Income Tax Appellate Tribunal - Delhi
Dcit, New Delhi vs M/S. Jagson International Pvt. Ltd., ... on 11 May, 2018
IN THE INCOME TAX APPELLATE TRIBUNAL
[ DELHI BENCH "D", NEW DELHI ]
BEFORE SHRI R. K. PANDA, ACCOUNTANT MEMBER
AND
SHRI KULDIP SINGH, JUDICIAL MEMBER
ITA No. 4392/Del/2011
ITA No. 5915/Del/2013
A N D ITA No. 5916/Del/2013
Assessment Years : 2008-09, 2009-10 & 2010-11.
ACIT, M/s. Jagson International Ltd.,
Circle : 4 (1), 3rd Floor, Vandana Building,
Vs.
New Delhi. Tolstoy Marg,
New Delhi - 110 001.
PAN : AAACJ 2147 A
(Appellant) (Respondent)
Assessee by : Shri Rajiv Saxena, Adv.; &
Ms. Sumangla Saxena, Adv.;
Department by : Shri Vijay Verma, CIT [DR];
Date of hearing : 15-03-2018
Date of pronouncement : 11-05-2018
ORDER
PER R. K. PANDA, AM :
I.T. Appeal No. 4392 (Del) of 2011 filed by the Revenue is directed against the order dated 29th July, 2011 of the learned CIT (Appeals)-VII, New Delhi relating to assessment year 2008-09. I.T. Appeal No. 5915 (Del) of 2013 filed by the Revenue is directed against the order dated 27th August, 2013 of the learned CIT (Appeals)-VIII, New Delhi relating to assessment year 2009-10. I.T. Appeal No. 5916 (Del) of 2013 filed by the Revenue is directed against the 2 ITA. No. 4392/Del/2011.
AND ITA.Nos.5915&5916/Del/2013 order dated 30th August, 2013 of the learned CIT (Appeals)-VIII, New Delhi relating to assessment year 2010-11. Since common grounds are involved in all these appeals, therefore, these were heard together and are being disposed of by this common order for the sake of convenience.
ITA No.4392/Del/2011 (A.Y. 2008-09) :
2. Ground No. 1 raised by the Revenue being general in nature is dismissed. 2.2 Ground No. 2 by the Revenue reads as under :-
"The ld. CIT (A) has erred in law and on facts in directing the AO to consider the 'rigs' as 'qualifying ship' under section 115VD of the Income Tax Act and allow the assessee for exercising option for Tonnage Tax Scheme under section 115VP/115VR of the Income Tax Act, 1961 without considering the fact that the assessee's ship is actually an "Offshore installation" and benefit under the aforesaid provisions is specifically not meant for "Offshore installations" and also that the registration under Merchant Shipping Act, 1958 as a ship is not relevant in this case;"
2.3 Facts of the case, in brief, are that the assessee company is engaged in the business of shipping and port infra-structure. It filed its return of income on 30th September, 2008 declaring total income of Rs.6,14,03,560/-. During the course of assessment proceedings, the Assessing Officer observed that the assessee opted for Tonnage Tax Scheme under the provisions of section 115VP / 115VR of the Income Tax Act. He rejected the claim of the assessee by observing as under :-
" Tonnage Tax Scheme.
During the relevant year, the assessee has opted for tonnage tax scheme 3 ITA. No. 4392/Del/2011.
AND ITA.Nos.5915&5916/Del/2013 under the provisions of Section 115VP/115VR of IT Act. During AY 2006-07, the assessee made an application in Form No.65 for exercising option for Tonnage Tax Scheme u/s 115VP / 115VR of IT Act. The Addl. Commissioner of Income tax rejected the application of the assessee on the ground that the assessee's ship 'Deepsea Matdrill is not a ship but a drilling rig which is not covered under the definition of qualifying ships as the same is an offshore installation. It was also held that the ship was not registered under the Merchant Shipping Act, 1958 and assessee's main object of business was not carrying on the business of the operation of the ships. It was also seen that the assessee did not have the license which was to be issued by the Director General of Shipping u/s 407 of Merchant Shipping Act, 1958. The assessee preferred appeal before Ld. CIT(A) who, vide order dated 16.3.2007 in appeal No.44/2006-07 allowed the appeal of assessee and directed the AO to consider the rigs as qualifying ships u/s 115VD of the IT Act and allow its application for exercising option for tonnage tax scheme u/s 115VP / 115VR of the Act. Aggrieved with the order of Ld. CIT (A), the revenue preferred an appeal before ITAT who, vide order dated 20.11.2009 in ITA No.2979/Del/ of 2007 dismissed the appeal of revenue. Now the revenue has preferred an appeal before Hon'ble Delhi Court against the order of Hon'ble ITAT after obtaining approval of higher authorities."
2.4 In appeal, the learned CIT (Appeals) allowed the claim of the assessee by observing as under :-
"4. Ground of Appeal No.l relates to the grievance of the appellant against the action of the A.O. in rejecting the appellant's claim for tonnage tax scheme by holding that the appellant is not a qualifying ship within the meaning of provisions of section 115 VD of the Act and disallowing the benefit claimed by the appellant for computing the income under tonnage tax scheme under section 115VP/ 115VR of the Act. The appellant has drawn my attention to my order in the appellant's own case for A.Y. 2007-08 which is now confirmed by the Hon'ble ITAT in ITA No 4347/Del/2010 vide their order dated 03- 06-2011. The Hon'ble ITAT has followed their earlier decision in the appellant's own case for A.Y. 2006-07 reported in (2010) 35 SOT 285 (Delhi). The Hon'ble ITAT has also referred to the decision of the Hon'ble Delhi High Court reported in (2008) 214 CTR 227(Delhi) while disposing that appeal. In that decision Hon'ble Delhi High Court in the context of claim under section 33AC of the Act held that the drilling rig, placed on a vessel described as a barge which could be moved out from place to place for offshore drilling is a ship and the claim u/s 33AC has to be allowed.
3.1 As the facts and circumstances of the case are pari materia with the case of the appellant for A.Y.(s) 2006-07 & 2007-08, respectfully following the orders of the Hon'ble ITAT in the appellant's own case for A.Y.(s) 2006-07 & 2007-08 and also following the order of my predecessor-in-office for A.Y. 2006-07 & my own order for A.Y. 2007-08, this ground of appeal is allowed. The A.O. is directed 4 ITA. No. 4392/Del/2011.
AND ITA.Nos.5915&5916/Del/2013 to allow the appellant's claim for tonnage tax scheme in terms of section l15VP read with section 115 VR accordingly. As a result, ground of appeal No.l is allowed."
