आयकर अपील सं./I.T.A. No.4035/Mum/2006 / (
Transcription
आयकर अपील सं./I.T.A. No.4035/Mum/2006 / (
आयकर अपीलय अ धकरण, मुंबई यायपीठ “जी” मुंबई IN THE INCOME TAX APPELLATE TRIBUNAL “G” BENCH, MUMBAI BEFORE S/SHRI B.R.BASKARAN (AM) AND SANJAY GARG, (JM) सवी बी.आर.बाकरन, लेखा सदय एवं ी संजय गग, यायक सदय के सम आयकर अपील सं./I.T.A. No.4035/Mum/2006 (नधारण वष / Assessment Year : 2002-03) Asstt. Commissioner of Income Tax Cir 4(2), Room No.642, 6th floor, Aayakar Bhavan, M K Road, Mumbai-400020. (अपीलाथ /Appellant) बनाम/ M/s JBF Industries Ltd., JBF House, Vs. Old post office Lane, Kalbadevi road, Mumbai-400002 .. (यथ / Respondent) थायी ले ख ा सं . /जीआइआर सं . /PAN/GIR No. : AAACJ2575J आयकर अपील सं./I.T.A. No.1623 and 1624/Mum/2009 (नधारण वष / Assessment Years : 2004-05 & 2005-06) M/s JBF Industries Ltd., 8th floor, Express tower, Nariman Point, Mumbai-400021 (अपीलाथ /Appellant) बनाम/ Asstt. Commissioner of Income Tax Cir 4(2), Vs. Room No.642, 6th floor, Aayakar Bhavan, M K Road, Mumbai-400020.. .. (यथ / Respondent) थायी ले ख ा सं . /जीआइआर सं . /PAN/GIR No. : AAACJ2575J अपीलाथ ओर से / Revenue by Smt. Parminder Prejanand J यथ क" ओर से/Assessee by Shri Rahul Sarda and Dr K Shivraman Sr.Cousel सन ु वाई क" तार&ख / Date of Hearing : 21.10.2014 घोषणा क" तार&ख /Date of Pronouncement : 17.12..2014 ITA. No4035/Mum/2006 and other two appeals 2 आदे श / O R D E R Per B.R.BASKARAN, Accountant Member: The appeal filed by the revenue for assessment year 2002-03 and the appeals filed by the assessee for assessment years 2004-05 and 2005-06 are directed against the orders passed by Ld CIT(A) in the respective years. All these appeals were heard together and hence they are being disposed of by this common order, for the sake of convenience. 2. The facts relating to the case are stated in brief. The assessee herein is a manufacturer of POY, PTY and Bulk drugs. It was was desirous of installing 6000 tpm Polyester Polymer Plant comprising two polymer lines of 3000 tpm each, based on Purified Terephthalic Acid (PTA) feed stock and was also intending to install facilities to handle Dimethyl Terephthalate (DMT) feed stock, which necessitated use of DMT of at least 3000 tons per month. M/s Bombay Dyeing & Mfg. Co. Ltd (BD) is the company producing Dimethyl Terephthalate (DMT) feed stock. Accordingly the assessee herein approached ‘BD’ seeking assistance to carry out its plans. Accordingly an agreement was entered on 09-06-2000 between the assessee and ‘BD’, as per which the terms of assistance was settled. According to the said agreement, ‘BD’, inter alia, agreed to purchase certain equipments and lease out the same to the assessee herein. In turn the assessee agreed to purchase 9000 tons + 5% per quarter of DMT from M/s BD. Accordingly, M/s BD purchased machineries, as per the requirement of the assessee and leased out them to the assessee and in this regard, both the parties also entered into a lease agreement. 3. We shall first take up the appeal filed by the revenue for assessment year 2002-03. The only issue contested in this appeal is with regard to the disallowance of lease rentals claimed by the assessee. The AO noticed 3 ITA. No4035/Mum/2006 and other two appeals that the assessee has claimed lease rentals paid by it as revenue expenditure. The AO, however, disallowed the said claim by holding that the lease agreement was not an operating lease, but it was a financial lease. The Ld CIT(A), however, allowed the deduction of lease rentals and hence the revenue has filed the appeal before us. 4. We have heard the parties and perused the record. The AO has disallowed the claim for deduction of lease rentals mainly on the ground that the impugned lease was not an ‘Operating lease’ but a ‘financial lease’. The AO has also refused to allow depreciation on the reasoning that the ownership of the asset is transferred to the assessee only after payment of all installments. The AO has taken this view mainly on the reasoning that (a) The lease agreement was entered prior to actual purchase of machinery. In case of genuine lease, the machinery shall be purchased first and then the same shall be leased out. (b) The lessor has agreed to sell the machinery for Re.1 only at the end of the lease period, as the lease rentals already cover the whole of the cost of the equipment. (c) 5. The agreement does not take cognizance of the ‘scrap value’ of the machinery that may be fetched by selling the machine in the open market at the end of the lease period. Before Ld CIT(A), the assessee submitted that the lease transaction should not be seen in isolation by disregarding the business arrangement by which the assessee agreed to purchase DMT from M/s BD and the said company agreed to purchase machinery and lease it out to the assessee. Accordingly, it was submitted that it was a case of genuine lease agreement. The Ld CIT(A) was convinced with these submissions and accordingly held that it was not a case of sale and lease back transaction. Accordingly, he set aside the order of AO on this issue. 