TMI Blog2012 (2) TMI 323X X X X Extracts X X X X X X X X Extracts X X X X ..... I MUKUL Kr.SHRAWAT, SHRI A.K. GARODIA, JJ. Applicant by : Shri M.K.Patel, A.R Respondent by : Shri D.C. Sharma, D.R. O R D E R PER SHRI MUKUL Kr. SHRAWAT, JUDICIAL MEMBER : This miscellaneous application dated 30/11/2010 received by the Registry on 02/12/2010 pertains to the A.Y. 2004-05 seeking rectification of an order of the Tribunal, as referred supra in the nomenclature, dated 30/10/2010. In respect of the quantum confirmed by the Tribunal, the grievance of the applicant as narrated in the said petition 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 intere ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... entioned or considered in the above order. Rs. 2. From the side of the applicant, ld.AR Mr.M.K.Patel appeared and his first plank of argument is that no such disallowance of interest wasRs. never made in earlier years in respect of the opening investment of Rs.282.42 lacs. According to him, since the respected Tribunal had made a proportionate disallowance of interest on the amount of the opening investment, therefore by making a proportionate disallowance a mistake has been committed. His second plank of argument 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. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed by the Tribunal and no factual or legal error was committed while working out the proportionate disallowance vide paragraph No.13 as under:- 13. On being asked by the Bench the Learned Authorised Representative of the assessee pointed out from the balance sheet of the assessee-firm for the assessment year under appeal placed at page Nos.72 to 89 of the Paper book that the total partners capital constitute of Rs.7,57,06,838/- was having two components i.e. fixed capital of Rs..5 crore and current capital of 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... investment of Rs.54.90 lacs and brought forward investment to the extent of Rs.1,54,52,895/-. The disallowance of interest was warranted in respect of balance brought forward investment of Rs.1,27,89,831/- and therefore, disallowance of interest at the rate 12% thereon which works out to Rs.15,34,780/- was justified. We therefore, modify the orders of the lower authorities and restore the disallowance of interest expenditure to the extent of Rs.15,34,780/- and delete the remaining disallowance of interest of 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en a view which is possible as also plausible in the eyes of law and that view is inconformity with the existing figures of the year under consideration, therefore, apparently there was no error committed by the Tribunal. Under these circumstances, it is wrong to say that a mistake was committed by the Tribunal which was an apparent on the fact of record. We are not in agreement with the argument and the allegation as alleged in this petition, hence, this part and the argument is hereby dismissed. 4.1 The ld.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 consider ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Homi Mehta Sons (P)Ltd. vs. DCIT reported in 63 ITD 15 (ITAT-Mumbai) and Subodh Chandra Patel 265 ITR 445 (Guj.). Considering all these decisions, we are of the view that merely non-mentioning of few of the judgements alleged to have been referred to ld.AR did not constitute an apparent error to be rectified u/s.254(2) of the I.T.Act. 4.3. Rather, we have duly examined the facts of those decisions whichRs. were alleged to have been cited ld.AR, viz. Reliance Utilities Power Ltd. 313 ITR 340 (Bom), 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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