Appeal details
Counselvise Citation
[2017] 126 COUNSELVISE.COM (IT) 8410 (ITAT-MUMBAI)
Assessee PAN
Bench
Appeal Number
Duration Of Justice
3 year(s) 5 month(s) 4 day(s)
Appellant
Respondent
Appeal Type
Income Tax Appeal
Pronouncement Date
10-11-2017
Appeal Filed By
Assessee
Order Result
Allowed
Bench Allotted
E
Next Hearing Date
27-02-2017
Assessment Year
2010-2011
Appeal Filed On
06-06-2014
Judgement Text
IN THE INCOME TAX APPELLATE TRIBUNAL E BENCH, MUMBAI BEFORE SHRI B.R. BASKARAN (AM) & SHRI PAWAN SINGH (JM) I.T.A. NO. 7687 /MUM/20 12 (ASSESSMENT YEAR 20 09 - 10 ) I.T.A. NO. 4169/MUM/2014 (ASSESSMENT YEAR 2010 - 11) STANLEY BLACK & DECKER INDIA LIMITED (FO RMERLY KNOWN AS BAJAJ VENTURE LIMITED) GATE NO. 133, CHAKAN TALEGAON ROAD, MAHALUNGE PUNE - 410 501. PAN : AAACB4681R VS. DCIT 3(1) AAYAKAR BHAVAN M.K. ROAD MUMBAI - 400 020. ( APPELLANT ) ( RESPONDENT ) I.T.A. NO. 694/MUM/2013 (ASSESSMENT YEAR 2009 - 10) DC IT 3(1) AAYAKAR BHAVAN M.K. ROAD MUMBAI - 400 020. VS. STANLEY BLACK & DECKER INDIA LIMITED (FORMERLY KNOWN AS BAJAJ VENTURE LIMITED) GATE NO. 133, CHAKAN TALEGAON ROAD, MAHALUNGE PUNE - 410 501. PAN : AAACB4681R ( APPELLANT ) ( RESPONDENT ) A SSESSEE BY MS. CHARUL TOPRANI DEPARTMENT BY S HRI V. JUSTINE DATE OF HEARING 1 . 1 1 . 201 7 DATE OF PRONOUNCEMENT 10 .11 . 201 7 O R D E R PER B.R. BASKARAN (AM) : - THE ASSESSEE HAS FILED APPEALS FOR A.Y. 2009 - 10 & 2010 - 11 AND REVENUE HAS FILED THE APPEAL FOR A.Y. 2009 - 10. A LL OF THEM ARE DIRECTED AGAINST THE ORDER S PASSED BY THE LEARNED CIT(A) - 5, MUMBAI. ALL THESE APPEALS WERE HEARD TOGETHER AND ARE BEING DISPOSED OF BY THIS COMMON ORDER, FOR THE SAKE OF CONVENIENCE. STANLEY BLACK & DECKER INDIA LIMITED 2 2. THE ASSESSEE IS ENGAGED IN THE BUSINE SS OF MANUFACTURING AND TRADING IN ELECTROMECHANICAL TOOLS AND PARTS. 3. WE SHALL TAKE UP THE APPEAL FILED BY THE ASSESSEE FOR A.Y. 2009 - 10. FIRST ISSUE URGED THEREIN RELATES TO DISALLOWANCE OF P ROVISION FOR OUTSTANDING EXPENSE OF ` 7,85,811/ - CLAIMED BY THE ASSESSEE AS DEDUCTION . THE ASSESSING OFFICER NOTICED THAT THE ASSESSEE HAD CREATED A PROVISION OF ` 7,85,811/ - TOWARDS CERTAIN EXPENSES AS AT THE YEAR END AND CLAIMED THE SAME AS DEDUCTION . THE ASSESSEE SUBMITTED THAT THE LIABILITY IN RESPECT OF THO SE EXPENSES HAS ACCRUED DURING THE YEAR AND HENCE THEY HAVE BEEN ACCOUNTED FOR IN THE BOOKS OF ACCOUNT ON ESTIMATED BASIS. SINCE THE ASSESSEE COULD NOT QUANTIFY THE ACTUAL AMOUNT OF EXPENDITURE PRECISELY AND FURTHER DOCUMENTARY EVIDENCE S SUPPORTING THE CLA IM OF EXPENSES WERE NOT AVAILABLE WITH THE ASSESSEE, THE ASSESSING OFFICER TOOK THE VIEW THAT THIS CLAIM IS NOT ADMISSIBLE AND ACCORDINGLY DISALLOWED THE SAME. THE LEARNED CIT(A) ALSO UPHELD THE ORDER PASSED BY THE ASSESSING OFFICER . 