2.5 Aggrieved with such order of the learned CIT (Appeals) the Revenue is in appeal before the Tribunal.
2.6 We have considered the rival arguments made by both the sides and perused the material available on record. We find that the issue has been decided in favour of the assessee by the Hon'ble Jurisdictional High Court in assessee's own case vide ITA No.1395/2010 and ITA No.1289/2011 order dated 08.11.2012 by observing as under :-
"7. In the facts of this case the vessels were consistently registered under Section 407 of the Merchant Shipping Act and had a valid certificate which was produced for consideration by the appellate authority who sought remand report. It is also not disputed that the vessel is a qualifying ship for sea in terms of clause (a) of Section 115VD. The question as to whether it amounted to "off shore installations" was gone into in considerable detail by the Tribunal. The Tribunal noticed that unlike in the case of off-shore installations which are stationed at one place, the very nature of the activity in which the assessee engaged is to carry out operations in different places; necessarily, at least for a short duration the vessel has to be stationed at one place. In these circumstances, Revenue's contentions that the vessel is nothing but "offshore installations" has no merit, in the case of Matdrills of die kind put to use by the assessee.
8. For these reasons the Court is of the opinion that the reasoning and findings of the Appellate Commissioner and the Tribunal cannot be found fault with. The substantial question of law is therefore answered in favour of the assessee and against the Revenue. The appeals are consequently dismissed."
2.7 Since the learned CIT (Appeals) while deciding the issue in favour of the assessee has followed the decision of the Tribunal in assessee's own case as 5 ITA. No. 4392/Del/2011.
AND ITA.Nos.5915&5916/Del/2013 well as the decision of Hon'ble Jurisdictional High Court, therefore, in absence of any contrary material brought to our notice by the learned Departmental Representative, we find no infirmity in the order of the learned CIT (Appeals) allowing the ground raised by the assessee. The ground raised by the Revenue is accordingly dismissed.
3. Ground No. 3 to 3.2 by the Revenue reads as under :-
"On the facts and in the circumstances of the case and in law, the learned CIT (Appeals) has erred in deleting the addition of rs.19,16,80,789/- made by the AO on account of difference in receipt as per TDS Certificate and amount shown in P&L A/c ignoring that :
3.1 That the assessee failed to explain the difference with supporting evidence before the AO during the assessment proceedings;
3.2 That the clarification and documents furnished before the CIT (Appeals) were not verified by the AO."
3.1 Facts of the case, in brief, are that during the course of assessment proceedings the Assessing Officer observed that during the year assessee has shown income from operation in respect of its drilling division at Rs. 46,89,26,670/- whereas as per TDS certificates issued by HPCL and ONGC the assessee has received income to the tune of Rs.66,06,07,459/-. Thus there is a difference of Rs.19,16,80,789/- which the assessee has not offered for taxation during the year. Rejecting the explanation given by the assessee the Assessing Officer made addition of Rs.19,16,80,789/- u/s 69 of the I.T. Act, 1961. 6
ITA. No. 4392/Del/2011.
AND ITA.Nos.5915&5916/Del/2013 3.2 Before the learned CIT (Appeals) the assessee filed detailed explanation regarding such difference based on which the learned CIT (Appeals) called for a remand report from the Assessing Officer. After considering the same, the CIT (Appeals) deleted the addition made by the Assessing Officer by observing as under :-
"5.4 After having considered the rival submissions it is felt necessary to peruse the computation of total income, profit and loss account, details of operating income/ charges, TDS certificates, various accounts of ONGC w.e.f. 01.04.2009, settlement agreement and relevant vouchers filed on behalf of the appellant in the paper book from Pages 23 to 78. The appellant has declared operating income from drilling operations in Schedule-9 amounting to Rs.46,89,26,670/- the details of which are placed at Pages 42 to 44 of the paper book filed on behalf of the appellant. On the credit side the total credits (receipts) are shown at Rs.68,13,83,121/-. These credits also include Rs.19,27,49,529/- received on 05.11.2007 vide cheque the amount received in US $ 49,13,945.92 and deposited in SBI, South Extension, New Delhi. On the debit side Rs.21,24,56,452/- was calculated which relates to various deductions made by ONGC by way of TDS or due to rate fluctuation on the bill booked and payment received later in US dollars. This includes debit of Rs.19,27,49,529/- made on 31-03-2008 by giving narration "ONGC" amount transferred. Due to this the closing balance under the head operating income / charges amounted to Rs.46,89,26,669.44/- which was ultimately transferred to profit and loss account. Thus total receipts were Rs.68,13,83,121/-(Rs. 68.13 Crores) but after adjusting certain deductions and transfers relating to ONGC the net receipts of Rs.46,89,26,670/-(Rs. 46.89 crores) were declared in the profit and loss account.
5.5 The perusal of the TDS certificates issued by ONGC (placed at Pages 51 & 52 of the paper book filed on behalf of the appellant) and Form No.26AS reveals that the amounts paid by ONGC to the appellant are in US dollars $1,64,79,606,.96 and $ 645. Apart from this an amount of Rs. 8,66,571/- has been shown as paid by ONGC to the appellant on which total tax deducted and deposited is to the extent of Rs. 1,50,46,940/-.
5.6 The accounts of the appellant show that there are mainly two accounts maintained in the books of account one which relates to outstanding balances which is named as "ONGC ledger account" while for transactions made during the year for operating income and various other charges another account named as "ONGC (2004-06) ledger account". In the ONGC account there was an outstanding balance of Rs. 17.98 Crores as on 31.03.2006 which was continued also in 31.03.2007. In this account relevant for the period 01.04.2007 to 31.03.2008 the amount brought as opening balance of Rs. 17.98 crores against which adjustment of transfer entry mentioned as depicted under the ledger account of operating income/charges. This was adjusted in this account along with certain other entries. This amount of Rs 17.98 Crores and 7 ITA. No. 4392/Del/2011.
AND ITA.Nos.5915&5916/Del/2013 other entries were adjusted in order to comply with the settlement agreement (placed in the paper book at Pages 72-76). According to the settlement agreement, US $ 50,46,487 less Rs 10,00,000/- was payable to the appellant. Due to this Rs. 19,27,49,529/- was declared as income as depicted in the "Operating incomes/charges". The relevant voucher is placed at Page 77 of the paper book filed on behalf of the appellant. A chart of "Details of ONGC's balance" was also placed in the paper book at page 78 of the paper book filed on behalf of the appellant. This relates to opening balances outstanding from FY 2001-02 to 2007-08 in both the accounts of ONGC. After adjusting debits, transfers and receipt the closing balance in both these accounts have been depicted from FY 2001-02 to 2006-07 there were outstanding balances declared in the accounts of ONGC. But in FY 2007-08, there was no closing balance shown in both these accounts. This chart clearly depicts that the appellant has adjusted all the outstanding balances in the name of ONGC in its books of account.
