ORDER : The appellant-revenue has preferred the present appeal by raising the following substantial questions of law:- “1. Whether, on the facts and in circumstances of the case, the Tribunal is right in holding that the assessee is entitled for depreciation on goodwill by following assessee’s own case for other assessment years when the assessing authority had rightly disallowed the same by holding that the assessee had not made any payment towards goodwill for acquiring the same as intangible assets? 2. Whether, on the facts and in the circumstances of the case, the Tribunal is right in setting aside the disallowances under section 40A(3) read with Rule 6DD eventhough the assessing authority had rightly held that explanation given by the assessee is not covered under the said Rule? 3. Whether, on the facts and in the circumstances of the case, the Tribunal is right in setting aside the disallowance of Rs.10,00,00,000/- made by the assessing authority under section 40A(2) even when the assessing authority has rightly held that the said payment is excessive and unreasonable in view of sanction schemes of BIFR by which it was the responsibility of the holding company to revive the assessee which was its loss making subsidiary?” 2. We have heard Mr. Jeevan J. Neeralgi, learned counsel appearing for appellant-revenue. 3. So far as question No.1 is concerned, the reasons recorded by the Tribunal in the impugned order are from para.6.3.1 to 6.3.2 which reads as under:- “6.3.1. We have heard the rival contentions of both parties and perused and carefully considered the material on record, including the judicial pronouncements cited and placed reliance upon by the assessee. We find that this issue is covered in favour of the assessee by the decision of the ITAT Delhi Bench in the assessee’s own case for assessment years 2002-03, 2006-07 and 2007-08 in ITA Nos. 1968 to 1970/Del/2012 dated 23-12-2013, wherein at para 3 and 4 thereof the Tribunal has held as under;- “3. We have heard both parties and perused the material placed before us. We find this issue to be covered favour of the assessee b the decision of ITAT in assessee’s own case for AY:- 2004-05 and 2005-06 vide ITA No. 2889 and 2890/Del/2009 wherein the ITAT held as under;- 7. We have heard both parties and perused the material placed before us. We find this issue to be covered favour of the assessee b the decision of ITAT in assessee’s own case for AY:- 2004-05 and 2005-06 vide ITA No. 2889 and 2890/Del/2009 wherein the ITAT held as under;- 7. In the light of view taken by the Hon’ble Apex Court that ‘Goodwill’ is an asset under Explanation 3(b) to Section 32(1) of the Act, we have no hesitation in vacating the findings of the learned CIT(A) and accordingly, direct the AO to allow the claim of depreciation on goodwill in terms of aforesaid decision of the Hon’ble Apex Court. Consequently, ground no.3 and 4 in the appeal for the AY: 2004-05 and ground nos.2 to 4 in the appeal for the AY: 2005-06 are allowed. Since we have allowed the claim of the assessee on merits in the AY: 2004-05, ground nos.1 and 2 relating to validity of reopening of the assessment become academic in nature and are, therefore, treated as infructuous”. 4. Respectfully following the above order of the Tribunal, we direct the AO to allow the claim of depreciation on goodwill. Accordingly, the assessee’s appeals are allowed.” 6.3.2. Following the decision of the ITAT Delhi Bench in the assessee’s own case for AY: 2002-2003, 2006-07 and 2007-08 in ITA Nos. 1968 to 1970/Del/2012 dated 23-08-2013, we uphold the finding of the learned CIT(A) in directing the AO to allow the assessee’s claim of depreciation on goodwill. Consequently, ground no.2 of the revenue’s appeal is dismissed.” 4. We had enquired from the learned counsel for the Revenue as to whether the earlier decision of Delhi Bench of the Tribunal dated 23.12.2013 in respect of the very assessee has been carried before the higher forum by the Revenue? if yes? any outcome therefrom?. Learned counsel for the Revenue in response thereto, declared before us that no such proceedings are carried before higher forum. 5. Under the circumstances, when the issue is already covered by the earlier decision of the Tribunal in respect of the assessee and the very decision is impliedly accepted by the Revenue by not carrying the matter before higher forum, the same should bind the Revenue. 5. Under the circumstances, when the issue is already covered by the earlier decision of the Tribunal in respect of the assessee and the very decision is impliedly accepted by the Revenue by not carrying the matter before higher forum, the same should bind the Revenue. Apart from the above, the decision of Delhi Bench of the Tribunal dated 23.12.2013 is by relying upon the decision of the Apex Court which has been referred for holding that the ‘Goodwill’ being an asset, depreciation is permissible. Under the circumstances, we do not find that any substantial question of law would arise for consideration and even if it arises, it needs to be answered in favour of the assessee against the Revenue. Hence the order of the Tribunal would not call for interference on the said question. 