6. The Ld D.R strongly defended the order passed by the assessing officer. He submitted that the lease rentals fixed for the entire lease period 4 ITA. No4035/Mum/2006 and other two appeals was equal to the cost of machinery. Further, M/s BD has purchased the machinery after entering into the lease agreement. Further, there was a composite agreement between the assessee and M/s BD, by which M/s BD has agreed to provide assistance to the assessee in expanding assessee’s production capacity and in turn, the assessee has agreed to purchase DMT from M/s BD. Accordingly, the Ld D.R submitted that it was a case of pure financial assistance though it has been camouflaged as lease transaction. Accordingly he submitted that the substance shall prevail over the form and hence the AO was justified in treating the arrangement as financial transaction. 7. On the contrary, the Ld A.R submitted that the genuineness of lease agreement has been accepted in the hands of M/s BD. He submitted that the present case was not a case of sale and lease back transaction, but a case of purchase of machinery as per the requirement of the assessee and leasing out the same to the assessee. M/s BD agreed to purchase and lease out the machinery, since the assessee had also agreed to purchase DMT produced by M/s BD. Hence, it was a mutually beneficial business arrangement. He submitted that the intention of the parties was to lease out the machinery on monthly payment of lease rentals. Accordingly, the Ld A.R submitted that the Ld CIT(A) was justified in reversing the decision of the AO on this issue. In the alternative, the Ld A.R submitted that the assessee should be allowed depreciation, if the Tribunal takes the view that it was a financing transaction. 8. On assimilation of the facts prevailing in the instant case, we are inclined to support the view taken by the assessing officer. As stated earlier, there was a business arrangement between the assessee and M/s BD. According to the same, the assessee agreed to purchase prescribed quantity of DMT from M/s BD. Against the same, the assessee has sought assistance from M/s BD for expanding its capacity. Accordingly, M/s BD 5 ITA. No4035/Mum/2006 and other two appeals agreed to lease out the machinery to the assessee herein. In fact, the machinery was identified by the assessee and M/s BD purchased the same. There should not be any dispute that M/s BD agreed to purchase the machinery and lease it out to the assessee only to provide financial assistance to the assessee to expand its production capacity, so that M/s BD would also be benefited from sale of DMT to the assessee. Thus, it is clear that the intention of M/s BD was to provide financial assistance to the assessee and not leasing out of the assets. 9. We notice that the ld CIT(A) was of the view that the assessing officer has disallowed the claim of the assessee on the ground that it was a sale and lease back transaction. We have already seen that the case of the assessing officer was something different. Hence, in our view, the Ld CIT(A) has granted relief to the assessee on a misconceived notion and hence his order is liable to be set aside. 10. We notice that the AO has denied the benefit of depreciation also on the ground that the assessee is not the owner of the asset as per the lease agreement. There is a fallacy in the said decision. Once the AO has held that this was a case of finance transaction by ignoring the lease agreement, in our view, he should not refer to the very same lease agreement to decide about the ownership. Accordingly, we are of the view that the assessee should be allowed depreciation benefit. 11. In view of the foregoing discussions, we set aside the order of Ld CIT(A) on this issue in assessment year 2002-03 and uphold the order of the assessing officer in confirming the disallowance of lease rentals. However, as discussed in the preceding paragraph, we direct the assessing officer to allow the depreciation admissible as per the Act on the value of machinery. 