DCIT, Circle- 2(1), New Delhi V. Air India Sats Airport Services Pvt. Ltd., Mumbai

ITA 6533/DEL/2017

• Counselvise Citation: [2024] 100 COUNSELVISE.COM (IT) 3077 (ITAT-DELHI)
• Duration Of Justice: 6 year(s) 5 month(s) 10 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 08-04-2024
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 10-01-2024
• Assessment Year: 2013-2014
• Appeal Filed On: 29-10-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: AASISH R SAFI
• Keywords: TDS
• Section: 145; 40(a)(ia); 80IA; 113

Judgement Text

ITA Nos.645/Del/2018 & 6533/Del/2017 1 IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH “A” NEW DELHI BEFORE SHRI CHALLA NAGENDRA PRASAD, JUDICIAL MEMBER AND SHRI M BALAGANESH, ACCOUNTANT MEMBER आ .अ.स ं /.I.T.A Nos.645/Del/2018 /Assessment Year:2012-13 DCIT, Circle 2(1),Room No.153A, C.R. Building, I.P. Estate, New Delhi. ब म Vs. Air India Sats Airport Services Pvt. Ltd., A-63, IGI Airport Road, NH-08, Mahipalpur, New Delhi. PAN No.AAICA4279L अ Appellant /Respondent & आ.अ.स ं /.I.T.A Nos.6533/Del/2017 /Assessment Year:2013-14 DCIT, Circle 2(1),Room No.153A, C.R. Building, I.P. Estate, New Delhi. ब म Vs. Air India Sats Airport Services Pvt. Ltd., B-1101/1102, Lotus Corporate Park, Off. Western Express Highway, Goregaon (East), Mumbai. Maharashtra. PAN No.AAICA4279L अ Appellant /Respondent Revenue by Shri Zafarul Haque Tanweer, CIT DR Assessee by Shri Ketan Ved, Adv. & Shri Aasish R Safi, CA स ु नवाईक तारीख/ Date of hearing: 11.01.2024 उ ोषणाक तारीख/Pronouncement on 09.04.2024 ITA Nos.645/Del/2018 & 6533/Del/2017 2 आदेश /O R D E R PER C.N. PRASAD, J.M. These two appeals are filed by the Revenue against different orders of the Ld. CIT(Appeals) dated 19.09.2017 and 08.08.2017 for the assessment years 2012-13 & 2013-14. The Revenue raised the following common grounds in both the appeals except for the figures: - “1. The Ld. CIT(A) erred in law and on facts in directing the AO to allow deduction of Rs.27,76,94,183/- made by the AO on account of disallowance of assessee's claim of deduction u/s 80IA of Income-tax Act, 1961 without appreciation the following factual position: (i) The assessee company is a joint venture which was formed by Air India Ltd. and SATS Ltd., Singapore and thus it is nothing but a reconstitution/reconstruction of the same joint venture for carrying out the same business activity. (ii) As per 801 A(4) clause (i) of the Income-tax Act, 1961 the enterprise should be owned by a company registered in India whereas the assessee company is formed by M/s. Air India Ltd., an Indian Company and M/s. SATS Ltd. a Singapore based company and the one of the owner or participant of the consortium is not a company registered in India. (iii) Deduction u/s 80IA is allowable for certain basic infrastructure facilities and not providing utility services whereas assessee is engaged in the business of providing ground handling and cargo handling services at Indian Airport which activities a covered within the meaning of explanation referred to Section 80IA. ITA Nos.645/Del/2018 & 6533/Del/2017 3 2. Ld. CIT(A) has erred in law and on facts in deleting the disallowances of Rs.3,48,08,595/- made by AO on account of contingent liability. 3. The appellant craves leave for reserving the right to amend, modify, alter, add or forego any ground(s) of appeal at any time before or during the hearing of this appeal.” 2. Ground No.1 and sub grounds are in respect of disallowance of deduction claimed by the assessee u/s 80IA of the Act. 3. Ld. Counsel for the assessee, at the outset, submits that the identical issue came up for consideration of this Tribunal in assessee’s own case in ITA No.5026/Del/2016 for the AY 2011-12 and the Tribunal by order dated 01.11.2023 decided the issue in favour of the assessee. 4. On the other hand, the Ld. DR supported the orders of the Assessing Officer. 