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TMI Blog2012 (7) TMI 211X X X X Extracts X X X X X X X X Extracts X X X X ..... ssion to lead evidence is liable to be accepted for just and appropriate adjudication of the case. Along with the application for additional evidence, page nos. 1 to 44 of the paper book has been filed. 4. During the course of hearing, the learned AR pressed the application. Submitted that inadvertently, for the reasons beyond the assessee's control, he could not produce the documents either before the Assessing Officer (as the Assessing Officer had not considered the issue of rental deposits in question per Ld. CIT's order) or before the Ld. CIT (A). It has also been stated that the additional evidence in question would not require any new issue to be adjudicated upon. Hence, he prayed for acceptance of the application 4.1. On the other hand, learned DR appearing for the revenue has opposed the application by terming it as gross misuse of the process of law. Prayed for its rejection. 5. We have heard both the learned representatives qua the application for additional evidence in hand. In our considered opinion, since the same is nothing but attempt by the assessee to place of record the confirmation letters, lease deed etc. qua the assessee and its tena ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1 (Bombay High Court). 13. On merits, learned AR has vehemently contended that neither the AO not the Ld. CIT (A) has considered the explanation offered by the assessee that no expenditure had been incurred in the AY in hand qua the exempt income for which the shares were purchased well before the AY in hand. Accordingly, he prayed for acceptance of the ground. 14. On the other hand, the learned DR has not disputed the factual position as above. But at the same time, he has also relied on Ld. CIT (A) order. 15. After hearing both the learned representatives as well as having perused the findings on record, we are of the opinion that in the instant case, the AO has not specifically dealt with the claim of the assessee to the effect that no expenditure had been incurred in the AY in hand particularly in view of the fact that the shares in question had been purchased long back. Although, the AO has observed that certain over head expenditure, salaries etc. are there, but no details in support thereof are forthcoming. 16. At the same time, in view of the Hon'ble High Court judgment in the case of Godrej Boyce (supra), Ld. CIT (A) has also erred in relying on the Daga Capital Mana ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... retract the fact that this amount was worthy of write off, as there is nothing to prove that the lessee has pressed for recovery after the amount has been written off. Under these circumstances, the action of the AO is perfectly justified in not allowing the claim through the statement filed during the course of assessment proceedings. This ground of appeal is accordingly dismissed." 22. Learned AR appearing for the assessee has reiterated the factual position as mentioned above. Contended that since the amount in hand is only security deposit paid by the lessee to the assessee, therefore, by no stretch of imagination the same can be treated as income. 23. The learned AR has vehemently argued that it was only by a mistake that the assessee had included the said security deposit as 'income'. The moment it realized its mistake, revised computation was filed. But the AO did not consider the same. The Ld. CIT (A) has rejected the ground by holding therein that the AO was perfectly justified in not allowing the claim in respect of the fact that the revised statement had been filed during the course of assessment proceedings. 24. Learned AR has further argued that whether or no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... so, it does not come under the purview of charging provision as well. At the same time, as is clear from the record, the AO has also not examined this issue. Hence, finding it fit case to exercise our jurisdiction u/s 254 of the Act, we deem it appropriate that the AO shall re-examine the matter in view of our above discussion and additional evidence available before us and shall pass a fresh order after hearing the assessee. 29. Ground No.3:- In this regard, the assessee has challenged the order of learned Commissioner in confirming the disallowance regarding proportionate interest in question Rs. 48,87,945/-. 30. Facts leading to raising of instant ground before us are that in the AY 2001-02, the AO had disallowed the total expenditure of Rs. 58,46,663/- as claimed by the assessee. In appeal, the Ld. CIT (A) alleged to have allowed the said expenditure for AY 2001-02 only. 31. Since the total interest amount was 58,46,663/- (inclusive of amount Rs. 9,58,718/- for AY 2001-02 and Rs. 48,87,945/- for the AY in hand i.e. 2002-03). Therefore, the assessee claimed the benefit of interest as per Ld. CIT (A) order in the assessment pertaining to AY in hand. 31. The AO did not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rieved. 32. In support of the ground, learned AR has argued that issued in hand is squarely covered by the ITAT Mumbai order regarding AY 2001-02 ITA No.7738/M/2003 (order available at page 83 of the paper book). Relying on the same order, learned AR has for acceptance of the ground. 33. Learned DR appearing for revenue has relied on the Ld. CIT (A) order. Prayed for rejection of the ground. 34. We have heard both the learned representatives. Also perused the impugned findings. Have also carefully perused the order of Mumbai ITAT in assessee's own case (supra). 35. So far as assessee's own case decided by ITAT Mumbai regarding the same very liability in AY 2001-02, para no.8 page 87 reads as under: "Aggrieved with the same, the assessee is before us with the said ground. We have noticed that Rs. 58,46,663/- was disallowed by the AO vide Para no.7 of the assessment order out of which, Rs. 57 lakhs relates to ERAPL and Rs. 1,46,663/- relates to AIPL. The limited issue before us is the correctness of the direction of the CIT (A) to the AO staggering of the interest liability paid to ERAPL & AIPL over the AYs 2001-02 and 2002-03. Under the circumsta ..... X X X X Extracts X X X X X X X X Extracts X X X X
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