LIEBHERR INDIA PRIVATE LIMITED, MUMBAI V. THE ASSISTANT COMMISSIONER OF INCOME TAX, CIRCLE 15(2)(1), MUMBAI

MA 85/MUM/2024

• Counselvise Citation: [2024] 100 COUNSELVISE.COM (IT) 1272 (ITAT-MUMBAI)
• Duration Of Justice: 3 month(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 01-07-2024
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 16-05-2024
• Assessment Year: 2017-2018
• Appeal Filed On: 01-04-2024
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Assessee Lawyers: ABDUL KADIR JAMSADWALA
• Keywords: Business expenditure; Opportunity of being heard; Rule of consistency; Additional evidence; Corroborative evidences
• Section: 142(1); 37(1); 254(2); 13

Judgement Text

P a g e | 1 M.A. Nos. 85 & 86/Mum/2024 Liebher India Pvt. Ltd. Vs. The ACIT, circle 15(2)(1) IN THE INCOME TAX APPELLATE TRIBUNAL “A” BENCH, MUMBAI BEFORE SHRI AMARJIT SINGH, ACCOUNTANT MEMBER & SHRI RAHUL CHAUDHARY, JUDICIAL MEMBER, M.As.No.85 & 86/Mum/2024 (A.Ys. 2016-17 & 2017-18) Liebherr India Pvt. Ltd. 25 th & 26 th Floor, Kesar Solitaire Plot No.5, Sector 19, Sanpada Navi Mumbai – 400 705 Vs. The ACIT, Circle 15(2)(1) Aayakar Bhawan, M.K. Road, Mumbai – 400 020 स्थायी लेखा सं./जीआइआर सं./PAN/GIR No:AABCL2049J Appellant .. Respondent Appellant by : Ketan Ved & Abdul Kadir Jamsadwala Respondent by : Anil Sant Date of Hearing 17.05.2024 Date of Pronouncement 02.07.2024 आदेश / O R D E R Per Amarjit Singh (AM): Both these miscellaneous application filed by the assessee are directed against the order of the ITAT passed on 28.12.2023 vide ITA Nos. 3064 & 3065/Mum/2023 for assessment year 2016-17 & 2017- 18. Since, the similar issue on identical facts are involved in both these Miscellaneous Application filed by the assessee, therefore, for the sake of convenience both these miscellaneous applications are adjudicated together by taking M.A. No.85/Mum/2024 as a lead case and its finding will be applied mutatis mutandis wherever it is applicable. M.A. No. 85/Mum/2024 P a g e | 2 M.A. Nos. 85 & 86/Mum/2024 Liebher India Pvt. Ltd. Vs. The ACIT, circle 15(2)(1) 2. The miscellaneous application filed by the assessee is related to the issue of sustaining adhoc disallowance of 10% of the travelling expenses u/s 37(1) of the Act. The relevant extract of the miscellaneous application filed by the assessee is reproduced as under: “8. The Applicant had inter-alia made common arguments during the course of the hearing since the issue under appeal for both the year(s) i.e. AY 2016-17 and AY 2017-18 is same: a. explained the nature of business of the Applicant to highlight that it needed the employees to visit Clients for both pre and post-sale activities; b. invited the attention of the Hon'ble Bench to the Notice dated 12 December 2019 issued u/s. 142(1) of the Act by the Assessing Officer (forming part of the Paper book at Page Nos. 19 and 20) during the assessment proceedings calling for the details and specific reference was made to the fact that the Assessing Officer has called for sample copies of bills / invoice and hence the same were filed by the Applicant in response to the said Notice (forming part of the Paper book at Page Nos 21 to 887); c. pointed out to the details vis-à-vis the expenses filed before the Assessing Officer which included the purpose of travel by the employee, location of visit, name of the Client visited, etc. (forming part of the Paper book at Page Nos. 25 to 201) alongwith the supporting bills/Invoice to show that they are backed by necessary evidences wherever applicable and where the expenses were pertaining to flight ticket or hotel stays, the bill / invoice have been issued in the name of the employee of the company, which is a standard practice; d. pointed out that the Assessing Officer, ignoring the details of expenses filed had made the impugned disallowances on a purely adhoc basis by making generic comments without pointing out any defect whatsoever in the details filed by the Applicant; e. vis-à-vis the argument of the Assessing Officer that the supporting are self- made vouchers and expenses have been made in cash, it was explained that the expenses in question were such where either generally no invoice is issued i.e. travel by taxi or where the supporting are not retained by the employees for petty expenses like toll, parking, etc. and that the payment is generally made in cash for small amounts not exceeding Rs.2,000/- and also that while the expenses were initially paid in cash by the employees the same were reimbursed by the Applicant to the employees through banking channels; f. explained that detailed written submissions were made before the CIT(A) which are extracted in the impugned Order passed by the CIT(A); P a g e | 3 M.A. Nos. 85 & 86/Mum/2024 Liebher India Pvt. Ltd. Vs. The ACIT, circle 15(2)(1) g. explained that the CIT(A) has merely followed the decision of