5. Heard rival contentions, perused the orders of the authorities below and the order of the Tribunal placed before us. Perusal of the order of the Tribunal in assessee’s own case for the AY 2011-12 in ITA No.5026/Del/2016 dated 01.11.2023, we observe that this issue has been decided in favour of the assessee and against the Revenue observing as under: - ITA Nos.645/Del/2018 & 6533/Del/2017 4 “7. In appeal, before learned CIT(A) the assessee succeeded on both the counts, against which the Revenue is in appeal raising following grounds: “1. The Ld. CIT(A)has erred in law and on facts in directing the AO to allow deduction u/s 80IA of income Tax without appreciating the following factual position. (i) The assessee company is a joint venture which was formed by Air India Ltd. and SATS Ltd., Singapore and thus it is nothing but a reconstitution/reconstitution of the same joint venture for carrying out the same business activity. (ii) As per 80IA(4) clause (i) of the Act, the enterprise should be owned by a company registered in India where as the assessee company is formed by M/s Air India Ltd. an India Company and M/s SATS Ltd., a Singapore based company and thus one of the owner or participant of the consortium is not a company registered in India. (iii) Deduction u/s 80IA is allowable for certain basic infrastructure facilities and not for providing utility services whereas assessee is engaged in the business of providing ground handling and cargo handling services at Indian Airport which activities are not covered within the meaning of explanation referred to section 80IA. 2. The Ld. CIT(A) erred in law and on facts in deleting addition of Rs.3,82,00,000/ on account of disallowance u/s 40(a)(ia) of the Income Tax Act. 3. The appellant craves leave for reserving the right to amend, modify, alter, add or forego any ground(s) of appeal at any time before or during the hearing of this appeal.” 8. Heard and perused the records. The Ground-wise findings are as follows. ITA Nos.645/Del/2018 & 6533/Del/2017 5 9. Ground no 1 with sub-grounds; After taking into consideration the material on record and the submissions, we are of the considered opinion that ground no. 1 along with its sub-grounds are based on common facts and can be conveniently disposed of together avoiding cost of repetition. At the outset learned Senior Counsel submitted that the issue with regard to provision of ground handling and Cargo handling services at Airport being covered under the activities of maintenance of Airport, is now a duly settled preposition of law and learned CIT(A) has rightly relied the judgment in the case of Menzies Aviation Bobba (Bangalore) Pvt. Ltd. in ITA no. 1160/Bang/2012, which has been confirmed by Hon’ble Karnataka High Court on 25.01.2021 vide ITA no. 186 of 2016. 9.1 Learned DR, however, resisted the same, submitting that the nature of activity of maintaining the Airport is one where technical facilities connected with the flying of aircrafts is concerned and ground activities like Cargo handling do not fall in the category of maintenance of Airport. 10. Further Ld. Sr. Counsel submitted that there is no requirement that the share holders of an Indian Company, as mentioned in Section 80-IA(4)(i)(a), should also be Indian companies. For this, reliance was placed on the judgment of Chennai Tribunal in the case of PSA Sical Terminals Ltd. vs. ACIT, ITA no. 1604 to 1607/Mds./2012 order dated 06.12.2012. 11. On the other hand, learned DR took the Bench across the assessment order pointing out how learned AO has examined every aspect meticulously to conclude that the assessee was incorporated in the manner that it is only an reorganized business set up. It was submitted that assessee company has not entered into direct agreement with the Government of India. He also pointed out that erstwhile joint venture was not claiming the exemption. It was submitted that learned CIT(A) has relied the Hon’ble Karnataka High Court judgment without taking into consideration the facts were distinguishable. ITA Nos.645/Del/2018 & 6533/Del/2017 6 12. Now appreciating the aforesaid, the first and foremost thing to be decided is whether the cargo handling facility which includes storage, loading and unloading is an infrastructure facility for the purpose of Section 80-IA of the Act. This aspect is actually no more res-integra, before Tribunal and in fact in an order of Coordinate Bench, in which one of us (JM) was on the bench, vide ITA No. ITA No. 8301/Del/2019; Acit, Circle- 5(2), New Delhi vs Celebi Delhi Cargo Terminal decided on 24 August, 2023, the issue has been considered and decided against the Revenue holding that air cargo handling facility fall into the scope of infrastructure facility. In that case too Ld. AO was not satisfied with the deduction u/s 80IA