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4. Aggrieved by the same, the Assessee preferred an appeal before Commissioner of Income Tax (Appeals) [in short CIT-A]. The CIT-A allowed the appeal, which has been taken on appeal by the Revenue before the Income Tax Appeallate Tribunal (in short the Tribunal). The appeal was allowed and the order passed by CIT-A was reversed and the order of the Assessing Officer was restored.

5. Learned counsel appearing for the Assessee submitted that the Tribunal was largely guided by the decision of this court in the case of CIT V. Rotork Controls India Private Limited and others (T.C.No.163 of 2003, etc. dated 05.02.2007) and allowed the appeal filed by the Revenue and in light of above decision of the Hon'ble Supreme Court of India in Rotork Controls India Private Limited V. CIT, (2009) 314 ITR 0062 (SC), the order passed by the Tribunal calls for interference. It is further submitted that it is not as if the petitioner has not placed any material before the Assessing Officer with regard to the provision for warranty in terms of the agreement for supply of software and in spite of such material being produced, the Assessing Officer failed to take note of the fact that the warranty provision was based on experience and historical trend. Therefore, it is submitted that the order passed by the CIT-A requires to be restored and the substantial question of law framed should be answered in favour of the Assessee.

6. Learned counsel appearing for the Revenue submitted that the decision of the Hon'ble Supreme Court in Rotork Controls India Private Limited V. CIT, (2009) 314 ITR 0062 (SC), lays down legal position as to when a warranty provision is allowed as a deduction. Referring to the decision of the Division Bench of this Court in the case of CIT V. Forbes Campbell Finance Limited, (2013) 352 ITR 602 (Mad), it is pointed out that unless three conditions recognising the liability, as pointed out in the said decision are satisfied, the claim could not be automatically allowed, as a provision made of historical trend. Therefore, it is submitted that the Tribunal rightly reversed the decision of the CIT-A and the order does not call for interference.

10. The Tribunal, taking note of the law laid down by this Court in the case of CIT V. Rotork Controls India Private Limited and others (T.C.No.163 of 2003, etc. dated 05.02.2007), allowed the appeal filed by the Assessee. In our view, the decision of the Hon'ble Supreme Court in Rotork Controls India Private Limited V. CIT, (2009) 314 ITR 0062 (SC), does not in any manner improve the case of the Assessee, as the Assessee has miserably failed to establish the three conditions laid down by the Hon'ble Supreme Court in the said decision recognising the liability. Unless and until the Assessee was able to satisfy that the provision has been made based on the historical trend, the question of extending the benefit of the decision of the Hon'ble Supreme Court in Rotork Controls India Private Limited (cited supra) does not arise.

12. Faced with this situation, learned counsel for the Assessee requested that the matter may be remanded to the Assessing Officer for fresh consideration so that the Assessee will be able to produce material to substantiate the case. We find that such a plea wholly inadmissible at this juncture, especially when we are called upon to decide the substantial question of law, which has been framed for consideration.

13. Taking note of the facts and circumstances of the case, we find that the Assessee has failed to fulfil the three conditions pointed out by the Hon'ble Supreme Court in Rotork Controls India Private Limited (cited supra) and there has been no material placed before the Assessing Officer to establish that the provision in the accounts for the warranty charges was based on any scientific basis or based on the past experience. Thus, the stand taken by the Assessee was wholly non-substantiated and consequently, the Tribunal rightly allowed the appeal filed by the Revenue and restored the findings of the Assessing Officer.