAT THE ENTIRE DISALLOWANCE OF RS. 53 LAKHS SHOULD BE S USTAINED. 56. WE HAVE GIVEN THOUGHTFUL CONSIDERATION TO THE O RDERS OF THE AUTHORITIES BELOW. WHILE ADJUDICATING A SIMILAR ISS UE IN A.Y 2004-05 [SUPRA], WE HAVE RESTRICTED THE DISALLOWANCE TO RS. 15 LAKHS AS WE CONSIDERED THE SAME TO MEET THE ENDS OF JUSTICE. C ONSIDERING THE FACTS OF THE YEAR UNDER CONSIDERATION, WE DIRECT TH E ASSESSING OFFICER TO RESTRICT THE DISALLOWANCE TO RS. 12 LAKHS WHICH SHOULD MEET THE ENDS OF JUSTICE. GROUND NO. 1 OF ASSESSEES APPEAL IS P ARTLY ALLOWED. 57. GROUND NO. 2 RELATES TO THE DISALLOWANCE OF PRI OR PERIOD EXPENSES OF RS. 38,81,258 LAKHS. 58. WHILE SCRUTINISING THE RETURN OF INCOME, THE AS SESSING OFFICER NOTICED THAT THE AUDITORS HAVE MENTIONED PRIOR PERI OD EXPENSES CLAIMED DURING THE YEAR UNDER CONSIDERATION. THE A SSESSEE WAS ASKED TO JUSTIFY THE CLAIM OF PRIOR PERIOD EXPENSES. THE ASSESSEE FURNISHED DETAILS OF PRIOR PERIOD EXPENSES. 31 59. ON PERUSAL OF THE DETAILS, THE ASSESSING OFFICE R WAS CONVINCED WITH THE CLAIM OF THREE EXPENSE, NAMELY, LEAVE ENCA SHMENT AND BONUS, ADJUSTMENT OF EXCHANGE FLUCTUATION AND PAYMENT TO M /S ALSTOM. AS REGARDS THE CLAIM OF OTHER EXPENSES, THE ASSESSING OFFICER OBSERVED THAT NO EVIDENCE HAS BEEN FURNISHED TO DEMONSTRATE THAT THE LIABILITIES HAVE ACTUALLY CRYSTALLISED DURING THE YEAR UNDER CO NSIDERATION. THE ASSESSING OFFICER, ACCORDINGLY, MADE DISALLOWANCE O F PRIOR PERIOD EXPENSES AMOUNTING TO RS. 66,31,867/-. 60. THE ASSESSEE CARRIED THE MATTER BEFORE THE LD. CIT(A) AND REITERATED ITS CLAIM AND FURNISHED FEW SUPPORTING E VIDENCES TO DEMONSTRATE THAT THE LIABILITIES HAVE BEEN CRYSTALL ISED DURING THE YEAR. 61. AFTER CONSIDERING THE FACTS AND AFTER ANALYSING THE DETAILS, THE LD. CIT(A) WAS CONVINCED THAT TO THE EXTENT OF RS. 27,5 0,609/-, THE ASSESSEE HAS SUCCESSFULLY DEMONSTRATED THAT THE LIA BILITIES HAVE CRYSTALLISED DURING THE YEAR UNDER CONSIDERATION AN D GAVE RELIEF TO THAT EXTENT AND CONFIRMED THE DISALLOWANCE OF RS. 38,81, 258/-. 62. BEFORE US, THE LD. COUNSEL FOR THE ASSESSEE FUR NISHED DOCUMENTARY EVIDENCES TO DEMONSTRATE THAT THE LIABI LITIES TO THE EXTENT OF RS. 38.81 LAKHS HAVE CRYSTALLISED DURING THE YEAR UNDER 32 CONSIDERATION AS NO EVIDENCES HAVE BEEN FURNISHED. WE DO NOT FIND ANY REASON TO REMIT THE MATTER BACK TO THE FILE OF THE ASSESSING OFFICER. 63. SAME VIEW WAS TAKEN BY THE CO-ORDINATE BENCH IN A.Y 2001-02 AS IN THAT YEAR ALSO THE CO-ORDINATE BENCH DECLINED TO SEND THE MATTER BACK TO THE ASSESSING OFFICER/LD. CIT(A) FOR FRESH CONSIDERATION FOR WANT OF EVIDENCES. IN THE SAME LINES, WE DECLINE T O INTERFERE WITH THE FINDINGS OF THE LD. CIT(A). ASSESSEES GROUND NO. 2 IS ACCORDINGLY DISMISSED. 