as it considered the Cargo Services rendered by the assessee company to be not covered for the benefit of Section 80IA of the Act. Ld. CIT(A) had deleted the disallowance of deduction u/s 80IA of the Act following finding in assessee's own case in ITA no. 3376/Del/2017 order dated 18.02.2019 for A.Y. 2012-13. It will be appropriate to reproduce here in below the relevant findings of CIT(A) in that case, which were approved in co-ordinate Bench order; “6.1. The appellant has submitted that these contentions are supported by the decisions of the Hyderabad ITAT in the case of Ocean Sparkle Ltd Vs Deputy Commissioner of Income Tax 155 Taxman 133, and in the case of Hyderabad Menzies Air Cargo P. Limited vs. DCIT at ITA No 421, 422 and 423/Hyd/2015 for AYS 2009-10 to 2011-12 and at ITA No 1094/Hyd/2016 for AY 2012 13, and of the Bangalore Tribunal in the case of ACIT vs. M/s Menzies Aviation Bobbe (Bangalore) Pvt. Ltd., at ITA No 1160/Bang/2012. The Karnataka High Court in the case of Ms. Flemingo Dutyfree Shops P Ltd in W.P. No. 14215 of 2006 dated 19.12.2008 has considered the functions as well as various aspects relating to Bangalore International Airport Ltd. (BIAL) for coming to the conclusion that BIAL is a statutory body. The Hon'ble Court has held that providing duty free shops in the BIAL is in the nature of statutory functions/public functions for the convenience of the public. "All the facilities provided by BIAL, be it a ITA Nos.645/Del/2018 & 6533/Del/2017 7 state, lessee, or entity, performs statutory functions in the Airport," The said decision has been followed by the Bangalore Tribunal in the case of Menzies Aviation Bobba (Bangalore) Pvt. Ltd. (supra). 6.2 The facts of the appellant's case are similar to that of Menzies Aviation Bobba (Bangalore) Pvt. Ltd and Hyderabad Menzies Air Cargo P. Ltd which have entered into an agreement with BIAL and GHIAL respectively for Air Cargo facility at Bangalore and Hyderabad airport, Hence, respectfully following the decision of the Karnataka High Court in the case of Flemingo Dutyfree (supra) and the decision of the Bangalore Tribunal in the case of ACIT vs. M/s. Menzies Aviation Bobba (Bangalore) Pvt. Ltd. (supra) which has held the agreement between that assessee and BIAL granting the assessee the concession to operate and maintain the cargo facility to be a valid agreement for the purposes of section 80IA(4), it is held that the appellant has entered into an agreement with a statutory body being DIAL for operation and maintenance of an Infrastructure facility i.e. cargo facility at Delhi Airport. Therefore the appellant has satisfied the condition laid down In section 80IA(4)(i)(b). 6.3 Besides, the appellant has taken permissions from the office of the Commissioner of Customs (Import & General) and the Ministry of Civil Aviation to enable it to carry on the business of operation and maintenance of the cargo facility at IGIA, New Delhi. As held by the Madras High Court in the case of CIT v A.L. Logistics (P) Ltd. 55 taxmann.com 283 such approvals obtained From the government authorities would be regarded as an agreement with the government for the purposes of section 801A(4)(i)(b). Considering the aforesaid legal position, I am of the view that the second condition of section 80IA(4) is satisfied in the appellant’s case and accordingly, the said contention of the appellant is upheld.” 12.1 We are of the considered view that learned AO has fallen in error in considering Airport as a facility standing ITA Nos.645/Del/2018 & 6533/Del/2017 8 in isolation and giving a very restrictive interpretation to the scope of ‘developing, operating and maintaining’ Airport. Airport is a facility for transportation of passengers or cargo or both at the same time. The passengers may also travel along with their baggage and cargo may be accompanied by people handling that cargo. Thus the facilities of Airport is not restrict to the fixed structure or equipment connected with the Aircrafts’ maintenance, their running, flying or landing alone. The functionality of the Airport arise from all the facilities which bring utility or add utility to the premises, convenience to passengers, crew, ground staff. Facilities like cargo handling, ground handling, announcement crew, security, check-in counter, baggage management facility, the Airport