Sakal Papers Ltd, Pune V. Addl CIT Rg- 6 Pune, Pune

ITA 555/PUN/2012

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 1879 (ITAT-PUNE)
• Duration Of Justice: 7 year(s) 3 month(s) 9 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 25-06-2019
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: B
• Next Hearing Date: 04-04-2019
• Assessment Year: 2008-2009
• Appeal Filed On: 16-03-2012
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: SHRI
• Assessee Lawyers: ASHOK KOTHARY
• Keywords: Capital asset; Business income; Earning of tax free income; Bad and doubtful debts; Revenue expenditure; Capital expenditure; Rule 8D; Set aside
• Section: 14A; 80IA; 11; 15

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH, PUNE BEFORE SHRI R.S. SYAL, VICE PRESIDENT AND SHRI VIKAS AWASTHY, J UDICIAL MEMBER . / ITA NO . 1364 /P U N/201 1 / ASSESSMENT YEAR : 20 07 - 08 SAKAL PAPERS LTD., 595, BUDHWAR PETH, PUNE 411002 PAN : AAACS7605Q ....... / APPELLANT / V/S. ADDL. COMMISSIONER OF INCOME TAX, RANGE 6, PUNE / RESPONDENT . / ITA NO .555/PUN/2012 / ASSESSMENT YEAR : 2008 - 09 SAKAL PAPERS LTD., 595, BUDHWAR PETH, PUNE 411002 PAN : AAACS7605Q ....... / APPELLANT / V/S. ADDL. COMMISSIONER OF INCOME TAX, RANGE 6, PUNE / RESPONDENT 2 ITA NO S.1364/PUN/2011, 555/PUN/2012, 349 & 350/PUN/2015 . / ITA NO S.349 & 350/PUN/2015 / ASSESSMENT YEAR S : 2010 - 11 & 2011 - 12 SAKAL PAPERS LTD., 595, BUDHWAR PETH, PUNE 411002 PAN : AAACS7605Q ....... / APPELLANT / V/S. DEPUTY COMMISSIONER OF INCOME TAX, CIRCLE - 6, PUNE / RESPONDENT ASSESSEE BY : S HRI ASHOK KOTHARY REVENUE BY : SHRI PANKAJ GARG / DATE OF HEARING : 0 4 - 04 - 2019 / DATE OF PRONOUNCEMENT : 25 - 0 6 - 201 9 / ORDER PER VIKAS AWASTHY, JM : TH ESE FOUR APPEALS BY THE ASSESSEE ARE DIRECTED AGAINST THE ORDER OF COMMISSIONER OF INCOME TAX (APPEALS) - III, PUNE FOR THE RESPECTIVE ASSESSMENT YEARS. SINCE, THE FACTS IN ALL THE SE APPEALS ARE SIMILAR, THE APPEALS ARE TAKEN UP TOGETHER FOR ADJUDICATIO N AND ARE DISPOSED OF VIDE THIS COMMON ORDER. THE APPEALS OF THE ASSESSEE ARE DECIDED IN SEQUENCE OF ASSESSMENT YEARS. 3 ITA NO S.1364/PUN/2011, 555/PUN/2012, 349 & 350/PUN/2015 ITA NO. 1364/PUN/2011 , (A.Y. 2007 - 08) 2. THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF COMMISSIONER OF INCOME TAX (APPEALS) - III, PUNE DATED 31 - 12 - 2010 FOR THE ASSESSMENT YEAR 2007 - 08. THE GROUNDS RAISED BY THE ASSESSEE IN APPEAL ARE AS UNDER : ON THE FACTS AND THE CIRCUMSTANCES THE LEARNED ASSESSING OFFICER AND COMMISSIONER OF INCOME TAX APPEAL ERRED IN : 1. IN T REATING AN AMOUNT OF R S.2,67,00,519/ - EARNED OUT OF SALE OF INVESTMENT IN SHARES AS BUSINESS INCOME AND NOT AS CAPITAL GAINS AS RETURNED BY THE ASSESSEE. THE SAME BEING IN THE NATURE OF CAPITAL GAIN BE TREATED AS CAPITAL GAIN AND NOT AS BUSINESS INCOME. 2. IN DISALLOWING THE CLAIM OF R S.61,15,826/ - UNDER SECTION 801A. THIS ACTION BEING NOT IN ACCORDANCE WITH THE LAW IT IS PRAYED THAT THE SAME MAY BE ALLOWED. 3. DISALLOWING AN EXPENDITURE OF RS .23,05,985/ - INCURRED ON REPAIRS AND MAINTENANCE ON THE GROUND THAT IT IS IN THE NATURE OF CAPITAL EXPENDITURE. CONSIDERING THE NATURE OF THE EXPENDITURE, IT IS PRAYED THAT THE SAME BE ALLOWED AS REVENUE EXPENDITURE. THE APPELLANT NAMED ABOVE CRAVES TO ADD, TO ALTER, TO AMEND AND TO MODIFY THE GROUNDS AS AND WHEN REQUIRED. 3. SHRI ASHOK KOTHARY APPEARING ON BEHALF OF THE ASSESSEE SUBMITTED THAT GROUND NO. 1 OF THE APPEAL IS IN RESPECT OF INCOME FROM SALE OF SHARES. THE SHARES WERE HELD BY THE ASSESSEE AS INVESTMENT. CONSEQUENTLY, THE INCOME FROM SALE OF SHARES WAS DECLARED AS CAPITAL GAINS. IN SCRUTINY ASSESSMENT PROCEEDINGS , THE ASSESSING OFFICER HELD THE INCOME FROM SALE OF SHARES AS B USINESS I NCOME . THE COMMISSIONER OF INCOME TAX (APPEALS) HAS UPHELD THE FINDINGS OF ASSESSING OFFICER. THE LD. AR SUBMITTED THAT SIMILAR ISSUE HAD COME UP BEFORE THE TRIBUNAL IN ASSESSEES OWN CASE IN ASSESSMENT YEAR 2006 - 07. THE DEPARTMENT IN ASSESSMENT YEAR 2006 - 07 HAD TREATED THE GAIN FROM SALE OF SHARES AS B USINESS I NCOME , W HEREAS, THE ASSESSEE HAD DECLARED TH E SAME AS CAPITAL GAINS. THE