ALSTOM INDIA LTD, MUMBAI V. ADDL CIT RG 1(1), MUMBAI

ITA 6960/MUM/2014

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 1958 (ITAT-MUMBAI)
• Duration Of Justice: 4 year(s) 7 month(s) 14 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-06-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2008-2009
• Appeal Filed On: 14-11-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ANADI VERMA
• Keywords: Depreciation; Business expenditure; Opportunity of being heard; Bad and doubtful debts; Corroborative evidences; Validity of assessment; Unabsorbed depreciation; Revenue expenditure; Capital expenditure; Set aside
• Section: 43B; 143(3); 80HHC; 115JB; 40(a)(ia); 195; 147

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH, MUMBAI BEFORE SHRI SAKTIJIT DEY , JUDICIAL MEMBER AND SHR I G. MANJNATHA , ACCOUNTANT MEMBER IT A NO. 69 6 0 /MUM./2014 ( ASSESSMENT YEAR : 200 8 09 ) G.E. POWER INDIA LTD. (FORMERLY KNOWN AS M/S. ALSTOM INDIA LTD.), THE INTERNATIONAL, 5TH FLOOR 16, MARINE LINES, CROSS ROAD NO.1 OFF MAHARSHI KARVE MARG CHURCHGATE, MUMBAI 400 020 PAN AABCA8679F . APPELLANT V/S ADDL . COMMISSIONER OF INCOME TAX RANG E 1 ( 1 ), MUMBAI . RESPONDENT IT A NO. 6501/MUM./2008 ( ASSESSMENT YEAR : 20 02 03 ) DY . COMMISSIONER OF INCOME TAX RANG E 1 ( 1 ), MUMBAI . APPELLANT V/S G.E. POWER INDIA LTD. (FORMERLY KNOWN AS M/S. ALSTOM INDIA LTD.), THE INTERNATIONAL, 5TH FLOOR 16, MARINE LINES, CROSS ROAD NO.1 OFF MAHARSHI KARVE MARG CHURCHGATE, MUMBAI 400 020 PAN AABCA8679F . RESPONDENT 2 G.E. POWER INDIA LTD. C.O. NO.83/MUM./2013 ( ARISING OUT OF IT A NO. 6501/MUM./2008 ) ( ASSESSMENT YEAR : 2002 03 ) G.E. POWER INDIA LTD. (FORMERLY KNOWN AS M/S. ALSTOM INDIA LTD.), THE INTERNATIONAL, 5TH FLOOR 16, MARINE LINES, CROSS ROAD NO.1 OFF MAHARSHI KARVE MARG CHURCHGATE, MUMBAI 400 020 PAN AABCA8679F . CROSS OBJECTOR (ORIGINAL RESPONDENT) V/S DY . COMMISSIONER OF INCOME TAX RANG E 1 ( 1 ), MUMBAI . RESPONDENT (ORIGINAL APPELLANT) ASSESSEE BY : SHRI MRUNAL PAREKH A/W SHRI HASMUKH RAVARIA REVENUE BY : SHRI ANADI VERMA DATE OF HEARING 18 .0 6 .2019 DATE OF ORDER 28.06.2019 O R D E R PER SAKTIJIT DEY. J.M. CAPTIONED APPEALS BY THE ASSESSEE AND THE REVENUE AND CROSS OBJECTION BY THE ASSESSEE ARISE OUT OF TWO SEPARATE ORDERS PASSED BY THE LEARNED COMMISSIONER (APPEALS) 1, MUMBAI, FOR THE ASSESSMENT YEAR 2002 03 AND 2008 09. ITA NO.6501/MUM./2008 REVENUES APPEAL A.Y. 2002 03 2 . IN GROUND NO.1, THE REVENUE HAS CHALLENGED DELETION OF ADDITION OF ` 23,03,48,610, MADE BY THE ASSESSING OFFICER ON ACCOUNT OF 3 G.E. POWER INDIA LTD. DEDUCTION CLAIMED TOWARDS V OLUNTARY R ETIREMENT S CHEME (VRS) EXPENSES. 3 . BRIEF FACTS ARE, IN CASE OF ASSESSEE, THE ASSESSMENT WAS O RIGINALLY COMPLETED UNDER SECTION 143(3) OF THE INCOME TAX ACT, 1961 (FOR SHORT 'THE ACT' ) VIDE ORDER DATED 22 ND MARCH 2005, ASSESSING THE TOTAL INCOME AT ` NIL AND BOOK PROFIT AT ` 75,52,70,710. SUBSEQUENTLY, THE ASSESSING OFFICER RE OPENED THE ASSESSMENT UNDER SECTION 147 OF THE ACT. IN THE COURSE OF RE ASSESSMENT PROCEEDINGS, THE ASSESSING OFFICER NOTICING THAT THE ASSESSEE HAS DEBITED AN AMOUNT OF ` 23,03,48,610, TO THE PROFIT & LOSS ACCOUNT TOWARDS VRS EXPENSES CALLED FOR NECESSARY DETAILS AND ALSO ASK ED THE ASSESSEE TO EXPLAIN AS TO WHY IT SHOULD NOT BE DISALLOWED. IN RESPONSE, IT WAS SUBMITTED BY THE ASSESSEE THAT THE ASSESSEE HAS CLAIMED THE DEDUCTION IN TERMS OF SECTION 35DDA OF THE ACT. THE ASSESSING OFFICER, HOWEVER, DID NOT FIND MERIT IN THE SUBM ISSIONS OF THE ASSESSEE. HE OBSERVED , THOUGH THE ASSESSEE HAD CLAIMED DEDUCTION UNDER SECTION 35DDA OF THE ACT TOWARDS VRS EXPENSES OF ` 11,03,45,554, BEING 1/5 TH OF ` 55,17,27,077 , H OWEVER, IT HAS DEBITED AN AMOUNT OF ` 23,03,48,610, TO THE PROFIT & LOSS ACCOUNT. ALLEGING THAT THE ASSESSEE WAS UNABLE TO PROVE WITH SUPPORTING EVIDENCE THAT THE VRS EXPENSES AMOUNTING TO ` 23,03,48,610, HAS BEEN ADDED TO ARRIVE AT THE PROFIT OF THE AMALGAMATING COMPANY, THE ASSESSING OFFICER ADDED BACK THE SAID 4 G.E. POWER INDIA LTD. AMOUNT T O THE INCOME OF THE ASSESSEE. THE ASSESSEE CHALLENGED THE AFORESAID ADDITION BEFORE THE FIRST APPELLATE AUTHORITY. 