crew, airlines crew, aircraft crew facility etc. collectively and independently use the premises, the fixed structures, the equipments etc. The developing, operating and maintaining Airport, therefore, encompasses all these activities which are incidental or supplemental to the transportation of passengers or cargo or both together. These facilities of various kind may be provided by one company or different companies but in any way they operate in consortium and having interdependence. Learned AO has fallen in error in observing that different companies have developed the running of Banglore Airport and the assessee is merely providing utility services beyond the scope of Airport for the purpose of Section 80-IA. Thus, on the basis of aforesaid decision, the Bench is inclined to hold that ground handling and cargo handling services provided by the assessee are covered within the meaning of Explanation referred to Section 80-IA and assessee is entitled to claim the benefit of same. 12.2 Then the assessee has come into existence not by reconstitution or reconstruction of the joint venture of Air India Ltd. and SATS Ltd. Singapore on its own, rather it was at the initiation of the Government of India that the assessee came into existence and there is no rebuttal by way of any enquiry by Ld.AO, to the submissions of assessee that the Cabinet had given an approval of the establishment and functionality of assessee. The copy of letter dated 16th March, 2009 from the Ministry of ITA Nos.645/Del/2018 & 6533/Del/2017 9 Aviation, Government of India addressed to Chairman and Managing Director, Air India Ltd. is made available at page no. 112 and 113 of the paper book and same shows that on 23rd February, 2009 the Cabinet in its meeting had approved the setting off of joint venture of Air India with SATS for ground and cargo handling activities at Indian Airports. The letter describes as to how the workforce, assets and equipments shall be evaluated in the joint venture company. It specifically make a direction of getting the company incorporated under the Companies Act, 1956. It was also provided that assets and equipments would be transferred to the joint venture company after approval of this ministry. We are of firm view that such approval of Cabinet by all means amounts to approval of incorporation of assessee under SPRHA and Ld. CIT(A) has duly taken cognizance of this letter to set aside the findings of the Ld. Assessing officer that there was absence of an agreement with the Central Government. There is no fault in the conclusion of ld. CIT(A) as the SPRHA entered into by BIAL with Air India and SATS, dated 16.05.2006, the copy of which is available in the paper book from page no. 114 to 191, specifically opens with the recitals that in pursuant to the concession agreement, the Government of India has granted BIAL the inclusive rights to carry out the development, design, financing, construction, commissioning, maintenance, operation and management of the Airport, in accordance with terms contained therein and that the concession agreement recognizes that BIAL may, subject to the concession agreement, grant service provider rights to any person for carrying out aforesaid activities on such terms and conditions as BIAL may determine are appropriate. Accordingly, on the basis of aforesaid tenders were invited for the cargo services. The SPRH agreement of AI and SATS with BIAL, at page no. 123 of the paper book has an important recital No. 1.3 which provides that in furtherance of agreement, the SPRH was under obligation to get incorporated a joint venture company under the Companies Act, 1956 and this recital further describe the liability of SPRH for subscription of shares by AI and SATS equally and that SPRH has right to transfer this ITA Nos.645/Del/2018 & 6533/Del/2017 10 agreement to the newly incorporated JVC by way of innovation of agreement. This leaves no doubt in the mind of this bench that BIAL had delegated Authority from the Government of India to enter into SPRH agreement and the assessee is a natural child of this alliance. Ld. CIT(A) has not fallen in error in accepting that BIAL is statutory body as held by Hon’ble Karnataka High Court in the case of M/s. Flemingo Duty-Free Shops P. ltd. Therefore, there was no substance in the allegation of Ld. AO that the basic condition provided in Section 80IA(iv)(i)(b) is not fulfilled. This was also the view of Banglore Tribunal in the case of M/s. Menzies Aviation (supra) as duly appreciated by ld. CIT(A). 