5.7 It is observed that the appellant has actually written off the old balances outstanding from the last so many years in its books of account. This could be either done separately because these outstanding balances were declared as income in earlier years but the appellant has opted to adjust Rs. 19,27,49,529/- out of the operating income along with various other amounts to make the ONGC account as Nil. This was done in view of clause 8 of the settlement agreement wherein payment of $ 50,46,487 less Rs 10,00,000 was payable to the appellant in full and final settlement of all claims. The appellant has implemented this settlement agreement in its letter and spirit and made the ONGC account Nil as on 31-03-2008.
5.8 It is not the case of the AO that certain receipts were not declared and income was declared less. In fact the appellant could have declared the receipts separately and claimed writing off the old outstanding balance of Rs 17.98 Crores shown as opening balance during the year as bad debts but appellant opted to adjust ONGC outstanding balances against the ONGC receipts so as to make ONGC account as Nil. The AO has not made any efforts to understand these accounts either during the assessment proceedings or during the remand proceedings. The addition of Rs. 19,16,80,789/- calculated by him by taking difference of TDS certificates and receipts declared in Profit & Loss Account is also incorrect because in the TDS certificates gross amount is required to be taken as "Income" which is before adjusting TDS. The total receipts amounted to Rs.68,13,83,121/- in-which TDS of Rs 1,86,37,049/- was deducted at source. Apart from this an amount of Rs. 10,69,874/- was reduced on account of fluctuation in the value of US Dollar. Thus, total receipts are to the extent of Rs 68,03,13,247/- (Rs 68,13,83,121/- minus Rs 10,69,874/-) as against Rs 66,06,07,459/- calculated by the AO. It appears that the AO has not correctly calculated the total receipts at Rs 66,06,07,459/- which is perhaps without adding TDS which is part of the total income while the appellant has declared total receipts of Rs 68,13,83,121/- and claimed deduction of Rs. 10,69,874/- against fluctuation in the value of US Dollar. I do not find any infirmity in maintaining these accounts or declaring the profits as per the books of account. The operating income was shown by the appellant truly and correctly. The confusion was because of adjusting old outstanding balances of 8 ITA. No. 4392/Del/2011.
AND ITA.Nos.5915&5916/Del/2013 ONGC in order to make those accounts Nil which was otherwise available as deduction under section 36(1)(vii) as bad debts. Since, the amount of Rs. 19,27,49,529/- was not raised in the bills but was received as per settlement agreement and the same was adjusted against the outstanding balance of ONGC which was already declared as income and so eligible for deduction under the Act.
5.9 The AR of the appellant has drawn my attention to the decision of the Special Bench of the Hon'ble ITAT in DCIT vs. Oman International Bank 2006- TIOL-118-ITAT-MUM-SB: (2006) 100 ITD 285(Mum)(SB): (2006) 102 TTJ 207 (Mum)(SB) and recent decision of the Hon'ble Supreme Court in the case of M/s Vijaya Bank Vs. CIT reported in 2010-TIOL-31-SC-IT: 323 ITR 166(SC): 231 CTR 209(SC) wherein the Hon'ble Supreme Court has held that in order to claim the amount as bad debt after 01.04.1989 if an assessee debits an amount of doubtful debt to the profit and loss account and credit the asset account like sundry debtors account, it would constitute a write off of an actual debt. It was also held by the Apex Court that "we are of the view that the AO is sufficiently empowered to tax such subsequent repayment u/s 41 (4) of the Act. In the present case the appellant has reduced its debtors against the corresponding entry of reducing the receipts i.e. profit and loss account and so there is no infirmity in the accounts. Therefore the decision of the Supreme Court is squarely applicable to the facts of the present case. 5.10 Therefore, I am of the considered view that on the facts and in the circumstances of the case, the Assessing Officer was not justified in making the addition of Rs.19,16,80,789/- under section 69 of the Act and the same is directed to be deleted. As a result, Ground of appeal No.3 is allowed."
3.3 Aggrieved with such order of the learned CIT (Appeals) the Revenue is in appeal before us.
3.4 We have heard the rival contentions made by both the sides and perused the material available on record. We find the learned CIT (Appeals) after obtaining the remand report from the Assessing Officer and on the basis of reconciliation filed by the assessee has passed a detailed order and has given a finding that the credit side of the total receipt Rs.68,13,83,121/- also includes an amount of Rs.19,27,49,529/- received on 05.11.2007 and deposited in SBI. 9
ITA. No. 4392/Del/2011.
AND ITA.Nos.5915&5916/Del/2013 On the debit side an amount of Rs.21,24,56,452/- appears as various deductions made by ONGC by way of TDS or due to rate fluctuation on the bill and payment received later on in US$. This includes debit of Rs.19,27,49,529/- made on 31.03.2008. Thereafter the closing balance under the head operating income / charges amounting to Rs.46,89,26,669.44 was transferred to the profit and loss account. He has given a finding that after adjusting certain deductions the assessee has transferred Rs.46.89 crores out of the total of Rs.68.14 crores. The assessee has properly reconciled the receipts vis-à-vis the amount shown in the profit and loss account. The learned Departmental Representative could not controvert the factual finding of the learned CIT (Appeals) on this issue. In absence of any contrary material brought to our notice against the factual finding of ld. CIT(A), we do not find any infirmity in the order of the learned CIT (Appeals) deleting the addition. Accordingly the same is dismissed.
4. Ground of appeal No. 4 reads as under :-
"On the facts and in the circumstances of the case and in law, the learned CIT (Appeals) has erred in deleting the addition of Rs.64,60,281/- made by the AO on account of amounts written off."
4.1 Facts of the case, in brief, are that the Assessing Officer observed that the assessee has debited an amount of Rs.64,60,281/- on account of "amount written off" under the head "General expenses". From the details furnished by the assessee he noted that the parties against whom assessee has written off the amount are still alive and belong to sound party. It is not a case where non- 10
ITA. No. 4392/Del/2011.
AND ITA.Nos.5915&5916/Del/2013 realisation is due to the party absconding or non-traceability. According to him, for any debt to become bad, it is imperative that it should really become non- recoverable i.e. either the debtor is incapable of paying or non-traceable etc. As these conditions are not at all satisfied and since the assessee has never made any provision in the previous years and also the fact that assessee is having business relationship with these parties in later year also the Assessing Officer disallowed the deduction of Rs.64,60,281/- claimed on account of amount "written off".