4 . AFTER CONSIDERING THE SUBMISSIONS OF THE ASSESSEE IN THE CONTEXT OF FACTS AND MATERIAL ON RECORD, LEARNED COMMISSIONER (APPEALS) HAVING FOUN D THAT THE AMOUNT OF ` 23,03,48,610, HAS BEEN ADDED BACK BY THE ASSESSEE TO ARRIVE AT THE PROFIT DISCLOSED IN THE RETURN OF INCOME, DELETED THE ADDITION MADE BY THE ASSESSING OFFICER. 5 . SHRI ANADI VERMA, THE LEARNED DEPARTMENTAL REPRESENTATIVE RELIED UPON T HE OBSERVATIONS OF THE ASSESSING OFFICER. 6 . SHRI MRUNAL PAREKH , THE LEARNED AUTHORISED REPRESENTATIVE FOR THE ASSESSEE RELIED UPON THE OBSERVATIONS OF LEARNED COMMISSIONER (APPEALS). 7 . WE HAVE CONSIDERED RIVAL SUBMISSIONS AND PERUSED THE MATERIAL ON RECORD. IT IS EVIDENT , IN COURSE OF ASSESSMENT PROCEEDINGS ITSELF THE ASSESSEE HAD SUBMITTED THAT THE AMOUNT OF ` 23,03,48,610, DEBITED TO THE PROFIT & LOSS ACCOUNT HAS BEEN ADDED BACK TO ARRIVE AT THE PROFIT DECLARED IN THE RETURN OF INCOME. HOWEVER, THE ASSESSIN G OFFICER REJECTED THE AFORESAID CLAIM OF THE ASSESSEE ALLEGING LACK OF COMPLETE DETAIL. AS COULD BE SEEN, UPON GOING THROUGH THE FACTS AND MATERIAL AVAILABLE ON RECORD LEARNED COMMISSIONER (APPEALS) HAS FOUND THAT VRS EXPENSES OF ` 23,03,48,610, IN FACT , HAS BEEN ADDED BACK BY THE 5 G.E. POWER INDIA LTD. ASSESSEE TO ARRIVE AT THE PROFIT WHICH HAS BEEN CONSIDERED FOR COMPUTATION OF INCOME. THUS, THE ASSESSEE HAD NOT CLAIMED THE DEDUCTION OF ` 23,03,48,610. THE AFORESAID FACTUAL FINDING OF LEARNED COMMISSIONER (APPEALS) REMAINS UNC ONTROVERTED BEFORE US. IN VIEW OF THE AFORESAID, WE FIND NO REASON TO INTERFERE WITH THE DECISION OF LEARNED COMMISSIONER (APPEALS) ON THIS ISSUE. GROUND IS DISMISSED. 8 . IN GROUND NO.2, THE REVENUE HAS CHALLENGED THE DECISION OF LEARNED COMMISSIONER (APPEAL S) IN DIRECTING THE ASSESSING OFFICER NOT TO ADD THE PROVISION OF DOUBTFUL DEBTS AND ADVANCES WHILE COMPUTING THE BOOK PROFIT UNDER SECTION 115JB OF THE ACT. 9 . BRIEF FACTS ARE, IN COURSE OF ASSESSMENT PROCEEDINGS THE ASSESSING OFFICER NOTICED THAT THE ASSES SEE HAS CREATED A PROVISION FOR DOUBTFUL DEBT AND ADVANCES AMOUNTING TO ` 8.97 CRORE IN ITS BOOKS OF ACCOUNT. BEING OF THE VIEW THAT SUCH PROVISION IS IN THE NATURE OF UNASCERTAINED LIABILITY, HE OBSERVED THAT AS PER CLAUSE (C) TO EXPLAINATION 1 TO SECTION 115JB(2) OF THE ACT, IT HAS TO BE ADDED BACK FOR COMPUTING BOOK PROFIT. ACCORDINGLY, HE ADDED BACK THE SAID AMOUNT TO THE BOOK PROFIT COMPUTED UNDER SECTION 115JB OF THE ACT. THE ASSESSEE CHALLENGED THE AFORESAID DECISION OF THE ASSESSING OFFICER BEFORE T HE FIRST APPELLATE AUTHORITY. 6 G.E. POWER INDIA LTD. 10 . L EARNED COMMISSIONER (APPEALS) RELYING UPON THE SPECIAL BENCH DECISION OF THE TRIBUNAL, KOLKATA BENCH, IN JCIT V/S USHA MARTIN INDUSTRIES LTD., [2007] 104 ITD 249 (K O L.) AND THE DECISION OF THE TRIBUNAL, MUMBAI BENCH, IN MAHARASHTRA STATE ELECTRICITY BOARD V/S JCIT, [2002] 82 ITD 422 (MUM.), HELD THAT THE PROVISION FOR BAD AND DOUBTFUL DEBT AND ADVANCES IS NOT A LIABILITY OF THE ASSESSEE BUT DIMINUTION IN VALUE OF THE ASSET. THEREFORE, EXPLANATION 1( C ) OF SECTION 115JB(2) OF THE ACT WOULD NOT BE APPLICABLE. ACCORDINGLY, HE DIRECTED THE ASSESSING OFFICER NOT TO ADD THE AMOUNT WHILE COMPUTING THE BOOK PROFIT UNDER SECTION 115JB OF THE ACT. 11 . THE LEARNED DEPARTMENTAL REPRES ENTATIVE SUBMITTED , AS PER CLAUSE (G) TO EXPLANATION TO SECTION 115JA R/W CLAUSE (I) OF EXPLANATION 1 TO SECTION 115JB(2) OF THE ACT, THE AMOUNTS SET ASIDE AS PROVISION FOR DIMINUTION IN THE VALUE OF AN ASSET HAVE TO BE ADJUSTED WHILE COMPUTING BOOK PROFIT . HE SUBMITTED , THE AFORESAID PROVISION THOUGH BROUGHT TO THE STATUTE BY FINANCE ACT, 2009, HOWEVER, THEY WILL APPLY RETROSPECTIVELY FROM 1 ST APRIL 2001. THUS, HE SUBMITTED , THE ASSESSING OFFICER WAS CORRECT IN ADDING BACK THE AMOUNT WHILE COMPUTING THE BOOK PROFIT UNDER SECTION 115JB OF THE ACT. 12 . THE LEARNED AUTHORISED REPRESENTATIVE SUBMITTED , THE PROVISION FOR DOUBTFUL DEBT AND ADVANCES IS NOT A LIABILITY OF THE ASSESSEE, HENCE, CANNOT BE