DCIT 15(3)(1), MUMBAI V. UHDE INDIA P. LTD, MUMBAI

ITA 6232/MUM/2016

• Counselvise Citation: [2021] 108 COUNSELVISE.COM (IT) 4488 (ITAT-MUMBAI)
• Duration Of Justice: 4 year(s) 7 month(s) 4 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 25-05-2021
• Appeal Filed By: Department
• Order Result: Partly Allowed
• Bench Allotted: Not Allotted
• Assessment Year: 2011-2012
• Appeal Filed On: 21-10-2016
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: NARENDRA SINGH JAN
• Assessee Lawyers: M M GOLWALA
• Keywords: Depreciation; Opportunity of being heard; Tax effect; Revenue expenditure; TDS; FORM 26AS
• Section: 201; 139(1)

Judgement Text

1 I.T.A. NO.6163/MUM/2014 I.T.A. 6232/MUM/2016 I.T.A. 7991/MUM/2014 IN THE INCOME TAX APPELLATE TRIBUNAL J BENCH, MUMBAI BEFORE SHRI SAKTIJIT DEY (JUDICIAL MEMBER) AND SHRI RAJESH KUMAR (ACCOUNTANT MEMBER) I.T.A. NO. 6163 /MUM/201 4 - A SSESSMENT Y EAR 20 1 0 - 1 1 I.T.A. NO. 7991 /MUM/2019 - A SSESSMENT Y EAR 201 5 - 1 6 T HYSSENKRUP INDUSTRIAL SOLUTIONS (INDIA) PRIVATE LIMITED UHDE HOUSE, L.B.S MARG VIKHROLI (WEST), MUMBAI - 400 083 PAN : AAACU1416H VS THE DEPUTY COMMISSIONER OF INCOME - TAX, RANGE - 15(3)(1), MUMBAI APPELLANT RESPONDENT I.T.A. NO. 6232 /MUM/201 6 (ASSESSMENT YEAR 20 10 - 1 1 ) THE DEPUTY COMMISSIONER OF INCOME - TAX, CIRCLE - 15(3) (2), MUMBAI VS T HYSSENKRUP INDUSTRIAL SOLUTIONS (INDIA) PRIVATE LIMITED UHDE HOUSE, L.B.S MARG VIKHROLI (WEST), MUMBAI - 400 083 PAN : AAACU1416H APPELLANT RESPONDENT A SSESSEE BY SHRI M.M. GOLWALA , AR RE VENUE BY SHRI NARENDRA SINGH JANPANGI , DR DATE OF HEARING 09 - 0 3 - 2021 DATE OF PRONOUNCEMENT 2 5 - 0 5 - 2021 2 I.T.A. NO.6163/MUM/2014 I.T.A. 6232/MUM/2016 I.T.A. 7991/MUM/2014 O R D E R PER SAKTIJIT DEY, JM: CAPTIONED ARE CROSS APPEALS FOR ASSESSMENT YEAR 20 1 0 - 1 1 AND APPEAL BY THE ASSESSEE FOR ASSESSMENT YEAR 201 5 - 1 6 . WHILE CROSS APPEALS FOR ASSESSMENT YEAR 20 1 0 - 1 1 AR IS E OUT OF ORDER DATED 29 - 07 - 2016 PASSED BY LEARNED COMMISSIONER OF INCOME T AX (APPEALS) - 24, MUMBAI, THE APPEAL FOR ASSESSMENT YEAR 2015 - 16 IS AGAINST THE FINAL ASSESSMENT ORDER PASSED IN PURSUANCE TO DIRECTIONS OF THE DISPUTE RESOLUTION PANEL (DRP ). ITA 6232/MUM/2016 REVENUES APPEAL (A SSESSMENT Y EAR 2010 - 11) 2. AT THE OUTSET, LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED, THE TAX EFFECT IN THIS APPEAL OF THE REVENUE IS BELOW THE MONETARY LIMIT OF RS.50 LAKHS AS PER CIRCULAR NO.17/2019 DATED 08 TH AUGUST, 2019 ISSUED BY THE CENTRAL BOARD OF DIRECT TAXES (CBDT) FOR FILING APPEAL BEFORE THE TRIBUNAL . T HEREFORE, APPEAL IS NOT MAINTAINABLE. TO SUBSTANTIATE HIS CONTENTION THAT THE TAX EFFECT OF T HE AMOUNT DISPUTED BY THE REVENUE IS BELOW RS.50 LAKHS, LEARNED COUNSEL DREW OUR ATTENTION TO THE GROUNDS RAISED BY THE REVENUE AND THE ORDER OF LEARNED COMMISSIONER OF INCOME T AX (APPEALS) AS WELL AS THE ORDER PASSED BY THE ASSESSING OFFICER WHILE GIVING EFFECT TO THE ORDER OF THE LEARNED FIRST APPELLATE AUTHORITY. 