4.2 Before the learned CIT (Appeals) the assessee filed certain additional evidences with request to accept the same under Rule 46A of the Income Tax Rules, 1962. The learned CIT (Appeals) called for a remand report from the Assessing Officer. After considering the remand report of the Assessing Officer and rejoinder of the assessee to such remand report, the learned CIT (Appeals) deleted the addition by observing as under :-
"6.4 I have gone through the assessment order, the written and oral submission(s) of the appellant and the remand report of the A.O. I have also gone through the order sheet submitted along with the remand report whereby the AO highlighted the noting for furnishing copy of account of ONGC in the books for FY 2006-07 to FY 2008-09. After perusing the direction of the Mumbai High Court in the order dated 11.04.2007 I find from the "consent terms" that the appellant was directed to make payment of US $ 13,00,000 to M/s. Frontier Drilling ASA Pvt. Ltd. This was duly been paid as mentioned in the documents addressed to State Bank of Hyderabad. Tax has been deducted on these payments and the relevant cheque and the challan dated 12.04.2007 are also placed on record. All these documents are on account of arbitration award granted by Mumbai High Court. Copy of account of M/s Frontier Drilling ASA Pvt. Ltd for the period from 01-02-2003 to 31-03-2008 was also filed in 11 ITA. No. 4392/Del/2011.
AND ITA.Nos.5915&5916/Del/2013 which there was outstanding claim of Rs.2,49,00,231/- but on the contrary the appellant has to make payment of US $ 13,00,000 amounting to Rs.5,57,18,000/- due to which debit entry was made in operating expense of Rs.8,06,18,231/- as the same has been transferred in Operating Expense (Special) of Rs 8,06,18,231/-. The effect of this entry was depicted in "Short or Excess Account" and after declaring income of ONGC of Rs.1,84,26,584.89 the closing balance of Rs 64,60,280/- has been claimed as short or excess under the books of account. This amount relates to payment made to M/s. Frontier Drilling in view of the directions of Hon'ble Mumbai High Court and so not relating to any such reasons as noticed by the AO. The reason assigned by the AO that assessee is having business relationship with these parties in later years is also incorrect because in subsequent years there were no such business relationship continued with M/s Frontier Drilling as evident from the various documents and in view of the Arbitration award.
6.5 Another reason given by the AO that assessee has never made any provision in the previous year is found to be incorrect in view of the latest decision of the Hon'ble Supreme Court in the matter of M/s. Vijaya Bank (Supra) where the Hon'ble supreme court has clarified that such provision was required before 01-04-1989 but after the amendment when explanation was brought to section 36 (l)(vii) mere provision for bad debt would not be entitled to deduction and so assessee has to make debit entry to the P & L Account and corresponding credit entry to the asset account like sundry debtor account then only it would constitute a write off of an actual debt.
6.6 In view of the discussion made above and after examining the relevant documents, I find that the appellant has correctly made a claim of write off of Rs. 64,60,281/- in the account of "Short & Excess" which was clubbed later under the "General Expenses" and claimed in the Profit & Loss account. Therefore, the Assessing Officer is directed to allow the deduction of Rs.64,60,28l/-claimed on account of "amount written off. As a result, Ground of appeal No. 4 is allowed."
4.3 Aggrieved with such order of the learned CIT (Appeals), the Revenue is in appeal before us.
4.4 After hearing both the sides, we do not find any infirmity in the order of the CIT(A) deleting the addition made by the Assessing Officer. The factual finding given by ld. CIT(A) that the amount of Rs.64,60,280/- claimed as short/excess relates to payment made to M/s Frontier Drilling in view of the direction of the Hon'ble Mumbai High Court could not be controverted by ld. 12
ITA. No. 4392/Del/2011.
AND ITA.Nos.5915&5916/Del/2013 DR. In view of the above and in view of the detailed reasoning given by ld. CIT(A) on this issue and in absence of any contrary material brought to our notice by ld. DR against the finding given by ld. CIT(A), we find no infirmity in his order. Accordingly, the same is upheld and the grounds raised by the Revenue are dismissed.
5. Ground No. 5 reads as under :-
" On the facts and in the circumstances of the case and in law, the learned CIT (Appeals) has erred in deleting the addition of Rs.2,01,280/- made by the AO under section 40(a)(ia)."
5.1 Facts of the case, in brief, are that during the course of assessment proceedings, the Assessing Officer observed that the payments/credits in respect of expenditure aggregating to Rs.2,01,280/- were made on 19-01-08 and 06-02- 08 i.e. before last month of the Financial Year 2007-08 relevant to Asstt.Year 2008-09 on which the TDS was deducted but paid on 26-08-08 i.e. after 31st of March 2008. He, therefore, made disallowance u/s 40(a)(ia) of the I.T. Act. 5.2 Before ld. CIT(A) it was submitted that the TDS has already been deposited before the due date of filing of Income Tax Return i.e. 30-09-2008. Relying on various decisions, it was submitted that the disallowance cannot be made in view of the amendment made in the relevant provision which allows deposit of TDS before the due date of filing vide Finance Act 2010 which has 13 ITA. No. 4392/Del/2011.
AND ITA.Nos.5915&5916/Del/2013 been held to be curative in nature and therefore retrospective. It was further submitted that nothing is payable at the end of the year also. 5.3 Based on the arguments advanced by the assessee, the ld. CIT(A) deleted the addition by holding as under :-
"7.2 Assessee is eligible for deduction of Rs.2,01,280/- in terms of section 40(a)(ia) of the Act by taking the provisions of Section 40(a)(ia) as amended by the Finance Act, 2010 w.e.f. 1-4-2010 to be effective in A.Y.2008-09 as well."
5.4 Aggrieved with such order of ld. CIT(A), the Revenue is in appeal before the Tribunal.
5.5 After hearing both the sides, we do not find any infirmity in the order of the ld. CIT(A) deleting the disallowance. The Co-ordinate Benches of the Tribunal are consistently taking the view that the amendment brought in by the Finance Act, 2010 to the provisions of section 40(a)(ia) w.e.f. 01.04.2010 are clarificating in nature and are applicable to earlier years as well. It is accordingly being held that no disallowance is called for when the assessee makes the deposit of TDS before the due date of filing of the return. Since the order of ld. CIT(A) is in line with the view taken by the Co-ordinate Benches of the Tribunal, therefore, we do not find any infirmity in the same. Accordingly, the same is upheld and the grounds raised by the Revenue are dismissed. 14
ITA. No. 4392/Del/2011.