ADDED BACK TO THE BOOK PROFIT AS PER CLAUSE (C) TO 7 G.E. POWER INDIA LTD. EXPLANATION 1 OF SECTION 115JB(2) OF THE ACT. HE SUBMITTED , IN ASSESSEES OWN CASE FOR ASSESSMENT YEAR 2001 02 AND 2003 04, THE TRIBUNAL HAS DECIDED THE ISSUE IN FAVOUR OF THE ASSESSEE. I N THIS CONTEXT, HE DREW OUR ATTENTION TO THE DECISION OF THE TRIBUNAL IN ITA NO.4925/MUM./2006, DATED 10 TH DECEMBER 2008. FURTHER, HE SUBMITTED , FOLLOWING THE AFORESAID DECISION OF THE TRIBUNAL, LEARNED COMMISSIONER (APPEALS) HAS DECIDED THE ISSUE IN FAVOU R OF THE ASSESSEE IN ASSESSMENT YEAR 2004 05. I N ADDITION, THE LEARNED AUTHORISED REPRESENTATIVE RELIED UPON VARIOUS OTHER DECISIONS , AS REFERRED TO IN THE CHART SUBMITTED BEFORE US , INCLUDING THE DECISION OF THE HON'BLE SUPREME COURT IN CIT V/S HCL COMNET SYSTEMS AND SERVICES LTD., [2008] 305 ITR 409 (SC). 13 . WE HAVE CONSIDERED RIVAL SUBMISSIONS AND PERUSED THE MATERIAL ON RECORD. IT IS EVIDENT , THE ASSESSING OFFICER TAKING RECOURSE TO CLAUSE (C) OF EXPLANATION 1 TO SECTION 115JB(2) OF THE ACT HAS ADDED BACK THE PROVISION FOR DOUBTFUL DEBTS AND ADVANCES TO THE BOOK PROFIT OF THE ASSESSEE. READING OF THE AFORESAID PROVISION MAKES IT CLEAR THAT ONLY THE AMOUNT SET ASIDE TOWARDS PROVISION FOR MEETING UNASCERTAINED LIABILITY CAN BE ADDED BACK TO THE BOOK PROFIT U NDER THE AFORESAID PROVISIONS. UNDISPUTEDLY, THE PROVISION FOR BAD AND DOUBTFUL DEBTS AND ADVANCES ARE NOT IN THE NATURE O F UNASCERTAINED LIABILITY . R ATHER , IT REPRESENTS THE ASSETS OF THE ASSESSEE. THEREFORE, UNDER NO 8 G.E. POWER INDIA LTD. CIRCUMSTANCES, CLAUSE (C) TO EXPLANAT ION 1 OF SECTION 115JB(2) OF THE ACT CAN BE BROUGHT INTO PLAY TO MAKE THE ADJUSTMENT TO BOOK PROFIT. THE AFORESAID LEGAL PROPOSITION HAS BEEN EXPRESSED BY THE TRIBUNAL WHILE DECIDING IDENTICAL ISSUE IN ASSESSEES OWN CASE FOR THE ASSESSMENT YEAR 2003 04 VI DE ITA NO.4925/MUM./2006, DATED 10 TH DECEMBER 2008. AS REGARDS CONTENTION OF LEARNED DEPARTMENTAL REPRESENTATIVE THAT AS PER CLAUSE (I) TO EXPLANATION 1 OF SECTION 115JB(2) OF THE ACT, THE ASSESSING OFFICER CAN MAKE SUCH ADJUSTMENT, WE ARE OF THE VIEW THAT THIS WAS NEITHER THE CASE BEFORE THE ASSESSING OFFICER NOR BEFORE LEARNED COMMISSIONER (APPEALS) .S INCE , AT THE TIME OF COMPLETION OF THE ASSESSMENT PROCEEDINGS SUCH PROVISION W AS NOT IN THE STATUTE BOOK , T HEREFORE, APPLICABILITY OF SUCH PROVISION HA S NEVE R BEEN EXAMINED VIS A VIS THE RELEVANT FACT S . THAT BEING THE CASE, AT THIS STAGE WE CANNOT ENTERTAIN A COMPLETE LY NEW PLEA TAKEN BY THE REVENUE ON TH E ISSUE. THEREFORE, RESPECTFULLY FOLLOWING THE DECISION OF THE TRIBUNAL IN ASSESSEES OWN CASE AS REFERRED TO ABOVE, WE UPHOLD THE DECISION OF TH E LEARNED COMMISSIONER (APPEALS) ON THIS ISSUE. GROUND IS DISMISSED. 14 . IN GROUND NO.3, THE REVENUE HAS CHALLENGED THE DECISION OF LEARNED COMMISSIONER (APPEALS) IN DIRECTING THE ASSESSING OFFICER TO ALLOW ASSESSEES CLA IM OF DEDUCTION UNDER SECTION 80HHC OF THE ACT FROM THE BOOK PROFIT COMPUTED UNDER SECTION 115JB OF THE ACT. 9 G.E. POWER INDIA LTD. 15 . BRIEF FACTS ARE, IN THE COURSE OF ASSESSMENT PROCEEDINGS THE ASSESSING OFFICER NOTICED THAT WHILE COMPUTING BOOK PROFIT UNDER SECTION 115JB OF THE ACT, THE ASSESSEE HAS CLAIMED DEDUCTION OF ` 24,16,179, UNDER SECTION 80HHC OF THE ACT. FROM THE FACTS ON RECORD, HE FOUND THAT THE ASSESSEE HAD NO PROFIT AS PER THE COMPUTATION O F INCOME UNDER NORMAL PROVISIONS OF THE ACT AND ITS INCOME WAS COMPUTED AT N IL AFTER GIVING EFFECT TO THE BROUGHT FORWARD LOSS. THUS, HE OBSERVED THAT SINCE THERE IS NO INCOME OF THE ASSESSEE FOR ALLOWING DEDUCTION UNDER SECTION 80HHC OF THE ACT UNDER THE NORMAL PROVISIONS, IT CANNOT BE ALLOWED WHILE COMPUTING BOOK PROFIT UNDER SE CTION 115JB OF THE ACT. 16 . WHILE DECIDING ASSESSEES APPEAL ON THE ISSUE, LEARNED COMMISSIONER (APPEALS) FOLLOW ING THE DECISION OF THE SPECIAL BENCH OF THE TRIBUNAL , MUMBAI, IN DCIT V/S SYNCOM FORMULATIONS INDIA &ORS., [2007] 106 TTJ 193 (MUM.) ALLOWED THE CLAIM . 