The Commissioner of Income Tax, Central-III v. M/s. Mars Restaurant P. Ltd

Mr. Suresh Kumar for appellant. Mr. Jitendra Jain with Jas Sanghvi i/b. PDS Legal for respondent. CORAM : J.P. DEVADHAR AND MRS. MRIDULA BHATKAR, JJ. DATED : 7TH FEBRUARY, 2011 P.C. :-

#1. Four questions of law are raised by the revenue in this appeal, which read as under:- (a) Whether on the facts and circumstances of the case and in law, the ITAT was justified in law and in upholding the order of the CIT (A) that the expenses incurred for purchase of crockery, cutlery, kitchen utensils, etc. amounting to Rs.5.36 lac as revenue expenses, even though the issue involved is whether the unutilized stock lying in closing stock can be allowed as deduction in the computation of income as per Income Tax Act ? (b) Whether on the facts and in the circumstances of the case, the ITAT was correct in law in upholding the order of the CIT(A) in deleting the addition made u/s.43B towards payments of PF & 2 itxa515-10 ESIC of Rs.1.42 lac after due date but within the grace period; without appreciating the fact that Sec.43B of the IT Act is an overriding provision and the due date as per the explanation below clause (va) of Sec. 36 means the date by which the assessee was required to pay the contribution which cannot be extended to mean the grace period ? (c) Whether on the facts and in the circumstances of the case, the ITAT was correct in upholding the order of the CIT(A) and also granting further relief to the assessee by treating financial advertisement and administrative expenses incurred on expansion programmed and also capitalized by the assessee in its books of a/c. as revenue expenditure ? (d) Whether on the facts and in the circumstances of the case, the ITAT was correct in law in upholding the order of the CIT(A) and also granting further relief with respect of disallowances made by the AO on account of expenditure on renovation of premises not owned by the assessee ?

#2. Counsel for the revenue fairly states that question Nos.(a), (c) & (d) have been decided against the revenue in the assessee's own case in Appeal No.242of 2010 which is decided by us today. In this view of the matter, question Nos. (a), (c) & (d) raised by the Revenue cannot be entertained.

#3. As regards question (b) is concerned, counsel for the revenue fairly states that the said question is answered against the revenue by the Apex Court in the case of Commissioner of Income-Tax V/s. Alom Extrusions Ltd. reported in [2009] 319 I.T.R. 306 (S.C.). In this view of the matter, the appeal is dismissed with no order as to costs. (MRS. MRIDULA BHATKAR, J.) (J.P. DEVADHAR, J.)