3. THE LEARNED D EPARTMENTAL R EPRESENTATIVE HAS NOT OPPOSED THE AFORESAID CONTENTION OF THE ASSESSEE. 4. HAVING HEARD RIVAL SUBMISSIONS AND PERUSED MATERIALS ON RECORD AND MORE PARTICULARLY, THE ORDER DATED 05 - 02 - 2018 PASSED BY THE ASSESSING OFFICER GIVING EFFECT TO THE ORDER OF LEARNED COMMISSIONER OF INCOME T AX (APPEALS), WE FIND THAT THE AMOUNT DISPUTED BY THE REVENUE IN THIS APPEAL IS RS.1,08,24,657/ - . 3 I.T.A. NO.6163/MUM/2014 I.T.A. 6232/MUM/2016 I.T.A. 7991/MUM/2014 UNDISPUTEDLY, THE TAX EFFECT ON THE AFOR ESAID AMOUNT DISPUTED BY THE REVENUE IS MUCH BELOW THE MONETARY LIMIT OF RS.50 LAKHS PRESCRIBED BY THE CBDT IN CIRCULARNO.17/2019 DATED 08 TH AUGUST, 2019 FOR FILING APPEAL BEFORE THE TRIBUNAL. IN VIEW OF THE AFORESAID, WE DISMISS THE APPEAL DUE TO LOW TAX EFFECT. 5. IN THE RESULT, APPEAL IS DISMISSED. ITA NO.6163/MUM/2016 ASSESSEES APPEAL FOR A SSESSMENT Y EAR 2010 - 11 6. IN GROUNDS 1, 2 &3, ASSESSEE HAS CHALLENGED THE ADDITION MADE ON ACCOUNT OF ALLEGED UNDERSTATEMENT OF RECEIPTS IN RESPECT OF THE PROJECT BY FOLLOWING PERCENTAGE OF COMPLETION METHOD OF ACCOUNTING. 7. BRIEFLY THE FACTS ARE, THE ASSESSEE, A RESIDENT COMPANY , IS STATED TO BE ENGAGED IN THE BUSINESS OF SUPPLY OF PROCESS, DESIGNING, SUPPLY, CONSTRUCTION AND COMMISSIONING OF BUILDING PLANT FOR T HE CHEMICAL, FERTILIZER, PETROCHEMICAL AND RELATED INDUSTRIES. THE ASSESSEE RECOGNIZES ITS REVENUE IN RESPECT OF VARIOUS PROJECTS FOLLOWING PERCENTAGE OF COMPLETION METHOD OF ACCOUNTING. THE ASSESSING OFFICER, HOWEVER, DID NOT ACCEPT THE METHOD OF ACCOUNTI NG FOLLOWED BY THE ASSESSEE AND PROCEEDED TO COMPUTE INCOME ON THE BASIS OF BILLS/INVOICES RAISED BY THE ASSESSEE DURING THE YEAR. ACCORDINGLY, HE MADE ADDITION OF RS.43,56,12,194/ - TO THE INCOME OF THE ASSESSEE. LEARNED COMMISSIONER OF INCOME T AX (APPEALS ) ALSO SUSTAINED THE ADDITION MADE BY THE ASSESSING OFFICER. 8. BEFORE US, LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE ASSESSEE IS CONSISTENTLY FOLLOWING THE AFORESAID METHOD OF ACCOUNTING FOR REVENUE RECOGNITION FROM ASSESSMENT YEAR 2004 - 05 ONWARD S AND WHILE DECIDING IDENTICAL DISPUTE IN ASSESSEES OWN CASE FOR ASSESSMENT YEAR 2006 - 07, THE TRIBUNAL HAS 4 I.T.A. NO.6163/MUM/2014 I.T.A. 6232/MUM/2016 I.T.A. 7991/MUM/2014 DELETED SIMILAR DISALLOWANCE MADE BY THE ASSESSING OFFICER. IN THIS CONTEXT, HE DREW OUR ATTENTION TO THE ORDER PASSED BY THE TRIBUNAL IN ITA NO. 169 1/MUM/2012 DATED 09 - 04 - 2019.FURTHER, HE SUBMITTED, SIMILAR DISALLOWANCE/ADDITION MADE IN ASSESSMENT YEARS 2007 - 08 AND 2009 - 10 WERE ALSO DELETED BY THE TRIBUNAL WHILE DECIDING ASSESSEES APPEALS ON THE DISPUTED ISSUE. 