17 . THE LEARNED DEPARTMENTAL REPRESENTATIVE SUBMITTED , THE SPECIAL BENCH DECISION OF THE TRIBUNAL IN SYNCOM FORMULATIONS INDIA &ORS. (SUPRA) IS NO MORE A GOOD LAW IN VIEW OF THE DECISION OF THE HON'BLE JURISDICTIONAL HIGH COURT IN CIT V/S AJANTA PHARMA LTD., [2009] 318 ITR 252 (BOM.). FURTHER, HE RELIED UPON THE DECISION OF THE TRIBUNAL, VISHAKHAPATNAM BENCH, IN RASHTRIYA ISPAT NIGAM LTD. V/S ACIT, 10 G.E. POWER INDIA LTD. [2011] 141 TTJ 758 (VIZAG.). THUS, HE SUBMITTED , THE DECISION OF THE ASSESSING OFFICER ON THE ISSUE SHOULD BE UPHELD. 18 . THE LEARNED AUTHORISED REPRESENTATIVE STRONGLY RELYING UPON THE OBSERVATIONS OF LEARNED COMMISSIONER (APPEALS) SUBMITTED , THE ISSUE HAS NOW BEING SET AT REST BY THE DECISION OF THE HON'BLE SUPREME COURT IN CIT V/S BHARI INFORMATIO N TECHNOLOGY SYSTEMS PVT. LTD., [2012] 340 ITR 593 (SC). FURTHER, HE RELIED UPON THE FOLLOWING DECISIONS: I ) ASB INTERNATIONAL PVT. LTD. V/S DCIT, [2012] 26 TAXMANN.COM 87 (BOM.); II ) RELIANCE INDUSTRIES LTD. V/S ACIT, [2012] 28 TAXMANN.COM 189 (MUM.); AND III ) KEC INTERNATIONAL LTD. V/S DCIT, [2013] 33 TAXMANN.COM 243 (MUM.). 19 . WE HAVE CONSIDERED RIVAL SUBMISSIONS AND PERUSED THE MATERIAL ON RECORD. WE HAVE ALSO APPLIED OUR MIND TO THE DECISIONS RELIED UPON. AS COULD BE SEEN, LEARNED COMMISSIONER (APPEALS) RELYIN G UPON THE SPECIAL BENCH DECISION OF THE TRIBUNAL, IN SYNCOM FORMULATIONS INDIA &ORS. (SUPRA) HAS HELD THAT WHILE COMPUTING BOOK PROFIT UNDER SECTION 115JB OF THE ACT, DEDUCTION UNDER SECTION 80HHC OF THE ACT HAS TO BE ALLOWED. IT IS THE CONTENTION OF THE LEARNED DEPARTMENTAL REPRESENTATIVE THAT THE AFORESAID SPECIAL BENCH DECISION IS NO MORE A GOOD LAW IN VIEW OF THE DECISION OF THE HON'BLE JURISDICTIONAL HIGH 11 G.E. POWER INDIA LTD. COURT IN AJANTA PHARMA LTD. (SUPRA). WE ARE UNABLE TO ACCEPT THE AFORESAID CONTENTION OF THE LEAR NED DEPARTMENTAL REPRESENTATIVE FOR THE FOLLOWING REASONS . THE HON'BLE SUPREME COURT IN BHARI INFORMATION TECHNOLOGY SYSTEMS PVT. LTD. (SUPRA), HAS APPROVED THE VIEW TAKEN BY THE SPECIAL BENCH DECISION OF THE TRIBUNAL IN SYNCOM FORMULATIONS INDIA &ORS. (SU PRA) . FURTHER, I N CASE OF KEC INTERNATIONAL LTD. (SUPRA), THE TRIBUNAL FOLLOWING THE AFORESAID DECISION OF THE HON'BLE SUPREME COURT HAS DIRECTED THE ASSESSING OFFICER TO COMPUTE DEDUCTION UNDER SECTION 80HHC OF THE ACT ON THE BASIS OF ADJUSTED BOOK PROFIT AND NOT ON THE BASIS OF PROFIT COMPUTED UNDER THE NORMAL PROVISIONS OF THE ACT. IN VIEW OF THE AFORESAID, WE DO NOT FIND ANY REASON TO INTERFERE WITH THE DECISION OF THE LEARNED COMMISSIONER (APPEALS). GROUND RAISED IS DISMISSED. 20 . IN GROUND NO.4, THE REVE NUE HAS CHALLENGED THE DECISION OF THE LEARNED COMMISSIONER (APPEALS) IN DIRECTING THE ASSESSING OFFICER TO ALLOW SET OFF OF BROUGHT FORWARD LOSS AND UNABSORBED DEPRECIATION FOR THE ASSESSMENT YEAR 2001 02. 21 . IN COURSE OF PROCEEDINGS BEFORE THE LEARNED COMM ISSIONER (APPEALS), THE ASSESSEE RAISED ADDITIONAL GROUND CLAIMING SET OFF OF ACCUMULATED LOSS AND UNABSORBED DEPRECIATION FOR THE ASSESSMENT YEAR 2001 02. THE GROUND RAISED BY THE ASSESSEE WAS FORWARDED TO THE ASSESSING OFFICER FOR HIS REMARK. IN HIS REPL Y, THE ASSESSING OFFICER 12 G.E. POWER INDIA LTD. OBSERVED THAT SET OFF OF ACCUMULATED LOSS AND UNABSORBED DEPRECIATION AMOUNTING TO ` 3,41,02,28,314, RELATING TO THE AMALGAMATED COMPANY WAS NOT ALLOWED TO THE ASSESSEE IN THE IMPUGNED ASSESSMENT ORDER SINCE THE ASSESSEE DID NOT FU RNISH THE COMPLETE DETAILS TO PROVE THAT THE CONDITIONS OF SECTION 72A OF THE ACT HAVE BEEN FULFILLED. AFTER CONSIDERING THE SUBMISSIONS OF THE ASSESSEE AND REPLY OF THE ASSESSING OFFICER IN THE CONTEXT OF FACTS AND MATERIAL ON RECORD, LEARNED COMMISSIONER (APPEALS) DIRECTED THE ASSESSING OFFICER TO ALLOW SET OFF OF ACCUMULATED LOSS AND UNABSORBED DEPRECIATION AS CLAIMED BY THE ASSESSEE. 22 . THE LEARNED DEPARTMENTAL REPRESENTATIVE RELIED UPON THE OBSERVATIONS OF THE ASSESSING OFFICER. 23 . THE LEARNED AUTHORISED R EPRESENTATIVE STRONGLY RELIED UPON THE OBSERVATIONS OF LEARNED COMMISSIONER (APPEALS). FURTHER, HE RELIED UPON THE FOLLOWING DECISIONS AS WELL. I ) MARSHALL SONS & CO. V/S ITO, [2996] 223 ITR 809 (SC); AND II ) ACIT V/S HINDUSTAN DORR OLIVER PVT. LTD., ITA NO.7093/MUM./ 2004. 