4. LEARNED AR SUBMIT TED THAT AN IDENTICAL ISSUE WAS CONSIDERED IN ASSESSEES OWN CASE IN ITA NO. 1675/MUM/2012 RELATING TO A.Y. 2007 - 08, WHEREIN THE TRIBUNAL HAS CONFIRMED THE DISALLOWANCE. LEARNED AR SUBMITTED THAT THE COORDINATE BENCH OF THE TRIBUNAL DID NOT CONSIDER THE DE CISION RENDERED BY HON'BLE SUPREME COURT IN THE CASE OF BHARATH EARTH MOVERS VS. CIT (245 ITR 428 ) , WHEREIN HON'BLE SUPREME COURT HELD THAT IF A BUSINESS LIABILITY HAS DEFINITELY ARISEN IN AN ACCOUNTING YEAR , THEN DEDUCTION SHOULD BE ALLOWED ALTHOUGH LIABI LITY MAY HAVE TO BE QUANTIFIED AND DISCHARGED AT A FUTURE DATE. LEARNED AR FURTHER SUBMITTED THAT THE CBDT HAS NOTIFIED A CCOUNTING STANDARD - 1 RELATING TO DISCLOSURE OF ACCOUNTING POLICIES U/S. 14 5 (2) OF THE ACT, WHEREIN ACCRUAL CONCEPT OF ACCOUNTING HAS BE EN RECOGNIZED. ACCORDINGLY LEARNED AR SUBMITTED THAT PROVISION MADE BY THE ASSESSEE ON KNOWN LIABILIT IES SHOULD BE ALLOWED AS DEDUCTION. LEARNED AR SUBMITTED THAT DETAILS OF EXPENSES AGGREGATING TO ` 7,85,811/ - IS GIVEN IN PAGE NO. 66 OF THE PAPER BOOK. STANLEY BLACK & DECKER INDIA LIMITED 3 5. LEARNED DEPARTMENTAL REPRESENTATIVE ON THE CONTRARY SUPPORTED THE ORDER PASSED BY THE LEARNED CIT(A). 6. WE HAVE HEARD THE RIVAL CONTENTIONS ON THIS ISSUE. IN VIEW OF THE DECISION RENDERED BY HON'BLE SUPREME COURT IN THE CASE OF BHARAT EARTH MOVERS (SUPRA), WE AGREE WITH THE CONTENTION S OF THE ASSESSEE THAT THE PROVISION MADE ON ES TIMATED BASIS FOR KNOWN LIABILIT IES SHOULD BE ALLOWED AS DEDUCTION. WE NOTICED THAT DECISION RENDERED BY HON'BLE SUPREME COURT IN ABOVE SAID CASE WAS NOT BROUGHT T O THE NOTICE OF THE COORDINATE BENCH IN A.Y. 2007 - 08. NORMALLY PROVISION FOR EXPENSES IS MADE ON ESTIMATE BASIS ONLY, SINCE THE ASSESSEE SHALL KNOW THE EXISTENCE OF LIABILITY, BUT IT QUANTUM WAS UNCERTAIN. THE DIFFERENCE BETWEEN THE PROVISION AND ACTUAL AMOUNT SHALL USUALLY BE ADJUSTED IN THE SUBSEQUENT YEARS BY DEBITING/CREDIT THE PROFIT AND LOSS ACCOUNT. THE ASSESSEE SUBMITTED THAT THE ASSESSEE IS CONSISTENTLY FOLLOWING SAME METHODOLOGY OF ESTIMATION YEAR AFTER YEAR. WE FIND MERIT IN THE SUBMISSIONS OF THE ASSESSEE. WE HAVE ALSO GONE THROUGH THE DETAILS OF OUTSTANDING EXPENSES GIVEN IN PAGE NO. 66 OF THE PAPER BOOK. WE NOTICED THAT THE SAME PERTAIN TO VARIOUS EXPENSES. IT, INTER ALIA , INCLUDE S CERTAIN