TRIBUNAL AFTER 4 ITA NO S.1364/PUN/2011, 555/PUN/2012, 349 & 350/PUN/2015 CONSIDERING THE FACTS REVERSED THE FINDINGS OF COMMISSIONER OF INCOME TAX (APPEALS) AND ALLOWED ASSESSEES CLAIM. THE FACTS IN THE ASSESSMENT YEAR UNDER APPEAL ARE IDENTICAL. TO FURTHER STRENGTHEN HIS ARGUMENT S THE LD. AR PLACED RELIANCE ON CBDTS CIRCULAR F. NO. 225/12/2016 - ITA - II. 3.1 IN RESPECT OF GROUND NO. 2 OF THE APPEAL, THE LD. AR SUBMITTED THAT THE ASSESSEE HAD CLAIMED DEDUCTION OF RS.61,15,826/ - U/S. 80IA OF THE ACT IN RESPECT OF PROFITS FROM WINDM ILL . THE ASSESSEE HAD CLAIMED SIMILAR DEDUCTION IN ASSESSMENT YEAR 2006 - 07. THE SAME WAS DENIED TO THE ASSESSEE BY THE ASSESSING OFFICER AND COMMISSIONER OF INCOME TAX (APPEALS). THE ASSESSEE CARRIED THE ISSUE IN APPEAL BEFORE THE TRIBUNAL IN ITA NO. 14 50/PUN/2009 FOR THE ASSESSMENT YEAR 2006 - 07. THE TRIBUNAL VIDE ORDER DATED 20 - 12 - 2018 ALLOWED THE BENEFIT OF DEDUCTION U/S. 80IA TO THE ASSESSEE. 3.2 IN RESPECT OF GROUND NO. 3 OF THE APPEAL, THE LD. AR SUBMITTED THAT THE ASSESSEE HAD INCURRED EXPENDIT URE ON REPAIRS AND MAINTENANCE OF BUILDING. THE ASSESSEE HAD PAID RS.14,65,000/ - FOR RE - ROOFING OF JALGAON OFFICE AND RS.1,87,174/ - FOR REPAIRING OF COMPOUND WALL AT JALGAON. FURTHER, THE ASSESSEE HAD INCURRED EXPENDITURE OF RS.6,53,811/ - FOR INSTALLATIO N OF DG SET WHICH INCLUDES CIVIL WORK FOR FOUNDATION OF DG SET, FABRICATION AND CARPENTRY WORK. THE LD. AR SUBMITTED THAT RE - ROOFING WAS DONE WITH POLYCARBONATE SHEET. NO NEW ASSET HAD COME INTO EXISTENCE WITH RE - ROOFING. IT IS TEMPORARY IN NATURE AND H AD TO BE REPLACED FROM TIME TO TIME. THE EXPENDITURE INCURRED ON THE COMPOUND WALL WAS ONLY FOR REPAIRING OF EXISTING WALL. IT IS NOT A CASE WHERE NEW COMPOUND WALL WAS CONSTRUCTED. THE ASSESSEE HAD CLAIMED EXPENDITURE ON THE REPAIRS AS 5 ITA NO S.1364/PUN/2011, 555/PUN/2012, 349 & 350/PUN/2015 REVENUE SINCE IT WAS EXCLUSIVELY FOR THE PURPOSE OF BUSINESS AND NO NEW ASS E T HAD COME INTO EXISTENCE. 4. ON THE OTHER HAND SHRI PANKAJ GARG REPRESENTING THE DEPARTMENT VEHEMENTLY DEFENDED THE IMPUGNED ORDER. THE LD. DR ADMITTED THAT THE ISSUE S RAISED IN GROUND NOS. 1 AND 2 OF THE APPEAL BY ASSESSEE WERE SUBJECT MATTER OF DISPUTE BEFORE THE TRIBUNAL IN ASSESSMENT YEAR 2006 - 07. THE ISSUE S HAVE BEEN CONSIDERED BY THE TRIBUNAL IN APPEAL BY THE ASSESSEE FOR ASSESSMENT YEAR 2006 - 07. 4.1 AS REGARD S GROUND NO. 3 OF THE APPEAL THE LD. DR SUBMITTED THAT THE EXPENDITURE INCURRED BY THE ASSESSEE FOR THE ALLEGED REPAIR OF RE - ROOFING HAS RESULTED INTO A NEW ASSET WITH ENDURING BENEFIT. FURTHER, IT IS ASSESSEE S OWN ADMISSION THAT THE CIVIL WORK WAS CARRI ED OUT FOR INSTALLATION OF DG SET. THE CIVIL WORK AND FABRICATION ETC. FOR THE INSTALLATION OF DG SET CANNOT BE CATEGORIZED INTO REPAIRS AND MAINTENANCE. THE LD. DR FURTHER SUBMITTED THAT THE NEW COMPOUND WALL WAS CONSTRUCTED BY THE ASSESSEE. IT IS NOT EMANATING FROM DOCUMENTS ON RECORD THAT IT IS A CASE OF REPAIR OF EXISTING COMPOUND WALL. 5. W E HAVE HEARD THE SUBMISSIONS MADE BY REPRESENTATIVES OF RIVAL SIDES AND HAVE PERUSED THE ORDERS OF AUTHORITIES BELOW . THE GROUND NO. 1 OF THE APPEAL RELATES TO NATURE OF INCOME FROM SALE OF SHARES. THE ASSESSEE COMPANY HELD 95,061 SHARES AS STOCK - IN - TRADE TILL FINANCIAL YEAR 2004 - 05. ON 01 - 04 - 2005 THE SHARES WERE CONVERTED INTO INVESTMENT. THE ASSESSEE SOLD PART OF AFORESAID SHARES IN PERIOD RELEVANT TO ASS ESSMENT YEAR 2006 - 07. THE ASSESSEE TREATED THE INCOME FROM SALE OF SHARES AS CAPITAL GAINS , W HEREAS, THE DEPARTMENT HELD THE INCOME FROM SALE OF SHARES AS 6 ITA NO S.1364/PUN/2011, 555/PUN/2012, 349 & 350/PUN/2015 B USINESS I NCOME. THE TRIBUNAL IN APPEAL BY THE ASSESSEE IN ITA NO. 1450/PUN/2009 (SUPRA) HELD THE INCOME FROM SALE OF SHARES AS CAPITAL GAINS. BOTH THE SIDES ARE UNANIMOUS IN STATING THAT THE ACCOUNTING TREATMENT OF SHARES IN THE BOOKS OF ASSESSEE AND OTHER RELEVANT FACTS IN THE ASSESSMENT YEAR UNDER APPEAL ARE IDENTICAL TO THE FACTS IN ASSESSMENT YEA R 2006 - 07. FOR THE SAKE OF COMPLETENESS THE RELEVANT EXTRACT OF THE FINDINGS OF CO - ORDINATE BENCH IN ASSESSEES OWN