the Hon'ble Tribunal in the earlier years and restricted the ad-hoc disallowance to 10% without even considering the detailed arguments made by the Applicant demonstrating as to how the view taken by the Assessing Officer of disallowing the expenses was incorrect basis the evidence filed before the CIT(A), etc; h. reiterated that the said travel expenses have been incurred purely by the employees only, which fact is not disputed by the lower authorities and hence these being pure business expenses vis-à-vis the Applicant cannot be considered as personal expenses as the Applicant is a Corporate assessee; i. it was also argued that the disallowances sustained by the Hon'ble Bench of the ITAT in the case of the Applicant for the earlier year(s) was on the footing that the details of the travelling expenses were not filed by the Applicant before the Assessing Officer-specific attention of the Bench was invited to page Nos. 900 to 902 of the Paper Booking being a part of the Order passed by the Hon'ble Bench for the Assessment Year 2009-10 which read as under: “4.1. We have heard rival submissions and perused the materials available on record. We find that the assessee had incurred total travelling and conveyance expenses of Rs. 1,80,49,723/- during the year under consideration. The assessee was asked by the Id. AO to produce supporting evidences in respect of travelling and conveyance expenses above Rs.1,00,000/- The Id. AO observed that despite several opportunities provided to the assessee, the assessee failed to produce supporting evidences and accordingly proceeded to disallow 40% of the total travelling and conveyance expenditure on an adhoc basis amounting to Rs.72.19,889/- in the assessment. We find that the id. CIT(A) had observed that assessee had submitted the copies of vouchers and invoices of travelling and conveyance expenses before him and the same were duly subjected to remand proceedings and duly verified by the Id. AO. Before the id. AO also, further details were submitted by the assessee. These facts are recorded by the Id. CIT(A) in page 18 para 2.4.15 of his order. We find that assessee had incurred these travelling and conveyance expenses in respect of site visits of its personnel, trainings, meetings and other official visits for which detailed break-up were filed alongwith written submissions. We find that the Id. AO in the remand report had observed that certain details furnished by the assessee contain the provision for expenses which are contingent in nature and hence, not allowable as deduction, certain expenses are reflected as receivable and later transferred to expenses by the assessee by way of journal entry in the books of accounts. In the opinion of the Id. AO, these expenses are not fully verifiable and assessee could not substantiate the veracity of the same. Accordingly, the Id. CIT(A) observed that the entire travelling and conveyance expenses could not be fully verifiable at the end of the id. AQ and P a g e | 4 M.A. Nos. 85 & 86/Mum/2024 Liebher India Pvt. Ltd. Vs. The ACIT, circle 15(2)(1) restricted the disallowance to 30% of total travelling and conveyance expenses and reduced the disallowance to Rs. 54,14.917/- as against Rs. 72,19,889/- made by the Id. AO. We find that the assessee had filed detailed bills and vouchers in the form of additional evidences before the Id. CIT(A) comprising of pages 3-739 of the paper book which were also filed before us These details were subject to verification by the Id. AO in the remand proceedings and in the remand report, the id. AO had held that some of the expenses are not fully verifiable We find in these circumstances, some adhoc disallowance of expenses need to be made. However, the disallowance @30% would be on the higher side given the status of the company and the behaviour of the assessee. Hence, we hold that disallowance on an adhoc basis at 10% of total travelling and conveyance expenses would meet the ends of justice in the peculiar facts and circumstances of the instant case. Accordingly, the ground No.3 raised by the assessee is partly allowed". (Emphasis supplied) J. thereafter, distinguishing the facts of the case for the year under consideration, it was explained that complete details of the travelling expenses alongwith sample supporting documents (as called for by the Assessing Officer) were filed before the Assessing Officer and it was reiterated that no defect whatsoever was found by either of the lower authorities in the said details; k. also pointed out that the Assessing Officer has disallowed the said expenses treating it as personal in nature, which has been upheld by the CIT(A), without appreciating that the assesseë is a corporate entity and there can be no personal element involved in the said expenses and has been incurred wholly and fully for the business purpose; i. reliance was also placed on the decision of the Gujarat High Court in the case of Sayaji Iron & Engg. Co. v/s. CIT reported in [2002] 253 ITR 749 (Guj. HC) for the proposition that the Applicant being a company cannot be said to have incurred any personal expenses and hence there can be no disallowance of expenses by treating it as personal. 