24 . FURTHER, LEARNED AUTHORISED REPRESENTATIVE SUBMITTED THAT WHILE DECIDING IDENTICAL ISSUE IN ASSESSEES OWN CASE FOR ASSESSMENT YEAR 2006 07, IN ITA NO.8670/MUM./2010, DATED 23 RD JULY 2013, THE 13 G.E. POWER INDIA LTD. TRIBUNAL HAS RESTORED THE ISSUE TO THE ASS ESSING OFFICER AND WHILE GIVING EFFECT TO THE DIRECTIONS OF THE TRIBUNAL, THE ASSESSING OFFICER HAS ALLOWED ASSESSEES CLAIM. 25 . WE HAVE CONSIDERED RIVAL SUBMISSIONS AND PERUSED MATERIAL ON RECORD. AS COULD BE SEEN FROM THE FACTS ON RECORD, THE ASSESSING OFF ICER HAS DISALLOWED ASSESSEES CLAIM OF SET OFF OF ACCUMULATED LOSS AND UNABSORBED DEPRECIATION OF THE AMALGAMATING COMPANY PRIMARILY ON THE GROUND OF LACK OF COMPLETE DETAILS. FURTHER, LEARNED COMMISSIONER (APPEALS) AFTER EXAMINING THE ISSUE IN THE CONTEX T OF FACTS AND MATERIAL ON RECORD FOUND THAT THERE WAS AMALGAMATION OF THREE ASSOCIATE COMPANIES WITH THE ASSESSEE FROM THE APPOINTED DATE OF 31.03.2001 BY VIRTUE OF A S CHEME OF MERGER APPROVED BY THE HON'BLE JURISDICTIONAL HIGH COURT AND HON'BLE DELHI HIG H COURT. L EARNED COMMISSIONER (APPEALS) HAS ALSO OBSERVED THAT THE DISPUTE BETWEEN THE ASSESSEE AND THE DEPARTMENT IS ONLY WITH REGARD TO THE APPOINTED DATE AND WHETHER THE SCHEME BECOMES OPERATIVE FROM 31 ST MARCH 2001. IT IS FURTHER NOTICED THAT WHILE ALLOWING ASSESSEES CLAIM, LEARNED COMMISSIONER (APPEALS) HAS RELIED UPON THE RATIO LAID DOWN BY THE HON'BLE SUPREME COURT IN CASE OF MAR S HALL SONS & CO. (SUPRA) . AS PER THE AFORESAID DECISION, THE DATE OF MERG ER IS FROM THE APPOINTED DATE AND NOT THE DATE ON WHICH THE HIGH COURT GRANTED ITS APPROVAL. IN OUR VIEW, AS PER THE RATIO LAID DOWN BY THE HON'BLE SUPREME COURT IN 14 G.E. POWER INDIA LTD. ASSESSEES CLAIM OF SET OFF OF ACCUMULATED LOSS AND UNABSORBED DEPRECIATION HAS TO BE ALLOW ED FROM THE APPOINTED DATE OF MERGER IN TERMS OF SECTION 72A OF THE ACT . THAT BEING THE CASE, WE DO NOT FIND ANY INFIRMITY IN THE DECISION OF LEARNED COMMISSIONER (APPEALS) ON THE ISSUE. ACCORDINGLY, THE GROUND RAISED IS DISMISSED. 26 . GROUNDS NO.5 AND 6 BEIN G GENERAL IN NATURE DO NOT REQUIRE ADJUDICATION. 27 . IN THE RESULT, REVENUES APPEAL IS DISMISSED. C.O. NO.83/MUM./2013 BY ASSESSEE [ ARISING OUT OF ITA NO.6501/MUM./2008 REVENUES APPEAL A.Y. 2002 03 ] 28 . IN THIS CROSS OBJECTION, THE ASSESSEE HAS CHALLENGED THE VALIDITY OF ASSESSMENT UNDER SECTION 147 OF THE ACT. 29 . SINCE , WHILE DEALING WITH REVENUES APPEAL IN ITA NO.6201/ MUM./2008 IN EARLIER PART OF THE ORDER, WE HAVE DECIDED THE ISSUES RAISED BY THE REVENUE ON MERIT IN FAVOUR OF THE ASSESSEE . , HE LEGAL ISS UE RAISED IN THE CROSS OBJECTION IS OF MERE ACADEMIC IMPORTANCE, HENCE, THERE IS NO NEED TO ADJUDICATE THE SAME. THEREFORE, THE CROSS OBJECTION HAVING BECOME INFRUCTUOUS IS DISMISSED. 30 . IN THE RESULT, ASSESSEES CROSS OBJECTION IS DISMISSED. 15 G.E. POWER INDIA LTD. ITA NO. 6960/MUM./2014 ASSESSEES APPEAL A.Y. 20 08 09 31 . IN GROUND NO.1, ASSESSEE HAS CHALLENGED DISALLOWANCE OF CLUB ENTRANCE / SUBSCRIPTION FEE OF ` 25 LAKH. 32 . BRIEF FACTS ARE, DURING THE ASSESSMENT PROCEEDINGS, THE ASSESSING OFFICER NOTICED THAT THE ASSESSEE HAS DEBITED AN AMOUNT OF ` 25 LAKH TOWARDS CLUB SUBSCRIPTION FEE . B EING OF THE VIEW THAT SUCH EXPENDITURE IS OF CAPITAL, THE ASSESSING OFFICER DISALLOWED THE SAME. 33 . THE LEARNED COMMISSIONER (APPEALS) ALSO UPHELD SUCH DISALLOWANCE AGREEING WITH THE DECISION OF THE ASSESSING OFFICER. WHILE DOING SO, HE RELIED UPON CERTAIN JUDICIAL PRONOUNCEMENTS. 