AND ITA.Nos.5915&5916/Del/2013 ITA No. 5915/Del/2013 - [Assessment Year : 2009-10] :
6. Ground No. 1 by the Revenue reads as under :-
"Whether on the facts and circumstances of the case, the learned CIT (Appeals) erred in deleting addition of Rs.6,39,83,177/- by bringing to tax income claimed as exempt under section 115VD by holding that the income pertained to Ship and not to a RIG as taken by the Revenue?"
6.1 After hearing both the sides we find the above ground is identical to ground of appeal No. 2 in ITA. No. 4392 (Del) of 2011. We have already decided the issue and the ground raised by the Revenue has been dismissed. Following similar reasoning, the above ground raised by the Revenue is dismissed.
7. Ground No. 2 by the Revenue reads as under :-
"Whether on the facts and circumstances of the case, the learned CIT (Appeals) erred in deleting disallowance of the Rs.15,12,468/- under section 14A rw Rule 8D (iii)?"
7.1 Facts of the case, in brief, are that the Assessing Officer during the course of assessment proceedings observed that the assessee has investments in equity shares of various companies as well as in the units of mutual funds. During the impugned assessment year the assessee has earned tax free dividend income of Rs.2,94,299/- from these investments. Since the assessee has not allocated any expenditure attributable for earning the exempt income under section 14A the AO held that the assessee must have incurred 15 ITA. No. 4392/Del/2011.
AND ITA.Nos.5915&5916/Del/2013 certain expenditure for the investment activity generating tax free income. He, therefore, rejected the claim of the assessee that no expenditure has been incurred. Applying the provision of section 14A read with Rule 8D the Assessing Officer disallowed an amount of Rs.15,12,468/-. 7.2 Before the learned CIT (Appeals) the assessee argued that assessee has not incurred any expenditure for earning the exempt income since all the investments were made by the company on the instance of Shri J.P. Gupta, Chairman of the company, who looks after the investment and mutual funds. In an alternate argument it was submitted that even if a disallowance is made the same becomes an expenditure which was already deducted for calculating deductions under section 115VP of the Act. Therefore, the profit would be enhanced by that expenditure and the same will be exempt under section 115VF of the Act. For the above proposition the decision of the Mumbai Bench of the Tribunal in the case of Varun Shipping Company Ltd. Vs. Addl. CIT 2012-TIOL-10-ITAT-MUM was relied upon. The order of the learned CIT (Appeals) on this issue for the assessment years 2007-08 and 2008-09 was also brought to the notice of the learned CIT (Appeals). Various decisions were also brought to the notice of the learned CIT (Appeals) to the proposition that in the absence of finding by the Assessing Officer of incurring any expenditure for 16 ITA. No. 4392/Del/2011.
AND ITA.Nos.5915&5916/Del/2013 earning the exempt income as against no expenditure incurred by the assessee, disallowance under section 14A of the Act cannot be made. 7.3 Based on the arguments advanced by the assessee and relying on various decisions the learned CIT (Appeals) deleted the disallowance made by the Assessing Officer on the ground that the AO has mechanically applied the provisions of Rule 8D without going into the facts of the case that no expenditure has been incurred for earning the dividend income. He further held that when the assessee is entitled for tonnage tax benefit, therefore, whatever amount is computed as disallowance under section 14A, the same may be taken into account while working benefit of tonnage tax scheme as the exempted income would be enhanced accordingly. The relevant paras of the order of the learned CIT (Appeals) read as under :-
"4.9 I have gone through the record and perused the material available on record. I find that AR has produced a copy of the Hon'ble Delhi High Court decision in ITA No 1395/2010 in assessee's own case wherein the Hon'ble Jurisdictional high court has held that the assessee possess a Ship not a rig and thereby allowed the tonnage tax benefit. Respectfully following the jurisdictional high court decision in assessee's own case, I hereby direct the AO that whatever amount is computed as disallowance under section 14A the same may be taken into account while working the benefit of tonnage tax scheme as the exempted income would be enhanced accordingly on the finally determined income under the head "Profit & Gains of business or Profession". As a result of alternative ground 6 of the appellant is allowed in view of the ITAT decision in Varun Shipping (Supra). Since, the appellant gets Tonnage Tax benefit under Section 115 VP / 115 VR, the addition under Section 14A/Rule 8D is not at all required. Thus, ground No. 2 is allowed."
7.4 Aggrieved with such order of the learned CIT (Appeals) the Revenue is in appeal before the Tribunal.
17
ITA. No. 4392/Del/2011.
AND ITA.Nos.5915&5916/Del/2013
8. We have heard the rival submissions made by both the sides and perused the material available on record. We do not find any infirmity in the order of ld. CIT(A) deleting the addition. We find the Mumbai Bench of the Tribunal in the case of Varun Shipping Company Ltd. Vs. Addl. CIT (supra) has held that when the assessee gets tonnage tax benefit under section 115VP / 115VR of the Act, the addition under section 14A read with Rule 8D is not at all required. We further find that the learned CIT (Appeals) has deleted the disallowance under section 14A read with Rule 8-D amounting to Rs.48,16,301/- for the assessment year 2008-09 and the Revenue has not challenged the same. Therefore, following the rule of consistency also, this ground raised by the Revenue should be dismissed. In view of the above discussion and in view of the detailed reasoning given by the ld. CIT(A), the same is upheld and the ground of appeal No. 2 by the Revenue is dismissed.
9. Ground of appeal No. 3 by the Revenue reads as under :-
"Whether on the facts and circumstances of the case, the learned CIT (Appeals) erred in deleting addition of Rs.2,40,33,196/- under section 40(a)(ia) for non-depositing of TDS within stipulated period as the amendment to provisions of section 40(a)(ia) was applicable from A.Y. 2011-12 ?"
9.1 Facts of the case, in brief, are that the Assessing Officer made an addition of Rs.2,40,33,196/- on the ground that TDS amounting to Rs.12,11,222/- on various expenses amounting to Rs.2,40,33,196/- has been 18 ITA. No. 4392/Del/2011.
AND ITA.Nos.5915&5916/Del/2013 deposited in the assessment year 2010-11 which is beyond the prescribed time limit in violation of provisions of section 194C of the Income Tax Act. Therefore, applying the provisions of section 40(a)(ia) the Assessing Officer made an addition of Rs.2,40,33,196/-.
9.2 Before the learned CIT (Appeals) it was argued that all the payments were made before the due date of filing of the return. The decision of the Hon'ble Kolkata High Court in the case of CIT Vs. Virgin Creation in ITA No. 3200/2011 has relied upon wherein it has been held that as per the amendment made with effect from 1.04.2010 the TDS deposited before the due date of filing will be sufficient to claim such expenses. Alternatively, it was argued that since profit of the assessee is exempt under section 115VF, therefore, even if the amount is disallowed the profit will be enhanced to that extent and the assessee will be getting tonnage tax benefit under section 115VF of the Act. 9.3 Based on the arguments advanced by the assessee and following the decision of Hon'ble Kolkata High Court in the case of Virgin Creation (supra) the learned CIT (Appeals) deleted the addition on the ground that assessee has deposited TDS before the due date of filing of the return. 19
ITA. No. 4392/Del/2011.