9. The Hon'ble Tribunal has decided this issue in paragraph Nos. 11 read with 7 and 8 of its consolidated Order on Page Nos. 5 to 10 relying on the decision of the Tribunal in Applicant's own case from A.Y. 2009-10 to 2014-15. The operative portion of the Order in paragraph No. 8 on Page Nos. 9 and 10 of its Order is reproduced hereunder for ready reference: “8. After perusal of the decision of ITAT as referred above and decision of ITAT for other assessment years, we find that no case is made out by the Id. Counsel for the assessee that facts in the case of the assessee is different from the facts in the case of the assessee adjudicated by the ITAT in the earlier years. It is evident from the decision of ITAT that even the matter was subject to verification by the AO in the remand proceedings however, because of nature of expenses such expenses were not fully verifiable. Therefore, there is nothing before us on hand to P a g e | 5 M.A. Nos. 85 & 86/Mum/2024 Liebher India Pvt. Ltd. Vs. The ACIT, circle 15(2)(1) differ from the issue raised in the cases cited supra so as to take a different view of this issue. Therefore, since, the issue on hand being squarely covered following the principle of consistency we don't find any merit in the submission of the Id. Counsel, therefore, this ground of appeal of the assessee is dismissed" 10. While doing so, the Hon'ble Bench has left out to consider the detailed arguments made during the course of the hearing (listed out in brief hereinabove) and has also left out to consider the details / particulars filed by the Applicant in the paper book. 11. This it is submitted constitutes to be an error apparent on record, which ought to be rectified. 12. The Applicant thus prays that the Order dated 28 December 2023 on the ground of appeal No. 1 to the extent that it does not consider the arguments and submissions made during the course of the hearing is an error apparent on record, and hence needs to be rectified. 13. In view of the foregoing the Applicant therefore prays that: a. The Tribunal may be pleased to recall its Order vis-à-vis the ground of appeal No. 1 raised by the Applicant and dispose off the said ground after taking into consideration the arguments and decision relied upon by the Applicant post providing the Applicant with a reasonable opportunity of being heard, and b. The Tribunal may be pleased to grant such further and other relief as the nature and circumstances require. 14. The Applicant further prays that it be given an opportunity of being heard on this application as well. 15. The Applicant craves the right to add and/or modify and/or amend and/or alter and /or delete the aforesaid averments made in this application.” 3. Before us the ld. Counsel submitted that the complete details of the travelling expenses along with sample supporting document were filed before the assessing officer and the assessing officer and ld. CIT(A) has not pointed out any defect in the detail filed and the facts of the case of the assessee were different from the assessee’s case for assessment year 2009-10 to 2014-15. The ld. Counsel discussed the submission mentioned in the miscellaneous application as referred supra in this order. P a g e | 6 M.A. Nos. 85 & 86/Mum/2024 Liebher India Pvt. Ltd. Vs. The ACIT, circle 15(2)(1) On the other hand, the ld. D.R supported the order of ITAT. 4. Heard both the sides and perused the material on record. During the course of appellate proceedings before us it was submitted that the assessee company was engaged in the business of sale and servicing of equipment and such services often required site visits for serving the equipment, instalment of equipment etc. for which the assessee had incurred travelling and conveyance expenses and same was incurred for the purpose of the business of the assessee. During the course of appellate proceeding before us the ld. Counsel has filed paper book comprising copies of details and submission made before the lower authorities and copies and sample bills and vouchers in respect of traveling expenses incurred by the assessee. The ITAT has brought all these fact and detail of submission and argument of the assessee regarding claim of travelling expenses in the order of the ITAT at para 5 of the order. At para 7 of the ITAT order the detail furnished by the assessee and decision of the ITAT in the case of the assessee itself for assessment year 2010-11 to 2014-15 wherein consistently the ITAT has restricted the disallowance pertaining to travelling conveyance