34 . THE LEARNED AUTHORISED REPRESENTATIVE SUBMITTED , EXPENDITURE INCURRED TOWARDS CLUB SUBSCRIPTION FEE IS ALLOWABLE AS REVENUE EXPENDITURE IN VIEW OF VARIOUS JUDICIAL PREC EDENTS. IN SUPPORT, HE RELIED UPON THE FOLLOWING DECISIONS: I ) UNITED GLASS MFG. CO. LTD. V/S CIT, 2012 TOIL 102 SC IT; II ) OTIS ELEVATOR CO. INDIA LTD. V/S CIT, [2992] 195 ITR 682 (BOM.) III ) CIT V/S LUBRIZOL INDIA LTD., [2013] 37 TAXMANN.COM 294 (BOM.); IV ) BANK OF AMERICA SECURITIES INDIA PVT. LTD. V/S DCIT, [2010] TIOL 630 ITAT (MUM.); 16 G.E. POWER INDIA LTD. V ) MAERSK INDIA PVT. LTD. V/S DCIT, [2009] TIOL 322 ITAT (MUM.); VI ) DEVELOPMENT CREDIT BANK LTD. V/S DCIT, [2013] 40 TAXMANN. COM 532 (MUM.); VII ) CLARIANT CHEMICALS INDIA LTD. V/S ACIT, [2015] 53 TAXMANN. COM 39 (MUM.); VIII ) CIT V/S NESTLE INDIA LTD., [2008] 296 ITR 682 (DEL.); IX ) CIT V/S M/S. UPPER INDIA STEEL MFG. AND ENGG. CO. LTD., 50 TAXMANN.COM 395; X ) CIT V/S SAMTEL COLOR LTD., [2010] 326 ITR 425 (DEL.); AND XI ) CIT V/S GROZ BECKERT ASIA LTD. , 31 TAXMANN.COM 155 (P&H). 35 . THE LEARNED DEPARTMENTAL REPRESENTATIVE SUBMITTED , THERE IS A DIFFERENCE BETWEEN ENTRANCE FEE AND SUBSCRIPTION FEE. HE SUBMITTED , ANY PAYMENT MADE TOWARDS ENTRANCE IS OF CAPITAL NATURE, HENCE, NOT ALLOWABLE AS EXPENDITURE. 36 . IN REJOINDER, THE LEARNED AUTHORISED REPRESENTATIVE DRAWING OUR ATTENTION TO THE MATERIAL PLACED IN THE PAPER BOOK SUBMITTED , THESE ARE MEMBERSHIP RENEWAL FEE, HENCE, CANNOT BE CONSIDERED AS CAPITAL EXPENDITURE. 37 . WE HAVE CONSIDERED RIVAL SUBMISSIONS AND PERUSED MATERIAL ON RECORD. THE DISPUTE IS WITH REGARD TO ALLOWABILITY OF CLUB EXPENDITURE INCURRED BY THE ASSESSEE TOWARDS ITS EMPLOYEES. WHILE THE ASSESSEE HAS CLAIMED IT AS REVENUE EXPENDITURE, THE CASE OF THE REVENUE IS, SINCE TH E EXPENDITURE INCURRED IS TOWARDS SUBSCRIPTION FOR ACQUIRING THE 17 G.E. POWER INDIA LTD. MEMBERSHIP OF THE CLUB IT IS CAPITAL IN NATURE, HENCE, NOT ALLOWABLE. KEEPING IN VIEW THE AFORESAID FACTUAL POSITION, WE HAVE TO EXAMINE THE ALLOWABILITY OF THE EXPENDITURE. THE HON'BLE SUPRE ME COURT IN UNITED GLASS MFG. CO. LTD. (SUPRA), HAS HELD THAT CLUB MEMBERSHIP FEE FOR EMPLOYEES INCURRED BY THE ASSESSEE IS ALLOWABLE AS BUSINESS EXPENDITURE UNDER SECTION 37 OF THE ACT. FURTHER, THE HON'BLE SUPREME COURT HAS ALSO HELD THAT EVEN OTHERWISE ALSO, IT IS A PURE BUSINESS EXPENDITURE AS THE EXPENDITURE IS INCURRED BY THE ASSESSEE TO IMPROVE ITS BUSINESS RELATIONS AND PROSPECTS. THE SAME VIEW HAS BEEN EXPRESSED BY THE HON'BLE JURISDICTIONAL HIGH COURT IN LUBRIZOL INDIA LTD. (SUPRA). IN VIEW OF THE AFORESAID JUDICIAL PRONOUNCEMENTS, THE DEDUCTION CLAIMED BY THE ASSESSEE ON ACCOUNT OF CLUB MEMBERSHIP FEE IS ALLOWABLE AS BUSINESS EXPENDITURE. THIS GROUND IS ALLOWED. 38 . IN GROUND NO.2, THE ASSESSEE HAS CHALLENGED THE DISALLOWANCE OF UNPAID SERVICE TAX OF ` 4,89,54,645, UNDER SECTION 43B OF THE ACT. 39 . BRIEF FACTS ARE, IN THE COURSE OF ASSESSMENT PROCEEDINGS, THE ASSESSING OFFICER WHILE EXAMINING THE TAX AUDIT REPORT FOUND THAT AS ON 31 ST MARCH 2008, AN AMOUNT OF ` 4,89,54,645, WAS SHOWN AS UNPAID SERVICE TA X IN THE BOOKS OF ACCOUNT. HE ALSO OBSERVE THAT IN THE ASSESSMENT YEAR 2007 08, CORRESPONDING FIGURE OF ` 3,34,75,448, WAS DISALLOWED UNDER SECTION 43B OF THE ACT. THEREFORE, HE CALLED UPON THE ASSESSEE TO EXPLAIN WHY SIMILAR DISALLOWANCE SHOULD NOT BE MADE IN 18 G.E. POWER INDIA LTD. THE IMPUGNED ASSESSMENT YEAR. THOUGH , THE ASSESSEE OBJECTED TO THE PROPOSED DISALLOWANCE, HOWEVER, THE ASSESSING OFFICER REJECTING THE SUBMISSIONS OF THE ASSESSEE DISALLOWED THE AMOUNT OF ` 4,89,54,645 UNDER SECTION 43B OF THE ACT. 40 . THE LEARNED CO MMISSIONER (APPEALS) ALSO UPHELD THE DISALLOWANCE ON THE REASONING THAT THE AMOUNT IN DISPUTE BEING IN THE NATURE OF TAX AND HAVING NOT BEEN ACTUALLY PAID DURING THE PREVIOUS YEAR , HAS TO BE DISALLOWED UNDER SECTION 43B OF THE ACT. 41 . THE LEARNED AUTHORISED REPRESENTATIVE SUBMITTED , THE LIABILITY TO PAY SERVICE TAX ARISES ONLY AFTER THE COLLECTION OF SERVICE CHARGES BY THE SERVICE PROVIDER. HE SUBMITTED , SINCE THE SERVICE CHARGES CORRESPONDING TO UNPAID SERVICE TAX WERE NOT COLLECTED BY THE ASSESSEE, THE SAME CANNOT BE DIS ALLOWED UNDER SECTION 45B OF THE ACT. FURTHER, THE LEARNED AUTHORISED REPRESENTATIVE SUBMITTED , SINCE THE ASSESSEE HAD NOT CLAIMED IT AS DEDUCTION, NO DISALLOWANCE UNDER SECTION 43B OF THE ACT CAN BE MADE. IN SUPPORT OF HIS CONTENTION, THE LE ARNED AUTHORISED REPRESENTATIVE RELIED UPON THE FOLLOWING DECISIONS: I ) PCIT V/S TOPS SECURITY LTD., [2013] 97 TAXMANN.COM 525 (BOM.); AND II ) CIT V/S KNIGHT FRANK INDIA PVT. LTD., ITA NO.247 & 255/2014, DATED 16.08.2016 . 