6. So far as question no.2 is concerned, the relevant discussion by the Tribunal are from para.7.3.1 to 7.3.2 which reads as under:- “7.3.1 We have heard the rival contentions and perused and carefully considered the material on record. The disallowance of Rs.5,83,758/- was made by the AO u/s 40A(3) r.w. Rule 6DD as he was of the view that the assessee was unable to put forth plausible justification for making payments in cash for freight to truck drivers. 7.3.2 Before the learned CIT(A), the assessee interalia submitted that these payments were made as freight to truck drivers for duties of delivery of raw materials to the brewery at odd hours i.e. late night or early morning and as they would not accept payments through cheque. After considering the explanation put forth by the assessee we agree with the view of the learned CIT(A) that considering the nature of the assessee’s business the explanation put forth by the assessee that freight charges are paid in cash to the truck drivers for expenses on road like diesel, food, minor repair and the balance to truck operators for freight sometimes for more than one truck, which sometimes is in excess of Rs.20,000/- cannot be held to be unreasonable. We observe that revenue, except for raising the ground, has failed to bring on record any material evidence to controvert the findings of the learned CIT(A) on this issue and in this view of the matter, we uphold the finding of the learned CIT(A) on this issue. Consequently, revenue’s ground at sl.no.3 is dismissed.” 7. We observe that revenue, except for raising the ground, has failed to bring on record any material evidence to controvert the findings of the learned CIT(A) on this issue and in this view of the matter, we uphold the finding of the learned CIT(A) on this issue. Consequently, revenue’s ground at sl.no.3 is dismissed.” 7. In our view, whether the explanation considering the facts and circumstances of the case should be accepted or not is purely a question of fact which would fall outside the judicial scrutiny in the present appeal which is limited to substantial question of law. Apart from the above, the explanation put forward by the assessee that the freight charges are paid to the Truck Driver in cash for expenses on road like diesel, food and minor repair etc., is accepted by the CIT (Appeal) and further, accepted by the Tribunal being the ultimate fact finding authority. Hence we do not find that the said question needs to be answered since it is question of fact concluded by the Tribunal which is the ultimate fact finding authority. In any case, no substantial questions of law would arise for consideration. 8. So far as question no.3 is concerned, the relevant discussion by the Tribunal are from 8.3.1 to 8.3.5 which reads as under:- 8.3.1 We have heard the rival contentions and perused and carefully considered the material on record including he judicial decisions cited. At the outset, we observe that the payment of Rs.10.00 Crores by the assessee to UBL has not been doubted. It is seen that the assessee has paid this amount of Rs.10.00 Crores to UBL in pursuance of technical and management advisory and consultancy agreement for which the assessee submits it has received services and intangible benefits through its association with UBL such as, purchase of key materials, negotiation with bankers to get term loans at competitive rates, coordination with distributors to meet the demand and supply, designing of packing material, supply of imported items like hops/foils, coordination with engineers for optimum utilization of plant and machinery and attendant intangible benefits. According to the assessee, this business arrangement has resulted in savings in purchase of various items, price hike for its products with its volume of sales increasing from 649,609 HL in FY 2007-08 to 823,596 HL in FY 2008-09 and thereby reducing its losses. According to the assessee, this business arrangement has resulted in savings in purchase of various items, price hike for its products with its volume of sales increasing from 649,609 HL in FY 2007-08 to 823,596 HL in FY 2008-09 and thereby reducing its losses. 8.3.2 The contention of the AO after making various observations was that the payment to UBL was excessive and unreasonable and not wholly and exclusively for the business of the assessee and therefore, invoked the provision of Sec.40A(2) of the Act to disallow the payment. The assessee was in the business of manufacture and trading of Beer and there is no doubt that UBL, its holding company to whom the said payment was made for rendering of technical, management advisory and consultancy services, was a major player in this business. In this factual matrix, the claim of the assessee is that it has got tremendous benefits on account of its association with UBL, in terms of both service and intangible benefits. We find that the assessee had produced before both the AO and the learned CIT(A) details of services rendered by UBL which reasonably demonstrates the business purpose behind its association with UBL and indicated that there is commercial expediency of business in making such payment to UBL. Further, UBL has acknowledged receipt of the amount of Rs.10.00 Crores for technical, management, advisory and consultancy services rendered to the assessee and pays taxes thereon at the maximum marginal rate. As against this, the assessee is a loss making company, and therefore, we find that there is substance