64. GROUND NO. 3 RELATES TO ADDITION OF RS. 5.18 LA KHS BEING INTEREST RECEIVED ON PROVISIONAL ASSESSMENT U/S 143(1) OF TH E ACT. 65. AN IDENTICAL ISSUE WAS CONSIDERED BY US IN ITA NO. 977/DEL/2010 [SUPRA] VIDE GROUND NO. 3 OF THAT APPEAL. FOR OUR DETAILED DISCUSSION THEREIN, WE DIRECT ACCORDINGLY. ACCORDINGLY, GROUN D NO. 3 IS ALLOWED FOR STATISTICAL PURPOSE. 66. GROUND NO. 4 RELATES TO ADJUSTMENT MADE IN COM PUTATION OF BOOK PROFIT U/S 115JB OF THE ACT BEING PROVISION ON ACCOUNT OF BAD AND DOUBTFUL ADVANCES AND INCOME EARNED FROM PE IN FORE IGN COUNTRIES WHICH IS NOT CHARGEABLE TO TAX UNDER DTAA. 33 67. IN SO FAR AS PROVISION ON ACCOUNT OF BAD AND DO UBTFUL ADVANCES IS CONCERNED, SIMILAR ISSUE WAS CONSIDERED BY US IN IT A NO. 977/DEL/2010 [SUPRA] VIDE GROUND NO. 5 OF THAT APPEAL. FOR OUR DETAILED DISCUSSION THEREIN, WE DIRECT ACCORDINGLY. 68. IN SO FAR AS ADJUSTMENT ON ACCOUNT OF INCOME EA RNED FROM PE IN FOREIGN COUNTRIES WHICH IS NOT CHARGEABLE TO TAX UN DER DTAA IS CONCERNED, AN IDENTICAL ISSUE WAS CONSIDERED BY US IN ITA NO. 977/DEL/2010 [SUPRA] VIDE GROUND NO. 4 OF THAT APPE AL. FOR OUR DETAILED DISCUSSION THEREIN, WE DIRECT ACCORDINGLY. 69. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS PA RTLY ALLOWED FOR STATISTICAL PURPOSES. ITA NO. 2449/DEL/2011 [ REVENUES APPEAL] A.Y. 2005 -06 70. GROUND NO. 1 RELATES TO THE DELETION OF ADDITIO N ON ACCOUNT OF DISALLOWANCE OF DEPRECIATION AMOUNTING TO RS. 7,72, 427/-. 71. AN IDENTICAL ISSUE WAS CONSIDERED BY US AT LENG TH IN ITA NO. 977/DEL/2010 [SUPRA] VIDE GROUND NO. 1 OF THAT APPE AL. FOR OUR 34 DETAILED DISCUSSION THEREIN, WE DIRECT ACCORDINGLY. ACCORDINGLY, GROUND NO. 3 IS DISMISSED. 72. GROUND NO. 2 RELATES TO THE DELETION OF DISALLO WANCE OF DEDUCTION U/S 80IA OF THE ACT AMOUNTING TO RS. 39,40,45,216/- MADE BY THE ASSESSING OFFICER. 73. A SIMILAR ISSUE WAS CONSIDERED BY US IN ITA NO. 1491/DEL/2010 [SUPRA] VIDE GROUND NO. 2 OF THAT APPEAL. FOR OUR DETAILED DISCUSSION THEREIN, WE DIRECT ACCORDINGLY. ACCORDINGLY, GROUN D NO. 2 IS DISMISSED. 74. GROUND NO. 3 RELATES TO THE DELETION OF ADDITIO N OF RS. 2.44 CRORES ON ACCOUNT OF PROVISION FOR MAINTENANCE EXPE NDITURE. 75. A SIMILAR ISSUE WAS CONSIDERED BY US IN ITA NO. 1491/DEL/2010 [SUPRA] VIDE GROUND NO. 3 OF THAT APPEAL. FOR OUR DETAILED DISCUSSION THEREIN, WE DIRECT ACCORDINGLY. ACCORDINGLY, GROUN D NO. 3 IS DISMISSED. 35 76. GROUND NO. 4 RELATES TO THE RESTRICTION OF DISA LLOWANCE OF RS. 53.58 LAKHS MADE U/S 14A OF THE ACT. 77. THIS ISSUE HAS BEEN CONSIDERED BY US IN ASSESSE ES APPEAL [SUPRA] VIDE GROUND NO. 1 OF THAT APPEAL. FOR THE DETAILED REASONING GIVEN THEREIN, THIS GROUND IS PARTLY ALLOWED. 