PAYMENTS COVERED BY THE PROVISIONS OF SEC. 43B O F THE ACT LIKE LEAVE ENCASHMENT , EXCISE DUTY ETC. IN RESPECT OF EXPENSES ATTRACTED BY THE PROVISIONS OF SECTION 43B , THE AO IS REQUIRED TO EXAMINE THEM IN TERMS OF SEC. 43B ONLY. IN THIS VIEW OF THE MATTER, WE ARE OF THE VIEW THAT THIS ISSUE REQUIRES FRE SH EXAMINATION AT THE END OF THE ASSESSING OFFICER. ACCORDINGLY WE SET ASIDE THE ORDER PASSED BY THE LEARNED CIT(A) ON THIS ISSUE AND RESTORE THE SAME TO THE FILE OF THE ASSESSING OFFICER WITH THE DIRECTION TO EXAMINE THE ITEMS COVERED BY SECTION 43B OF T HE ACT IN ACCORDANCE WITH THE SAID SECTION. IN RESPECT OF OTHER TIME OF EXPENSES , THE AO EXAMINE THE SAME IN THE LIGHT OF DISCUSSIONS MADE SUPRA . 7. NEXT ISSUE CONTESTED BY THE ASSESSEE RELATES TO ADDITION OF OUTSTANDING EXPENSES OF ` 7,85,811/ - WHILE COMPUTING BOOK PROFIT UNDER THE PROVISIONS OF SECTION 115JB OF THE ACT , TREATING THE SAME AS UNASCERTAINED LIABILITY . SINCE WE HAVE HELD THAT THE LIABILITIES ARE ACCRUED LIABILITIES, THE SAME WOULD FALL UNDER STANLEY BLACK & DECKER INDIA LIMITED 4 THE CATEGORY OF ASCERTAINED LIABILITIES. HENCE THE SAME IS NOT REQUIRED TO BE ADDED U/S. 115JB OF THE ACT. ACCORDINGLY, WE SET ASIDE THE ORDER PASSED BY THE TAX AUTHORITIES ON THIS ISSUE. 8. NEXT ISSUE RELATES TO ADDITION OF MODVAT CREDIT. THE ASSESSEE HAS FOL L OWED EXCLUSIVE METHOD OF ACCOUNTING FOR TAXES. THE ASSESSING OFFI CER DISALLOWED THE CLOSING BALANCE OF MODVAT AMOUNTING TO ` 4,15,852/ - . THE LEARNED CIT(A) ALSO CONFIRMED THE SAME. WE NOTICE THAT T HE ASSESSEE HAS GIVEN WORKINGS RELATING TO MODVAT IN PAGE NO. 30 OF THE PAPER BOOK , WHEREIN IT HAS COMPUTED THE MODVAT AMOUNT UNDER INCLUSIVE METHOD . THE ASSESSEE HAS DEMONSTRATED THAT THERE IS NO IMPACT ON THE PROFIT IF MODVAT IS ACCOUNT ED UNDER INCLUSIVE METHOD. FURTHER IDENTICAL ISSUE HAS BEEN CONSIDERED BY THE COORDINATE BENCH IN ASSESSEES OWN CAS E IN ITA NO. 1675/MUM/2012 RELATING TO A.Y. 2007 - 08 AND THE TRIBUNAL, VIDE ITS ORDER DATED 22.2.2014 , HAS DELETED IDENTICAL DISALLOWANCE MADE IN THAT YE AR. S INCE THE ASSESSEE HAS DEMONSTRATED THAT THERE IS NO IMPACT ON PROFIT IF INCLUSIVE METHOD OF ACCOUNT ING IS FOLLOWED, WE DO NOT FIND ANY SUBSTANCE IN THE ADDITION MADE BY THE ASSESSING OFFICER. FURTHER THE COORDINATE BENCH OF THE TRIBUNAL HAS ALREADY TAKEN A VIEW ON THIS ISSUE IN FAVOUR OF THE ASSESSEE. ACCORDINGLY WE SET ASIDE THE ORDER PASSED BY THE LEA RNED CIT(A) ON THIS ISSUE AND DIRECT THE ASSESSING OFFICER TO DELETE THIS DISALLOWANCE. 