9. THE LEARNED D EPARTMENTAL R EPRESENTAT IVE , THOUGH , AGREED THAT THE ISSUE IN DISPUTE IS COVERED BY THE DECISION OF THE TRIBUNAL, HOWEVER, HE RELIED UPON THE OBSERVATIONS OF THE ASSESSING OFFICER AND LEARNED COMMISSIONER OF INCOME T AX (APPEALS). 10. WE HAVE CONSIDERED RIVAL SUBMISSIONS AND PERUS ED MATERIALS ON RECORD. IT IS EVIDENT, IDENTICAL ISSUE CAME UP FOR CONSIDERATION BEFORE THE TRIBUNAL IN ASSESSEES OWN CASE FOR ASSESSMENT YEAR 2006 - 07. WHILE DECIDING THE ISSUE IN THE ORDER REFERRED TO ABOVE, THE TRIBUNAL DELETED THE ADDITION HOLDING AS UNDER: - 2.5.5 UPON CAREFUL CONSIDERATION, THE UNDISPUTED POSITION THAT EMERGES IS THAT THE ASSESSEE IS FOLLOWING CONSISTENT METHOD OF ACCOUNTING TO RECOGNIZE THE REVENUE UNDER THESE CONTRACTS. PERCENTAGE OF COMPLETION OF THE PROJECT HAS BEEN WORKED OUT AS PER TOTAL COST INC URRED ON THE PROJECT TO DATE VIS - - VIS TOTAL BUDGETED COST AND THAT FRACTION IS APPLIED TO THE CONTRACT VALUE FOR THE PURPOSE OF REVENUE RECOGNITION. SIMILAR FORMULAE HAVE BEEN ADOPTED BY THE ASSESSEE IN PRECEDING TWO YEARS WHICH HAS BEEN ACCEPTED BY THE R EVENUE. NO CASE OF REVENUE LEAKAGE HAS BEEN ESTABLISHED BEFORE US. NOTHING ON RECORD SUGGEST THAT REMAINING INCOME UNDER THE PROJECT HAS NOT BEEN OFFERED BY THE ASSESSEE IN SUBSEQUENT YEARS, FOLLOWING THE SAME METHOD OF ACCOUNTING. SIMPLY BECAUSE PROGRESS BILLING WAS MORE THAN THE STAGE OF PERCENTAGE OF COMPLETION, THE SAME, IN ITSELF, COULD NOT BE THE BASIS TO USURP THE CONSISTENT METHOD OF ACCOUNTING BEING FOLLOWED BY THE ASSESSEE. THEREFORE, THE ADDITIONS MADE BY THE REVENUE, UNDER THE CIRCUMSTANCES, COU LD NOT BE SUSTAINED. WE ORDER SO. ACCORDINGLY, GROUND NOS. 7 TO 11 OF ASSESSEE'S APPEAL STANDS ALLOWED . 5 I.T.A. NO.6163/MUM/2014 I.T.A. 6232/MUM/2016 I.T.A. 7991/MUM/2014 11. FOLLOWING THE AFORESAID DECISION, THE TRIBUNAL HAS DECIDED THE ISSUE IN FAVOUR OF THE ASSESSEE IN ASSESSMENT YEAR 2007 - 08 VIDE ITA NO.1904/MUM/2012 DATED 08 - 06 - 2020 AND IN ASSESSMENT YEAR 2009 - 10 VIDE ITA NO.1245.MUM/2014 DATED 07 - 08 - 2020. FACTS BEING IDENTICAL, RESPECTFULLY FOLLOWING THE CONSISTENT VIEW OF THE TRIBUNAL EXPRESSED IN ASSESSEES OWN CASE IN PRECEDING ASSESSMENT YEARS REFERRED TO ABOVE, WE DELETE THE ADDITION MADE BY THE ASSESSING OFFICER AND SUSTAINED BY LEARNED COMMISSIONER OF INCOME T AX (APPEALS). THESE GROUNDS ARE ALLOWED. 