6 12. ITA. No4035/Mum/2006 and other two appeals We shall now take up the appeal filed by the assessee for AY 2004- 05, wherein following issues are urged before us:(a) Disallowance of brought forward loss while computing the book profit u/s 115JB. (b) Disallowance of claim of lease rental. (c) Disallowance of interest pertaining to earlier years. (d) Charging of interest u/s 234A, 234B and 234C of the Act. In addition to the above, the assessee is also contending that the ld CIT(A) has passed the order after expiry of 90 days from the date of hearing, which is against Rule 34 of the Appellate Tribunal Rules. In this regard, the Ld A.R also placed reliance on the decision of Hon’ble Delhi high Court in the case of CIT Vs. Chetan Das Lachman Das (2012)(211 Taxman 61). First of all, the Ld A.R could not convincingly explain to us as to how the Appellate Tribunal Rules are applicable to the Ld CIT(A). Secondly, he could not explain as to how the assessee was aggrieved by the order of Ld CIT(A) on this issue. Hence, we do not find any merit in this legal issued urged by the assessee and accordingly dismiss the same. 13. The first issue relates to the claim for deduction of unabsorbed business loss of Rs.9,93,985/-, while computing book profit u/s 115JB. According to Ld A.R, the AO disallowed the said claim without assigning any reason. Before Ld CIT(A), the assessee furnished break-up details of unabsorbed depreciation and business loss as per books of account. The Ld CIT(A), however, took the view that the unabsorbed depreciation of Rs.8.25 crores should be taken as NIL, since it was a negative figure. Accordingly he held that the nothing is deductible while computing book profit. 14. We heard the parties. The view of the Ld CIT(A) that the unabsorbed depreciation should be taken as NIL does not appear to be ITA. No4035/Mum/2006 and other two appeals 7 correct view, since the unabsorbed depreciation as well as unabsorbed business loss shall be described as negative figures only. As per the provisions of sec. 115JB, lower of the both is required to be deducted from the book profit. Hence, we set aside the order of Ld CIT(A) on this issue. However, since the figures reported by the assessee require verification, we restore this issue to the file of the assessing officer with the direction to examine the claim of the assessee afresh and pass a speaking order on the same. 15. The next issue relates to the disallowance of claim of lease rental. We notice that the Ld CIT(A) has taken the view in accordance with the decision taken by us while adjudicating identical issue in AY 2002-03 in the preceding paragraphs. Accordingly, we hold that the Ld CIT(A) was justified in disallowing lease rental expenses and in the alternative allowing depreciation on the cost of assets to the assessee. 16. The next issue relates to the disallowance of interest pertaining to earlier years. During the year relevant to the AY 2004-05, the assessee claimed interest on SBI loans relating to FY 2001-02 and 2002-03 to the tune of Rs.7.33 crores as deduction. The assessee submitted that the assessee’s loan account had been categorized as “Non performing asset” by the bank and hence no interest was charged in the relevant years. However, during the current year, the Cash credit limit was enhanced and the enhanced amount was used to recover the arrear interest. Accordingly, the assessee submitted that the interest was charged during the year and the same has also been recovered through the Cash Credit account. Accordingly, it was claimed that the interest has got crystallized during the year. The AO disallowed the same on the reasoning that the same does not pertain to the year under consideration. Before Ld CIT(A), the assessee raised an alternative contention that the interest amount should be allowed on payment basis in terms of sec. 43B of the Act. The 8 ITA. No4035/Mum/2006 and other two appeals Ld CIT(A) did not agree with the submissions made by the assessee. He upheld the disallowance. With regard to the alternative claim for deduction u/s 43B of the Act, the Ld CIT(A) held that the assessee should have paid the interest either by paying cash or by depositing cheque, i.e., according to Ld CIT(A) the recovery of interest by enhancing Cash credit limit was not to be considered as payment. 