TMI Blog2003 (4) TMI 500X X X X Extracts X X X X X X X X Extracts X X X X ..... sue in favour of the assessee whereas in ITA No. 118 (Gau.) of 1992 dated 25-9-2000 for 1988-89 the similar issue was decided in favour of the revenue. It was therefore considered necessary to refer the matter to the Hon ble President ITAT for constituting special Bench. The Deputy Registrar of ITAT Mumbai vide U.O. No. F. 12-Jd (AT)/2003, dated : 20th February, 2003 has communicated the remarks of the Hon ble President ITAT, which are reproduced hereunder : "Since the jurisdictional High Court has distinguished the decision of the Hon ble Supreme Court, the Tribunal should respectfully follow the binding decision of the jurisdictional High Court unless reversed by the Supreme Court." Accordingly the appeals are heard and decided. ITA Nos. 150 (Gau.)/1995 and 110 (Gau.)/1998. Assessment years : 1992-93 NS 1994-95. 3. The ground No. 1 in ITA No. 150 (Gau.)/1995 and Ground No. 3 in ITA No. 110 (Gau.)/1998 are directed against the deletion of disallowance made under the head interest. The learned Departmental Representative, Shri B.B. Dev admitted in the course of hearing that the similar issue also arose before this Tribunal in the assessment of the assessee for the ass ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng aggrieved the revenue is in appeal before us on this issue in both the years under appeal. 6. The learned Departmental Representative submitted that this Tribunal in the case of the assessee itself in ITA No. 290 (Gau.)/1997 and in ITA No. 118 (Gau.)/1992 for the assessment years 1988-89 and 1993-94 has after considering the decision of the Hon ble Gauhati High Court ( supra ) in the similar circumstances, taken contrary view and held that amount added back by the Assessing Officer under section 43B is justified. Hence, he submitted that the same order should be followed. On the other hand the learned Authorised Representative of the assessee has filed a written submission on the issue. He submitted that the facts of the case as was before the Hon ble Gauhati High Court in the case of India Carbon Ltd. ( supra ) 200 ITR 759 is exactly similar with the facts of the case under appeal and hence, the learned CIT(A) was fully justified in deleting the addition made under section 43B of the Act. He pointed out the above decision of the Hon ble Gauhati High Court has also been upheld by the Hon ble Supreme Court in a Civil Appeal vide its order dated 23-8-1996 arising out of S. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Nos. 290 (Gau.)/1997 and 118 (Gau.)/1992 for the assessment years 1988-89 and 1993-94 relied upon by the learned Departmental Representative are still pending disposal. He argued that this Bench of the Tribunal in its order dated 29-9-2002 in the case of Joint CIT v. Amines Plasticizers Ltd. [IT Appeal No. 164 (Gauhati) of 1999] for the assessment year 1995-96, after considering the two contradictory orders passed by this Tribunal in the case of the assessee itself, has upheld the deletion of the disallowance made by the learned CIT(A) and has followed the decision of the jurisdictional High Court which has since been confirmed by the Hon ble Supreme Court. He therefore, submitted that the aforesaid order of this Bench of the Tribunal and the decision of the Hon ble Gauhati High Court in the case of the assessee itself should be followed. 7. We have perused all the orders carefully. We find that this Tribunal in its order dated 25-8-2000 in ITA No. 99 (Gau.)/1993 passed in the case of the assessee for the assessment year 1989-90 held that the decision of the Hon ble Gauhati High Court in India Carbon Ltd. s case ( supra ), since been confirmed by the Hon ble Supreme Cou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in India Carbon Ltd. ( supra ) 200 ITR 759. It was held by the Hon ble Calcutta High Court in the case of Raja Benoy Kumar Sahas Roy v. CIT [1953] 24 ITR 70 /82, which was affirmed by the Hon ble Supreme Court in [1957] 32 ITR 406 (SC) ( sic ), that the Tribunal has no option to disregard the decision in a case given by the High Court of the State in which the Bench is sitting. The Hon ble Gauhati High Court in the case of Shri Mahabir Industries v. CIT [1996] 220 ITR 459 , 466 has held that in view of the decision of the jurisdictional High Court on an identical issue, the finding of the Tribunal contrary to the decision of the High Court was held to be erroneous in Law. Hence, considering the facts and circumstances of the case in totality, these grounds of appeal of the revenue are dismissed. 11. Ground No. 4 in ITA No. 150 (Gau.)/1995 is directed against the deletion of the disallowance of depreciation claimed by the assessee on temple. The learned Departmental Representative admitted in course of hearing that the issue is covered by the decision of the Hon ble jurisdictional High Court in the own case of the assessee in CIT v. India Carbon Ltd. (No. 1) [1996] ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the addition of Rs. 1,10,42,023 under section 41(1) of the Income-tax Act, 1961 by the learned CIT(A) back to the file of the Assessing Officer. The learned Departmental Representative admitted that the issue has been settled in favour of the assessee while the Assessing Officers order dated 19-2-1998 passed under section 251 of the Act for the year under appeal. He also conceded that even otherwise tax on this amount has been paid by the assessee to the Department vide declaration made under the VDIS 1997 Scheme. In view of the above the appeal filed by the revenue on this issue has become infractuous. Hence, we dismiss this ground of appeal of the Revenue. 16. Ground No. 6 in ITA No. 110 (Gau.)/1998 relates to the direction of the learned CIT(A) to treat the interest income of Rs. 4,50,459 as business income. The Assessing Officer in the order of assessment treated the above interest income on FDRs etc. as income from other sources. The learned CIT(A) observed from the details of deposits on which the above interest income was earned that all the deposits were incidental to the business and hence, he directed the Assessing Officer to treat the interest income as business in ..... X X X X Extracts X X X X X X X X Extracts X X X X
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