CASE FOR ASSESSMENT YEAR 2006 - 07 A RE REPRODUCED HERE - IN - BELOW : 9. WE HAVE PERUSED THE CASE RECORD AND HEARD THE RIVAL CONTENTIONS. WE ALSO ANALYZED THE FACTS AND CIRCUMSTANCES IN THIS CASE. WE FIND THAT IN THE CASE OF ACIT - 1(3) VS. M/S. SUPERIOR FINANCIAL CONSULTANCY SERVICES PVT. LTD. (SUPRA.), FACTS AND CIRCUMSTANCES WERE EXACTLY SIMILAR TO THE INSTANT CASE ON HAND. IN THAT CASE BEFORE THE MUMBAI BENCH OF THE TRIBUNAL, THE ASSESSEE, A PRIVATE LIMITED COMPANY, ENGAGED IN THE BUSINESS OF BORROWING AND LENDING FUNDS REFLECTED STOCK - IN - TRADE OF RS.8,30,95,223.15 IN ITS P & L ACCOUNT AS ON 31.03.2002 AND CONVERTED ITS STOCK - IN - TRADE OF SHARE S TO INVESTMENT WITH EFFECT FROM 1.04.2002. ACCORDINGLY, THE ASSESSEE REFLECTED ITS STOCK OF SHARES IN ITS BALANCE SHEET AS INVESTMENT AS ON 31.03.2003. DURING THE YEAR UNDER CONSIDERATION (A.Y.2004 - 05) THE ASSESSEE SOLD SHARES OUT OF THE SHARES CONVERTE D INTO INVESTMENT AND HAS CLAIMED LONG TERM CAPITAL GAIN ON SALE OF SUCH SHARES AMOUNTING TO RS.7,13,29,191/ - . IN THE ASSESSMENT FRAMED U/S.143(3) OF THE ACT, THE ASSESSING OFFICER ASSESSED THE SAME AS BUSINESS INCOME ON THE REASON THAT THE ACT OF THE AS SESSEE SHIFTING THE VALUE OF STOCK - IN - TRADE TO THE HEAD INVESTMENT CLEARLY INDICATED THE COLOURABLE MIND OF THE ASSESSEE AND THUS INTENTIONALLY AVOIDED THE PAYMENT OF TAX @35%. ON APPEAL, THE LD. CIT(A) ALLOWED THE CLAIM OF THE ASSESSEE HOLDING THAT THERE WAS NO SPECIFIC BAR ON CONVERSION OF STOCK - IN - TRADE INTO CAPITAL ASSET OR VICE VERSA AND OBSERVED THAT THE ASSESSEE HAD LATER ON DISCONTINUED THE ACTIVITY OF TRADING IN SHARES AND CONVERTED ITS STOCKS IN INVESTMENT. THE CIT(A) RELIED ON DECISION OF HON'BLE SUPREME COURT OF INDIA IN THE CASE OF SIR KIKABHAI PREMCHAND (24 ITR 506)(SC) WHEREIN IT HAS BEEN HELD THAT SUCH CONVERSION IS NOT SOMETHING NOT KNOWN TO THE COMMERCIAL WORLD AND THERE IS NO LEGAL BAR ON THE SAME. 10. IN OUR CONSIDERED VIEW IN THE ENTIRE FRAMEWORK OF THE INCOME TAX ACT, THERE IS NO DIRECT AND SPECIFIC EMBARGO FOR CONVERSION OF STOCK - IN - TRADE OF SHARES TO INVESTMENT AND VICE VERSA. THAT OVER THE YEARS, HON'BLE COURTS HAVE HELD ONCE SUCH CONVERSATION HAS TAKEN PLACE, ASSESSEE SHOULD MAINTAI N THAT PATTERN. THERE SHOULD NOT BE ANY FURTHER CHANGE IN THE PATTERN AND THEREBY, STATEMENT OF THE ACCOUNTS SHOULD ALSO BE MAINTAINED. IN EFFECT, THERE SHOULD NOT BE ANY ACTION OF THE ASSESSEE BY WHICH ANY LOSS ARISES TO THE REVENUE. IN THE INSTANT CASE, IT IS NOT DISPUTED THAT CONVERSION HAS TAKEN PLACE FROM STOCK - IN - TRADE TO INVESTMENT AND ALSO THAT THE HON'BLE APEX COURT HAS OBSERVED THAT SUCH CONVERSION HAS NO LEGAL BAR. THEREFORE, IN VIEW OF THE MATTER, WE SET ASIDE THE ORDER OF CIT(APPEALS) ON THIS I SSUE. ACCORDINGLY, GROUND OF APPEAL NO.1 RAISED IN APPEAL BY ASSESSEE IS ALLOWED . 7 ITA NO S.1364/PUN/2011, 555/PUN/2012, 349 & 350/PUN/2015 6. THUS, IN VIEW OF THE AFORESAID DECISION OF CO - ORDINATE BENCH WE HOLD THAT THE INCOME FROM SALE OF SHARES HELD AS INVESTMENT BY THE ASSESSEE HAS TO BE TREATED AS CAPITAL G AINS. THE FINDINGS OF FIRST APPELLATE AUTHORITY ON THIS ISSUE ARE REVERSED AND GROUND NO. 1 OF THE APPEAL IS ALLOWED. 7. IN GROUND NO. 2 OF THE APPEAL THE ASSESSEE HAS ASSAILED DISALLOWANCE OF CLAIM OF DEDUCTION U/S. 80 IA(4) OF THE ACT. THE ASSESSEE H A D INSTALLED WIND MILL AND CLAIMED DEDUCTION U/S. 80IA ON THE INCOME FROM WIND MILL. THE ASSESSING OFFICER DISALLOWED AFORESAID CLAIM OF ASSESSEE BY OBSERVING AS UNDER : THE ASSESSEE IS CLAIMING DEDUCTION U/S. 80 - IA IN RESPECT OF PROFIT FROM ELIGIBLE BUSINESS WITHOUT ADJUSTING PRIOR YEAR LOSSES FROM SUCH ELIGIBLE BUSINESS AGAINST THE CURRENT YEARS INCOME ON THE GROUND THAT PRIOR YEARS LOSSES FROM THE ELIGIBLE BUSINESS HAD ALREADY BEING SET OFF AGAINST INCOME FROM OTHER BUSINESS OR AGAINST OTHER INCOME. THIS IS PATENTLY ERRONEOUS IN AS MUCH AS SECTION 80 - IA(5), THE ELIGIBLE BUSINESS IS REQUIRED TO BE TAKEN AS THE ONLY SOURCE OF THE INCOME OF THE ASSESSEE. IT MEANS THAT FOR THE PURPOSE OF COMPUTING PROFIT DERIVED FROM THE ELIGIBLE BUSINESS, THE LOSSES FRO M SUCH ELIGIBLE BUSINESS