19 G.E. POWER INDIA LTD. 42 . FURTHER, THE LEARNED AUTHORISED REPRE SENTATIVE SUBMITTED , THE DECISION OF THE HON'BLE JURISDICTIONAL HIGH COURT IN TOP S SECURITY LTD. (SUPRA) HAS ATTAINED FINALITY AS THE SLP FILED BY THE REVENUE HAS BEEN DISMISSED BY THE HON'BLE SUPREME COURT. 43 . THE LEARNED DEPARTMENTAL REPRESENTATIVE RELIED UPON THE ORDER OF THE ASSESSING OFFICER. 44 . WE HAVE CONSIDERED RIVAL SUBMISSIONS AND PERUSED MATERIAL ON RECORD. WE HAVE ALSO APPLIED OUR MIND TO THE DECISIONS RELIED UPON. UNDISPUTEDLY, THE AMOUNT IN DISPUTE REPRESENT S SERVICE TAX WHICH REMAINS TO BE PAID BY THE ASSESSEE. IT IS THE CONTENTION OF THE ASSESSEE THAT SERVICE TAX IS PAYABLE ONLY ON RECEIPT FROM CONSUMER OF SUCH SERVICE. IT IS OBSERVED THAT THE HON'BLE JURISDICTIONAL HIGH COURT IN TOP S SECURITY LTD. (SUPRA) FOLLOWING ITS EARLI ER JUDGMENT HELD THA T PROVISION OF SECTION 43B OF THE ACT DOES NOT IMPOSE LIABILITY TO PAY SERVICE TAX BEFORE ACTUAL RECEIPT OF THE FUND IN THE ACCOUNT OF THE AS SESSEE . THE HON'BLE JURISDICTIONAL HIGH COURT HELD THAT LIABILITY TO PAY SERVICE TAX INTO THE TREASURY WILL ARISE O NLY UPON THE ASSESSEE RECEIVING THE FUND AND NOT OTHERWISE. FURTHER, IN KNIGHT FRANK INDIA PVT. LTD. (SUPRA), THE HON'BLE JURISDICTIONAL HIGH COURT HELD THAT SINCE THE ASSESSEE DID NOT CLAIM ANY DEDUCTION ON ACCOUNT OF SERVICE TAX PAYABLE , THERE CAN BE NO OCCASION TO INVOKE PROVISIONS OF SECTION 43B OF THE ACT. IN THE FACTS OF THE PRESENT CASE ALSO, IT IS THE CONTENTION OF 20 G.E. POWER INDIA LTD. ASSESSEE THAT SINCE IT HAS NOT CLAIMED ANY DEDUCTION ON ACCOUNT OF SERVICE TAX PAYABLE, NO DISALLOWANCE UNDER SECTION 43B OF THE ACT CAN BE MADE. RESPECTFULLY FOLLOWING THE RATIO LAID DOWN BY THE HON'BLE JURISDICTIONAL HIGH COURT IN THE AFORESAID DECISION S , WE DELETE THE DISALLOWANCE MADE BY THE ASSESSEE UNDER SECTION 43B OF THE ACT. GROUND IS ALLOWED. 45 . IN GROUND NO,3, THE ASSESSEE HAS CHALLENGED THE DISALLOWANCE OF ` 1,13,35,767, UNDER SECTION 40(A)(IA) OF THE ACT. 46 . BRIEF FACTS ARE, IN THE COURSE OF ASSESSMENT PROCEEDINGS, THE ASSESSING OFFICER ON EXAMINING THE ACCOUNTS OF THE ASSESSEE FOUND THAT PAYMENT MADE AMOUNTING TO ` 1,13,35,767, TOWARDS VARIOUS EXPENSES INCURRED DURING THE YEAR AND CLAIMED AS DEDUCTION WAS WIT HOUT DEDUCTING TAX AT SOURCE. THEREFORE, HE CALLED UPON THE ASSESSEE TO EXPLAIN WHY THE DEDUCTION CLAIMED SHOULD NOT BE DI SALLOWED UNDER SECTION 40(A)(I A) OF THE ACT. IN RESPONSE, IT WAS SUBMITTED BY THE ASSESSEE THAT THE AMO UNT REPRESENTS THE PROVISION MA DE AT THE END OF THE YEAR PURELY ON ESTIMATE BASIS UNDER DIFFERENT HEADS. HE SUBMITTED , AT THAT STAGE THE ASSESSEE EVEN DOES NOT KNOW THE IDENTITY OF THE PAYEES. THEREFORE , IT WAS NOT POSSIBLE ON THE PART OF THE ASSESSEE TO DEDUCT TAX AT SOURCE. FURTHER, H E SUBMITTED , THE PROVISION FOR EXPENDITURE IS NEVER CLAIMED AS DEDUCTION BY THE ASSESSEE. ONLY WHEN THE AMOUNT IS ACTUALLY PAID IN THE SUBSEQUENT 21 G.E. POWER INDIA LTD. YEAR, THE ASSESSEE CLAIMS IT AS DEDUCTION AFTER DEDUCTING TAX ON SUCH PAYMENT AND THE PROVISION MADE IS REVERS ED. THUS, HE SUBMITTED , IN SUCH CIRCUMSTANCES, NO DISA LLOWANCE UNDER SECTION 40(A)(I A) OF THE ACT CAN BE MADE. THE ASSESSING OFFICER, HOWEVER, DID NOT FIND MERIT IN THE SUBMISSIONS OF THE ASSESSEE AND PROCEEDED TO DISALLOW THE AMOUNT OF ` 1,13 ,35,767, UNDE R SECTION 40(A)(I A) OF THE ACT. WHILE DECIDING ASSESSEES APPEAL, LEARNED COMMISSIONER (APPEALS) SUSTAINED THE DISALLOWANCE MADE BY THE ASSESSING OFFICER. 