expenses 10% of the amount debited to profit and loss account were considered. In the assessment year 2009-10 the issue was subject to remand proceedings before the assessing officer for verification of the claim of travelling conveyance expenses after referring the bills and vouchers furnished by the assessee, however, the ITAT after considering the nature of expenses come to the proposition such expenses were not fully verifiable therefore disallowance was restricted to 10% of the travelling conveyance expenses. The relevant extract of the decision of ITAT for the AY. 2016-17 is reproduced as under: - “7. Heard both the sides and perused the material on record. During the course of assessment the assessing officer disallowed 25% of the travelling P a g e | 7 M.A. Nos. 85 & 86/Mum/2024 Liebher India Pvt. Ltd. Vs. The ACIT, circle 15(2)(1) expenses of Rs.668,38,963/- stating that it could not be verified and established that all the expenses claimed under the travelling expenses have been incurred wholly and exclusively for the purpose of business of the assessee. The ld. CIT(A) considered that similar issue on identical facts has been considered by the ITAT in the case of the assessee itself from assessment year 2010-11 to 2014-15 and consistently restricted disallowance pertaining to travelling and conveyance expenses to 10% of the amount debited to profit and loss account. After perusal of material on record, we find that the in assessment year 2009-10 the ITAT held that even the issue was subject to remand proceedings before the AO for verification of the claim of travelling and conveyance expenses after referring the bills and vouchers furnished by the assessee. However, after taking into consideration the nature of expenses and rleelvnat material the ITAT has arrived at the conclusion that expenses were not fully verificable therefore disallowance was restricted to 10% of travelling conveyance expenses. Even after assessment year 2009-10 the claim of the assessee based on similar facts and issue have been subject matter before the ITAT for the assessment year 2010-11 to 2014-15 and in all these years the ITAT has consistently followed the decision of restricting such disallowance to the extent of 10% of disallowance of such expenses after taking into consideration the material fact that these expenses were not fully verifiable. The relevant extract of the operating part of the decision of ITAT vide ITA No. 3496/Mum/2017 dated 24.12.2019 for A.Y. 2009-10 and for AY. 2012-13 vide ITA No. 2169/Mum/2017 dated 28.06.2022 elaborated in the findings of the ld. CIT(A) is reproduced as under: “7.7 I have given my thoughtful consideration to the submissions made by the assessee and examined the same in the light of factual matrix of the case and decision of Hon'ble ITAT Mumbai in the assessee's own case for earlier AYs (supra). 7.8 At the outset, it is an admitted fact that, during the course of assessment proceedings, the assessee could not furnish supporting documentary evidence in the form of bills and vouchers in respect of the entire amount of expenses claimed under the head travelling and conveyance of Rs.6,68,38,693/-. This fact is clearly highlighted by the AO as well as accepted by the assessee in its written submissions filed during the course of appellate proceedings. However, the only grievance of the assessee is that the AO has not pointed out any specific instance of expenses involving personal element but resorted to disallowance of 25% of such expenses on ad hoc basis. 7.9 Be that as it may, as explained in the preceding paragraphs, similar addition was made by the AO/Revenue in the assessee's own case in earlier AYs towards ad hoc disallowance of travelling and conveyance expenses at varying percentages. Further, the assessee carried the matter in appeal before the Hon'ble ITAT Mumbai and the Hon'ble ITAT, vide order in ITA No.3496/Mum/2017 dated 24.12.2019 for the AY 2009-10, has discussed the issue at length and, after having considered the remand report submitted by the AO before the CIT(A) and the decision of CIT(A) thereof to restrict the disallowance to 30% as against 40% made by the AO, observed that some of the expenses claimed by the assessee are not fully verifiable and, therefore, certain ad hoc disallowance is warranted. While doing so, however, the Hon'ble ITAT opined that disallowance of 30% of expenses would be on the higher P a g e | 8 M.A. Nos. 85 & 86/Mum/2024 Liebher India Pvt. Ltd. Vs. The ACIT, circle 15(2)(1) side keeping in view the status of the company. Accordingly, the Hon'ble ITAT has held that disallowance of 10% of total travelling and conveyance expenses would meet the ends of the justice considering the peculiar facts and circumstances of the case. The relevant portion of the decision is reproduced below for ready reference. “4.1. We have