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Showing 141 to 160 of 1429 Records
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2014 (2) TMI 1292 - GUJARAT HIGH COURT
Issuance of order under section 179 - recovery of arrears of tax from the petitioner being the director of the company - petitioner resigned from the company on 31.5.2000 due to change in the management - Held that:- The petitioner herein was the director of the company which was originally incorporated as Ravit Vinimay with the Registrar of Companies, Gujarat on 19.8.1992. It obtained certificate of commencement of business on 17.9.1992. The company changed its name from Ravit Vinimay to Lanzorate Finance (India) Limited and was registered with Registrar of Companies vide certificate dated 14.12.1995. The petitioner also brought on record a certificate issued by the ROC, being the certificate of incorporation as also the certificate of commencement of business and further changed the name to Lanzorate Finance (India) Limited. It appears that the company thus from the very incorporation was a public limited company and its public issue also were out on 18.6.1996. The petitioner was the promoter/director and continued to be with the company till he resigned from the post on 31.5.2000.
The arrears of tax demand raised on the petitioner in his capacity of Director by issuance of the impugned notice under section 179 is for the assessment year 1996-1997. The provision of section 179 permits recovery of such tax arrears of a company from the director of the company which is a private company or a private limited company. The provision makes it amply clear that when the company is a public company or a public limited company, such provision would not be applicable
Section 179 says where any tax is due from a private company in respect of any income from the said company or any other company in respect of any income of the company of the previous year during which year such company was a private company, if the Revenue is not in a position to recover, every person who was a director of the private company, during such relevant previous year would be jointly and severally liable for the payment of such tax, unless he proves that non recovery could not be attributed to any gross neglect, misfeasance or breach of duty on his part in relation to the affairs of the company. Subsection (2) of section 179 of the Act also provides the situation that where the private company converted into public company and the tax in respect of private company could not be recovered, nothing contained in subsection (1) would be applicable to any person who was a director of such private company in relation to any tax due in respect of any income of such private company assessable for any assessment year commencing before the 1st day of April, 1962.
The earlier petition preferred before this Court was not entertained on the ground that necessary documents for the Court to arrive at a decision, whether the company was a public limited company or not, were absent. That ipso facto itself cannot be the ground for the concerned authority not to examine the subject matter on merits in the revision petition. Therefore, both, the order under section 179 and the consequential order under section 264 in the revision application, in light of the above discussion, must fail. Petitions are allowed. Impugned orders under section 179 dated 11.1.2005 and under section 264 dated 19.3.2008 are quashed with all consequential proceedings.
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2014 (2) TMI 1291 - ITAT JAIPUR
Revision u/s 263 - issuance of notice under section 263 on the basis of the proposal made by the ITO - Held that:- The present case, it is abundantly clear from para 2 of the impugned order that the ITO, Ward-1(2), Kota vide letter No. 14 dated 01/04/2011 proposed action under section 263 of the Act and it was not the Ld. CIT, who himself called record and examined the same for any proceeding under section 263 of the Act. Therefore, it can be said that the Ld. CIT had not applied his mind but the matter was referred by the Assessing Officer for initiating the proceeding under section 263 of the Act.
In the present case, from para 3 of the impugned order, it is noticed that the notice dated 11/01/2013 under section 263 of the Act was issued only on receipt of the proposal under section 263 of the Act from the ITO, Ward-1(2), Kota and the assessee explained, vide written submission which has been reproduced in para 4 of the impugned order, each and every objection raised by the ITO, Ward-1(2), Kota. It is well settled that the Ld. CIT while exercising the revisionary powers under section 263 of the Act may call for and examine the records of any proceedings and thereafter if he considers that any order passed therein is erroneous insofar as it is prejudicial to the interest of the revenue, he may, after giving the assessee an opportunity of being heard and after making or causing to be made such inquiry as he deems necessary, pass such order thereon as the circumstances of the case justified. Therefore, before taking any action, Ld. CIT himself shall apply his mind after examining the record of any proceedings and his satisfaction is must. However, in the present case, the satisfaction was of the ITO (Tech.) who proposed action under section 263 of the Act, but not of the Ld. CIT. Therefore, issuance of notice under section 263 of the Act on the basis of the proposal made by the ITO was void ab initio. We, therefore, set aside the same. - Decided in favour of assessee
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2014 (2) TMI 1290 - SETTLEMENT COMMISSION, CUSTOMS AND CENTRAL EXCISE, KOLKATA
Search - Seizure of the documents and records - Mis-declaration - Evasion of the duty - Interest - Penalty - time limitation - Held that: - noticee number 1 while admitting and accepting their duty liability against such clandestine removals of finished goods, noticee number 1 deposited ₹ 30 lakhs through e-payment, they deliberately suppressed material facts relating to clandestine removal of finished goods without accountal and without payment of duty and maintained details relating to such clandestine removals in their private records with intent to evade duty.