AND ITA.Nos.5915&5916/Del/2013 9.4 Aggrieved with such order of the learned CIT (Appeals) the Revenue is in appeal before the Tribunal.
9.5 After hearing both the sides we do not find any infirmity in the order of the learned CIT (Appeals). The Hon'ble Delhi High Court in the case of CIT Vs. Rajinder Kumar reported in (2014) 362 ITR 241 (Delhi) has held that once TDS has been deposited before the due date of filing, no disallowance is called for under section 40(a)(ia) of the Act. It has been held that amendment to this section in 2010 is retrospective. The relevant observations of the Hon'ble High Court reads as under :-
"25. In view of the aforesaid discussion in paras 18,19 and 20, it is apparent that the respondent assessee did not violate the un-amended section 40(a)(ia) of the act. We have noted the ambiguity and referred the contention of the Revenue and rejected the interpretation placed by them. The amended provisions are clear and free from any ambiguity and doubt. They will help curtail litigation. The amended provision clearly support view taken in paragraphs 17 to 20 that the expression "said due date" used in clause (A) of the proviso to the un-amended section refers to time specified in Section 139(1) of the Act. The amended section 40(a)(ia) expands and further liberalises the statute when it stipulates that deductions made in the first eleven months of the previous year but paid before the due date of filing of the return, will constitute sufficient compliance."
9.6 Since the assessee in the instant case has admittedly deposited the TDS before the due date of filing of the return, therefore, following the decision of the Hon'ble jurisdictional High Court in the case of CIT Vs. Rajinder Kumar (supra) and in the absence of any contrary material brought to 20 ITA. No. 4392/Del/2011.
AND ITA.Nos.5915&5916/Del/2013 our notice the order of the learned CIT (Appeals) is upheld and the ground raised by the Revenue is dismissed.
10. Ground of appeal No. 4 by the Revenue reads as under :-
"Whether on the facts and circumstances of the case, the learned CIT (Appeals) erred in deleting addition of Rs.44,04,775/- being disallowance of depreciation on Aircrafts?"
10.1 Facts of the case, in brief, are that the Assessing Officer during the course of assessment proceedings observed that assessee has claimed depreciation amounting to Rs.44,04,775/- being 40% of the WDV. He, therefore, asked the assessee to explain why depreciation should not be disallowed since the aircraft is not in use. The assessee admitted that the aircraft is presently not running and also not fetching any income and the same is kept for sale, but no buyer is available. In view of the above and observing that the aircraft is currently not in use, the Assessing Officer disallowed the claim of depreciation of Rs.44,04,775/-.
10.2 In appeal the learned CIT (Appeals) directed the Assessing Officer to delete the addition by observing as under :-
"7.1 I have carefully considered the written submission on behalf of the appellant and finding of the assessing officer in assessment order. I find that section 32 of the Act deals with depreciation. There is requirement that the assets should be owned and used for the wholly or partly by the assessee for the purpose of the business or profession. This section 32 was substituted by the Finance (No 2) Act, 1998 w.e.f. 01-04-1999. However, the concept of Block of asset was introduced w.e.f. 01-04-1988. This concept was discussed in detail in the case of CIT Vs Oswal Agro Mills Ltd (Supra) by the Hon'ble 21 ITA. No. 4392/Del/2011.
AND ITA.Nos.5915&5916/Del/2013 Delhi High Court. The use of the asset in the block of assets method the first year of its business is sufficient to allow depreciation from year to year. Once the asset is used by the assessee for the purpose of its business and the asset is owned by the assessee depreciation has to be allowed to it from year to year unless it is sold or discarded and whole of the block cease to exist. The allowance of the depreciation is not dependent upon sale of the asset even once that block of asset exist. The object of the Legislature, in granting depreciation allowance under section 32 of the Act, is to give due allowance to the assessee for wear and tear suffered by the asset used by him in his business so that the net income (total income) is duly arrived at. There is no factual dispute that the assets in question were owned by the assessee. In Machinery Manufacturers Corporation Ltd. v. CIT [1957] 31 ITR 203 (Bom), it was observed that the expression "used" in section 10(2)(vi) of the Indian Income- tax Act, 1922 (hereinafter referred to as "the old Act"), corresponding to section 32 of the Act has to be given a wider meaning. The expression includes passive as well as active user. In CIT v. Dalmia Cement Ltd. [1945] 13 ITR 415 (Patna) and CIT v. Viswanath Bhaskar Sathe [1937] 5 ITR 62 (Bom), it was observed that depreciation might be allowed in certain cases even though the machinery was not in use or was kept idle. The words "used for the purposes of the business" are capable of a larger and a narrower interpretation. If the expression "used" is construed strictly, it can be taken as connoting or requiring the active employment or the actual working of a machinery, plant or building in the business. On the other hand, the wider meaning will include not only cases where the machinery, plant, etc., are actively employed but also cases where there is what may be described as a passive user of the same in the business. An asset can be said to be in use when it is kept ready for use. My attention was drawn to the fact that the Assessing Officer himself by following the direction of Hon'ble Delhi High Court in Assessment Year 2005-06 has examined that the aircraft was used and, therefore, allowed the depreciation. It is not in dispute that the aircraft was earlier used by the assessee who was running the airline and thereafter has leased the aircrafts to M/s Jagson Airlines Ltd who also used these aircrafts for the so many years continuously, thus their subsequent use is immaterial under the existing laws.
7.2 The appellant has relied upon the judgment of CIT Vs Oswal Agro Mills Ltd. I find that this jurisdictional high court decision squarely applicable on the facts of the present case. I find force in the contention of the appellant that the asset is under "Block of Assets" and was used in earlier years, its subsequent use has no relevance under amended law under IT provisions. Since Assessing Officer himself in Assessment Year 2005-06 has found that the asset was used and allowed the depreciation on the direction of the Hon'ble High Court. I do not find any reason for making this disallowance from year to year once the issue has been examined by the AO himself. The subsequent AO should not agitate the issue again and again once their predecessor has decided the issue as per directions of the Hon'ble Delhi High Court.22
ITA. No. 4392/Del/2011.
AND ITA.Nos.5915&5916/Del/2013 7.3 In view of the above discussion the Assessing Officer is directed to allow the entire depreciation on aircraft as claimed by the appellant. In the result this ground of appeal stands allowed."