12.3 Then it comes up that Ld. CIT(A) has duly appreciated the fact that Ld. AO had fallen in error in applying provision of Section 80IA(iii) with regard to allegation of the assessee company being a mere reconstitution and reconstruction of unincorporated JV by taking into consideration that the said provision is not applicable to the assessee company claiming benefit by way of infrastructural facility of the nature of Airport. Ld. CIT(A) has also duly appreciated the fact that assessee is company incorporated India and owns the infrastructural facility and Ld. AO has fallen in error in alleging violation of the condition of Section 80IA(iv)(i)(a). In this context, as relied by Ld. Sr. Counsel in the case of M/s. PSA Sical Terminals (supra), laying down that there is distinction between the company and the share holders, as in the case of that assessee also the company equity was subscribed by three companies and the Tribunal had considered the fact that being a registered company independently holding the assets was entitled to benefit u/s 80IA. 12.4 This also takes care of the allegation of the ld. AO that earlier joint venture was not taking the benefit of Section 80IA as that was for the reason that the earlier joint venture was not company incorporated Indian and was merely an Association of person which was not entitled for reduction u/s 80IA. Thus, we are determined the ground no. 1 along with sub-grounds against the appellant Revenue.” ITA Nos.645/Del/2018 & 6533/Del/2017 11 6. Coming to ground no.2 of grounds of appeal i.e. disallowance of provision for concession fee the Ld. Counsel submits that during the AY 2011-12, similar disallowance was made by the Assessing Officer but on a different provision of law. Ld. Counsel submits that for the AY 2011-12 AO disallowed invoking the provisions of section 40(a)(ia) of the Act, however, during the assessment years under consideration i.e. 2012-13 & 2013-14 the same was disallowed as contingent liability not allowable as deduction. 7. Heard rival submissions, perused the orders of the authorities below. 8. We observe that the AO while completing the assessment disallowed the concession fee on the ground that it is only a contingent liability and unascertainable observing as under: - “5.1. I have considered the submission of assessee but not incline to agree with the same. At the outset, the assessee claims that the liability is not ascertained till the end of the accounting period and as such, is a contingent liability against which, the assessee has claimed expenses in the P&L A/c. The deduction of expenses is to be strictly regulated as per the Income-tax Act, 1961 and not as per the choice of assessee whereas in the instant case, the assessee is claiming an expenditure even bills for which have not been received till the end of the year. Thus, the claim of assessee is purely a provision and cannot be allowed as a deductible expenditure. Here, I would also quote the decision of Seshasayee Br (Travancore) (P) Ltd. v. CIT [1971] 82 ITR ITA Nos.645/Del/2018 & 6533/Del/2017 12 442 (Ker), wherein, it is held that for the purpose of computing yearly profits and gains for assessment to income-tax, each year is a separate and self-contained period of time, and losses and expenses incurred before commencement or after its expiry cannot be the subject of any allowance in assessing the income of that particular year. In making the assessment for any particular year, deductions can therefore be permitted only in respect of expenses which are found to have been incurred in the relevant accounting period. In adjudging the admissibility of a claim deduction, the determination of the question whether the assessee had incurred the expenditure during the relevant accounting period is an indispensable preliminary step. Thus, the claim of assessee is not admissible being provisional in nature. On this score, the amount of Rs.3,48,08,595/- (Rs.4,57,20,236/- minus Rs.1,09,11,641/-) is liable to be disallow being a provision made for contingent / uncertain liability. Accordingly, the amount Rs.3,48,08,595/- is being disallowed.” 