9. NEXT ISSUE RELATES TO DENIAL OF SET OFF OF UNABSORBED DEPRECIATION AGAINST LONG TERM CAPITAL GAIN. THE ASSESSEE HAD BROUGHT FORWARD UNABSORBED DEPRECIATION TO THE TUNE OF ` 383.67 LAKHS . IT CLAIMED SET OFF OF THE SAME AGAINST INCOME FROM BUSINESS AND ALSO AGAINST INCOME FROM CAPITAL GAIN. THE ASSESSING OFFICER NOTICED THAT UNABSORBED DEPRECIATION BROUGHT FORWARD BY THE ASSESSEE PERTAIN ED TO PERIOD PRIOR TO A.Y. 20 02 - 03 AND FURTHER MORE THAT 8 YEARS HA D ALSO E LAPSED. ACCORDINGLY, BY FOLLOWING SPECIAL BENCH DECISION OF THE TRIBUNAL RENDERED IN THE CASE OF TIMES GUARANTY LTD. (40 SOT 14), THE ASSESSING OFFICER REJECTED THE CLAIM OF SET OFF. THE LEARNED CIT(A) ALLOW ED THE CLAIM OF SET OFF OF UNABSORBED DEPRECIATION AGAINST BUSINESS INCOME BUT STANLEY BLACK & DECKER INDIA LIMITED 5 REJECTED AGAINST LONG TERM CAPITAL GAIN. THE ASSESSEE IS AGGRIEVED BY THE SAID DECISION IN NOT GRANTING SET OFF OF UNABSORBED DEPRECIATION AGAINST LONG TERM CAPITAL GAIN. 10. L EARNED AR SUBMITTED THAT AN IDENTICAL ISSUE HAS BEEN CONSIDERED BY THE COORDINATE BENCH IN THE CASE OF M/S. AMFORGE INDUSTRIES LTD. (ITA NO. 3470/MUM/2013 DATED 17.10.2014) , WHEREIN IT WAS HELD THAT TREATMENT GIVEN TO CURRENT YEAR DEPRECIATION WOULD EQUAL LY APPLY TO BROUGHT FORWARD DEPRECIATION AND ACCORDINGLY UNABSORBED DEPRECIATION CAN BE SET OFF AGAINST CAPITAL GAIN. 11. WE HAVE HEARD LEARNED DEPARTMENTAL REPRESENTATIVE AND PERUSED THE RECORD. WE NOTICED THAT THE COORDINATE BENCH HAS RENDERED FOLLOWING DECISION IN THE CASE OF M/S. AMFORGE INDUSTRIES LTD.(SUPRA) ON AN IDE NTICAL ISSUE. 11. THE NEXT ISSUE RELATES TO CLAIM OF SET OFF OF BROUGHT FORWARD UNABSORBED DEPRECATION AGAINST THE CURRENT YEAR'S CAPITAL GAIN. THE AO DISALLOWED THE SAID CLA IM ON THE REASONING THAT UNABSORBED DEPRECIATION, THOUGH GETS MERGED WITH THE CURRENT DEPRECIATION, CAN BE CARRIED FORWARD INDEFINITELY AND CAN BE SET OFF ONLY AGAINST 'PROFIT AND GAINS' AND NOT AGAINST ANY OTHER INCOME. THE LD. CIT(A) ALSO CONFIRMED THE V IEW SO TAKEN BY THE AO. AT THE TIME OF HEARING, THE LD. COUNSEL FOR THE ASSESSEE PLACED RELIANCE ON THE FOLLOWING DECISIONS : A) SURESH INDUSTRIES (P) LTD V/S ACIT (2012) 54 SOT 450 (MUM) B) DCIT V/S AKAY FLAVOURS AND AROMATICS (P) LTD (2011) 130 ITD 41 (C OCHIN) (TM ) IN BOTH THE CASES CITED ABOVE, IT HAS BEEN HELD THAT UNABSORBED DEPRECIATION CAN BE SET OFF AGAINST THE 'BUSINESS INCOME' OR AGAINST THE INCOME DERIVED FROM ANY 'OTHER SOURCE', ON THE REASONING THAT THE TREATMENT GIVEN TO CURRENT YEAR DEPREC IATION WOULD EQUALLY APPLY TO BROUGHT FORWARD DEPRECIATION ALSO. BY FOLLOWING THE DECISIONS RENDERED IN THE ABOVE SAID CASES, WE SET ASIDE THE ORDER OF LD. CIT(A) AND DIRECT THE AO TO ALLOW THE SET OFF OF UNABSORBED DEPRECIATION AGAINST CAPITAL GAINS. 