That noticee number 1 (applicant) by way of their deliberate acts or omission appears to have wilfully perpetuated fraud and suppressed material facts to gain unlawful monetary benefits by evading Central Excise duty payable to the Government - Hence extended period of limitation appears to be invocable as noticee number 1 (the applicant) had wilfully suppressed the actual quantity of finished excisable goods cleared by them clandestinely in their books of account with intent to evade payment of duty of excise leviable thereon.
The Charge against the co-applicant - At para 10.2 of the show cause notice is that he “definitely’ had prior knowledge relating to such evasion of Central Excise duty by way of clandestine removals, etc., by ‘notice No. 1‘ and that such unlawful act would have never taken place without his consent. .. therefore, appears to have had knowledge or reason to believe that the goods thus removed in contravention of the provisions of law were liable for confiscation…. therefore, appears to have rendered himself liable for penalty in terms of Rule 26 of the said Central Excise Rules, 2002.” The DGCEI submissions on the co-applicant’s application for settlement confirm this allegation.
We agree with the finding that there was clandestine evasion of excise duty and that, therefore, full immunity from penalty cannot be granted to the applicant (Nos. 1 and 2) and also that immunity from prosecution granted to them should be subject to terms and conditions imposed regarding payment of duty, penalty and interest.
The rest of the findings of the learned Member are in consonance with our view that there was clandestine clearance and evasion of duty by the applicant-company, where, the co-applicant has admitted that he looked after the business. Accordingly, we hold that he (the co-applicant) does not deserve full immunity from penalty.
The allegation in the SCN against Shri Prabhu Narayan Singh, Director, is that he had prior knowledge relating to evasion of Excise Duty and such unlawful acts would never have taken place without his consent, these facts are also admitted by him in his voluntary statement. It was, therefore, proposed to impose a penalty under Rule 26 of the Central Excise Rules, 2002, which relates to “any person who acquires possession of, or is in any way concerned in transporting, removing, depositing, keeping, concealing, selling or purchasing, or in any other manner deals with, any excisable goods which he knows or has reason to believe are liable to confiscation under the Act or these rules, shall be liable to a penalty not exceeding the duty on such goods or two thousand rupees, whichever is greater - Decided against the assessee.
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2014 (2) TMI 1289 - ITAT CHENNAI
Entitlement to deduction under section 80IB(10) - AO denied claim as the assessee is not the owner of the property and the built up area is more than 1500 sq.ft - Held that:- The provisions nowhere required that developer who are the owner of the land alone would be entitled to grant of deduction under section 80IB(10) of the Act. So far as built up area is concerned, as per section 80IB(10)(14)(a) of the Act, which is very clear that the common areas showed that the residential units alone does not include built up area. In this case, it is very clear that the built up area alone has to be considered to see the threshold limit of 1500 sq.ft. as observed by the ld. CIT(Appeals). See Sanghvi and Doshi Enterprises and others v. ITO [2014 (1) TMI 480 - ITAT CHENNAI] - Decided in favour of assessee
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2014 (2) TMI 1288 - ITAT MUMBAI
Deduction under section 80 HHC computation - reduction of 90% of the gross interest from the profit of the business - Held that:- The issue is now covered in favour of the assessee by the decision of Hon’ble Supreme Court in the case of ACG Associated Capsules Pvt. Ltd. vs. CIT (2012 (2) TMI 101 - SUPREME COURT OF INDIA), wherein it has been held that 90% of not the gross rent or gross interest but only net interest or net rent, which had been included in the profits of the business of the assessee as computed under the head “profit and gain of business or profession” was to be deducted under clause (1) of Explanation (baa) to section 80 HHC of the Income Tax Act,1961 (the Act) for determining the profits of the business. In the said decision the decision of Hon’ble Bombay High Court in the case of CIT vs. Asian Star Company Ltd. [2010 (3) TMI 455 - BOMBAY HIGH COURT ] was impliedly overruled. Accordingly, we restore this matter to the file of AO with a direction to re-compute the deduction under section 80 HHC of the Act on the issue of interest as per aforementioned decision of Hon’ble Supreme Court.