10.3 Aggrieved with such order of the learned CIT (Appeals) the Revenue is in appeal before the Tribunal.
10.4 After hearing both the sides we do not find any infirmity in the order of the learned CIT (Appeals). We find that on the basis of the direction of the Hon'ble Delhi High Court the issue was examined by the Assessing Officer during the assessment year 2005-06, who after examining the issue allowed the claim of depreciation. Further this issue was not there in assessment years 2006-07 and 2007-08. In assessment year 2008-09 although the learned CIT (Appeals) has deleted such addition, Revenue has not challenged the same issue although Revenue has filed appeal before the Tribunal on various other issues. Further in the scheme of block of assets, once depreciation is allowed it is required to be allowed subsequently irrespective of the fact asset has been used or not. The decision of the Hon'ble Delhi High Court in the case of CIT Vs. M/s. Oswal Agro Mills Ltd. 238 CTR 113 which has been relied upon by the learned CIT (Appeals) is squarely applicable to the facts of the case. Therefore, we do not find any infirmity in the order of the learned CIT (Appeals) allowing depreciation on the aircraft which is ready for use, but has not earned any 23 ITA. No. 4392/Del/2011.
AND ITA.Nos.5915&5916/Del/2013 income during the year. The ground raised by the Revenue is accordingly dismissed.
11. Ground of appeal Nos. 5 to 7 being general in nature are dismissed.
ITA No. 5916/Del/2013 - [Assessment Year : 2010-11] :
12. Ground No. 1 by the Revenue reads as under :-
"Whether on the facts and circumstances of the case, the learned CIT (Appeals) erred in deleting proportionate disallowance of interest of Rs.2,53,61,633/- on account of advancing of interest free loans to sister concern ?"
12.1 Facts of the case, in brief, are that during the course of assessment proceedings the Assessing Officer observed that assessee has given interest free loans to its subsidiary company M/s. Jagson Airlines Ltd. of Rs.26,38,69,280/-. Since these funds are interest bearing in nature and the assessee has incurred financial charge of Rs.2,53,61,633/- the Assessing Officer disallowed an amount of Rs.2,53,61,633/- to the total income of the assessee. 12.2 Before the learned CIT (Appeals) it was submitted that the assessee company holds more than 69% of the shares of M/s. Jagson Airlines Ltd. Since M/s. Jagson Airlines Ltd. suffered huge losses, therefore, in order to run this company the assessee company has advanced interest free loan to M/s. Jagson 24 ITA. No. 4392/Del/2011.
AND ITA.Nos.5915&5916/Del/2013 Airlines Ltd. It was submitted that out of three aircrafts of the airlines, two aircrafts were owned by the assessee company. In order to safeguard the interest of the assessee it was necessary to feed this company also. It was accordingly argued that the advance given by the assessee company was based purely on commercial expediency. The assessee further submitted that prior to taking loans from the bank for purchase of the vessels by the assessee company which had already advanced Rs.21,17,41,988.05 to M/s. Jagson Airlines Ltd. out of the interest free funds and reserves available with the assessee. During the impugned assessment year the assessee had advanced only Rs.5,21,27,291/- that too was given out of the profit of Rs.38.97 crores earned during the year. It was submitted that in the past no such disallowance was made. Therefore, in view of the decision of Hon'ble Supreme Court in the case of Radhaswami Satsang Vs. CIT reported in 193 ITR 321 (SC), no disallowance should be made following the rule of consistency. Various other decisions were also brought to the notice of the learned CIT (Appeals).
12.3 Based on the arguments advanced by the assessee the learned CIT (Appeals) directed the Assessing Officer to delete the addition by observing as under :-
"3.3 I have gone through the assessment order, written & oral submission of the appellant and materials available on record. In the instant case, during the year assessee advanced Rs.5,21,27,291.3 as interest free advance to its sister concern namely, M/s. Jagson Airlines Ltd. My attention was also drawn on the fact that prior to taking loan for the purchase of vessel the assessee company had already advanced Rs.21,17,41,988.5 to the Jagson Airlines Ltd. In support of his contention the appellant 25 ITA. No. 4392/Del/2011.
AND ITA.Nos.5915&5916/Del/2013 has enclosed Annexure 'A' in its paper book showing last 10 years transaction between the two companies. From the chart it is also clear that M/s Jagson International Ltd has also taken advance from Jagson Airlines Ltd for the business purposes whenever required. M/s. Jagson Airlines Ltd has never charged any interest on such advances. Further, it is also not in dispute that the assessee has incurred financial charges of Rs 2,53,61,633/- during the year under consideration. It is also seen from the Annexure 'B' that more than 69% shares in Jagson Airlines Ltd belong to the assessee company and assessee company also given its Aircrafts to M/s Jagson Airlines Ltd on lease.
3.4 I find that the Assessing Officer has disallowed the interest on loans without recording Ist any finding to the effect that the loans on which interest was paid by the assessee was diverted by the assessee for providing interest free advances to its sister concerns. It is not the case that the interest free funds available with the assessee were not sufficient to advance interest free money in question to its sister concerns as the appellant company has shown a profit of Rs.38,97,52,337/- which was sufficient to advance the money to its sister concern. The Assessing Officer has failed to appreciate that the assessee company is a major investor in Jagson Airlines Ltd and they have long business relationship as the aircrafts belonging to the assessee company were run by M/s Jagson Airlines Ltd on lease basis in last so many years. In my considered view, the onus, which was on the Assessing Officer for making the disallowance by bringing on record some material to show nexus between interest free advance and interest bearing loans was not at all discharged by the Assessing Officer. Moreover, there is a business expediency and interest of the assessee company in M/s. Jagson Airlines Ltd due to which loans were given by the assessee company. Therefore, in my considered opinion, the disallowance was made by the Assessing Officer was on a wrong footing and unsustainable.
3.5 The decision relied upon by the appellant company also support the case of the assessee. In the case of CIT Vs. Reliance Utilities and Power Ltd 2009- TIOL-27-HC-MUM-IT where it was held that "if there are funds available both interest free and overdraft / or loan taken, then a presumption would arise that investment would be out of the interest free fund generated or available with the company, if the interest free funds are sufficient to meet the investments. In the instant case, it is not the case of the assessee that interest expenditure should be allowed for interest free advance to its sister concerns were out of commercial expediency. Rather the case of the assessee is that the entire loan funds on which the expenditure of interest was incurred, were used in business and interest free advance was given out of own interest free funds. Thus, the decision relied upon by the assessee company squarely covered the case of the appellant as the appellant company had sufficient interest free funds to advance the money to its sister concern.
