K.J. IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION INCOME TAX APPEAL NO.1100 OF 2008 The Commissioner of Income Tax-2 ) 384,Aaykar Bhavan,M.K.Road, Mumbai-20)..Appellant V/s. M/s.Tractor Engineers Ltd., Mumbai )..Respondent ---- Mr.Vimal Gupta with Mr.P.S.Sahadevan for the appellant. Mr.A.K.Jasani with Mr.P.C.Tripathi for the respondent. ---- Coram : F.I.Rebello & R.S.Mohite,JJ Date : 21.01.2009. PC 1. Revenue has come in appeal on the following questions :- (i) "Whether on the facts and in the circumstances of the case, the Hon’ble Tribunal is right in law in holding that the assessee is entitled for deduction u/s 40A(9) on account of canteen subsidy of Rs.36.72 lac, disregarding the fact that such deduction is not allowable in accordance with the provisions of sec.40A(9) of the I T Act ?" (ii) "Whether on the facts and in the circumstances of the case, the Hon’ble Tribunal is justified in law in holding that part of services charges paid to the L & T Ltd is an allowable deduction, ignoring the fact the Assessing Officer made the disallowance on the ground that any profit margin charged on payment of service charges cannot be allowed as a business expenditure ?" : 2 : (iii) "Whether on the facts and in the circumstances of the case, the Hon’ble Tribunal is right in law in holding that belated paymentof PF contribution is entitled for deduction u/s 43B of the Act, even though in view of 2nd proviso to section 43B this amount was not admissible as deduction in view of Hon’ble Bombay High Court’s order dated 8-10-2007 in the case of CIT Vs Godavari Mannar Sakhar Karkhana Ltd (TIOL-580-HC-Mumbai-IT) ?" (iv) "Whether on the facts and in the circumstances of the case, the Hon’ble Tribunal is right in law in directing to take cognizance of the loss incurred on account of purchase and sale of units for the purpose of computation of income of the assessee, disregarding the decision of the Hon’ble Punjab & Haryana HC in the case of Vanit Jain Vs CIT (294 ITR 432) (P&H)?" 2. In so far as question no.(i) is concerned, a similar issue had come up for consideration in Income Tax Appeal No.504 of 2005. That was in respect of Assessment year-1990-91. Learned Bench of this Court has taken the view that the revenue had not, in respect of the said Assessment year, preferred an appeal against the said order in favour of the assessee and consequently accepted the same. Considering that, question no.1 would not arise. 3. In so far as question no.(ii) is concerned, we find from the order of CIT(A) that the similar issue had been decided in the appellants’ favour by CIT(A) for the previous assessment years. For the assessment year 1997-98 revenue had preferred an appeal which was dismissed for non prosecution. No appeal was preferred for the assessment year : 3 : 1998-99. Considering the above, in our opinion, as the revenue had accepted the said finding, the question no.2 would not arise. 4. In so far as question no.(iii) is concerned, the said issue is covered by the judgment of this Court in Commissioner of Income Tax V/s. Pamwi Tissues Ltd., reported in (2008) 215 CTR (Bom) 150. Cosidering that, the said question is answered against the assessee and in favour of revenue. 5. In so far as question no.(iv) is concerned, the same is covered by the judgment of this Court in Commissioner of Income Tax V/s. M/s.Walfort share & stock brokers Pvt.Ltd., in Income Tax Appeal No.18 of 2006 decided on 8.8.2008. In the light of that, the said issue is answered in favour of the assessee. 6. Appeal stands disposed off accordingly. (R.S.Mohite,J) (F.I.Rebello,J)