17. We find merit in the alternative submission of Ld A.R. Even, if the loan account is categorised as “Non-Performing Asset”, nothing prevented the assessee to make provision for payment of interest. However, the said provision for interest was liable to disallowed u/s 43B of the Act, since it was not paid. However, the same is allowable in the year in which the interest was actually paid in terms of sec. 43B of the Act. Though the assessee has not paid the interest amount either by way of cash or cheque, yet the fact remains that the bank has recovered the interest by enhancing the Cash credit limit. There should not be any dispute that the enhancement of Cash Credit limit places funds at the disposal of the assessee. Hence recovery of interest from out of the enhanced limit is nothing but payment of interest by the assessee. It is pertinent to note that the provisions of sec. 43B do not provide anything about the source from which the payment should be made. Hence, in our view, the claim of the assessee is admissible u/s 43B of the Act. However, we notice that the alternative claim has not been examined by the tax authorities. Accordingly, we set aside the order of Ld CIT(A) on this issue and restore the same to the file of the assessing officer with the direction to allow the claim of the assessee u/s 43B of the Act after carrying out necessary examination. 18. The next issue relates to the charging of interest u/s 234A, 234B and 234C of the Act. The charging of interest is consequential in nature and hence this ground does not require adjudication. ITA. No4035/Mum/2006 and other two appeals 9 19. We shall now take up the appeal filed by the assessee for AY 2005- 06, wherein following issues are contested:(a) Disallowance of depreciation on leased premises; (b) Disallowance of claim of lease rental. (c) Disallowance of depreciation on electrical fittings; (d) Disallowance of interest u/s 36(1)(iii) of the Act; (e) Disallowance made under section 40A(2)(b) of the Act. (f) Computation of book profit without allowing adjustment of amount transferred from general reserve. 20 The first issue relates to the disallowance of depreciation of leased premises. The facts relating thereto are that the assessee had given on lease a part of its premises, along with the electrical fittings, furniture and other fixtures to two of its sister concerns and also to others under license agreements. The assessee received rent of Rs.18 lakhs in aggregate and declared the same as business income. Accordingly, the assessee also claimed depreciation on WDV of the building.. The AO, however, assessed the rental income under the head income of the house property and accordingly disallowed depreciation claimed on the premises leased out. The ld. CIT(A) confirmed the action of the AO. 21. Before us, the ld. AR submitted that the rental income should have been assessed as the assessee’s business income. He further submitted that, even if the rental income is assessed as Income from House Property, the depreciation should not have been disallowed, since the building is forming part of block assets. In this regard, the ld. AR placed reliance on the following case law: i) ii) iii) iv) CIT V/s Sundaram Finance Ltd (2012) 205 Taxman 37 (Mad) (High Court) ACIT V/s S.K.Patel Family Trust (2012) 251 CTR 427 (Guj) (High Court) CIT V/s Oswal Agro Mills Ltd (2012) 341 ITR 467 (Delhi) (High Court) Sonic Biochem Extractions P.Ltd V/s ITO (2013) 23 ITR 447 10 22. ITA. No4035/Mum/2006 and other two appeals On the other hand, the ld. DR strongly defended the order of the ld. CIT(A). 23. On consideration of the rival contentions, we do not find any merit in the contention of the ld. AR. The various case laws relied upon by him have been rendered on different context and the same, in our view, could not be taken support by the assessee. The facts remain that the assessee had let out its building to its sister concerns and others and has received rent aggregating to Rs.18 lakhs. We notice that the AO has followed the decision rendered by the Hon’ble Supreme Court in the case of CIT vs. Shambu Investment (2003) 263 ITR 143 (SC) to hold that the rental income is assessable as income from house property. 24. Before us, the ld. AR could not submit any material to contend that the decision of the Hon’ble Supreme Court referred above is not applicable to it. More particularly, it was not a case of letting of premises due to temporary lull in the business activity of the assessee. It was also not shown that the letting out was in connection with the commercial exploitation of the assets. Hence, the letting out of the building was purely with the intention to earn rental income. Accordingly, we confirm the orders of tax authorities in assessing the rental income under the head “income from house property”. 