47 . REITERATING THE STAND TAKEN BEFORE THE DEPARTMENTAL AUTHORITIES, THE LEARNED AUTHORISED REPRESENTATI VE SUBMITTED , WHILE MAKING PROVISION FOR EXPENDITURE AT THE END OF THE YEAR, THE ASSESSEE ONLY SPECIFIES THE HEAD UNDER WHICH SUCH EXPENDITURE IS TO BE INCURRED AND THE PAYEES ARE NOT IDENTI FIED. THEREFORE , THE ASSESSEE COULD NOT HAVE DEDUCTED TAX AT SOURC E IN THE ABSENCE OF THE DETAILS OF THE PAYEES. HE SUBMITTED , IN THE SUBSEQUENT YEAR, WHEN THE AMOUNT IS ACTUALLY PAID THE ASSESSEE DEDUCTS TAX AT SOURCE AND ENT RIES WERE MADE IN THE BOOKS OF ACCOUN T REVERSING THE PROVISION MADE EARLIER. THE LEARNED AUTHORI SED REPRESENTATIVE SUBMITTED , IN ASSESSEES OWN CASE FOR THE ASSESSMENT YEAR 2006 07, THE TRIBUNAL HAS DECIDED IDENTICAL ISSUE. FURTHER, HE RELIED UPON THE FOLLOWING DECISIONS: I ) ALSTOM OWNS ITAT ORDER IN A.Y. 2006 07; II ) INDUSTRIAL DEVELOPMENT BANK OF INDI A V/S ITO; 22 G.E. POWER INDIA LTD. III ) APOLLO TYRES LTD V/S DCIT, [2017] 78 TAXMANN.COM 195 (DEL.); AND IV ) PFIZER LTD V/S ITO, ITA NO.1667/MUM./2010, ETC., DATED 31.10.2012. 48 . THE LEARNED DEPARTMENTAL REPRESENTATIVE RELIED UPON THE OBSERVATIONS OF LEARNED COMMISSIONER (APPEALS) AND THE ASSESSING OFFICER. 49 . WE HAVE CONSIDERED RIVAL SUBMISSIONS AND PERUSED MATERIAL ON RECORD. WE HAVE ALSO APPLIED OUR MIND TO THE DECISIONS RELIED UPON. THE SPECIFIC CONTENTION OF THE LEARNED AUTHORISED REPRESENTATIVE BEFORE US IS , THE AMOUNT IN DISPUTE IS CREATED AS A PROVISION TOWARDS EXPENDITURE UNDER VARIOUS HEADS AT THE END OF THE YEAR AND AT THAT STAGE THE PAYEES ARE NOT IDENTIFIED. THEREFORE, THE ASSESSEE IS NOT IN A POSITION TO DEDUCT TAX AT SOURCE. FURTHER, IT IS THE CLAIM OF THE ASSESSEE THAT THE PROVISION SO CREATED IS NOT CLAIMED AS A DEDUCTION. IN OUR VIEW, THE AFORESAID CLAIM OF THE ASSESSEE REQUIRES CONSIDERATION . I F AT THE TIME OF CREATING THE PROVISION FOR EXPENDITURE PAYEE IS NOT IDENTIFIABLE, THE ASSESSEE CANNOT POSSIBLY DEDUCT TAX AT SOURCE , SINCE , THE DETAILS OF THE PAYEES ARE NOT KNOWN TO THE ASSESSEE. FURTHER, IT IS THE CONTENTION OF THE ASSESSEE THAT THE PROVISION CREATED IS REVERSED IN THE SUBSEQUENT YEAR ON THE BASIS O F ACTUAL PAYMENT MADE AGAINST T HE EXPENDITURE CLAIMED. THIS CLAIM OF THE ASSESSEE ALSO REQUIRES 23 G.E. POWER INDIA LTD. VERIFICATION ALONG WITH THE FACT WHETHER AT THE TIME OF ACTUAL PAYMENT, THE ASSESSEE HAS DEDUCTED TAX AT SOURCE. SINCE , THE AFORESAID FACTS HAVE NOT BEEN PROPER LY VERIFIED BY THE DEPARTMENTAL AUTHORITIES, WE ARE INCLINED TO RESTORE THE ISSUE TO THE ASSESSING OFFICER FOR DE NOVO ADJUDICATION AFTER DUE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. GROUND RAISED IS ALLOWED FOR STATISTICAL PURPOSES. 50 . IN GROUND NO.4, TH E ASSESSEE HAS CHALLENGED THE DISALLOWANCE OF BROUGHT FORWARD LOSS OF AMALGAMATING COMPANY. 51 . THE LEARNED AUTHORISED REPRESENTATIVE SUBMITTED , THE ASSESSEES CLAIM FOR SET OFF OF BROUGHT FORWARD LO SSES OF AMALGAMATING COMPANY ARISING IN ASSESSMENT YEAR 2006 07 AN D 2007 08 WERE DISALLOWED BY THE ASSESSING OFFICER ON THE GROUND THAT SUCH CLAIM WAS NOT ALLOWED IN THOSE ASSESSMENT YEARS. THE LEARNED AUTHORISED REPRESENTATIVE SUBMITTED , ASSESSEES APPEAL FOR THE ASSESSMENT YEAR 2006 07 IN THE MEANWHILE HAS BEE N D ISPOSED OF BY THE TRIBUNAL BY RESTORING THE ISSUE TO THE ASSESSING OFFICER. THE APPEAL FOR THE ASSESSMENT YEAR 2007 08 IS STILL PENDING. THUS, HE SUBMITTED , THE ASSESSING OFFICER MAY BE DIRECTED TO GRANT CONSEQUENTIAL RELIEF TO THE ASSESSEE ON THE BASIS OF DECISION TO BE TAKEN ON ASSESSEES CLAIM IN ASSESSMENT YEAR 2006 07 AND 2007 08. 24 G.E. POWER INDIA LTD. 52 . HAVING CONSIDERED RIVAL SUBMISSIONS, WE ARE OF THE VIEW THAT THIS ISSUE HAS TO BE RESTORED BACK TO THE ASSESSING OFFICER FOR DECIDING AFRESH DEPENDING UPON THE DECISION TO B E TAKEN ON ASSESSEES CLAIM ON THE ISSUE IN ASSESSMENT YEAR S 2006 07 AND 2007 08. THIS GROUND IS ALLOWED FOR STATISTICAL PURPOSES. 53 . IN THE RESULT, ASSESSEES APPEAL IS PARTLY ALLOWED. 54 . TO SUM UP, REVENUES APPEAL AND ASSESSEES CROSS OBJECTION ARE DISMISSE D AND ASSESSEES APPEAL IS PARTLY ALLOWED. ORDER PRONOUNCED IN THE OPEN C OURT ON 28.06.2019 SD/ - G. MANJUNATHA ACCOUNTANT MEMBER SD/ - SAKTIJIT DEY JUDICIAL MEMBER MUMBAI, DATED: 28.06.2019 COPY OF THE ORDER FORWARDED TO : ( 1 ) THE ASSESSEE; ( 2 ) THE REVENUE; ( 3 ) THE CIT(A); ( 4 ) THE CIT, MUMBAI CITY CONCERNED; ( 5 ) THE DR, ITAT, MUMBAI; ( 6 ) GUARD FILE . TRUE COPY BY ORDER PRADEEP J. CHOWDHURY SR. PRIVATE SECRETARY ASSISTANT REGISTRAR ITAT, MUMBAI