12 . WE NOTIC ED THAT THE COORDINATE BENCH HAS FOLLOWED THE DECISION RENDERED BY THIRD MEMBER, MUMBAI IN THE CASE OF M/S. AKAY FLAVOURS AND AROMATICS (P) LTD. AND ALSO DECISION OF THE COORDINATE BENCH IN THE CASE OF STANLEY BLACK & DECKER INDIA LIMITED 6 SURESH INDUSTRIES (P) LTD. CONSISTENT WITH THE VIEW TAKEN IN THE ABOVE SAID CASE S , WE SET ASIDE THE ORDER PASSED BY THE LEARNED CIT(A) ON THIS ISSUE AND DIRECT THE ASSESSING OFFICER TO ALLOW SET OFF OF UNABSORBED DEPRECIATION AGAINST LONG TERM CAPITAL GAIN. 13. LAST ISSUE RELATES TO DISALLOWANCE OF DEPRECIATION ON WALLS AND FENCES. DURING THE YEAR UNDER CONSIDERATION THE ASSESSEE SOLD A LAND AND DECLARED LONG TERM CAPITAL GAIN THEREON. THE ASSESSING OFFICER NOTICED THAT THE ASSESSEE HAD INCURRED EXPENDITURE IN EARLIER YEARS ON CONSTRUCTION OF WALL S AND FENCES AND SURROUNDING LANDS TO THE TUNE OF ` 9,90,556/ - . THE ASSESSEE HAD ALSO CLAIMED DEPRECIATION ON EXPENDITURE INCURRED ON CONSTRUCTION OF WALLS AND FENCES UNDER THE HEAD BUILDING . SINCE LAND HAS BEEN SOLD DURING THE YEAR UNDER CONSIDERATION, THE ASSESSING OFFICER NOTICED THAT THE ASSET CREATED ON ACCOUNT OF CONSTRUCTION OF WALLS AND FENCES HAS CEASED TO EXIST. H E ALSO NOTICED THAT THE ASSESSEE DID NOT DEDUCT ANY AMOUNT FROM THE WDV VALUE OF BUILDING TOWARDS THE VALUE OF WALLS & FENCES . ACCO RDINGLY, THE ASSESSING OFFICER DISALLOWED THE DEPRECIATION AMOUNT OF ` 99,056/ - (10% OF ` 9,90,55 7 / ). THE LEARNED CIT(A) AGREED IN PRINCIPLE , WITH THE VIEW TAKEN BY THE ASSESSING OFFICER. HOWEVER, THE LEARNED CIT(A) NOTICED THAT THE WDV VALUE OF WALLS AND FENCES STOOD AT ` 7,64,689/ - . ACCORDINGLY HE RESTRICTED DISALLOWANCE TO 10% OF THE WDV AMOUNT. 14. LEARNED AR SUBMITTED THAT THE ASSESSEE DID NOT RECEIVE ANY MONEY ON ACCOUNT OF WALLS AND FENCES AND HENCE NO AMOUNT IS REQUIRED TO BE DEDUCTED FROM THE WDV VALUE OF BUILDING. 15. ON THE CONTRARY, LEARNED DEPARTMENTAL REPRESENTATIVE SUBMITTED THAT SALE PRICE OF LAND WOULD AUTOMATICALLY INCLUDE COST PERTAINING TO WALLS AND FENCES AND HENCE THE LEARNED CIT(A) WAS JUSTIFIED IN DELETING THE DISALLOWANCE ON WDV VALUE OF ASSET. 