25. With regard to the claim of depreciation, we notice that the assessee has not established that it was a case of letting out for a temporary period due to adverse situation prevailing in the business, which means that the building has ceased to remain as a business asset. Under these set of facts, in our view, the ld. CIT(A) was justified in confirming the disallowance of depreciation. ITA. No4035/Mum/2006 and other two appeals 11 26. The next issue relates to disallowance of lease rent. We have considered the identical issue in the assessment years 2002-03 and 200405, wherein we have confirmed the disallowance of lease rent expenditure claimed by the assessee. In the alternative, we have held that the depreciation should be allowed on the cost of assets. The view taken by the ld. CIT(A) in the instant year is in accordance with the decision taken by us in the earlier years. Accordingly, we confirm the order of ld. CIT(A) on this issue. 27. The next issue relates to disallowance of depreciation claimed on electrical fittings. The assessee had claimed the depreciation at the rate of 25% on the electrical installation and fittings i.e. at the rate applicable to the plant and machinery. However, the AO noticed that the “electrical fittings” is included in the category of “furniture and fittings” in the Depreciation Schedule prescribed in the Income tax Act and the applicable rate of depreciation is 15% only. Accordingly, the AO disallowed the excess claim of 10%. The ld. CIT(A) also confirmed the said disallowance. The ld. counsel of the assessee submitted that the electrical fittings contemplated in the Depreciation Schedule under the head “furniture and fitting” relate those items not related to Plant and Machinery. However, the assessee has classified those items which are related to the Plant and Machinery or installed in the factory premises as “Electrical fittings” and they consisted of heavy duty power cabling, panel board, DG sets for generating of power etc. The ld. AR further submitted that such kind of electrical items shall take the colour of Plant and Machinery and for this proposition he placed reliance on the decision of the Ahmedabad Bench of the Tribunal in the case of Madhu Industries Ltd V/s ITO (2010) 43 DTR 23 (Ahd), wherein it was held that the electrical installation consisting of electrical wires, switches, plugs, cables, MCB box and other electrical items shall form part of plant and machinery since they do not function independently. He submitted that the Ahmedabad bench of ITA. No4035/Mum/2006 and other two appeals 12 Tribunal has held that these kind of electrical items cannot be classified as furniture and fixture. Accordingly, the ld. AR submitted that the assessee should be grated depreciation at the rate of 25% on the electrical fittings by considering the same as plant and machinery. 28. On the contrary, the ld. DR defended the order of the ld. CIT(A) on this issue. 29. We notice the Note No.5 given under the Depreciation Schedule applicable to the assessment year 2005-06 (which is available in the Income tax Rules) defines the expression “electrical fitting”. According to the said definition electrical fittings includes electrical wires, switches, clutches, other fittings and fans etc. Under the Depreciation Schedule “electrical fittings” is clubbed along with “Furniture & fixures. Hence, the expression “Electrical fittings” should mean only those items which can be considered as “Fixtures” of general nature as defined in Note no.5. However, the heavy electrical items, which are attached to plant and machinery, in our view, should be considered as part of Plant and Machinery and the same cannot be classified as fixtures of general nature. We also notice that the Ahmedabad Bench of the Tribunal in the case of Madhu Industries Ltd (supra) has taken the view that the electrical installation attached to plant and machinery should be considered as plant and machinery only. The ld. AR also submitted that the assessee has classified the electrical installation relating to plant and machinery under the head electrical fittings. Ahmedabad Bench of the Hence, by following the decision of the Tribunal referred above we hold that the electrical fittings in the instant case should be considered as plant and machinery and hence the depreciation should be allowed at the rate of 25% to plant and machinery. 