12. GROUND 4 IS NOT PRESSED; HENCE, DISMISSED. 13. IN GROUNDS 5 & 6 ASSESSEE HAS CHALLENGED ADDITION OF RS.1,72, 26,690/ - (WRONGLY MENTIONED AS RS.9,02,57,424/ - IN THE GROUND) TOWARDS ADDITION ON ACCOUNT OF EXCESS OF PROGRESS BILLING OVER INVENTORIES. 14. AT THE OUTSET, LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED, THE ISSUE IS SQUARELY COVERED BY THE DECISION OF THE T RIBUNAL IN ASSESSEES OWN CASE FOR ASSESSMENT YEARS 2006 - 07 AND 2009 - 10. 15. THE LEARNED D EPARTMENTAL R EPRESENTATIVE, THOUGH , AGREED THAT THE ISSUE IS COVERED BY THE DECISIONS OF THE TRIBUNAL, HOWEVER, HE RELIED UPON THE OBSERVATIONS OF THE ASSESSING OFFICER AND LEARNED COMMISSIONER OF INCOME T AX (APPEALS). 16. HAVING CONSIDERED RIVAL SUBMISSIONS, WE FIND THAT IDENTICAL ISSUE RE LATING TO SIMILAR ADDITION MADE IN ASSESSMENT YEAR 2006 - 07 CAME UP FOR CONSIDERATION 6 I.T.A. NO.6163/MUM/2014 I.T.A. 6232/MUM/2016 I.T.A. 7991/MUM/2014 BEFORE THE TRIBUNAL. WHILE DECIDING THE ISSUE , IN THE ORDER REFERRED TO ABOVE, THE TRIBUNAL HAS HELD AS UNDER: - 2.6.3 UPON CAREFUL CONSIDERATION, WE FIND THAT THE ASSESS EE HAS ACCUMULATED COST AS WELL AS REVENUE UNDER THESE PROJECTS IN THE BALANCE SHEET BY FOLLOWING COMPLETED CONTRACT METHOD. THE REVENUE HAS ACCEPTED SUCH ACCUMULATION DURING AYS 2004 - 05 & 2005 - 06 AND THIS IS THE THIRD YEAR OF ACCUMULATION UNDER THE PROJEC TS. IT IS NOT THE CASE OF THE REVENUE THAT THE INCOME UNDER THESE PROJECTS HAVE NOT BEEN OFFERED TO TAX IN SUBSEQUENT YEARS. NO CASE OF REVENUE LEAKAGE HAS BEEN ESTABLISHED BEFORE US. THEREFORE, THE ACTION OF REVENUE IN DISTURBING THE CONSISTENT METHOD OF ACCOUNTING BEING FOLLOWED BY THE ASSESSEE COULD NOT BE HELD TO BE JUSTIFIED. HENCE, WE DELETE THE IMPUGNED ADDITIONS AND ALLOW THESE GROUNDS OF APPEAL. 17. IDENTICAL VIEW WAS EXPRESSED BY THE CO - ORDINATE BENCH WHILE DECIDING ASSESSEES APPEAL IN ASSESSMENT YEAR 2009 - 10 (SUPRA). FACTS BEING IDENTICAL, RESPECTFULLY FOLLOWING THE DECISIONS OF THE TRIBUNAL IN ASSESSEES OWN CASE , AS REFERRED TO ABOVE, WE DELETE THE ADDITION. THESE GROUNDS ARE ALLOWED. 18. GROUNDS 7 TO 12 BEING NOT PRESSED, ARE DISMISS ED. 19. IN GROUND 13, THE ASSESSEE HAS RAISED THE ISSUE OF NON GRANT OF TDS CREDIT OF RS.19,16,963/ - . 20. HAVING CONSIDERED RIVAL SUBMISSIONS, WE DIRECT THE ASSESSING OFFICER TO VERIFY FORM 26AS AND OTHER MATERIALS ON RECORD AND GRANT CREDIT FOR TDS IN ACC ORDANCE WITH LAW. THIS GROUND IS ALLOWED FOR STATISTICAL PURPOSE. 21. GROUND 14 BEING CONSEQUENTIAL IN NATURE, DOES NOT REQUIRE ADJUDICATION. 