heard rival submissions and perused the materials available on record. We find that the assessee had incurred total travelling and conveyance expenses of Rs. 1,80,49,723/- during the year under consideration. The assessee was asked by the Id. AO to produce supporting evidences in respect of travelling and conveyance expenses above Rs.1,00,000/- The Id AO observed that despite several opportunities provided to the assessee, the assessee failed to produce supporting evidences and accordingly proceeded to disallow 40% of the total travelling and conveyance expenditure on an ad hoc basis amounting to Rs.72,19.889/ in the assessment. We find that the Id. C/T(A) had observed that assessee had submitted the copies of vouchers and invoices or travelling and conveyance expenses before him and the same were duly subjected to remand proceedings and duly verified by the Id AO. Before the id AO also, further details were submitted by the assessee. These facts are recorded by the Id CIT(A) in page 18 para 2.4.15 of his order. We find that assessee had incurred these travelling and conveyance expenses in respect of site visits of its personnel, trainings, meetings and other official visits for which detailed break-up were filed along with written submissions We find that the id. AO in the remand report had observed that certain details furnished by the assessee contain the provision for expenses which are contingent in nature and hence, not allowable as deduction, certain expenses are reflected as receivable and later transferred to expenses by the assessee by way of journal entry in the books of accounts, in the opinion of the id AO, these expenses are not fully verifiable and assessee could not substantiate the veracity of the same. Accordingly, the id. CIT(A) observed that the entire travelling and conveyance expenses could not be fully verifiable at the end of the Id. AO and restricted the disallowance to 30% of total travelling and conveyance expenses and reduced the disallowance to Rs 54,14,917/- as against Rs. 72. 19,889/- made by the Id. AO We find that the assessee had filed detailed bills and vouchers in the form of additional evidences before the Id CIT(A) comprising of pages 3- 739 of the paper book which were also filed before us. These details were subject to verification by the Id AO in the remand proceedings and in the remand report, the Id AO had held that some of the expenses are not fully verifiable. We find in these circumstances, some adhoc disallowance of expenses need to be made However, the disallowance 30% would be on the hi ether side given the status of the company and the behavior of the assessee Hence, we hold that disallowance on an adhoc basis at 10% of total travelling and conveyance expenses would meet the ends of justice in the peculiar facts and circumstances of the instant case. Accordingly, the around No.3 raised by the assessee is partly allowed P a g e | 9 M.A. Nos. 85 & 86/Mum/2024 Liebher India Pvt. Ltd. Vs. The ACIT, circle 15(2)(1) (Emphasis Supplied)" 7.10 Further, the above decision was followed by the co-ordinate bernches of Hon'ble ITAT Mumbai for other AYs i.e., AY 2010-11, 2011- 12, 2013-14 and 2014-15 and AY 2012-13. To be precise, vide ITA No.2169/Mum/2017 dated 28.06.2022 for the AY 2012-13, the Hon'ble ITAT has reiterated its own decision rendered while disposing of the assessee' s appeal for the AY 2009-10 (supra) and restricted the ad hoc disallowance of travelling and conveyance expenses to 10%. The relevant portion of the decision is reproduced below for ready reference. "Ground No. 2 to 2.4 15. The relevant facts are that during the relevant previous year Appellant claimed deduction of INR 4,38,55,340/- as travelling and conveyance expenses During the assessment proceedings, the Assessing Officer issued show cause notice to the Appellant requiring the Appellant explain why 40% of such expenses should not be disallowed in view of similar disallowance made in the preceding assessment years. The reply filed by the Appellant in response to the aforesaid show cause notice was not to the satisfaction of the Assessing Officer and therefore, in the Draft Assessment Order, dated 23.03.2016, the Assessing Officer disallowed INR 1,75,42,136/-, being 40% of total travelling and conveyance of INR 4,38,55,340/-, debited to the Profit & Loss account, on the ground that the Appellant had failed to furnish details of travelling expenses to establish that the same we e incurred wholly and inclusively for the purpose of business of the Appellant. The Appellant filed objections before DRP against the aforesaid proposed addition, and filed additional evidence on 26 09 2016 to support the claim of deduction of travelling and conveyance expenses. However, the DRP rejected the objections on the ground that the Appellant had produced sample Copland therefore has failed to discharge the onus upon he Appellant to furnish entire evidence. Accordingly, addition of INR 1,75,42,136/- was made by the Assessing Officer in the Final Assessment Order, dated 30.01.2017. 