13 30. ITA. No4035/Mum/2006 and other two appeals The next issue is disallowance of interest u/s 36(1)(iii) of the Act. The AO noticed that the assessee had capitalized the interest of Rs.51.15 lakhs, being the interest relating to capital expansion in the existing unit and also relating to the new units being set up. The assessee had worked out the disallowance by adopting average interest rate of 12.23%. On further analysis, it was noticed that the assessee had capitalized interest amount of Rs.23.61 lakhs in respect of the new project being set up at Athal and Sirigam, even though the actual amount on these two units was over Rs.6 crores and Rs.15 crores respectively. Hence, the AO took the view that the amount capitalized by the assessee was not correct. Accordingly, he worked out the interest to be capitalized, by taking into account date-wise investment and also by applying formulae adopted by the assessee and accordingly made further disallowance (capitalization) of Rs.37.58 lakhs. Though the assessee contended that the assessee had not borrowed any fresh capital for acquiring the capital assets for the above said two projects, yet the AO rejected the said contention on the reasoning that the assessee has failed to substantiate the said claim. Accordingly he added the sum of Rs.37.58 lakhs to the total income of the assessee and the ld. CIT(A) also confirmed the same. 31. We have heard the parties and perused the record. At the time of hearing the ld. AR submitted that the assessee had used the internal cash accruals for funding the above said projects and the availability of its own funds could be proved to the AO by showing the balance sheet of the assessee. Accordingly, he requested that this matter may be set aside to the file of the AO so that the assessee would be able to demonstrate about the availability of its own funds, to which the ld. DR also did not object. Accordingly, we set aside the order of ld. CIT(A) and restore this issue to the file of AO with a direction to examine this issue afresh by considering the information and explanation that may be furnished by the assessee and take appropriate decision in accordance with law. 14 32. ITA. No4035/Mum/2006 and other two appeals The next issue relates to disallowance made u/s 40A(2)(b) of the Act. The AO noticed that the assessee had purchased paper tubes from a related concern named M/s Arya Industries and the aggregate amount of purchase made during the year relevant to AY 2005-06 was Rs.4.78 crores. The AO noticed that the Chairman of the assessee company is a Partner in the above said concern. Hence, the AO compared the purchase rate of the products purchased from the above said concern and the purchase rates of purchases made from unrelated party. The AO noticed that the rates charged by M.s Arya Industries were higher by 10 to 15 % in respect of purchases made up to 7.10.2004. Accordingly, the AO disallowed 12% of purchase value of paper tubes purchased from M/s Arya Industries during the period from 1st April 2004 to 7th October, 2004, by invoking the provisions of section 40A(2)(a) of the Act, which worked out to Rs.19 lakhs. The ld. CIT(A) also confirmed the above said addition. 33. The ld. Counsel of the assessee submitted that the assessee has been making purchases from M/s Arya Industries since 1998 and no addition has been made till last year. He further submitted that the price of the product ranges between 7.5 to 9.5 depending on the size and quality. Accordingly, he submitted that the AO was not correct in comparing the price quoted by M/s Arya Industries and some other concern, without establishing parity of the quality, size. He further submitted that the price would also depend upon the quantity of the purchases. Accordingly, he submitted that the disallowance of Rs.19 lakhs made under section 40A(2)(a) is not justified. In the alternative, he submitted that the disallowance was very much on the higher side. 34. On the contrary, the ld. CIT(A). DR strongly defended the order of ld. 15 35. ITA. No4035/Mum/2006 and other two appeals We notice from the assessment order that the AO has compared the rates of M/s Arya Industries with that of M/s Excel Tubes and Cones. The AO has tabulated the said comparison in a Tabular form. Admittedly, there is a variation in