22. IN ADDITION TO THE MAIN GROUNDS, ASSESSEE HAS RAISED THREE ADDITIONAL GROUNDS. THE ADDITIONAL GROUNDS RAISED B Y THE ASSESSEE , SINCE , DO NOT REQUIRE INVESTIGATION INTO FRESH FACTS, WE ARE INCLINED TO ADMIT THEM FOR ADJUDICATION. 7 I.T.A. NO.6163/MUM/2014 I.T.A. 6232/MUM/2016 I.T.A. 7991/MUM/2014 23. IN GROUNDS 1 & 2 OF ADDITIONAL GROUNDS, THE ASSESSEE HAS RAISED THE ISSUE OF DEDUCTION OF EDUCATION CESS AND HIGHER AND SECONDARY EDUC ATION CESS ON INCOME - TAX AMOUNTING TO RS.47,49,963/ - . 24. HAVING CONSIDERED RIVAL SUBMISSIONS, WE FIND THAT THIS ISSUE IS SQUARELY COVERED BY THE DECISION OF HONBLE JURISDICTIONAL HIGH COURT IN CASE OF SESA GOA LTD VS JCIT (2020) 423 ITR 426 (BOM) , WHEREI N , THE HONBLE COURT HAS HELD THAT AMOUNT PAID TOWARDS EDUCATION CESS AND HIGHER AND SECONDARY EDUCATION CESS ON INCOME - TAX IS AN ALLOWABLE DEDUCTION. THE SAME VIEW HAS BEEN EXPRESSED BY THE CO - ORDINATE BENCH IN CASE OF M/S BARODA INDUSTRIES PVT LTD VS DCI T IN IT NO.2547/MUM/2019 DATED 27 - 11 - 2020.RESPECTFULLY FOLLOWING THE AFORESAID DECISIONS, WE ALLOW ASSESSEES CLAIM. THESE GROUNDS ARE ALLOWED. 25. IN GROUND 3 OF ADDITIONAL GROUND, THE ASSESSEE HAS CLAIMED DEPRECIATION ON CERTAIN EXPENDITURE INCURRED IN T HE ASSESSMENT YEAR 2008 - 09. 26. BRIEFLY THE FACTS ARE, IN ASSESSMENT YEAR 2008 - 09 THE ASSESSEE HAD INCURRED EXPENSES OF RS.3,60,80,058/ - TOWARDS REPAIR AND CLAIMED IT AS REVENUE EXPENDITURE. HOWEVER, ASSESSEES CLAIM WAS REJECTED BY THE ASSESSING OFFICER B Y TREATING THE EXPENDITURE AS CAPITAL IN NATURE. THE DECISION OF THE ASSESSING OFFICER WAS ALSO UPHELD BY LEARNED COMMISSIONER OF INCOME T AX (APPEALS ) . 27. BEFORE US, LEARNED COUNS E L FOR THE ASSESSEE SUBMITTED, AGAINST THE ORDER OF LEARNED COMMISSIONER OF INCOME - TAX (APPEALS) I N ASSESSMENT YEAR 2008 - 09, THE ASSESSEE HAD FILED AN APPEAL BEFORE THE TRIBUNAL, WHICH, THOUGH HAS BEEN HEARD, BUT ORDER IS STILL AWAITED. HE SUBMITTED, WHILE DECIDING ASSESSEES APPEAL IN ASSESSMENT YEAR 2008 - 09, THOUGH , LEARNED COMM ISSIONER OF INCOME T AX 8 I.T.A. NO.6163/MUM/2014 I.T.A. 6232/MUM/2016 I.T.A. 7991/MUM/2014 (APPEALS) UPHELD THE NATURE OF EXPENDITURE AS CAPITAL; HOWEVER, HE ALLOWED DEPRECIATION ON THE EXPENDITURE INCURRED. THUS, THE LEARNED COUNSEL SUBMITTED, IN CASE ASSESSEES CLAIM OF REVENUE EXPENDITURE IS NOT ACCEPTED IN ASSESSMENT Y EAR 2008 - 09, CONSEQUENTIAL RELIEF RELATING TO CLAIM OF DEPRECIATION SHOULD BE ALLOWED. 28. THE LEARNED D EPARTMENTAL R EPRESENTATIVE SUBMITTED, THE ISSUE CAN BE DECIDED ON THE BASIS OF ORDER TO BE PASSED BY THE TRIBUNAL IN ASSESSMENT YEAR 2008 - 09. 