3.6 For the reasons given above I am of the considered opinion that disallowance made is not sustainable in the eyes of the law. As a result this ground of appeal is allowed."26
ITA. No. 4392/Del/2011.
AND ITA.Nos.5915&5916/Del/2013 12.4 Aggrieved with such order of the learned CIT (Appeals) the Revenue is in appeal before the Tribunal.
12.5 The learned Departmental Representative strongly objected to the order of the learned CIT (Appeals). He submitted that the Hon'ble Supreme Court in the case of Addl. CIT Vs. M/s. Tulip Star Hotels Ltd. vide order dated 30th April, 2012 has held that the decision in the case of S.A. Builders Ltd. Vs. CIT reported in 288 ITR 1 needs reconsideration. Referring to the decision of Hon'ble Delhi High Court in the case of Punjab Stainless Steel Ltd. Vs. CIT reported in 324 ITR 396 (Del.) he submitted that the onus is on the assessee to establish the commercial expediency. He submitted that the learned CIT (Appeals) in para 4.4 of his order has shifted this onus to the Assessing Officer regarding the establishment of nexus between interest free funds and amount of advance which is not correct. Without prejudice to the above he submitted that the profit accrues on the last day of the financial year and cannot be a source of loan advanced during the year. He accordingly submitted that the order of the learned CIT (Appeals) not being in consonance with law should be reversed.
12.6 The learned counsel for the assessee, on the other hand, strongly supported the order of the learned CIT (Appeals). He submitted that when 27 ITA. No. 4392/Del/2011.
AND ITA.Nos.5915&5916/Del/2013 the interest free funds available with the assessee are sufficient to advance interest free loan to the sister concerns, therefore, in view of the decision of Hon'ble Bombay High Court in the case of CIT Vs. Reliance Utilities and Power Ltd. 2009-TIOL-27-HC-MUM-IT, no disallowance is called for. 12.7 We have considered the rival arguments made by both the sides and perused the material available on record. The findings given by the learned CIT (Appeals) that the interest free funds available with the company were sufficient to advance interest free advance could not be controverted by the learned Departmental Representative. Therefore, in view of the decision of the Hon'ble Bombay High Court in the case of CIT Vs. Reliance Utilities and Power Ltd. (supra) where it has been held that if the interest free funds are sufficient to make the investment the presumption would arise that investment would be out of interest free funds generated or available with the company if the funds are both interest free and interest bearing funds. It is also an admitted fact that the assessee company had already advanced Rs.21,17,41,988.5 prior to taking loan for purchase of vessels and assessee company has advanced interest free loan of Rs.5,21,27,291/- during the year whereas it has earned profit of Rs.38,97,52,337/- during the year. In view of the above and in view of the detailed reasoning given by the learned CIT (Appeals) we find no infirmity in his order. Accordingly the same is 28 ITA. No. 4392/Del/2011.
AND ITA.Nos.5915&5916/Del/2013 upheld and the ground raised by the Revenue is dismissed.
13. Ground of appeal No. 2 by the Revenue reads as under :-
"Whether on the facts and circumstances of the case, the learned CIT (Appeals) erred in deleting disallowance of the Rs.13,83,209/- under section 14A rw Rule 8D (iii)?"
13.1 After hearing both the sides we find that the Assessing Officer invoking the provisions of section 14A read with Rule 8D disallowed an amount of Rs.13,83,209/- being expenditure incurred for investments made, the dividend income of which is exempt.
13.2 In appeal the learned CIT (Appeals) deleted the addition by observing as under :-
"4.4 I have gone through the record and perused the material available on record. I find that similar issue arose in Assessment Year 2008-09 dealt by my predecessor and also by me in Assessment Year 2009-10 in appeal No 400/2011-12. The AR of the appellant has produced a copy of the Hon'ble Delhi High Court decision in ITA No 1395/2010 in assessee's own case wherein the Hon'ble Jurisdictional high court has held that the assessee possess a Ship not a rig and thereby allowed the tonnage tax benefit. Respectfully following the jurisdictional high court decision in assessee's own case, I had allowed the appeal in Assessment Year 2009-10 following the same I hereby direct the Assessing Officer to delete the addition of Rs.13,83,209/-. Since the appellant gets Tonnage Tax benefit under section 115VP / 115VR, the addition u/s 14A/Rule 8 D is not at all required. Thus, Ground No 2 is allowed."
13.3 Aggrieved with such order of the learned CIT (Appeals) the Revenue is in appeal before the Tribunal.
29
ITA. No. 4392/Del/2011.
AND ITA.Nos.5915&5916/Del/2013 13.4 After hearing both the sides we find the above ground raised by the Revenue is identical to ground of appeal No. 2 in ITA. No. 5915 (Del) of 2013. We have already decided the issue and the ground raised by the Revenue is dismissed. Following similar reasoning, this ground raised by the Revenue is dismissed.
14. Ground of appeal No. 3 by the Revenue reads as under :-
"Whether on the facts and circumstances of the case, the ld. CIT (A) erred in deleting addition of Rs.38,97,52,337/- by bringing to tax income claimed as exempt under section 115VD by holding that the income pertained to Ship and not to a RIG as taken by the Revenue?"
14.1 After hearing both the sides we find the above ground raised by the Revenue is identical to ground of appeal No. 2 in ITA. No. 4392 (Del) of 2011. We have already decided this issue and the ground raised by the Revenue has been dismissed. Following similar reasoning, this ground by the Revenue is dismissed.
15. Ground of appeal No. 4 by the Revenue reads as under :-
"Whether on the facts and circumstances of the case, the ld. CIT (A) erred in deleting addition of Rs.26,42,865/- being disallowance of depreciation on Aircrafts?"
15.1 After hearing both the sides we find the above ground is identical to ground of appeal No. 4 in ITA. No. 5915 (Del) of 2013. We have already 30 ITA. No. 4392/Del/2011.
AND ITA.Nos.5915&5916/Del/2013 decided the issue and the ground raised by the Revenue is dismissed. Following similar reasoning, this ground is also dismissed.
16. In the result, all the three appeals filed by the Revenue are dismissed.
Order pronounced in the open Court on : 11th May, 2018.
Sd/- Sd/-
( KULDIP SINGH ) ( R. K. PANDA )
JUDICIAL MEMBER ACCOUNTANT MEMBER
Dated : 11-05-2018.
*MEHTA*/Sujeet
Copy of order forwarded to :-
1) The Appellant
2) The Respondent
3) The CIT
4) The CIT (Appeals)
5) The DR, I.T.A.T., New Delhi
By Order
//True Copy//
Assistant Registrar
ITAT, New Delhi.