TMI Blog2005 (9) TMI 576X X X X Extracts X X X X X X X X Extracts X X X X ..... and order under section 17 should be cancelled/quashed. 2. The learned Assessing Officer has erred in making an order under section 17 of the Interest-tax Act, 1974 for the assessment year 1998-99 and the learned CIT(A) has erred in maintaining the said order. That both the lower authorities ignored the detailed submissions available on record and as also filed in respective proceedings. 3. The finding recorded by Assessing Officer and CIT(A) are perverse. 4. That apart, learned Assessing Officer and CIT(A) failed to take notice of the fact that there was no application of the Interest-tax Act and the validity of the original assessment was disputed in appeal and hence order under section 17 was void ab initio . 5. The CIT(A) decid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under section 8, read with section 10 was bad in law, invalid and non est . That the quantum matter is subjudice before the CIT(A). The said matter was heard long back but orders are still awaited. Consequent to above, the notice under section 17 is also invalid. Without prejudice to the above, the matter was debatable as can be seen from the written submissions made before the Assessing Officer and the CIT(A). Apart, the order under section 17 made ignoring the entire submissions and was thus not a speaking order and Assessing Officer s action amounts to violation of natural justice. On all counts, the quantum order suffers and hence same is bad in law invalid and on this account the subsequent order under section 17 is equally invalid i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Mahalaxmi Oil Mills v. State of Andhra Pradesh [1989] 1 SCC 164. The decision reported in the case of CIT v. Sahara India Saving Investment Corpn. Ltd. [2003] 264 ITR 646 (All.) held that the definition is exhaustive and nothing can further be included in this definition and an extended meaning cannot be given to the term interest. On the specific consideration of the hire-purchase receipts, the learned counsel relied on the depiction of Tribunal, Hyderabad Bench in N.K. Leasing Construction (P.) Ltd. v. Dy. CIT [2001] 79 ITD 658 decision of the Tribunal Lucknow Bench in Commercial Motors Finance Ltd. v. Asstt. CIT [2002] 82 ITD 176 and the assessee s agitation before the authorities below that hire-purchase receipts we ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a clear case of debatable issue and was outside the purview of section 17 of the Income-tax Act, 1974. He has relied on various decisions of the co-ordinate Benches of the Tribunal such as Tara Finvest Ltd. v. ITO [2003] 81 TTJ (Kol.) 631. By Tribunal Calcutta Bench, where the principal business of the assessee was trading in paper, financing was not its principal business. The assessee was held to be not liable for Interest-tax Act on the basis of such findings. Reliance was also placed on the Pune Tribunal Bench decision in Dy. CIT v. Kirloskar Leasing Finance Ltd. [2002] 82 ITD 720 where the assessee-company was held as a leasing company and could not be treated as a loan company as envisaged in section 2(5B) and more particula ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... parent from record rightly considered under section 17 sought to be made debatable by the learned counsel before the Tribunal. He, therefore, submitted that the action of the CIT(A) was appropriate on the facts and circumstances of the case by dismissing the assessee s appeal. 5. We have considered the rival contentions and perused the material available on record. The assessee s contention on the merits of the case appears to be on a sound footing insofar as it was the case of the Assessing Officer by framing assessment under section 10 read with section 8(3) of the Interest-tax Act when this order was sought to be rectified under section 17 by incorporating finance charges on hire-purchase amounting to Rs. 68,08,654 as against Rs. 19, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ved from Rs. 19,60,117 to Rs. 68,08,654 without bringing the mistake apparent from records and the submissions of the assessee before him. Therefore, we are restoring the matter to the file of the learned CIT(A) who should adjudicate on the issue whether there was purely a mistake apparent from records insofar as the Assessing Officer has not related the same as per the written submissions of the assessee before him. The learned CIT(A), therefore, could not have dismissed the assessee s appeal merely by holding that the original orders which had been rectified by the Assessing Officer were still pending for adjudication before him inasmuch as the learned CIT(A) could not adjudicate indirectly on the issue which was directly available for ad ..... X X X X Extracts X X X X X X X X Extracts X X X X
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