INCURRED IN THE PRIOR YEARS WILL HAVE TO BE CONSIDERED AS STILL REMAINING INTACT; AND CONSEQUENTLY, WILL HAVE TO BE BROUGHT FORWARD AND SET OFF AGAINST THE INCOME FROM THE ELIGIBLE BUSINESS. THE OTHER BUSINESSES IF ANY OF THE ASSES SEE AND SET OFF OF THE LOSS FROM THE ELIGIBLE BUSINESS ALREADY MADE AGAINST INCOME FROM SUCH OTHER BUSINESSES WILL BE OUT OF THE RECKONING . THE COMMISSIONER OF INCOME TAX (APPEALS) UPHELD THE FINDINGS OF ASSESSING OFFICER. DISALLOWANCE OF DEDUCTION U/S. 80IA IN THE ASSESSMENT YEAR UNDER APPEAL IS ON SIMILAR LINES AS WAS MADE IN ASSESSMENT YEAR 2006 - 07. THE CO - ORDINATE BENCH OF TRIBUNAL IN ASSESSEES OWN CASE IN ITA NO. 1450/PUN/2009 (SUPRA) AFTER PLACING RELIANCE ON THE DECISION RENDERED IN THE CASE OF ACIT VS. RDS CONSTRUCTION CO. IN ITA NO. 135/PUN/2016 FOR ASSESSMENT YEAR 2011 - 12 DECIDED ON 09 - 04 - 20 1 8 HELD THAT THE ASSESSEE IS ELIGIBLE TO CLAIM DEDUCTION U/S. 80IA(4) OF THE ACT. RESPECTFULLY FOLLOWING 8 ITA NO S.1364/PUN/2011, 555/PUN/2012, 349 & 350/PUN/2015 THE DECISION OF CO - ORDINATE BENCH , THE FINDINGS O F COMMISSIONER OF INCOME TAX (APPEALS) ON THIS ISSUE ARE REVERSED AND GROUND NO. 2 OF THE APPEAL IS ALLOWED. 8. THE GROUND NO. 3 OF THE APPEAL IS WITH RESPECT TO DISALLOWANCE OF EXPENDITURE RS.23,05,985/ - CLAIMED BY THE ASSESSEE AS REPAIRS AND MAINTENANCE. THE ASSESSEE HAS CLAIMED EXPENDITURE AS REVENUE WHEREAS THE ASSESSING OFFICER AND COMMISSIONER OF INCOME TAX ( APPEALS) HAS HELD THE EXPENDITURE ON CAPITAL ACCOUNT. THE LD. AR HAS BROUGHT OUR ATTENTION TO THE FINDINGS OF COMMISSIONER OF INCOME TAX (APPEALS) IN PARA 4.3.1 AT PAGE 17 OF THE IMPUGNED ORDER. A PERUSAL OF DOCUMENTS ON RECORD REVEAL THAT THE EXISTING A C SHEET ROOFING WAS REMOVED AND NEW POLY - CARBONATE SHEET ROOFING WAS FIXED. THE REVENUE HAS FAILED TO SHOW THE NEW ASSET OF ENDURING NATURE THAT HAS COME INTO EXISTENCE. THE SCANNED COPY OF R.A. BILL IS REPRODUCED IN THE IMPUGNED ORDER . IT CLEARLY STATE S THAT AFTER REMOVING THE EXISTING SHEETS NEW PRE - COATED POLY - CARBONATE ROOFING SHEETS FIXED. A PERUSAL OF DOCUMENTS ON RECORD SHOW THAT THE EXPENDITURE INCURRED BY THE ASSESSEE IS PURELY ON ACCOUNT OF REPAIRS. THE EXPENDITURE CLEARLY FALLS WITHIN THE DO MAIN OF CURRENT REPAIRS WITHIN THE MEANING OF SECTION 30 OF THE ACT. ANOTHER EXPENDITURE WHICH IS IN DISPUTE IS REPAIRS OF COMPOUND WALL. THE ADDITION HAS BEEN MADE MERELY FOR THE REASON THAT IN R.A. B ILL IT HAS BEEN MENTIONED C ONSTRUCTION OF COMPOUND WALL . THE CONTENTION OF THE ASSESSEE IS THAT IT IS REPAIR OF EXISTING COMPOUND WALL. THE LOWER AUTHORITIES HAVE OBSERVED THAT THE ASSESSEE HAS FAILED TO BRING ON RECORD ANY DOCUMENTARY EVIDENCE TO SUBSTANTIATE PRIOR EXISTENCE OF COMPOUND WALL. BEFORE US ALSO THE ASSESSEE HAS NOT PLACED ON RECORD ANY DOCUMENTARY EVIDENCE TO SHOW EXISTENCE OF COMPOUND WALL . IN THE ABSENCE 9 ITA NO S.1364/PUN/2011, 555/PUN/2012, 349 & 350/PUN/2015 OF COMPLETE RELEVANT INFORMATION, WE DEEM IT APPROPRIATE TO RESTORE THIS ISSUE TO THE FILE OF ASSESSING OFFICER FOR THE LIMIT ED PURPOSE TO ASCERTAIN FROM DOCUMENTARY EVIDENCE REGARDING EXISTENCE OF COMPOUND WALL. IF THE ASSESSEE IS ABLE TO SHOW THAT THE WALL WAS IN EXISTENCE, PRIOR TO THE DATE OF REPAIRS, THE EXPENDITURE HAS TO BE ALLOWED AS REVENUE IN NATURE. ANOTHER ADDITION THAT HAS BEEN MADE AFTER DISALLOWING EXPENDITURE IS ON ACCOUNT OF INSTALLATION OF DG SET, CIVIL WORK, FABRICATION AND CARPENTRY. THE CONTENTION OF THE ASSESSEE IS THAT THE ASSESSEE HAD PURCHASED NEW DG SET FOR WHICH CIVIL WORK WAS REQUIRED TO BE CARRIED OUT FOR THE INSTALLATION. THE EXPENDITURE INCURRED ON FOUNDATION OF DG SET IS PURELY REVENUE IN NATURE AS NO ENDURING BENEFIT WOULD ACCRUE TO THE ASSESSEE AND NO NEW ASSET HAS COME INTO EXISTENCE. THEREFORE, THE ADDITION OF RS.6,53,811/ - ON ACCOU NT OF FOUNDATION OF DG SET IS HELD TO BE ON REVENUE ACCOUNT. IN VIEW OF OUR ABOVE FINDINGS THE GROUND NO. 3 OF THE APPEAL IS PARTLY ALLOWED IN THE AFORESAID TERMS. 