16. Being aggrieved, the Appellant is before us in appeal on this issue. We note that this is a recurring issue. While deciding identical issue in the case of the Appellant for the Assessment Years 2010-11 (ITA No. 4213/Mum/2017), 2011-12 (ITA No. 3497/Mum/2017), 2013-14 (ITA No. 1856/Mum/2018) and 2014-15 (ITA No 1857/Mum/2018) by way of common order dated 22.05.2020, the Tribunal restricted the disallowance pertaining to travelling and conveyance expenses to 10% of the amount debited to Profit & Loss account by following the decision of the Tribunal in the case of the Appellant for the Assessment Year 2009-10 (ITA No. 3496/Mum/2017), dated 24.12 2019. The relevant extract of the aforesaid decision read as under. "4.1. We have heard rival submissions and perused the materials available on record. We find that the assessee had incurred total travelling and conveyance expenses of P a g e | 10 M.A. Nos. 85 & 86/Mum/2024 Liebher India Pvt. Ltd. Vs. The ACIT, circle 15(2)(1) Rs. 1,80,49,723/- during the year under consideration. The assessee was asked by the Id. AO to produce supporting evidences in respect of travelling and conveyance expenses above Rs. 1,00,000/-. The Id AO observed that despite several opportunities provided to the assessee, the assessee failed to produce supporting evidences and accordingly proceeded to disallow 40% of the total travelling and conveyance expenditure on an ad hoc basis amounting to Rs. 72,19.889/ in the assessment We find that the Id C/T(A) had observed that assessee had submitted the copies of vouchers and invoices or travelling and conveyance expenses before him and the same were duly subjected to remand proceedings and duly verified by the Id AO. Before the Id. AO also, further details were submitted by the assessee. These facts are recorded by the Id. CIT(A) in page 18 para 2.4.15 of his order. We find that assessee had incurred these travelling and conveyance expenses in respect of site visits of its personnel, trainings, meetings and other official visits for which detailed break- up were filed along with written submissions. We find that the id. AO in the remand report had observed that certain details furnished by the assessee contain the provision for expenses which are contingent in nature and hence, not allowable as deduction, certain expenses are reflected as receivable and later transferred to expenses by the assessee by way of journal entry in the books of accounts, in the opinion of the id AO, these expenses are not fully venfiable and assessee could not substantiate the veracity of the same. Accordingly, the id CIT(A) observed that the entire travelling and conveyance expenses could not be fully verifiable at the end of the Id. AO and restricted the disallowance to 30% of total travelling and conveyance expenses and reduced the disallowance to Rs.54, 14,917/- as against Rs.72,19,889/- made by the Id AO We find that the assessee had filed detailed bills and vouchers in the form of additional evidences before the Id CIT(A) comprising of pages 3- 739 of the paper book which were also filed before us These details were subject to verification by the Id AO in the remand proceedings and in the remand report, the id. AO had held that some of the expenses are not fully verifiable. We find in these circumstances, some adhoc disallowance of expenses need to be made. However, the disallowance @30% would be on the hi ether side given the status of the company and the behavior of the assossee Hence, we hold that disallowance on an adhoc basis at 10% o total travelling and conveyance expenses would meet the ends of justice in the peculiar facts and circumstances of the instant case. Accordingly, the around No 3 raised by the assessee is partly allowed. (Emphasis Supplied) 17. We note that during the assessment proceedings for relevant assessment year disallowance of 100% of travelling and P a g e | 11 M.A. Nos. 85 & 86/Mum/2024 Liebher India Pvt. Ltd. Vs. The ACIT, circle 15(2)(1) conveyance expenses has been made in identical facts and circumstances In appeal for the earlier years such disallowance has been restricted to 10% of the travelling and conveyance expenses by the Tribunal. Respectfully following the aforesaid decision of the Tribunal in the case of the Appellant, we restrict the disallowance of travelling and conveyance expenses to 10% of the amount debited to Profit & Loss account during the relevant previous year. Accordingly, Ground No. 2. to 2.4 are partly allowed." (emphasis supplied) 7.11 In view of the above, respectfully following the decision of the Hon'ble ITAT Mumbai in the assessee's own case for earlier AYs, more specifically for AY 2009-10, and keeping in view the doctrine of judicial precedence, I hereby direct the AO to restrict the ad hoc disallowance of travelling and conveyance expenses to 10% of Rs.6,68,38,963/- in place of 25%, which worked out to Rs.66,83,896/- instead of Rs.1,67,09,741/- disallowed by the AO in the impugned assessment order. Accordingly, the assessee would get relief of Rs.1,00,25,845/- (1,67,09,741 66,83,896). Thus, the ground of appeal raised by the assessee on this issue is partly allowed.” 