TP adjustment - expenses of advertisement reimbursed by the assessee to its AE - Held that:- The expenses of advertisement reimbursed by the assessee to its AE belongs to the export activity of the assessee. To all the three AEs to whom the assessee has reimbursed advertisement expenditure huge export sales are made. It is the case of the assessee that its operating margin on its export activity is 47.17% as against similar margin of comparables of 8.08%. If the case of the assessee is examine in the light of these facts, then we are of the opinion that Ld. CIT(A) was right in deleting the adjustment as though the transaction of sharing the advertisement expenditure may be an independent transaction but it relates to the activity of export. Even if the total expenditure made by the assessee on sharing of advertisement expenses is reduced from operating margin of exports then also the operating margin of the assessee will be much more than the operating margin of the comparables and operating margin of assessee on export activity has been held to be at arms length by the TPO. It is not the case of TPO that the comparables selected by the assessee were not appropriate or some other comparables were also required to be included. In the light of these facts, we do not find any infirmity in the relief granted by Ld. CIT(A) and we decline to interfere in the deletion of addition.
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2014 (2) TMI 1287 - ITAT MUMBAI
Transfer pricing adjustment - selection of comparable - Held that:- So far as it relates to inclusion of two comparables namely, Santogen Exports Ltd. and Vanasthali Textiles Industries the fact has not been denied that those two comparables were included in the list of comparables during the assessment year 2007-08. It has not been shown that these two comparables were consistent loss making companies. It is the plea of the assessee that comparables should be chosen from the perspective of their functional comparability and as per parameter laid down in Rule 10B(2) of Income Tax Rules, 1962. It was also the submissions of the assessee that these two companies had made profit in the earlier years and have suddenly come into losses in the year under consideration. If it is so, those two concerns cannot be excluded from the list of comparables just for the reason that for the year under consideration these two concerns have incurred losses. Therefore, we se no justifiable reason for exclusion of these comparables.
DEPB should be taken as operating income - Held that:- No error in the order of Ld. CIT(A) vide which it is held that DEPB benefits should be included in operating profit margin. We are aware that Department in its appeal has not agitated such direction of Ld. CIT(A) but as it was argued before us and we uphold the inclusion of DEPB benefit in operating profit margin.
depreciation be treated as operating expenses while computing ALP by TNMM - Held that:- No infirmity in such directions of Ld. CIT(A) as according to well established principle of law while working out profit margin and cost, comparison should be made with like to like and similar to similar. This principle has also been held applicable by the ITAT in assessee’s own case in the aforementioned two orders, where on the basis of similar proposition DEPB benefits have been held to be computed as part of profits while computing margin of the assessee as well as comparables. Accordingly, we decline to interfere in such finding recorded by Ld. CIT(A) and the ground of revenue is dismissed.
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2014 (2) TMI 1286 - ITAT MUMBAI
Justification of referring the matter to the Valuation Officer u/s.55A - Held that:- Reference to the VO can be made only when value adopted by the assessee is less than the Fair Market Value. We find that FAA had held that reference by the AO to the VO was against the provisions of law. If he was of the opinion that reference made by the AO was contrary to the provisions of Act, he should not have referred to the Valuation Report of the VO and should not have adopted Fair Market Value as indicated by the VO. We are not able to endorse his views, therefore, decided in favour of the assessee.
Charging of interest u/s. 234A and 234B - Held that:- We find that assessee had taken specific ground about charging of interest of ₹ 1.54 and 2.54 lacs respectively u/s. 234A and 234B of the Act. We find that while deciding the appeal, FAA has not decided the issue, therefore, in the interest of justice we restore back the issue to the file of the FAA for fresh adjudication. - Decided in favour of the assessee in part.
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2014 (2) TMI 1285 - KARNATAKA HIGH COURT
Natural justice - validity of reassessment order - The petitioner had sought time to make available the documents sought for and to file objections to annexure D vide annexure F. Time sought by the petitioner has not been granted and immediately annexure A has been passed - Held that: - When the assessee seeks time even if he had availed of the benefit of time earlier, there is no reason as to why the authority should not give time as sought for to enable him to substantiate his stand which undoubtedly will aid in just determination, rather than arbitrary actions.