9. IN THE RESULT, THE APPEAL OF ASSESSEE FOR ASSESSMENT YEAR 2007 - 08 IS PARTLY ALLOWED. ITA NO. 555/PUN/2012, (A.Y. 2008 - 09 ) 10. THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF COMMISSIONER OF INCOME TAX (APPEALS) - III, PUNE DATED 30 - 11 - 2011 FOR THE ASSESSMENT YEAR 2008 - 09. THE GROUNDS RAISED BY THE ASSESSEE IN APPEAL ARE AS UNDER : ON THE FACTS AND THE CIRCUMSTANCES THE LEARNED ASSESSING OFFICER AND COMMISSIONER OF INCOME TAX APPEAL ERRED IN : 1. CONFIRMING THE ORDER OF THE ASSESSING OFFICER IN CONSIDERING GAIN OF R S.1,41,60,819/ - ARISING FROM THE SALE OF INVESTMENTS IN SHARES AS BUSINESS INCOME AND NOT AS LONG TERM CAPITAL GAIN AS CLAIMED AND 10 ITA NO S.1364/PUN/2011, 555/PUN/2012, 349 & 350/PUN/2015 RETURNED BY THE ASSE S SEE. IT IS PRAYED THAT THE SAID GAIN BE TREATED AND ASS ESSED AS LONG TERM CAPITAL GAINS. 2. DIRECTING THE ASSESSING OFFICER TO TAX PROFIT OF R S.4,70,73,720/ - ARISING FROM SALE SHORT TERM INVESTMENTS IN SHARES AS BUSINESS PROFIT AND NOT AS SHORT TERM CAPITAL GAINS AS CLAIMED AND RETURNED BY THE ASSESSEE, IT IS PRAYED THAT THE SAID GAIN BE TREATED AND ASSESSED AS SHORT TERM CAPITAL GAINS. 3. CONFIRMING THE ORDER OF ASSESSING OFFICER IN DISALLOWING RS .1 , 71,353/ - U/S 14A OF THE INCOME TAX ACT, 1961. IT IS PRAYED THAT THE SAID DISALLOWANCE BE DELETED. 4. N OT ENTE RTAINING THE ADDITIONAL GROUND AND CONFIRMING THE ORDER OF THE ASSESSING OFFICER IN NOT CONSIDERING THE LOSS OF RS .23,39,663/ - ARISING FROM THE WIND MILL BUSINESS AS RETURNED. IT IS PRAYED THAT THE SAID LOSS BE ALLOWED AND THE INCOME BE REDUCED TO THAT EXT ENT. THE APPELLANT NAMED ABOVE CRAVES LEAVE TO ADD, TO ALTER AND TO AMEND THE GROUNDS OF APPEAL IF AND WHEN REQUIRED. 11. THE LD. AR SUBMITTED THAT THE GROUND NO. 1 OF THE APPEAL IS IDENTICAL TO THE GROUND NO. 1 RAISED IN ASSESSMENT YEAR 2007 - 08. 11.1 IN RESPECT OF GROUND NO. 2 THE LD. AR STATED AT THE BAR THAT HE IS NOT PRESSING THE SAME. 11.2 THE GROUND NO. 3 OF THE APPEAL IS AGAINST DISALLOWANCE OF RS.1,71,353/ - MADE U/S. 14A R.W. RULE 8D. THE LD. AR CONTENDED THAT THE ASSESSEE HAS RECEIVED DIVIDEND TO THE TUNE OF RS.10,48,699/ - . THE ASSESSING OFFICER HAS FAILED TO CONSIDER THE FACTS THAT OWN INTEREST FREE FUNDS OF ASSESSEE ARE MUCH MORE THAN THE INVESTMENT MADE BY THE ASSESSEE. THEREFORE, NO DISALLOWANCE U/S. 14A R.W. RULE 8D IS WARRANTED. 11.3 IN RESPECT OF GROUND NO. 4 THE LD. AR SUBMITTED THAT THE ASSESSING OFFICER DISALLOWED LOSS WITHOUT ASSIGNING ANY REASON. THE FINDINGS OF COMMISSIONER OF INCOME TAX (APPEALS) ON THIS ISSUE ARE CRYPTIC. THE 11 ITA NO S.1364/PUN/2011, 555/PUN/2012, 349 & 350/PUN/2015 LD. AR CONTENDED THAT THE TRIBUNAL IN A SSESSEES APPEAL IN ITA NO. 1450/PUN/2009 (SUPRA) HAD ALLOWED THE BENEFIT OF DEDUCTION U/S. 80IA OF THE ACT. 12. ON THE OTHER HAND LD. DR VEHEMENTLY DEFENDED THE IMPUGNED ORDER AND PRAYED FOR DISMISSING THE APPEAL OF ASSESSEE. 13. BOTH SIDES HEARD. ORDERS OF THE AUTHORITIES BELOW PERUSED. THE GROUND NO. 1 OF THE APPEAL IS WITH RESPECT TO THE TREATMENT TO BE GIVEN TO INCOME FROM SALE OF SHARES. THE ASSESSEE HAS CLAIMED GAIN ON SALE OF SHARES AS LONG TERM CAPITAL GAIN , WHEREAS , THE DEPARTMENT HAS HEL D THE INCOME ON SALE OF SHARES AS BU SINESS I NCOME. WE FIND THAT THE ISSUE RAISED IN GROUND NO. 1 OF THE PRESENT APPEAL IS IDENTICAL TO THE ISSUE ADJUDICATED BY US IN GROUND NO. 1 OF THE APPEAL FOR ASSESSMENT YEAR 2007 - 08 . THEREFORE, THE FINDINGS GIVEN B Y US IN ASSESSMENT YEAR 2007 - 08 ON THIS ISSUE WOULD MUTATIS MUTANDIS APPLY TO THE GROUND NO. 1 OF THE PRESENT APPEAL. CONSEQUENTLY, GROUND NO. 1 IS ALLOWED. 14. IN RESPECT OF GROUND NO. 2 OF THE APPEAL , THE LD. AR STATED AT THE BAR THAT HE IS NOT PRESS ING GROUND NO. 2. THUS, IN VIEW OF THE STATEMENT MADE BY THE LD. AR OF ASSESSEE GROUND NO. 2 IS DISMISSED AS NOT PRESSED. 15. IN GROUND NO. 3 OF THE APPEAL , THE LD. AR HAS ASSAILED THE DISALLOWANCE OF RS.1,71,353/ - U/S. 14A R.W. RULE 8D. WE FIND THAT THE DISALLOWANCE HAS BEEN MADE UNDER THE PROVISIONS OF RULE 8D(2)(III). UNDISPUTEDLY, THE ASSESSEE HAS EARNED DIVIDEND INCOME OF RS.10,48,699/ - AND NO SUO - MOTO DISALLOWANCE HAS BEEN MADE BY ASSESSEE IN RESPECT OF EXEMPT INCOME EARNED. THE ASSESSING OFFICER WHILE INVOKING THE 12 ITA NO S.1364/PUN/2011, 555/PUN/2012, 349 & 350/PUN/2015 PROVISIONS OF RULE 8D HAS NOT MADE ANY DISALLOWANCE IN RESPECT OF INTEREST EXPENDITURE. THEREFORE, THE CONTENTION OF ASSESSEE THAT OWN IN TEREST FREE FUNDS OF THE ASSESSEE ARE MUCH MORE THAN THE INVESTMENT MADE WOULD NOT HAVE ANY BEARING IN RESPECT OF DISALLOWANCE MADE UNDER RULE 8D(2)(III). ACCORDINGLY, GROUND NO. 3 OF THE APPEAL IS WITHOUT MERIT AND HENCE , DISMISSED. 