in the averments of the learned AR that if this transaction had not gone through, revenue would have been at a disadvantage. In this regard, we concur with the learned CIT(A)’s observation that this transaction between the assessee and the UBL, being tax neutral, both the assessee as well as UBL do not get any tax benefit therefrom and therefore, hold that the AO has not been able to establish in the order of the assessment that there was any tax avoidance plan involved in this transaction. The factual matrix of the case indicate that the assessee paid the sum of Rs.10.00 Crores to UBL for technical, management and consultancy services received as per the agreement with UBL, the receipt of which UBL as acknowledged as being for technical, advisory, management and consultancy services rendered by it to the assessee. In respect of the issue of commercial expediency of the aforesaid payment of Rs.10.00 Crores to UBL, we are of the view that this has been clearly established in the factual matrix of the case by the various benefits the business of the assessee received (Supra) as laid out above. We do not find merit in the AO’s contentions to the contrary the view of the observations of the Hon’ble Apex Court in the case of S.A. Builders (288 ITR 1) (SC), wherein it has been held that revenue could not sit in the chair of a businessman and decide that he is to carry out his business in a particular manner. 8.3.3 The AO had invoked the provisions of Sec.40A(2) of the Act, to make the disallowance of the said payment of Rs.10.00 Crores by the assessee to UBL on the grounds that the said payment was unreasonable and excessive. As per the provisions of Sec.40A(2) of the Act, for making a disallowance there under, the AO should have some justification for doing so based on comparables and benchmarking to establish the existence and extent of the excessive and unreasonableness of the payments. We find from the order of assessment that the AO has not been able to prove that the payment of Rs.10.00 Crores by the assessee to UBL was either unreasonable or that the quantum of payment was excessive and not commensurate with the services rendered to it by UBL. We find from the order of assessment that the AO has not been able to prove that the payment of Rs.10.00 Crores by the assessee to UBL was either unreasonable or that the quantum of payment was excessive and not commensurate with the services rendered to it by UBL. 8.3.4 In the context of the facts and circumstances of the case as discussed above, we have had occasion to peruse the order of the ITAT Chennai Bench of the Tribunal in the case of M/s Empee Breweries Ltd. in ITA No.1295/Mds/2012 dated 14-02-2013 cited by the assessee, and that a similar issue on similar facts of payment of Rs.4.00 Crores by that assessee to UBL as fees for technical, advisory and management services rendered as per agreement between the parties, being disallowed by the AO as not being for business purpose was considered and held in favour of the assessee at para18 and 19 thereof as under;- “18. We have perused the orders and heard the rival submissions. In the first place, what we notice is that the payment itself was not doubted. Assessee indeed paid a sum of Rs.4.00 Crores to M/s UBL. As per assessee, it had received services and intangible benefits through its association with M/s UBL. Argument of the learned DR is that the payment made was not wholly and exclusively for the purpose of the business of the assessee. Admittedly, assessee was in the business of manufacturing and trading of liquor. There can be no doubt that M/s UBL, to whom the payment was made, was also a major player in this business. In fact, holding company namely M/s Millennium Alcobev Pvt. Ltd. (MAPL) was itself co-owned by M/s UBL along with certain other persons. Therefore, claim of the assessee that it had tremendous benefits on account of its association with M/s UBL cannot be brushed aside. No doubt, assessee had produced some email communication and an agreement entered with M/s IOC for purchase of furnace oil for justifying the benefits it had received through its association with M/s UBL, before the CIT(A). However, in our opinion, these were at best corroborative evidence and were not stand alone evidence. Assessee had during the course of assessment proceeding produced before the AO details of the services rendered by M/s UBL. However, in our opinion, these were at best corroborative evidence and were not stand alone evidence. Assessee had during the course of assessment proceeding produced before the AO details of the services rendered by M/s UBL. In our opinion, even dehors the records produced by the assessee before the learned CIT(A), it could reasonably demonstrate the business purpose behind its association with M/s UBL. Assessee might not have been able to produce before the AO specific evidence, but nevertheless M/s UBL has acknowledged that Rs.4.00 Crores was received by it for services rendered. Nevertheless, it had furnished a workout of its savings due to help of M/s UBL which was also disbelieved by the AO. There might have been lingering doubt in the mind of the AO as to why such amounts were paid to M/s UBL, but in our opinion, a mere suspicion without further evidence would not be a ground for disallowing a claim where actual payments were