Itxa/6455/2010 Of Thecommissioner Of Income-Tax-10,Mum v. M/S Premier Automoboiles Ltd

sas IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION INCOME TAX APPEAL NO.6455 OF 2010 The Commissioner of Income Tax-10, Mumbai ..Appellant. V/s. M/s. Premier Automobiles Ltd. ..Respondent. Mr. Suresh Kumar for the appellant. Mr. Jitendra Singh with K. Gopal for the respondent. CORAM : J.P. DEVADHAR AND M.S. SANKLECHA, JJ. DATED : 21ST JANUARY, 2013 P.C. :- 1.In this appeal filed by the revenue relating to the assessment year 1997-98, the following question of law are sought to be raised for our consideration :- (a)Whether on the facts and circumstances of the case and in law, the ITAT erred in stating that having regards to the order in ITA No.3579/M/03 for A.Y. 1998-99 dated 17[th] November, 2003, the issue of addition of Rs.92.70 lakhs became infructuous and the ITAT erred in stating that having regards to the order in ITA No.3579/M/03 for A.Y. 1998-99 dated 17[th] November, 2003, the issue of addition of Rs.92.70 lakhs became infructuous and rejected the revenue's ground instant impugned judgment ? (b)Whether on the facts and circumstances of the case and in law, the ITAT erred in deleting the addition of 16 crores on account of prior period expenses and in revoking the action of the assessing officer of rejecting the books of account under Section 145(3) of the I.T. Act, 1961 ?prior period expenses and in revoking the action of the assessing officer of rejecting the books of account under Section 145(3) of the I.T. Act, 1961 ? (c)Whether on the facts and circumstances of the case and in law, the ITAT erred in deleting of addition made on account of interest payment of Rs.28,04,538/- on delayed payment of custom duty ?the ITAT erred in deleting of addition made on account of interest payment of Rs.28,04,538/- on delayed payment of custom duty ? 2.So far question (a) is concerned, we find that the Tribunal has given a finding of fact that the dispute raised therein has already been taxed in the assessment year 1998-99. Hence the issue does not arise in the current assessment year. Consequently, question (a) does not arise for consideration. 3.So far as question (b) is concerned, the CIT (A) as well as the Tribunal have given a finding of fact that the assessing officer was not justified in rejecting the books of accounts u/s.145(3) of the Income Tax Act, 1961. The revenue has not been able to show that the finding of the Tribunal is arbitrary. Therefore, question (b) does not arise for consideration. 4.So far as question (c) is concerned, both the CIT(A) as well as the Tribunal have held that the payment of interest on delayed payment of customs duty is not penal in nature and, therefore, allowable as an expenditure. Further to reach the above conclusion, the Tribunal also relied upon the statement of customs authorities. We see no reason to entertain question (c). In the circumstances, we see no reason to interfere with the impugned order in view of the concurrent finding of fact by the CIT(A) and the Tribunal. The appeal is dismissed with no order as to costs. (M.S. SANKLECHA, J.) (J.P. DEVADHAR, J.)