16. THE GROUND NO. 4 OF THE APPEAL RELATES TO SET OFF OF LOSSES ARISING FROM BUSINESS OF WIND MILL. A PERUSAL OF IMPUGNED ORDER SHOWS THAT THE COMMISSIONER OF INCOME TAX (APPEALS) WHILE UPHOLDING THE FINDINGS OF ASSESSING OFFICER HAS NOT GIVEN SPECIFIC FINDINGS ON THE ISSUE OF CLAIM OF DEDUCTION. EVEN THE ASSESSING OFFICER WHILE PASSING ASSESSMENT ORDER HA S GIVEN CRYPTIC FINDINGS FOR DISALLOWING THE LOSS WHILE COMPUTING THE ASSESSEES CLAIM OF DEDUCTION U/S. 80IA. WE ARE OF CONSIDERED VIEW THAT THIS ISSUE NEEDS REVISIT TO T HE FILE OF ASSESSING OFFICER. THE ASSESSING OFFICER SHALL DECIDE THIS ISSUE DE NOVO AFTER AFFORDING REASONABLE OPPORTUNITY OF HEARING TO THE ASSESSEE, IN ACCORDANCE WITH LAW. ACCORDINGLY, GROUND NO. 4 OF THE APPEAL IS ALLOWED FOR STATISTICAL PURPOSE. 17. IN THE RESULT, THE APPEAL OF ASSESSEE FOR ASSESSMENT YEAR 2008 - 09 IS PARTLY ALLOWED IN THE TERMS AFORESAID. ITA NO. 349/PUN/2015, (A.Y. 2010 - 11) 18. THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF COMMISSIONER OF INCOME TAX (APPEALS) - 4, PUNE DATED 19 - 01 - 2015 FOR THE ASSESSMENT YEAR 20 10 - 11. THE GROUNDS RAISED BY THE ASSESSEE IN APPEAL ARE AS UNDER : 13 ITA NO S.1364/PUN/2011, 555/PUN/2012, 349 & 350/PUN/2015 ON THE FACTS AND UNDER THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LEARNED ASSESSING OFFICER AND THE CIT (A) ERRED IN : 1. IN DISALLOWING THE CLAIM OF RS.46,36,513/ - U/S 80 I A OF THE INCOME TAX ACT, 1961. THIS BEING NOT IN ACCORDANCE WITH THE LAW IT IS PRAYED THAT THE SAID DEDUCTION BE U/S 80 I A FOR THE SAID AMOUNT BE ALLOWED. 2. WITHOUT PREJUDICED TO THE SAID CLAIM U/S 80 I A, IN I NCL UDING THE INCOME OF RS. 46,36,513/ - FROM GENERATION/DISTRIBUTION OF POWER FROM WINDMILL IN TOTAL INCOME. THIS BEING BAD IN LAW IT IS PRAYED THAT THE AMOUNT OF RS. 46,36,513/ - INCLUDED IN THE TOTAL INCOME BE DELETED. 3. IN INVOKING THE PROVISIONS OF SEC. 14A OF THE I.T. ACT, 1 961 AND ADDING RS. 1,31,412/ - AS DISALLOWANCE OF EXPENDITURE U/S 14A OF THE INCOME TAX ACT, 1961. IT IS PRAYED THAT THE SAID DISALLOWANCE BE DELETED. 4. IN NOT APPRECIATING THE FACT THAT THE ASSESSEE HAS NOT INCURRED ANY EXPENDITUR E ATTRACTING PROVISIONS OF SEC. 14A AND THEREBY DISALLOWING OF RS. 1,31,412/ - . THIS ACTION BEING BAD IN LAW IT IS PRAYED THAT THE DISALLOWANCE OF RS.1, 31 ,412/ - BE DELETED. 5. IN DISALLOWING BAD DEBTS OF RS. 91,91 ,033/ - WRITTEN OFF, DURING THE YEAR BY THE ASSE S SEE AS BAD DEBTS IN ITS BOOKS OF ACCOUNTS. IT IS PRAYED THAT THE SAME BE ALLOWED AND THE INCOME BE REDUCED TO THAT EXTENT. 6. IN DISALLOWING BAD DEBTS COMPRISING OF VARIOUS AMOUNTS TOTALLING TO RS. 91 , 91 ,033/ - ON THE ONE OR OTHER GROUND AND STATING T HAT THEY ARE NOT DEBTS OR BAD DEBTS. THIS ACTION OF THE ASSESSING OFFICER AND THE CIT(A) BEING NOT IN ACCORDANCE OF LAW AND THE ACCOUNTING PRINCIPLES IT IS PRAYED THAT THE ENTIRE AMOUNT OF BAD DEBTS BE ALLOWED TO BE WRITTEN OF DURING THE YEAR AND THE INCOM E BE REDUCED TO THAT EXTENT. THE APPELLANT NAMED ABOVE CRAVES LEAVE TO ADD, TO ALTER AND TO AMEND THE GROUNDS OF APPEAL IF AND WHEN REQUIRED. 19. THE LD. AR SUBMITTED THAT THE ISSUE RAISED IN GROUND NOS. 1 AND 2 OF THE APPEAL ARE WITH RESPECT TO CLAIM OF DEDUCTION U/S. 80IA WHICH HAS ALREADY BEEN ARGUED IN ASSESSMENT YEAR 2007 - 08. THE SUBMISSIONS MADE FOR THE ASSESSMENT YEAR 2007 - 08 WOULD EQUALLY APPLY TO THE ASSESSMENT YEAR 2010 - 11. 