Petition allowed - decided in favor of petitioner.
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2014 (2) TMI 1284 - ITAT PUNE
Deduction u/s.80P(2)(a)(vi) - Held that:- As decided in assessee's own case for A.Y. 2007-08 CIT(A) was justified in directing the Assessing Officer to allow the claim of the assessee. This view is fortified by the judgment of Hon’ble Supreme Court in the case of Kerala State Co-operative Marketing Federation Ltd & Others Vs. CIT [1998 (5) TMI 6 - SUPREME Court] - Decided in favour of assessee
Allowability of advertisement expenses - AO disallowed the same on the ground that the assessee has not provided proof that it was for the purpose of business purpose - Held that:- It is not a case of the Assessing Officer that the expenditure has not been incurred. Since the assessee has established the expenditure incurred on account of commercial expediency, so the commercial expediency is to be viewed from the view point of businessman / assessee. The facts on record indicate the impugned expenditure is on account of public visits of State ministers, local elected representatives and other dignitaries to the city of Nashik and the premises of society, who have helped the assessee in getting more contracts for labour, therefore, commercial expediency established. In the facts and circumstances, the expenditure was rightly made by the assessee for business purpose and the same was rightly directed by the CIT(A) to deleted the expenditure incurred wholly and exclusively for the growth of assessee’s business. Accordingly, the same is upheld.- Decided in favour of assessee
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2014 (2) TMI 1283 - SC ORDER
Amortization of the expenditure - Allowability of expenditure incurred - Held that:- HC order confirmed [2011 (1) TMI 1415 - DELHI HIGH COURT] the ball was set in motion in the assessment year 1995-96 when the assessee was allowed to claim deduction at the rate of 10% of the total expenditure incurred by it for four years i.e. for the assessment years 1995-96 to 1998-99 the assessment have become final. Thus, 40% of the lump sum amount incurred in the first assessment year has been allowed as deduction at the rate of 10% in each of these years. That is the factual situation prevailing. Upsetting the apple cart in the middle and challenging the course of action by treating these expenditure under Section 35 D of the Act would clearly be impermissible. SLP dismissed.
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2014 (2) TMI 1282 - SC ORDER
Business expenditure u/s 37(1) - Held that:- Delay condoned.
Leave granted only on the issue with regard to administrative expenses.[REF HC order -2013 (8) TMI 238 - GUJARAT HIGH COURT ]
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2014 (2) TMI 1281 - CESTAT AHMEDABAD
Attachment of property - recovery of Government dues - Sec. 142 (1)( c) (ii) of the Customs Act 1962 read with Rule 4 - Held that: - the issue involved in the current appeal before us is identical to the issue which was decided by the majority order in the case of of Rajabali Ismail Rajbara vs. CCE., Surat [2014 (3) TMI 483 - CESTAT AHMEDABAD (LB)] - Since the issue is covered by a majority decision, and nothing is brought to our notice as to the said order is over turned by higher judicial forum, following the same we allow the appeal and set aside the impugned order - appeal allowed - decided in favor of appellant.
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2014 (2) TMI 1280 - ITAT MUMBAI
Borrowed service rendered treated as fee for technical services - India-Singapore Tax Treaty - Held that:- We noted that these issues have already been decided by this Tribunal in the various decisions as mentioned above in the group concerns of the assessee before us. Against the decision of the Tribunal, the revenue filed the appeals before the Hon’ble High Court in 14 cases. Those 14 appeals were withdrawn by the revenue.
Department has resolved that the issue under MAP and consequently withdrawn the appeals filed before the Hon’ble High Court. Further, the assessee has filed a letter dated 12/02/2014 thereby stated that the issue relating to taxability of firm function charges does not arise in case of these three appeals and the only issue involved in these appeals is the taxability of borrowed service charges, which has been decided in favour of the assessee under the Mutual Agreement Procedure. Also when the issues involved in these appeals have already resolved under the Mutual Agreement Procedure, we direct the AO to grant the relief accordingly to the assessee after verification of fact that the issues have already been resolved under the Mutual Agreement Procedure. - decided in favour of assessee
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2014 (2) TMI 1279 - CESTAT NEW DELHI
Whether the respondent, who is a sub-contractor of the main contractor of M/s. Madhya Pradesh Housing Board is required to pay service tax when the entire service tax liability stands discharged by M/s. Madhya Pradesh Housing Board? - Held that: - when the entire service tax liability stands discharged by the main contractor, there would be no tax liability to the sub-contractors - reliance placed on the decision of the case of CCE, Indore Vs. Shivhare Roadlines [2009 (2) TMI 202 - CESTAT, NEW DELHI] - appeal dismissed - decided against Revenue.