29. WE HA VE CONSIDERED RIVAL SUBMISSIONS AND PERUSED MATERIALS ON RECORD. AS SUBMITTED BY LEARNED COUNSEL FOR ASSESSEE, THE EXPENDITURE ON WHICH THE ASSESSEE HAS CLAIMED DEPRECIATION IN T HE CURRENT YEAR WAS DEBITED AS REVENUE EXPENDITURE IN THE ASSESSMENT YEAR 2008 - 09. ADMITTEDLY, THE ASSESSEE IS CONTESTING THE ISSUE BEFORE THE TRIBUNAL IN ASSESSMENT YEAR 2008 - 09 AND AS SUBMITTED, THE APPEAL HAS BEEN HEARD. THEREFORE, ASSESSEES CLAIM OF DEPRECIATION WOULD DEPEND ON THE OUTCOME OF THE DECISION OF THE TRIBUNAL REGARD ING ASSESSEES CLAIM OF REVENUE EXPENDITURE IN ASSESSMENT YEAR 2008 - 09. IN CASE , ASSESSEES CLAIM IS ACCEPTED IN ASSESSMENT YEAR 2008 - 09, THIS GROUND WOULD BECOME INFRUCTUOUS. OTHERWISE, IF THE TRIBUNAL AGREES WITH THE DEPARTMENTAL AUTHORITIES THAT THE EX PENDITURE IS CAPITAL IN NATURE, THE ASSESSEE WOULD BE ENTITLED TO CLAIM DEPRECIATION. ACCORDINGLY, THIS GROUND IS RESTORED BACK TO THE ASS E SSING OFFICER FOR DECIDING AFRESH KEEPING IN VIEW THE ORDER OF THE TRIBUNAL FOR ASSESSMENT YEAR 2008 - 09. THIS GROUND IS ALLOWED FOR STATISTICAL PURPOSE S . 9 I.T.A. NO.6163/MUM/2014 I.T.A. 6232/MUM/2016 I.T.A. 7991/MUM/2014 30. IN THE RESULT, APPEAL IS PARTLY ALLOWED. ITA 7991/MUM/2019 ASSESSEES APPEAL A SSESSMENT YEAR 2015 - 16 31. GROUNDS 1, 2 & 3 ARE IDENTICAL TO GROUNDS 1, 2 & 3 OF ITA NO.6163/MUM/2016 DECIDED BY US IN THE EARLIER PA RT OF THE ORDER. FACTS BEING IDENTICAL, OUR DECISION THEREIN WILL APPLY MUTATIS MUTANDIS TO THESE GROUNDS AS WELL. ACCORDINGLY, GROUNDS ARE ALLOWED. 32. GROUNDS 4 TO 7 ARE NOT PRESSED; HENCE, DISMISSED. 33. GROUND 8 IS IDENTICAL TO ADDITIONAL GROUND 3 OF ITA NO.6163/MUM/2016 DECIDED BY US EARLIER IN THIS ORDER. FOLLOWING OUR DECISION THEREIN, WE RESTORE THE ISSUE TO THE ASSESSING OFFICER FOR ALLOWING ASSESSEES CLAIM OF DEPRECIATION IN CASE THE EXPENDITURE INCURRED BY THE ASSESSEE IS HELD TO BE OF CAPITA L NATURE BY THE TRIBUNAL WHILE DECIDING THE APPEAL FOR ASSESSMENT YEAR 2008 - 09. THIS GROUND IS ALLOWED FOR STATISTICAL PURPOSES. 34. IN GROUND 9 , THE ASSESSEE HAS RAISED THE ISSUE OF SHORT GRANT OF TDS. 35. HAVING HEARD THE PARTIES, WE DIRECT THE ASSESSING OFFICER TO VERIFY FORM 26AS AND OTHER MATERIALS ON RECORD AND ALLOW CREDIT FOR TDS AS MAY BE ADMISSIBLE AND IN ACCORDANCE WITH LAW. THIS GROUND IS ALLOWED FOR STATISTICAL PURPOSE. 36. IN GROUND 10, ASSESSEE HAS RAISED THE ISSUE OF NON GRANT OF FOREIGN TA X CREDIT OF RS.43,24,819/ - . 37. WE HAVE CONSIDERED THE SUBMISSIONS OF THE PARTIES AND PERUSED MATERIALS ON RECORD. IT IS THE CONTENTION OF THE ASSESSEE THAT THE ENTIRE INCOME EARNED BY THE ASSESSEE, WHETHER IN INDIA OR FROM CONTRACTS EXECUTED IN FOREIGN CO UNTRIES HAVE BEEN OFFERED TO TAX IN INDIA AND THE ASSESSEE HAS SHOWN POSITIVE INCOME. 