19.1 THE LD. AR SUBMITTED THAT GROUND NOS. 3 AND 4 OF THE AP PEAL ARE WITH RESPECT TO DISALLOWANCE OF RS.1,31,412/ - U/S. 14A R.W. RULE 8D. THE 14 ITA NO S.1364/PUN/2011, 555/PUN/2012, 349 & 350/PUN/2015 ASSESSING OFFICER HAS INVOKED THE PROVISIONS OF RULE 8D(2)(III) WITHOUT RECORDING SATISFACTION AS ENVISAGED U/S. 14A( 3) OF THE ACT. FURTHER, THE ASSESSEE HAS SUFFICIENT OWN INTEREST FREE FUNDS TO COVER THE INVESTMENTS. HENCE, NO DISALLOWANCE IS REQUIRED TO BE MADE UNDER THE PROVISIONS OF SECTION 14A OF THE ACT. 19.2 IN RESPECT OF GROUND NOS. 5 AND 6 OF THE APPEAL , THE LD. AR SUBMITTED THAT THE ASSESSEE HAD WRITTEN OFF BA D DEBTS TO THE TUNE OF RS.91,91,033/ - . THE ASSESSING OFFICER HAS DISALLOWED THE ENTIRE AMOUNT PRIMARILY ON THE GROUND THAT THE ASSESSEE HAS NOT SHOWN THE DEBT S AS IRRECOVERABLE. THE COMMISSIONER OF INCOME TAX (APPEALS) HAS UPHELD THE FINDINGS OF ASSESSIN G OFFICER . THE LD. AR CONTENDED THAT THE BAD DEBTS WERE WRITTEN OFF AS THEY HAD BECOME VERY OLD AND IRRECOVERABLE. THE DETAILS OF BAD DEBTS WRITTEN OFF WERE FURNISHED BEFORE THE LOWER AUTHORITIES. THE SAME WERE REFLECTED IN THE BOOKS FOR THE PAST SEVERA L YEARS. THE BAD DEBTS HAVE BEEN WRITTEN OFF IN ACCORDANCE WITH THE PRINCIPLES LAID DOWN BY THE HONBLE SUPREME COURT OF INDIA IN THE CASE OF TRF LTD. VS. COMMISSIONER OF INCOME TAX REPORTED AS 323 ITR 397. TO FURTHER SUPPORT HIS CONTENTION S THE LD. AR P LACED RELIANCE ON THE DECISION OF HONBLE BOMBAY HIGH COURT IN THE CASE OF DIRECTOR OF INCOME TAX VS. OMAN INTERNATIONAL BANK REPORTED AS 313 ITR 128. 20. ON THE OTHER HAND THE LD. DR VEHEMENTLY DEFENDED THE IMPUGNED ORDER AND PRAYED FOR DISMISSING THE APPEAL OF ASSESSEE. 21. W E HAVE HEARD THE SUBMISSIONS MADE BY REPRESENTATIVES OF RIVAL SIDES AND HAVE PERUSED THE ORDERS OF AUTHORITIES BELOW . THE GROUND NOS. 1 AND 2 OF THE APPEAL ARE WITH RESPECT TO ASSESSEES CLAIM OF DEDUCTION U/S. 15 ITA NO S.1364/PUN/2011, 555/PUN/2012, 349 & 350/PUN/2015 80IA OF THE ACT. WE HAVE ALREADY DEALT WITH THIS ISSUE IN APPEAL BY THE ASSESSEE FOR ASSESSMENT YEAR 2007 - 08 (SUPRA). THE FINDINGS GIVEN BY US ON THIS ISSUE WOULD MUTATIS MUTANDIS APPLY TO THE ASSESSMENT YEAR UNDER APPEAL. ACCORDINGLY, GROUND NOS. 1 AND 2 OF THE APPEAL ARE ALLOWED . 22. IN GROUND NOS. 3 AND 4 OF THE APPEAL THE ASSESSEE HAS ASSAILED DISALLOWANCE U/S. 14A OF THE ACT. UNDISPUTEDLY, THE ASSESSEE HAS EARNED DIVIDEND INCOME OF RS.5,92,935/ - . NO SUO - MOTO DISALLOWANCE HAS BEEN MADE BY THE ASSE SSEE U/S. 14A OF THE ACT. THE CONTENTION OF THE ASSESSEE IS THAT THE ASSESSING OFFICER HAS NOT RECORDED PROPER SATISFACTION U/S. 14A . THERE IS NO SET PROFORMA/FORMAT FOR RECORDING SATISFACTION BEFORE MAKING DISALLOWANCE U/S. 14A. HOWEVER, THE REQUIREMENT IS THAT THE ASSESSING OFFICER BEFORE MAKING DISALLOWANCE UNDER RULE 8D SHOULD RECORD REASONS AS TO WHY HE DOES NOT CONCUR WITH THE CONTENTIONS OF ASSESSEE FOR MAKING INSUFFICIENT/NO DISALLOWANCE UNDER THE PROVISIONS OF SECTION 14A. ANALYSIS OF SATISFACTION RECORDED BY ASSESSING OFFICER IS SUBJECTIVE EXAMINATION. IN THE PRESENT CASE, IN OUR CONSIDERED OPINION THE ASSESSING OFFICER HAS RECORDED SATISFACTION AS ENVISAGED UNDER SUB - SECTION (3) OF SECTION 14A BEFORE MAKING DISALLOWANCE UNDER RULE 8D(2)( III ). THE ASSESSING OFFICER HAS NOT MADE ANY DISALLOWANCE WITH RESPECT TO INTEREST EXPENDITURE UNDER RULE 8D(2) (II) . HENCE, THE CONTENTION OF ASSESSEE THAT OWN INTEREST FREE FUNDS ARE MUCH MORE THAN THE INVESTMENTS MADE ARE OF NO CONSEQ UENCES. HENCE, GROUND NOS. 3 AND 4 OF THE APPEAL ARE DISMISSED. 23. THE GROUND NOS. 5 AND 6 OF THE APPEAL ARE WITH RESPECT TO DISALLOWANCE OF BAD DEBTS WRITTEN OFF. DURING THE ASSESSMENT YEAR 2010 - 11 THE ASSESSEE HAS WRITTEN OFF BAD DEBTS TO THE TUNE OF RS.91,91,033.34/ - . THE CONTENTION OF THE ASSESSEE IS THAT THESE WERE EXISTING IN THE BOOKS FOR A 16 ITA NO S.1364/PUN/2011, 555/PUN/2012, 349 & 350/PUN/2015 VERY LONG TIME AND THE CHANCES OF RECOVERY OF AFORESAID AMOUNT WERE NIL. THE ASSESSEE HAS PLACED RELIANCE ON THE DECISION OF HONBLE APEX COURT IN THE CAS E OF TRF LTD. VS. COMMISSIONER OF INCOME TAX (SUPRA). IT IS A WELL SETTLED LAW THAT THE ASSESSEE NEED NOT ESTABLISHED THAT THE DEBT HAS IN FACT BECOME IRRECOVERABLE. IT IS ENOUGH IF THE BAD DEBT IS WRITTEN OFF AS IRRECOVERABLE IN THE ACCOUNTS OF ASSESSEE . IT IS NOT DISPUTED BY THE DEPARTMENT THAT THE AMOUNTS WRITTEN OFF AS BAD DEBT S WERE DULY REFLECTED IN THE BOOKS OF ASSESSEE IN THE PAST AND THEY WERE WRITTEN OFF DURING THE ASSESSMENT YEAR UNDER APPEAL. THUS, IN VIEW OF LAW LAID DOWN BY THE HONBLE APE X COURT , WE FIND MERIT IN THE CONTENTION S OF ASSESSEE. THE FINDINGS OF COMMISSIONER OF INCOME TAX (APPEALS) ON THIS ISSUE ARE REVERSED AND THE GROUND NOS. 5 AND 6 OF THE APPEAL ARE ALLOWED. 