8. After perusal of the decision of ITAT as referred above and decision of ITAT for other assessment years, we find that no case is made out by the ld. Counsel for the assessee that facts in the case of the assessee is different from the facts in the case of the assessee adjudicated by the ITAT in the earlier years. It is evident from the decision of ITAT that even the matter was subject to verification by the AO in the remand proceedings however, because of nature of expenses such expenses were not fully verifiable. Therefore, there is nothing before us on hand to differ from the issue raised in the cases cited supra so as to take a different view of this issue. Therefore, since, the issue on hand being squarely covered following the principle of consistency we don’t find any merit in the submission of the ld. Counsel, therefore, this ground of appeal of the assessee is dismissed. “ 5. During the course of appellate proceedings before us the assessee referred the decision of ITAT Mumbai in the case of Reach Network India P. Ltd. Vs. ACIT-9(3) dated 27.09.2018, we find that case referred by the ld. Counsel is distinguished from the facts and issue found in the case of the assessee. In the case of the assessee we find that there is no misconception and misapprehension in the order of Tribunal like the case referred by the ld. Counsel pertaining to claim of deduction u/s 80IA(4)(ii) in that case. P a g e | 12 M.A. Nos. 85 & 86/Mum/2024 Liebher India Pvt. Ltd. Vs. The ACIT, circle 15(2)(1) 6. The assessee also submitted in the miscellaneous application that complete details of travelling expenses along with sample supporting documents were filed before the AO. However, it is evident from the findings of the ITAT that disallowance of 10% of the travelling expenses were not made on the grounds that supporting evidences were not filed. Even in the AY. 2009-10 the details bills and vouchers in the form of additional evidences comprising of pages 3-739 papers filed in the paper books were subject to specifically verification in the remand proceedings and in the order of ITAT in the case of the assessee for AY. 2009-10 to AY. 2014-15, the disallowance of such expenses to the extent of 10% was not made on the ground that no supporting evidences were filed but disallowance was made on the proposition that because of nature of expenses and self made vouchers the same were not fully verifiable. During this year also the nature of expenses were similar like earlier years and after considering the submission and details filed by the assessee it was held that because of the nature of expenses and self- made vouchers the claim of such expenses were not fully verifiable. In the decision dated 28.12.2023 the ITAT has considered the full facts of the case of the assessee and the submission made by the assessee before the lower authorities and before the ITAT. 7. The power of rectification u/s 254(2) of the Act can be exercised only when the mistake which is sought to be rectified is obvious patent mistake, which is apparent from record and not a mistake which is required to be established by arguments and by long drawn process on reasoning on point of which there may conceivably be two opinions, therefore, we don’t find any reason to interfere and the miscellaneous application filed by the assessee is dismissed. ITA No.86/Mum/2024 P a g e | 13 M.A. Nos. 85 & 86/Mum/2024 Liebher India Pvt. Ltd. Vs. The ACIT, circle 15(2)(1) 8. Since we have adjudicated the similar issue on identical facts vide M.A. No.85/Mum/2024 while adjudicating the appeal of the assessee for A.Y. 2017-18 as supra in this order therefore applying the same finding as mutatis mutandis this miscellaneous application of the assessee is also dismissed. 9. In the result, both the miscellaneous application filed by the assessee are dismissed. Order pronounced in the open court on 02.07.2024 Sd/- Sd/- (Rahul Chaudhary) (Amarjit Singh) Judicial Member Accountant Member Place: Mumbai Date 02.07.2024 Rohit: PS आदेश की प्रतितिति अग्रेतिि/Copy of the Order forwarded to : 1. अपीलाथी / The Appellant 2. प्रत्यथी / The Respondent. 3. आयकर आयुक्त / CIT 4. विभागीय प्रविविवि, आयकर अपीलीय अविकरण DR, ITAT, Mumbai 5. गार्ड फाईल / Guard file. सत्यावपि प्रवि //True Copy// आदेशानुसार/ BY ORDER, उि/सहायक िंजीकार (Dy./Asstt. Registrar) आयकर अिीिीय अतिकरण/ ITAT, Bench, Mumbai.