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2014 (2) TMI 1278 - ITAT CHENNAI
Deemed dividend addition u/s 2(22)(e) - Held that:- A perusal of the case file reveals that while examining a similar issue in the assessee's own case for assessment years 2003-04, 2004-05 and 2005-06 the tribunal had held that no beneficial interest had accrued to the assessee by the aforesaid transactions and advances were made to carry out business which would not attract deeming provisions u/s 2(22)(e) of the Act. Undisputedly, decisions of the ‘tribunal’ have been upheld even by the hon'ble high court. The only plea raised by the Revenue that its special leave petition is pending before the hon'ble apex court hardly forms a justifiable reason not to follow the order of the ‘tribunal’. In these circumstances, we confirm the findings under challenge of CIT(A) deleting impugned addition of deemed dividend. - Decided in favour of assessee
Addition u/s 14A r.w.r 8D in assessment year 2009-10 - Held that:- The Revenue has not filed any evidence before us so as to dispel the findings of the CIT(A) qua the total expenditure, administrative expenses, amount disallowed/added back on its own (supra)by the assessee as well as remaining amount of ₹ 11,10,836/-. It is evident to us that from the total expenses the assessee has itself disallowed/added back expenses of ₹ 18,74,911/- out of ₹ 29,85,747/-. Thus, the expenses which remain in assessee’s profit & loss account turn out to be ₹ 11,10,836/-. From this amount as well, the CIT(A) has chosen to disallow a sum of ₹ 10,94,691/-. This leaves expenditure of a very minimiscule amount of ₹ 16,145/-. Undisputedly, there is no material quoted on record by the appellant/Revenue in favour of its argument that these details of expenditure are against the record of the case. In our view, on the basis of the fact that the authorities below have nowhere rejected the assessee’s profit & loss account explaining details of expenditure, the disallowance in question could not have exceeded the sum total of all expenses. In these circumstances, we find no reason to interfere in the order of the CIT(A) in reducing the disallowance in question from ₹ 21,19,659/- to ₹ 10,24,968/-. - Decided against revenue
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2014 (2) TMI 1277 - SUPREME COURT
Problem with regard to supply of electricity - change in policy - Held that:- As before laying down any policy which would give benefits to its subjects, the State must think about pros and cons of the policy and its capacity to give the benefits because it would be in violation of the principles of promissory estoppel, besides being unfair and immoral on the part of the State not to act as per its promise.
In the instant case, the respondent State was conscious about the fact that there was a problem with regard to supply of electricity in the State of Kerala and possibly for that reason industries which depended much upon electricity as a source of power were not inclined to establish new industries in the State of Kerala. In view of the incentives and assurances given to the appellants along with others, who were desirous of setting up new industries, the appellants set up their new units which were much dependent upon continuous supply of electricity. One of the appellants is a Steel Re-rolling Mill. In steel industry, when the industry is concerned with making of steel or re-rolling of steel, it requires lot of power and energy, and electricity being one of the important sources of power, the appellant was much dependent on continuous supply of electricity, which had been assured to it by the respondent State.
If an assurance was given to the appellants and similarly situated persons that they would be given 100% electricity supply for five years, the respondents can not riggle out of their liability by making a policy to the effect that the benefit by way of incentive would be extended only if the electricity supply was reduced to less than 50% on a particular day.
For the aforestated reasons, in our opinion, the respondent-State was not wholly fair when it extended benefit to the appellants only for the period during which electricity supply was reduced to less than 50% on certain days.
We, therefore, hold that the benefit extended by the respondent State is not sufficient. The respondent-State ought to have extended the period even for the days when supply of electricity was more than 50% but not 100% as assured under G.O. dated 21.5.1990 and 6.2.1992. We, therefore, direct the respondents to give the said benefit by extending the period of incentive.
We, therefore, allow the appeals by quashing and setting aside the impugned order passed by the High Court and direct the respondents to calculate the period during which 100% electricity supply was not given to the appellants and extend the period of incentive accordingly.