78. GROUND NO. 5 RELATES TO DELETION OF ADDITION OF RS. 2.17 CRORES ON ACCOUNT OF PROPORTIONATE CORPORATE EXPENSES ALLOCAT ED TOWARDS DTAA INCOME U/S 14A OF THE ACT. 79. WHILE SCRUTINISING THE RETURN OF INCOME, THE AS SESSING OFFICER NOTICED THAT THE ASSESSEE HAS EXCLUDED PROFITS EARN ED IN FOREIGN PROJECTS UNDERTAKEN WITH MALAYSIA, BANGLADESH AND U NITED KINGDOM AMOUNTING TO RS. 29.57 CRORES. THE ASSESSING OFFI CER WAS OF THE OPINION THAT CERTAIN PORTION OF CORPORATE OFFICE EX PENSES ARE ATTRIBUTABLE TO PE OUTSIDE INDIA AND ACCORDINGLY, D ISALLOWED A SUM OF RS. 2.17 CRORES ON PROPORTIONATE BASIS. 36 80. THE ASSESSEE CARRIED THE MATTER BEFORE THE LD. CIT(A) AND STRONGLY CONTENDED THAT ALL THE PES MAINTAIN SEPARA TE BOOKS OF ACCOUNT AND EXPENSES ATTRIBUTABLE TO EACH PE HAS BEEN SEPAR ATELY ACCOUNTED FOR. THEREFORE, THERE IS NO REASON WHY FURTHER PRO PORTIONATE DISALLOWANCE SHOULD BE MADE. 81. THE LD. CIT(A), AFTER CONSIDERING THE FACTS AND SUBMISSIONS, FOUND THAT SIMILAR ALLOCATION OF CORPORATE OFFICE EXPENDI TURE IN A.YS 1999- 2000 TO 2003-04 HAS BEEN DELETED BY HIS PREDECESSOR . THEREFORE, FOLLOWING THE FINDINGS OF THE PREDECESSOR, HE DELET ED THE DISALLOWANCE. 82. BEFORE US, THE LD. DR COULD NOT CONTROVERT THE FINDINGS OF THE LD. CIT(A). 83. WE FIND THAT APPEALS FOR A.YS 2000-01 TO 2003-0 4 TRAVELLED UPTO THE TRIBUNAL AND DELETION OF SUCH DISALLOWANCES WAS NOT CHALLENGED BEFORE THE TRIBUNAL. THEREFORE, THE ORDER OF THE L D. CIT(A) ATTAINED FINALITY ON THIS ISSUE. ON THESE FACTS, WE DECLINE TO INTERFERE WITH THE FINDINGS OF THE LD. CIT(A). GROUND NO. 5 IS DISMIS SED. 84. IN THE RESULT THE APPEAL OF THE REVENUE IS DISM ISSED. 37 86. TO SUM UP, IN THE RESULT: I TA NO. 977/DEL/2010 - PARTLY ALLOWED FOR STATI STICAL PURPOSES. ITA NO. 2220/DEL/2011 - PARTLY ALLOWED FOR STATIS TICAL PURPOSES. ITA NO. 1491/DEL/2010 - DISMISSED ITA NO. 2449/DEL/2011 - DISMISSED THE ORDER IS PRONOUNCED IN THE OPEN COURT ON 30.01. 2020. SD/- SD/- [ KULDIP SINGH] [N.K. BILLAIYA] JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 30 TH JANUARY, 2020. VL/ COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR ASST. REGISTRAR, ITAT, NEW DELHI 38 DATE OF DICTATION DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE OTHER MEMBER DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR.PS /PS DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE DICTATING MEMBER FOR PRONOUNCEMENT DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR.P S/PS DATE ON WHICH THE FINAL ORDER IS UPLOADED ON THE WE BSITE OF ITAT DATE ON WHICH THE FILE GOES TO THE BENCH CLERK DATE ON WHICH THE FILE GOES TO THE HEAD CLERK THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT REGIST RAR FOR SIGNATURE ON THE ORDER DATE OF DISPATCH OF THE ORDER