9911796707
TMI Blog2012 (2) TMI 323X X X X Extracts X X X X X X X X Extracts X X X X ..... etition is as follows:- "(2) There is an apparent contradiction in paragraphs 11 and 13 of the above order, in as much as, in para 11 it is clearlyRs. mentioned by way of assessee's submissions that no disallowance of interest is made in earlier years in respect of openingRs. investment of Rs.282.42 lacs, whereas, in para 13, proportionateRs. disallowance of interest is confirmed on the same opening investment of Rs.282.42 lacs. It is also settled law that disallowance cannot be made on the opening balance as it can beRs. processed only in the preceding assessment year or the actual year in which the investment is made. Further, in the finding in para 13, it is clearly mentioned that theRs. assessee had sufficient interest free fun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt is that on one hand, the Tribunal has stated that there were sufficient interest-free fund to cover up the investment of the current year, therefore, by making a proportionate disallowance the Tribunal has committed a mistake. TheRs. ld.AR has again draw our attention on page Nos.27, 28 & 29 of the paper book and stated that the balance-sheet drawn as on 31.3.2002 has stated that out of the interest-free fund in the shape of "current capital" of Rs.384.65 lacs, the assessee had made an investment of Rs.348.55 lacs. Thereafter, for the balance-sheet drawn as on 31.3.2003 out of the currentRs. capital held as interest-free fund of Rs.154.53, the investment was made to the tune of Rs.282.41 lacs. In respect of the balance-sheet under consid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Rs.2,57,06,838/-. It was explained that interest was paid by the assessee firm to the partners only in respect of fixed capital of Rs.5 crore at the rate 12% which worked out to Rs.60 lacs. No interest was paid to the partner by the assessee-firm in respect of capital contribution in the current capital account. We find that the opening balance of such interest free current capital account was Rs.1,54,52,895/- andRs. after adding of the profit of the year and adjustment of withdrawals etc., the closing balance was Rs..2,57,06,837/-. On the above facts we find that the opening interest free fund available with the assessee-firm was to the tune of Rs.1,54,52,895/-, therefore, in our considered opinion the maximum amount of the brought forwar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f Rs.11,38,565/-. Thus, the ground of appeal of the assessee is partly allowed." 4. Having heard the submissions of both the sides, we are of the conscientious view that no mistake much less to say an apparent mistake was committed by the Tribunal. It is an admitted factual position, not contravened by the Learned Authorised Representative of the assessee, that on the fixed partner's capital of Rs.500 lacs there was no change in the said amount that the said amount remained interest-bearing during the year under consideration as well. Then, ld.AR has also accepted that the total investment at the end of the year were 337.32 lacs as against the total investment as on 31.3.2003 were 282.41 lacs. Meaning thereby there was an enhancement or in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d.AR has argued that in the immediately preceding assessment year, there was no disallowance of interest in respect of closing balance of Rs.2,57,06,837/-, therefore, a consistent view is required to be taken for the year under consideration. However, the question of a consistent view only arises if in the past a correct a judicious and as per law a decision had been taken. But if in the past the view taken found to be not in accordance to law, then there is no justification to consistently repeat the same error. Rather, on the other hand, it is a trait law that the principle of res-judicata do not apply on the tax proceedings. There is no estoppel for the Revenue Department to take a correct legal view in any of the assessment proceedings ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Hero Cycles 323 ITR 518 (P&H) and Radico Khaitan Ltd. 274 ITR 354 (All.). All these decisions are very much specific on the respective facts of each appeal, however, the broad legal proposition laid down therein was to examine the overall position of the availability of non-interest bearing funds vis-à-vis investment in exempted income. In the present case, the Respected Co-ordinate Bench has examined that aspect as well on facts, though might have not particularly referred these decisions, hence, in our considered opinion even then there was no apparent mistake because the outcome would otherwise remain the same. Under the totality of the circumstances of the case, we find no force in this miscellaneous petition of the assessee, hen ..... X X X X Extracts X X X X X X X X Extracts X X X X
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