indeed effected. Further, learned CIT(A) has given a clear finding that the transaction was revenue neutral. M/s UBL had a returned interest income of Rs.80,19,22,970/- on which it had paid tax at maximum marginal rate, as noted by the CIT(A). If the sum of Rs.4.00 Crores was not received by it, tax payable by the said company would have only gone down. As against this, assessee had returned loss of Rs.1.08 Crores and therefore, there is much strength in the argument of learned AR that if the transaction had not gone through, revenue would only have been at a disadvantage. We cannot say that the reply given by the assessee to the queries made by the AO which has been produced at para11 above were such that, it called for a disallowance of the amount. Fact of the matter is that assessee paid the sum as per the agreement and receipt thereof was acknowledged by M/s UBL. Such payments were also acknowledged by the recipient as received for the technical, advisory and management fees rendered by them. Hon’ble Apex Court in the case of S.A. Builders Ltd (Supra) has held that revenue could not by itself sit in the chair of a businessman and could not insist that 3every businessman should do his business in such a manner to earn maximum rate of profits. Hon’ble Apex Court in the case of S.A. Builders Ltd (Supra) has held that revenue could not by itself sit in the chair of a businessman and could not insist that 3every businessman should do his business in such a manner to earn maximum rate of profits. As for the reliance placed by the learned DR on the decision of the Hon’ble Calcutta High Court in Jayshree Tea & Industries Ltd (Supra), in the said case the question was allowability of retrenchment compensation in one of the 21 units run by the assessee, which was closed. Tribunal held it to be not allowable. On assessee’s appeal, their Lordship held it be allowable, since expenditure incurred was for making the business which continued after closure of an unit, viable. In our opinion, this case will only support the case of the assessee here. We are therefore of the opinion that learned CIT(A) was justified in deleting the disallowance. No interference is called for. 19. Ground no.3 of the revenue is dismissed.” 8.3.5 We find from a perusal of the aforesaid decision of the Chennai Bench of the ITAT in the case of M/s Empee Breweries Ltd. (Supra) that the facts of that case and the issue involved are similar to the facts of the case on hand and the finding therein in principle is equally applicable to the facts of the case on hand. Therefore, taking into consideration the facts and legal circumstances of the case on this issue as discussed from para 8 to 8.3.4 of this order (Supra) and following the aforesaid decision of the ITAT Chennai Bench in the case of M/s Empee Breweries Ltd. (Supra), we uphold the decision of the learned CIT(A) in deleting the disallowance made by the AO. Consequently, revenue’s grounds at sl.nos.4 & 5 are dismissed.” 9. The aforesaid shows that the Tribunal has followed the earlier decision of the Chennai Bench of the Tribunal dated 14.2.2013 on the similar issue. It is not the case of the Revenue that the said decision was also carried before higher forum or was reversed. Further, on facts, the Tribunal has found that the payment of the fees has resulted into the increase in the volume of sales from 6,49,609 HL in Financial year 2007-08 to 8,23,596 HL in FY 2008-2009. It is not the case of the Revenue that the said decision was also carried before higher forum or was reversed. Further, on facts, the Tribunal has found that the payment of the fees has resulted into the increase in the volume of sales from 6,49,609 HL in Financial year 2007-08 to 8,23,596 HL in FY 2008-2009. Therefore, assessee is benefited on account of the amount paid towards technical and management advisory and consultancy fees. The receipt is confirmed by the UBL. Amount received is also taxes in the assessment of UBL. 10. Further, in our view, the issue is already covered by the decision of the Apex Court in case of S.A. Builders Ltd., (288 ITR 1 SC) whereby it has been held that the Revenue cannot sit in the arm chair of the businessman and decide as to mode and manner the business is to be conducted. It is not the case of the Revenue that the transaction or the arrangement was bogus or that no payment was made nor it is the case of the Revenue from the comparative statement that the fees paid were exorbitantly high without there being any explanation. 11. It is not the case of the Revenue that aforesaid decision of the Tribunal in the case of M.P. Bewerages is carried before the higher forum. Learned counsel for the Revenue states that notings in the file show that the appeal is preferred and what is the outcome of the appeal is not known. In any case, the said decision of Chennai Bench of the Tribunal is not reversed by the higher forum. If the Tribunal has followed the said decision in the earlier matter, it would be as per the settled principles of maintenance of judicial discipline and law of precedent. 12. Under the circumstances, we find that question no.3 needs to be answered in affirmative against the Revenue and in favour of the assessee. 13. In view of the above, the order of the Tribunal would not call for any interference. Hence, the appeal is dismissed.