TMI Blog2012 (10) TMI 896X X X X Extracts X X X X X X X X Extracts X X X X ..... agchi, JJ. JUDGEMENT Per : K J Sengupta, J : This appeal is at the instance of the assessee Peerless General Finance Investment Co. Limited against the judgment and order of E Bench of the learned Tribunal dated 30th of June, 2003 in relation to assessment year 1993- 94. This appeal was admitted by an order of this Court dated 15th January, 2004 on the following substantial questions of law:- I. Whether on the facts and in the circumstances of the case the Tribunal erred in holding that allowability or disallowability of the sum of Rs.180.97 lakh under the heading Return to Certificateholders as outgoing from profit depends on the revenue or capital nature of the receipt of subscriptions from the certificate-holders, regardless of its decision to the contrary? II. Whether the Tribunal erred in remitting the matter to the Assessing Officer in departure from its earlier decision that return to certificate-holders represents the assessee s liability by way of interest and bonus due to the subscribers on their deposits, and partakes of the nature of revenue outgoing, while the subscriptions represent capital liability? III. Whether on the facts and in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oreign countries is an essential part of the business. Therefore, he contends that non-availability of formal evidence as recorded by the learned Tribunal, does not amount to a case of absence of evidence because the nature of campaign involving man to man and group contacts amongst the non-resident Indians produces no document. Thus the standard of proof set by the learned Tribunal is not a pragmatic one. It is submitted placing reliance on a judgment in case of CIT v. Coimbatore Salem Transport Company Pvt. Ltd. reported in (1966) 61 ITR 480 that in a situation like this onus of proof is required to be discharged by the Revenue. According to him enough evidence was produced giving list of names of the places and names of the personnel visited therefore no other proof was required. According to him result of the foreign trip for the business purpose is not determinative factor as have been wrongly held by the learned Tribunal. The learned Tribunal went wrong not accepting the earlier decision of the Tribunal on the same fact. A precedent ceases to be a precedent when subsequent Bench sitting in judgment over the same issue decides to the contrary. On the question of allowabili ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (Appeals) as nothing was produced though repeated opportunity was given to produce the same. The appellant has not furnished full details and information with regard to following foreign trips by the personnel of the Assessing Officer. Hence, an adverse inference has been drawn against the assessee in terms of Section 114 of the Evidence Act, 1972 which is legally appropriate. The material produced before the authority was not adequate to accept this claim of allowance of deduction. It is the initial burden of the assessee to discharge, which was not done. On the question of disallowance of depreciation in relation to the leasehold interest of the properties including the lease for perpetuity he contends that the order of the learned Tribunal is with regard to the issue does not speak about any long term leasehold property including the lease for perpetuity in absence of any agreement or memorandum of the company it cannot be ascertained whether it is an agreement for lease for year to year or long term lease. Explanation I to Section 32(1)(ii) speaks about where any business or professions is carried on by the assessee in a building not owned by him but in respect of which the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es of the Company. The main purposes of these visits were stated to be to meet nonresident Indian residing in those places and to attract business from such nonresidents. The result of these visits is stated to have been successful to some extent noticeable in the subsequent years, although there is no such direct indication in the year under consideration. It was claimed that the tours having been undertaken entirely for business purpose the A.O. was not justified in denying a part of the claim. In a company engaged in the business of this volume it is not unusual for its top executives to visit foreign countries for attracting business and for attracting non-resident Indian clients. However, as the exact nature of business transacted has not been specified and as also the improvement in business through these visits is not immediately noticeable I do not consider the entire claim to be justified or admissible. I do not think that all the tours were conducted fully for business purposes and that there was no personal element involved. Under such circumstances, it will be reasonable to restrict the claim to 50% which works out to Rs.8,38,604/- and the appellant will get a relie ..... X X X X Extracts X X X X X X X X Extracts X X X X
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