16. WE HAVE HEARD THE RIVAL CONTENTION S ON THIS ISSUE AND PERUSED THE RECORD. IN OUR VIEW, THERE IS MERIT IN THE CONTENTION S OF LD DR THAT THE SALE STANLEY BLACK & DECKER INDIA LIMITED 7 VALUE OF LAND SHOUL D INCLUDE COST OF WALLS AND FENCES , EVEN IT IS NOT SEPARATELY MENTIONE D IN THE CONVEYANCE DEED, SINCE NORMALLY THE SALE CONSIDERATION IS FIXED BY CONSIDERING ALL THE ASPECTS . WE NOTICED THAT THE WDV VALUE OF SAID ASSET WAS ` 7,64,689/ - . SINCE THE SALE CONSIDERATION WAS NOT BIFURCATED BETWEEN THE SALE VALUE OF LAND AND SALE VALUE OF WALLS & FENCES, WE ARE OF THE VIEW THAT THE AMOUNT EQUIVALENT TO THE WDV CAN BE TAKEN AS SALE CONSIDERATION OF WALLS & FENCES. IT HAS TO BE REDUCED FROM THE WDV OF BUILDINGS. A CCORDINGLY WE AGREE WITH THE VIEW SO TAKEN BY THE LEARNED CIT(A) AN D ACCORDINGLY HE WAS JUSTIFIED IN DISALLOWING DEPRECIATION CLAIMED TO THE EXTENT OF ` 76,468/ - . 17. LEARNED AR SUBMITTED THAT , IF WDV VALUE OF ` 7,64,689/ - IS TAKEN AS VALUE PERTAINING TO WALLS AND FENCES, THE SAME IS REQUIRED TO BE EXCLUDED FROM THE SALE VALUE OF LAND FOR THE PURPOSE OF COMPUTING LONG TERM CAPITAL GAIN. WE FIND MERIT IN THE SAID CONTENTION S OF THE ASSESSEE . THE ASSESSEE HAS TAKEN ENTIRE AMOUNT OF SALE CONSIDERATION AS PERTAINING TO LAND. WHEN WE ALLOCATE A PORTION OF THE SAME TOWARDS WA LL & FENCES, THE SALE CONSIDERATION PERTAINING TO LAND SHOULD BE REDUCED BY THAT AMOUNT. ACCORDINGLY, WE DIRECT THE ASSESSING OFFICER TO REDUCE THE SALE CONSIDERATION OF LAND BY ` 7,64,689/ - AND COMPUT E LONG TERM CAPITAL GAIN S ACCORDINGLY. 18. WE SHALL NOW TAKE UP THE APPEAL FILED BY THE REVENUE. WE HAD EARLIER NOTICED THAT THE ASSESSING OFFICER HAD REJECTED THE CLAIM OF SET OFF OF UNABSORBED DEPRECIATION AGAINST BUSINESS INCOME ALSO AND THE LEARNED CIT(A) HAD ALLOWED THAT CLAIM. THE REVENUE IS AGGRIEVED BY THE SAID DECISION OF THE LEARNED CIT(A). 19. LEARNED AR SUBMITTED THAT THIS ISSUE HAS SINCE BEEN SETTLED IN FAVOUR OF THE ASSESSEE BY HON'BLE GUJARAT HIGH COURT IN THE CASE OF GENERAL MOTORS INDIA PVT. LTD. VS. DCIT (2013) 354 ITR 244, WHEREIN IT WA S HELD THAT THE UNABSORBED DEPRECIATION OR PART THEREOF WHICH WAS NOT SET OFF TILL A.Y. 2002 - 03, WILL BE DEALT WITH IN ACCORDANCE WITH THE PROVISIONS OF SECTION 32(2) OF THE ACT STANLEY BLACK & DECKER INDIA LIMITED 8 AS AMENDED BY THE FINANCE ACT, 2001 AND NOT BY THE PROVISIONS OF SECTION 32(2) OF THE ACT AS IT STOOD BEFORE THE AMENDMENT. IT WAS HELD THAT PROVISIONS OF SECTION 32(2) AS AMENDED BY THE FINANCE ACT, 2001 WOULD ALLOW THE UNABSORBED DEPRECIATION ALLOWANCE AVAILABLE IN A.YS. 1997 - 98 TO 2001 - 02 TO BE CARRIED FORWARD TO THE SUCCEEDING Y EARS AND IF ANY UNABSORBED DEPRECIATION OR PART THEREOF COULD NOT BE SET OFF TILL A.Y. 2002 - 03 THEN IT WOULD BE CARRIED FORWARD TILL TIME IT IS SET OFF AGAINST THE PROFIT S AND GAINS OF SUBSEQUENT YEARS. THE D ECISION RENDERED BY HON'BLE GUJARAT HIGH COURT I N THE ABOVE SAID CASE HAS BEEN FOLLOWED BY THE COORDINATE BENCHES IN THE CASE OF DHADDA DIAMONDS PVT. LTD. (ITA NO. 3908/MUM/2013 & ORS. , D ATED 25 . 