10 I.T.A. NO.6163/MUM/2014 I.T.A. 6232/MUM/2016 I.T.A. 7991/MUM/2014 HENCE, CREDIT FOR TAX PAID IN FOREIGN COUNTRIES SHOULD BE GIVEN. UNDISPUTEDLY, THE AFORESAID ISSUE WAS NOT A SUBJECT MATTER OF DISPUTE BEFORE LEARNED DRP. THIS ISSUE HAS BEEN RAISED FOR THE FIRST TIME BEFORE US. ALL RELEVANT FACTS RELATING TO ASSESSEES CLAIM HAVE TO BE EXAMINED, AS, THEY WERE NEVER EXAMINED AT ANY STAGE. THEREFORE, WE RESTORE THE ISSUE TO THE ASSESSING OFFICER FOR EXAMINING ASSESSEES CLAIM AND DECID ING IT IN ACCORDANCE WITH LAW. WE MAKE IT CLEAR, WE HAVE NOT EXPRESSED ANY OPINION ON THE MERITS OF ASSESSEES CLAIM WHICH THE ASSESSING OFFICER HAS TO DECIDE KEEPING IN VIEW THE ALLOWABILITY OF ASSESSEES CLAIM VIS - - VIS THE LEGAL POSITION. OF COURSE, THE ASSESSING OFFICER HAS TO PROVIDE A REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE BEFORE DECIDING THE ISSUE. 38. IN GROUND 11, THE ASSESSEE HAS CHALLENGED THE LEVY OF INTEREST U NDER SECTION 234A OF THE ACT . 39. IT IS THE CLAIM OF THE ASSESSEE THAT THE RETURN OF INCOME HAVING BEEN FILED WITHIN THE TIME LIMIT PRESCRIBED U NDER SECTION 139(1) OF THE ACT, NO INTEREST U NDER SECTION 234A CAN BE CHARGED. KEEPING IN VIEW THE AFORESAID SUBMISSION OF THE LEARNED COUNSEL, WE DIRECT THE ASSESSING OFFICER TO VERI FY THE DATE OF FILING OF RETURN AND IN CASE IT IS FOUND THAT THE RETURN OF INCOME WAS FILED WITHIN THE DUE DATE AS PER SECTION 139(1) OF THE ACT, NO INTEREST U NDER SECTION 234A CAN BE CHARGED. 40. GROUND 12 BEING CONSEQUENTIAL IN NATURE, DOES NOT REQUIRE A DJUDICATION. 41. BESIDES THE ABOVE GROUNDS , THE ASSESSEE HAS RAISED ADDITIONAL GROUNDS 1 & 2 CLAIMING DEDUCTION OF EDUCATION CESS AND HIGHER AND SECONDARY EDUCATION CESS AMOUNTING TO RS.47,49,963/ - . THE ISSUE RAISED IN THESE ADDITIONAL GROUNDS ARE 11 I.T.A. NO.6163/MUM/2014 I.T.A. 6232/MUM/2016 I.T.A. 7991/MUM/2014 IDENTI CAL TO THE ISSUE RAISED IN GROUND 1 & 2 OF ADDITIONAL GROUNDS RAISED IN ITA NO.6163/MUM/2016. FOLLOWING OUR DECISION THEREIN, WE ADMIT THE ADDITIONAL GROUND S AND ALLOW ASSESSEES CLAIM OF DEDUCTION. THESE GROUNDS ARE ALLOWED. 42. IN THE RESULT, APPEAL IS PARTLY ALLOWED. 43. TO SUM UP, REVENUES APPEAL IS DISMISSED AND ASSESSEES APPEALS ARE PARTLY ALLOWED. ORDER PRONOUNCED ON 2 5 /0 5 /2021. S D / - S D / - RAJESH KUMAR SAKTIJIT DEY ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI, DT : 2 5 /0 5 /2021 PAVANAN COPY TO : 1. APPELLANT 2. RESPONDENT 3. THE CIT CONCERNED 4. THE CIT(A) 5. THE DR, ITAT, MUMBAI 6. GUARD FILE BY ORDER ASSTT. REGISTRAR, ITAT, MUMBAI