the price. From the table prepared by the AO, we notice that the AO has noted down the description of the product, quality, size and quantity. However, we notice that the AO has adopted the average rate of 12% for making the disallowance, with the observation that the variation ranges from 10 to 15%. However, we notice that, on three occasions, the purchase rate of products purchased from M/s Arya Industries was lower than the rate of M/s Excel Tubes and Cones. This factual aspect gives indication that there is some merit in the contention of the assessee that the purchase rate was dependent upon various factors. Under these set of facts, we are of the view that the disallowance of 12% made out of purchases made from M/s Arya Industries is on higher side. Accordingly, to put this matter at rest, we direct the AO to compute the disallowance at the rate of 6% of the aggregate purchase value of purchases made from M/s Arya Industries. The order of the CIT(A) on this issue stands modified accordingly. 36. The next issue relates to enhancement of book profit computed u/s 115JB by the assessee by Rs.275 lakhs. The assessee had booked a sum of Rs.398.48 lakhs as “Impairment loss” in the Profit and Loss account. However, the assessee transferred a sum of Rs.275 lakhs from General Reserve account and reduced the same from the “Impairment loss” stated above and accordingly a sum of Rs.123.48 lakhs was shown in the debit side of the Profit and Loss account. While computing the Book Profit u/s 115JB of the Act, the assessee reduced the above said amount of Rs.275 lakhs from the net profit. The assessee submitted before the assessing officer that the amount transferred from General Reserve is required to be deducted from the Net Profit as per Clause (i) of Explanation 1 to Section 115JB of the Act. However, the AO noticed that the assessee 16 ITA. No4035/Mum/2006 and other two appeals has accounted for “Impairment to Assets” of Rs.398.48 lakhs for the first time during the year, out of which a sum of Rs.275 lakhs represented the impairment to assets pertaining to earlier years. Accordingly, the AO took the view that the assessee has transferred a sum of Rs.275 lakhs from the general reserve only to take care of expenditure of earlier years under “matching principle”. Accordingly, the AO held that the above said amount of Rs.275 lakhs is not required to be deducted from the Net profit. The Ld CIT(A) also confirmed the same. 37. We heard the parties on this issue. The main contention of the Ld A.R was that the tax authorities did not consider the submission of the assessee that the amount of Rs.275 lakhs transferred from General Reserve is required to be deducted from the Net Profit as per Clause (i) of Explanation 1 to Section 115JB of the Act. We find merit in the said submission, as we notice that both the tax authorities have not examined about the applicability of the above said provision. In fact, the AO has rejected the claim of the assessee on the reasoning that the above said amount of Rs.275 lakhs represent expenditure relating to the earlier years. In our view, the claim of the assessee needs to be examined in terms of clause (i) of Explanation 1 to sec. 115JB of the Act. Accordingly, we set aside the order of Ld CIT(A) on this issue and restore the same to the file of the assessing officer with the direction to examine this issue afresh in terms of clause (i) of Explanation 1 to sec. 115JB of the Act by duly considering the submissions of the assessee and take appropriate decision in accordance with the law. ITA. No4035/Mum/2006 and other two appeals 17 38. In the result, the appeal filed by the revenue for assessment year 2002-03 is partly allowed and the appeals filed by the assessee for assessment years 2004-05 and 2005-06 are treated as partly allowed. The above order was pronounced in the open court on 17th Dec, 2014. घोषणा खल ु े यायालय म* +दनांकः 17th Dec,2014 को क" गई । sd sd - (संजय गग /SANJAY GARG) यायक सदय / JUDICIAL MEMBER मुंबई Mumbai: 17th ( बी.आर.बाकरन / B.R. BASKARAN) लेखा सदय / ACCOUNTANT MEMBER Dec,2014. व.न.स./ SRL , Sr. PS आदे श क !त#ल$प अ%े$षत/Copy of the Order forwarded to : 1. अपीलाथ / The Appellant 2. यथ / The Respondent. 3. आयकर आयु.त(अपील) / The CIT(A)- concerned 4. आयकर आयु.त / CIT concerned 5. /वभागीय तन1ध, आयकर अपील&य अ1धकरण, मुंबई / DR, ITAT, Mumbai concerned गाड फाईल / Guard file. 6. आदे शानस ु ार/ BY ORDER, true copy सहायक पंजीकार (Asstt. Registrar) आयकर अपील&य अ1धकरण, मुंबई /ITAT, Mumbai