9. We observe that the Ld.CIT(A) considering the submissions of the averments of the AO in the assessment order deleted the disallowance observing as under: - “5.2 As regards the grounds at (j) to (I) relating to the disallowance of concession fees (Rs.3,48,08,595/-) in the impugned order it is mentioned therein, inter alia, “...At the outset, the assessee claims that the liability is not ascertained till the end of the accounting period and as such, is a contingent liability against which, the assessee has claimed expenses in the P&L A/c. The deduction of expenses is to be strictly regulated as per the Income-tax Act, 1961 and not as per the choice of assessee whereas in the instant case, the assessee is claiming an expenditure even bills for which have not been received till the end of the year. Thus, the claim of assessee is purely a provision and cannot be allowed as a deductible expenditure...” ITA Nos.645/Del/2018 & 6533/Del/2017 13 From the above portion of the impugned order it is observed that the reason for the disallowance therein is that the liability remained unascertained at the end of the accounting period. Reliance has been made on the decision of the Hon’ble Kerala High Court in Seshasayee Bros (Travancore) Pvt. Ltd vs. CIT (1971) 82ITR 442 (Ker). 5.2a It is gathered from the appellant’s submission that not only is the appellant following mercantile system of accounting, as mandated by Companies’ Act but also the appellant follows the principles of accounting for services as per the ICAI guidelines. It is observed from the appellant’s submission wherein it is stated, inter alia, “...For rendering of invoices, the appellant provides projected turnover figure, which is taken into consideration by the parties and invoices are raised by the parties. Based on the projected figures, the parties raise the invoice as per the terms of the agreement. After the completion of the audit of the assessee the finalized turnover’s figure is communicated to the parties based on which the parties either issue the credit note to the assessee or issue additional invoice for the differential amount of concession fee (as the amount of concession fee is dependent upon the amount of turnover). Since the books of the appellant are maintained on mercantile basis, the provision for concession fees is created in the books of accounts as per mercantile system of accounting and as allowed and accepted under section 145 of the Act on best estimated basis, though the invoice is not raised by the respective parties in that financial year. Once the invoice is raised by the parties and received by the appellant, the provision created for concession fees is reversed and the bill is recorded based on actual invoice. The corresponding TPS is deducted and deposited...” 5.2b Recollecting that the appellant is subjected to audit, the action of the appellant as well as its contention that it is within the ambit of Section 145 of the Act is plausible. Further, in view of the decision of the apex court in Bharat Earth Movers (200) 112 taxmann 61 wherein it has been held, inter alia, “...The law is settled: if a business liability has definitely arisen in the ITA Nos.645/Del/2018 & 6533/Del/2017 14 accounting year, the deduction should be allowed although the liability may have to be quantified and discharged at a future date. What should be certain is the incurring of the liability. It should also be capable of being estimated with reasonable certainty though the actual quantification may not be possible. If these requirements are satisfied, the liability is not a contingent one. The liability is in praesenti though it will be discharged at a future date. It does not make any difference if the future date on which the liability shall have to be discharged is not certain...’’, the liability for payment crystallizes on the date of the completion of service rather than the date of the invoice despite the fact that quantification of the liability per se is done later. 5.2c Further it is observed from the copies of the appellate orders of the first appellate authority, referred to at sub-para 5.Id above that even this issue appeared therein – the disallowance in the relevant impugned orders have been deleted by the CIT (A). As the facts of the present case are identical with those in AY 2011-12, I am in agreement with the reasoning adduced in that appellate order. Accordingly, in due deference to the decision of the Hon’ble Supreme Court in Bharat Earth Movers Ltd {supra), the disallowance on this point in the impugned order is deleted. The grounds at (j) through at (I) are allowed.” 