24. IN THE RESULT, THE APPEAL OF ASSESSEE FOR ASSESSMENT YEAR 2010 - 11 IS PARTLY ALLOWED. ITA NO. 350/PUN/2015 , (A.Y. 2011 - 12) 25. THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF COMMISSIONER OF INCOME TAX (APPEALS) - 4, PUNE DATED 23 - 01 - 2015 FOR THE ASSESSMENT YEAR 201 1 - 12. THE GROUNDS RAISED BY THE ASSESSEE IN APPEAL ARE AS UNDER : ON THE FACTS AND UNDER THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LEARNED ASSESSING OFFICER AND THE CIT (A) ERRED IN : 1. IN DISALLOWING THE CLAIM OF RS. 28,24,212/ - U/S 80 I A OF THE INCOME TA X ACT, 1961. THIS BEING NOT IN ACCORDANCE WITH THE LAW IT IS PRAYED THAT THE SAID DEDUCTION BE U/S 80 I A FOR THE SAID AMOUNT BE ALLOWED. 2. WITHOUT PREJUDICED TO THE SAID CLAIM U/S 80 I A, IN INCL UDING THE INCOME OF RS.28,24,212/ - FROM GENERATION/DISTRIBUTI ON OF POWER FROM WINDMILL IN TOTAL INCOME. THIS BEING BAD IN LAW IT IS PRAYED THAT THE AMOUNT OF RS.28,24,212/ - INCLUDED IN THE TOTAL INCOME BE DELETED. 3. IN INVOKING THE PROVISIONS OF SEC.14A OF THE I.T. ACT, 1 961 AND ADDING RS. 1,31, 730/ - AS DISALLOWAN CE OF EXPENDITURE U/S 14A OF THE INCOME 17 ITA NO S.1364/PUN/2011, 555/PUN/2012, 349 & 350/PUN/2015 TAX ACT, 1961. IT IS PRAYED THAT THE SAID DISALLOWANCE BE DELETED. 4. IN NOT APPRECIATING THE FACT THAT THE ASSESSEE HAS NOT INCURRED ANY EXPENDITURE ATTRACTING PROVISIONS OF SEC. 14A AND THEREBY DISALLOWING OF R S. 1,31, 730/ - . THIS ACTION BEING BAD IN LAW IT IS PRAYED THAT THE DISALLOWANCE OF RS.1, 31 , 730/ - BE DELETED. THE APPELLANT NAMED ABOVE CRAVES LEAVE TO ADD, TO ALTER AND TO AMEND THE GROUNDS OF APPEAL IF AND WHEN REQUIRED. 26. THE LD. AR SUBMITTED THAT THE ISSUE RAISED IN GROUND NOS. 1 AND 2 OF THE APPEAL ARE WITH RESPECT TO CLAIM OF DEDUCTION U/S. 80IA , WHICH HAS ALREADY BEEN ARGUED IN ASSESSMENT YEAR 2007 - 08. THE SUBMISSIONS MADE FOR THE ASSESSMENT YEAR 2007 - 08 WOULD EQUALLY APPLY TO THE ASSESSMENT Y EAR 2011 - 12. 26. 1 THE LD. AR SUBMITTED THAT GROUND NOS. 3 AND 4 OF THE APPEAL ARE WITH RESPECT TO DISALLOWANCE OF RS.1,31,730/ - U/S. 14A R.W. RULE 8D. THE LD. AR FURTHER SUBMITTED THAT THE ISSUE RAISED IN GROUND NOS. 3 AND 4 OF THE APPEAL IS IDENTICAL TO THE ONE RAISED IN ASSESSMENT YEAR 2010 - 11. THE SUBMISSIONS MADE FOR THE ASSESSMENT YEAR 2010 - 11 WOULD EQUALLY APPLY TO THE ASSESSMENT YEAR 2011 - 12. 27. ON THE OTHER HAND THE LD. DR VEHEMENTLY DEFENDED THE IMPUGNED ORDER AND PRAYED FOR DI SMISSING THE APPEAL OF ASSESSEE. 28. BOTH SIDES ARE UNANIMOUS IN STATING THAT THE ISSUE RAISED IN GROUNDS OF APPEAL NO. 1 AND 2 OF THE PRESENT APPEAL IS IDENTICAL TO THE GROUND NO. 2 RAISED IN ASSESSMENT YEARS 2007 - 08 . SIMILARLY THE ISSUE OF DISALLOWANCE RAISED IN GROUND NOS. 3 AND 4 OF THE PRESENT APPEAL IS IDENTICAL TO GROUND NOS. 3 AND 4 OF ASSESSMENT YEAR 2010 - 11. THUS, IN VIEW OF THE FACT THAT THE ISSUE IN ALL THE APPEALS ARE IDENTICAL , THE FINDINGS GIVEN BY US WHILE 18 ITA NO S.1364/PUN/2011, 555/PUN/2012, 349 & 350/PUN/2015 ADJUDICATING THE APPEAL OF ASSESSEE IN ASSESSMENT YEARS 2007 - 08 AND 2010 - 11 ON THE RESPECTIVE ISSUES WOULD MUTATIS MUTANDIS APPLY TO ASSESSMENT YEAR 2011 - 12, AS WELL. CONSEQUENTLY, GROUND NOS. 1 AND 2 OF THE APPEAL ARE ALLOWED AND GROUND NOS. 3 AND 4 ARE DISMISSED. 29. IN THE RESULT, THE APPEAL FOR ASSESSMENT YEAR 2011 - 12 IS PARTLY ALLOWED. 30. TO SUM UP, ALL THE APPEALS OF ASSESSEE ARE PARTLY ALLOWED. ORDER PRONOUNCED ON TUESDAY, THE 25 TH DAY OF JUNE, 201 9 . SD/ - SD/ - ( R.S. SYAL ) (VIKAS AWASTHY) VICE PRESIDENT JUDICIAL MEMBER / PUNE; / DATED : 25 TH JUNE, 2019 RK / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT. 2. / THE RESPONDENT. 3. ( ) / THE CIT(A) - III, PUNE 4. / THE CIT - III, PUNE 5. , , , / DR, ITAT, B BENCH, PUNE. 6. / GUARD FILE. / / / / TRUE COPY// / BY ORDER, / PRIVATE SECRETARY, , / ITAT, PUNE