Itxa/6715/2010 Of The Commissioner Of Income Tax- 6 Mumbai v. M/S. Galxo India Ltd. Mumbai

IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION INCOME TAX APPEAL NO.6715 OF 2010 The Commissioner of Income Tax-6, Mumbai ..Appellant. V/s. M/s. Glaxo India Ltd. ..Respondent. Mr. Suresh Kumar for the appellant. Mr. P.J. Pardiwala, senior Advocate i/b. M & M Legal Ventures for the respondent. CORAM : J.P. DEVADHAR AND M.S. SANKLECHA, JJ.DATED : 17TH DECEMBER, 2012 P.C. :- 1.The following questions of law are raised by the revenue in this appeal:- A.Whether on the facts and in the circumstances of the case, the ITAT was justified in law in deleting the addition of Rs.1,55,04,696/- in respect of excise duty on finished goods lying in closing stock ?ITAT was justified in law in deleting the addition of Rs.1,55,04,696/- in respect of excise duty on finished goods lying in closing stock ? B.Whether on the facts and in the circumstances of the case, the ITAT was justified in law in holding that share dilution incurred for raising capital for purchase of plant & machinery should be capitalized and depreciation be allowed on the same ?ITAT was justified in law in holding that share dilution incurred for raising capital for purchase of plant & machinery should be capitalized and depreciation be allowed on the same ? C.Whether on the facts and in the circumstances of the case, the ITAT was justified in law in holding that entire purchase of items ITAT was justified in law in holding that entire purchase of items like diesel, oil and coal is to be allowed as expenditure even if the entire purchase of these items was not HP consume during the relevant previous year ? D.Whether on the facts and in the circumstances of the case, the ITAT is justified in law in directing the A.O. to follow earlier orders of the ITAT in assessee's own case with regard to allocation of additional staff cost of Rs.252.78 lakhs, allocation of interest aggregating to Rs.1852.86 lakhs and gross interest of Rs.1852.96 lakhs and gross interest of Rs.1862.96 lakhs considered for allocation without adjusting interest income of Rs.140.27 lakhs for the purpose of allowing the claim of the assessee u/s.80I/80IA in respect of Nasik Units without appreciating that the facts of the present assessment year are different from the facts of earlier years ?ITAT is justified in law in directing the A.O. to follow earlier orders of the ITAT in assessee's own case with regard to allocation of additional staff cost of Rs.252.78 lakhs, allocation of interest aggregating to Rs.1852.86 lakhs and gross interest of Rs.1852.96 lakhs and gross interest of Rs.1862.96 lakhs considered for allocation without adjusting interest income of Rs.140.27 lakhs for the purpose of allowing the claim of the assessee u/s.80I/80IA in respect of Nasik Units without appreciating that the facts of the present assessment year are different from the facts of earlier years ? E.Whether on the facts and in the circumstances of the case, the ITAT was justified in law in holding that interest on DPEA liability is to be allowed as expenditure on year to year basis without appreciating the fact that this interest liability is contingent in nature as it is dependent on DPEA liability which is disputed before the Delhi High Court and, therefore, has to be construed as contingent liability as it is neither accrued nor arisen and hence not allowance ?ITAT was justified in law in holding that interest on DPEA liability is to be allowed as expenditure on year to year basis without appreciating the fact that this interest liability is contingent in nature as it is dependent on DPEA liability which is disputed before the Delhi High Court and, therefore, has to be construed as contingent liability as it is neither accrued nor arisen and hence not allowance ? F.Whether on the facts and in the circumstances of the case, the ITAT was justified in law in holding that payment of Rs.6,26,127/- made to Glaxo Sports Club and Rs.5,46,000/- to GL Education Trust do not fall within the purview of Section 40A(9) of the IT Act?ITAT was justified in law in holding that payment of Rs.6,26,127/- made to Glaxo Sports Club and Rs.5,46,000/- to GL Education Trust do not fall within the purview of Section 40A(9) of the IT Act? 2.The assessment year involved herein is AY 1994-95. 3.As regards question A is concerned, counsel for the revenue states that the Tribunal has allowed the claim of the assessee by following its decision in the case of the assessee for assessment year 1984-85 and the said decision has been accepted by the revenue. As no case is made out for taking a different view, we see no reason to 4.As regards questions B & E are concerned, counsel for the revenue states that similar questions raised by the revenue in the assessee's own case in Income Tax Appeal No.972 of 2009 has been rejected by this Court on 5[th] March, 2012. Hence question B & E cannot be entertained. 5.As regards questions C & D are concerned, counsel for the revenue states that the Tribunal has allowed the claim of the assessee by following its decision in the assessee's own case for assessment year AY 1986-87 and the said decision has been accepted. In this view of the matter, we see no reason to entertain questions C & D. 6.As regards question F is concerned, counsel for the revenue states that similar question raised by the revenue in the assessee's own case being Income Tax Appeal No.1123 of 2009 has been rejected by this Court on 5[th] March, 2012. Hence question F cannot be entertained. 7.The appeal is accordingly dismissed with no order as to costs. (M.S. SANKLECHA, J.) (J.P. DEVADHAR, J.)