10. We further observe that the Ld.CIT(A) in the order stated that the facts are identical with those of the AY 2011-12 and the Tribunal in the AY 2011-12 allowed the claim of the assessee observing as under: - “14.2 It is further submitted that in subsequent years, namely, assessment year 2012-13 and 2013-14, the said provision is disallowed only on the ground that it is a contingent liability. In other words, the issue about section 40(a)(ia) is not raised. The relevant extract of the ITA Nos.645/Del/2018 & 6533/Del/2017 15 assessment order for AY 2012-13 and AY 2013-14 were relied by Ld. Sr. Counsel. It was submitted that thereafter in subsequent assessment years, no disallowance of the provision is made. A copy of the assessment order for AY 2014-15 was relied in that context. 15. Learned DR, however, relied the findings of learned AO and relied the Banglore Bench order in case of IBM India (P) Ltd. V ITO(TDS) LTU, Bangalore (2015) 59 taxmann.com 107 and Delhi Bench order in ITA No 5347/Del/2012 Inter Globe Aviation Ltd V ACIT order dated 07/01/2019 to submit that the provision is made by present assessee under the specified head, provision is also made to on certain basis thereby ascertaining the amount. It is not the case of the assessee that it has made an ad hoc provision. The payee is identified. Therefore, according to Ld. DR, the tax is required to be deducted on the year-end provisions made by the assessee which are ascertained liabilities. 16. After giving thoughtful consideration to the matter on record and the contentions we are of the view that the credit contemplated in sub-section (2) of section 194C is one that enables the person who has carried out the work to make a claim for the sum. The provision of Rs.3,82,00,00,000/-, as made by assessee did not as such create a debt in favour of BIAL as the concession fee did not arise out of any contract performed by BIAL but was more in the form of royalty with uncertainty of actual amount due and therefore no income can be said to have accrued or arisen to BIAL. 16.1 Further, the methodology adopted for estimation of turnover / profits and subsequently creating the year-end provision and reversing the same in next financial year, remains the same in all subsequent years. Thus, given the fact that in AY 2014-15 the Department has now accepted that the disallowance is not required to be made under section 40(a)(ia) in respect of the year end provisions for concession fee, same sustains the claim of asseessee. ITA Nos.645/Del/2018 & 6533/Del/2017 16 17. The reliance as placed by Ld. Sr. Counsel on the decision of the Hon'ble Karnataka High Court in Toyota Kirloskar Motor (P.) Ltd. vs. ITO [2021] 128 taxmann.com 266 also supports the case of assessee as therein year end provisions were made for expenses on estimate basis in respect of which bills were yet to be submitted. The provisions were reversed upon receipt of invoice and expenses were booked as per the invoices and taxes were deducted there from. The Hon’ble High Court referred to the principle laid down in CIT v. Shoorji Vallabhdas & Co. 46 ITR 144 (SC) that if income does not result at all, there cannot be a levy of tax even though a book entry is made. Thus ground is determined against the appellant Revenue.” 11. Therefore, in view of what is discussed above, we do not see any infirmity in the order passed by the Ld.CIT(A). Thus, this ground of appeal is rejected. 12. The grounds raised by the Revenue for the AY 2013-14 are identical to the grounds raised in the AY 2012-13 except for the figures and the decision taken therein applies mutatis mutandis for the grounds raised for the AY 2013-14. We order accordingly. 13. In the result, both the appeals of the Revenue are dismissed. Order pronounced in the open court on 09.04.2024 Sd/- Sd/- (M BALAGANESH) (C.N. PRASAD) ACCOUNTANT MEMBER JUDICIAL MEMBER Dated: 09.04.2024 *Kavita Arora, Sr. P.S. ITA Nos.645/Del/2018 & 6533/Del/2017 17 Copy of order sent to- Assessee/AO/Pr. CIT/ CIT (A)/ ITAT (DR)/Guard file of ITAT. By order Assistant Registrar, ITAT: Delhi Benches-Delhi