3.2015 ) AND ALSO IN THE CASE OF M/S. SCHOTT GLASS INDIA PVT. LTD. (ITA NO. 1867/MUM/2015 DATED 8.3.2017). IN VIEW OF THE ABOVE SAID DECISION S , WE DO NOT FIND ANY INFIRMITY IN THE ORDER PASSED BY THE LEARNED CIT(A). 20. WE SHALL NOW TAKE UP THE APPEAL FILED BY THE ASSESSEE FOR A.Y. 2010 - 11. THE FIRST ISSUE RELATES TO THE DISALLOWANCE OF PROVISION FOR EXPENSES. WE HAVE CONSIDERED AN IDENTICAL ISSUE IN AY 2009 - 10 IN THE PRECEDING PARAGRAPHS AND RESTORED THE MATTER TO THE FILE OF THE ASSESSING OFFICER. ACCORDINGLY WE RESTORE THIS ISSUE TO THE FILE OF THE AO WITH SIMILAR DIRECTIONS. 21. THE SECOND ISSUE CONT ESTED BY THE ASSESSEE RELATES TO THE ADDITION OF PROVISION OF EXPENSES WHILE COMPUTING BOOK PROFIT U/S 115JB TREATING THE SAME AS UNASCERTAINED LIABILITY. IN AY 2009 - 10, WE HAVE CONSIDERED AN IDENTICAL ISSUE AND HELD THAT THE PROVISION FOR EXPENSES IS ASC ERTAINED LIABILITY AND THE SAME IS NOT REQUIRED TO BE ADDED WHILE COMPUTING BOOK PROFIT U/S 115JB OF THE ACT. CONSISTENT WITH THE VIEW TAKEN THEREIN, WE SET ASIDE THE ORDERS PASSED BY THE TAX AUTHORITIES ON THIS ISSUE. 22. THE NEXT ISSUE RELATES T O THE CHARGING OF INTEREST U/S 234A OF THE ACT. THE LD A.R SUBMITTED THAT THE DUE DATE FOR FILING RETURN OF INCOME WAS EXTENDED DURING THE YEAR UNDER CONSIDERATION UPTO 15 TH OCTOBER, 2010 AND THE ASSESSEE HAS FILED THE RETURN OF INCOME ON 11 TH OCTOBER, 20 10. ACCORDINGLY SHE STANLEY BLACK & DECKER INDIA LIMITED 9 SUBMITTED THAT THE INTEREST U/S 234A IS NOT CHARGEABLE. WE RESTORE THIS ISSUE TO THE FILE OF THE AO FOR EXAMINING THE CLAIM OF THE ASSESSEE. WE DIRECT HIM NOT TO LEVY INTEREST U/S 234A OF THE ACT, IF THE ASSESSEE HAD FILED RETURN OF INCOME WITHIN EXTENDED TIME LIMIT. 23. IN THE RESULT, BOTH THE APPEALS OF THE ASSESSEE ARE TREATED AS ALLOWED FOR STATISTICAL PURPOSES AND THE APPEAL OF THE REVENUE IS DISMISSED. ORDER HAS BE EN PRONOUNCED IN THE COURT ON 10 . 1 1 .201 7 . SD/ - SD/ - (PAWAN SINGH ) (B.R.BASKARAN) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI ; DATED : 10 / 1 1 / 20 1 7 COPY OF THE ORDER FORWARDED TO : 1. THE APPEL LANT 2. THE RESPONDENT 3. THE CIT(A) 4. CIT 5. DR, ITAT, MUMBAI 6. GUARD FILE. BY ORDER, //TRUE COPY// ( DY./ASSTT. REGISTRAR /SENIOR PS ) PS ITAT, MUMBAI