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2014 (2) TMI 1276 - ITAT MUMBAI
Reopening of assessment - addition on account of alleged unaccounted sale proceeds - Held that:- Annexure AB-1, there is no mention of payment of any on-money to the assessee. The presumption has been drawn from the statement of Shri Satish Kulkarni which has been retracted later on. The details given in the seized paper from a third party’s premises itself do not put any liability upon the assessee to explain the seized paper because it was not recovered from the possession of the assessee and it did not lead to any conclusion that the assessee has received any on-money. Everything has been presumed by the AO against the assessee only on the statement of Shri Satish Kulkarni whereas the AO completely ignored the statements recorded by himself of the purchasers during the course of the original assessment proceedings.
Considering all the facts in totality, in the light of the aforestated annexure AB-1, we failed to persuade ourselves to find any relevancy on the said document which could lead to a reasonable conclusion that the assessee has received some on-money which could be made basis for the reopening of the assessment. Accordingly, we set aside the notice u/s. 148 and hold the reassessment proceedings as invalid
AO himself has examined those flats were some extra money in the form of interior decoration was found to be given. It was not the case of the AO that all the flats sold have fetched some on-money. The DR further brought to our notice that the Director of M/s. Ashoka Buildcom Ltd., have moved the Settlement Commission admitting payment of on-money therefore the same should be considered in the hands of the assessee. This submission of the Ld. DR cannot be accepted because what a third party is doing before the Settlement Commission cannot be said to have any relevance in the re-assessment proceedings of the assessee when the buyers have categorically stated that they have not paid any on-money which fact has also been stated in the form of affidavits. Considering all these facts in totality, in our humble opinion, the entire additions have been made on surmises and conjectures based upon irrelevant material ignoring direct evidences on record, therefore, the additions made by the AO cannot be sustained even on merit. - Decided in favour of assessee
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2014 (2) TMI 1275 - ANDHRA PRADESH HIGH COURT
Validity of summons issued under Section 50(2) of PMLA - whether summons are illegal, arbitrary and violation of principles of natural justice and violation of Articles 14 and 21 of the Constitution of India and violation of Section 50 of Prevention of Money Laundering Act, by holding that the respondents 2 and 3 have no authority or jurisdiction to issue summons? - Held that:- Section 50(2) of the Act, vest power in the competent authority to summon any person whose attendance he considers necessary whether to give evidence or to produce any records during the course of any investigation or proceeding under the Act.
As noted above, ECIR is registered in accordance with the crimes already registered against the petitioner and others and the investigation is taken up in pursuant to the ECIR. Thus, the power of competent authority to summon the petitioner, impugned in this writ petition is traceable to Section 50(2) of the Act 2002. Thus, it cannot be said that there is no power vested in the Assistant Director to summon the petitioner as alleged by the petitioner. No merit in the writ petition.
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2014 (2) TMI 1274 - ITAT MUMBAI
Income from transaction of shares - short term capital gain or business income - Held that:- The CIT(A) after applying the proposition laid down in the various decisions as discussed above with respect to the facts of the instant case and also keeping in view frequency and continuity of transactions, it recorded categorical finding to the effect that profit earned in respect of four companies as discussed above amounting to ₹ 18,41,027/- was liable to be taxed as business income rather than capital gain. However, in respect to balance of transactions, the CIT(A) has categorically recorded a finding that these were delivery based transactions, therefore, keeping in view the frequency, continuity and volume of transactions, profit arose therefrom are liable to be taxed as short term or long term capital gains depending on the period of holding. The findings recorded by the CIT(A) are as per material on record, therefore, the same do not require any interference. Accordingly, we do not find any infirmity in the order of CIT(A), which is being upheld.
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2014 (2) TMI 1273 - DELHI HIGH COURT
Repayment of loan - application of income - loan money utilized for acquisition of the assets - as contended that the assessee had claimed that for the purpose of acquiring assets in question during the previous years the loan had been utilised and even successfully claimed depreciation on the assets so acquired - Held that:- As to whether assessee had claimed depreciation in any of the previous years or whether the application of money was shown to have been for the acquisition of asset with the loans obtained is a matter of fact. There is no specific finding. In these circumstances the matter is remitted for reconsideration by the Tribunal which shall also take into account the materials brought on record by the assessee that are not already on record under Rule 29 to facilitate a fuller appreciation and recording of facts in this regard. The appellant is also at liberty to place reliance on such additional material having regard to the circumstances.
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