JUDGMENT judgment of court was delivered by Dr. Satish Chandra J.-The present appeal is filed by Department against impugned order dated April 30, 2004, passed by Income-tax Appellate Tribunal, New Delhi in I. T. A. Nos. 6412 and 622/Del/1994 for assessment year 1991-92. On November 6, 2012, appeal was admitted by co-ordinate Bench on following substantial questions of law: "(1) Whether, on facts and in circumstances of case, Tribunal was legally justified in upholding order of Commissioner of Income-tax (Appeals) in deleting addition made on account of closing stock amounting to Rs. 2,85,81,310? (2) Whether, on facts and in circumstances of case, Tribunal was legally justified in upholding order of Commissioner of Income-tax (Appeals) in deleting addition on account of understatement of sale proceeds of bagasse, disallowance on account of treatment of capital expenses as revenue expenses in molasses fund? (3) Whether, on facts and in circumstances of case, Tribunal was justified in directing Assessing Officer to allow depreciation on tubewell treating it as plant and machinery? (4) Whether, on facts and in circumstances of case, Tribunal was justified in upholding order of Commissioner of Income-tax (Appeals) in treating gratuity payable as excess provision of gratuity? (5) Whether, on facts and in circumstances of case, Tribunal was justified in upholding order of Commissioner of Income-tax (Appeals) in treating expenditure incurred by assessee against export quota sales of sugar as loss amounting to Rs. 25,02,825?" brief facts of case are that during assessment year under consideration, assessee was engaged in manufacturing and sale of sugar. While passing order under section 143(3) of Act, Assessing Officer made various additions which were partly allowed by first appellate authority. Tribunal upholds same. Being aggrieved, Department has filed present appeal. With this background, heard Sri R. K. Upadhyay, learned counsel for appellant-Department and Sri R. S. Agrawal assisted by Sri Suyash Agrawal, learned counsel for assessee. We also perused materials available on record. Question No. 1. grievance of Department is pertaining to undervaluation of closing stock for Rs. 2,85,81,310. After hearing both parties, it appears that identical issue has come up before this court in assessee's case (In I. T. A. No. 211 of 2011), where, vide order dated September 18, 2013, (CIT v. Dhampur Sugar Mills Ltd. [2014] 360 ITR 82 (All)) it was held that changed method of accounting was more scientific and did not result any evasion of tax. Thus, issue was decided in favour of assessee. By following earlier order (supra), we find no reason with impugned order passed by Tribunal and same is hereby sustained. Hence, answer to substantial question of law is in favour of assessee and against Department. Question No. 2. It is pertaining to sale of bagasse to its sister concern. Assessing Officer made addition of Rs. 1,07,92,714 on estimate basis pertaining to sale price to M/s. U. P. Straw and Agro Products Ltd., sister concern of assessee. Assessing Officer observed that sale rate to sister concern was lower than average rate in all other cases. Commissioner of Income-tax (Appeals) as well as Tribunal have deleted addition by following their earlier decisions. After hearing both parties, it appears that identical issue has come up before this court in assessee's case (In ITA No. 461 of 2007), where, vide order dated December 16, 2013, issue was decided in favour of assessee. By following our earlier decision (supra), we find no reason to interfere with impugned order. Thus, answer to substantial question of law is in favour of assessee and against Department. Question No. 3. It relates to depreciation on tubewell in factory premises. This issue has also been decided by this court in ITA No. 461 of 2007 in assessee's case, vide order dated December 16, 2013, in favour of assessee. When it is so then we decline to interfere with impugned order passed by Tribunal on this issue. Hence, answer to substantial question of law is in favour of assessee and against Department. Question No. 4. It is pertaining to excess provision of gratuity. Assessing Officer in its order observed that as per section 43B, amount of gratuity, which assessee has returned back amounting to Rs. 16,06,569 is not pertaining to any particular assessment year but relating to many assessment years. assessee has not given any break up of assessment year-wise gratuity written back so amount was added back during current assessment year. However, liberty was granted to assessee to produce evidence and if amount is pertaining to assessment year 1984-85 onwards then assessment order will be rectified to that extent. But both appellate authorities have observed that amount was returned back pertaining to gratuity but without mentioning any reason. By considering totality of facts and circumstances, it may be mentioned that deduction of gratuity is allowable as per section 43B on basis of actual payment. Assessing Officer, in its order has observed that if this amount is pertaining to assessment year 1984-85 onwards, then assessment order will be rectified on this point to that extent. None of parties was able to tell whether any rectification was made out or not. In view of above, we set aside impugned orders passed by appellate authorities pertaining to this issue and restore matter back to Assessing Officer to examine whether any rectification order has been passed or not. Assessing Officer is directed to decide issued de novo whether claim is merely written back of provision or actual payment but after providing necessary opportunity to assessee as per law. When we have restored matter back then answer to substantial question of law is not required. Question No. 5. It is pertaining to addition of Rs. 25,82,825 claimed as business loss on account of export of sugar. assessee was under obligation to provide sugar produced in its factory for purpose of export in terms of Sugar Export Promotion Act, 1958. scheme provides that sugar mills will have to export sugar failing which amount will have to paid. In instant case, assessee has not provided sugar for export so amount of Rs. 25,82,825 was paid to Government and same was claimed as business loss which was disallowed by Assessing Officer. However, appellate authorities have allowed same as business loss. By considering rival submissions and on perusal of records, it is not evident whether amount in question is penal in nature or not, if it is penal in nature then same cannot be allowed as business loss, if it was optional either to export sugar or to pay amount then same can be allowed as business loss. Hence, we set aside impugned order and restore issue to Assessing Officer to decide same on merits in view of above discussion and by providing reasonable opportunity to assessee. When we restore matter back then answer to substantial question of law is not required. In result, appeal filed by Department is partly allowed as stated above. *** Commissioner of Income-tax v. Dhampur Sugar Mills P. Ltd