TMI Blog2011 (1) TMI 1371X X X X Extracts X X X X X X X X Extracts X X X X ..... rred to as the Act ) vide his order dated 10-03-2005 for assessment year 2002-03. 2. The first issue in this appeal of assessee is as regards to CIT(A) confirming the disallowance made by Assessing Officer relating to interest u/s.14A. For this, assessee has raised the following effective ground No.1:- ITA No.865/Ahd/2006 for assessee. 1. The learned Commissioner of Income Tax (Appeals) erred in confirming the disallowance of ₹ 2,69,26,054 relating to interest u/s.14A. In the facts and circumstances of the case it is submitted that provisions of section14A are not applicable. It is submitted that it be so held now. 1.1 The learned Commissioner of Income Tax (Appeals) erred in applying decision of Ahmedabad ITAT in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f it is unable to prove so, then following the decision of Special Bench ITO Vs. Daga Capital Management Pvt. Ltd. 312 ITR (AT) 01, a proportionate disallowance of interest payment is required. Accordingly, we restore this issue to the file of AO for deciding the issue afresh after giving assessee reasonable opportunity of being heard. This ground of the revenue is allowed for statistical purpose. On the other hand, Ld. CIT-DR, Shri Shelley Jindal also stated that issue is covered and in this year the facts being exactly identical, can be remitted back to the file of Assessing Officer exactly on similar directions. We find that issue requires reconsideration and Assessing Officer is directed to decide this issue in terms of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . It is submitted that in the facts and circumstances of the case the provision made for diminution in value of investments is allowable as a deduction u/s.28 /37(1). It is submitted that it be so held now. 7. At the outset Ld. Counsel for the assessee stated that this issue is squarely covered by this Tribunal in para-12 as under:- 12. Ground No.3 relates to disallowance of ₹ 21.98 lakhs being the provision in diminution in value of investment. This was discussed by the AO in para-4C of his order and by learned CIT(A) in para-5. Issue again goes against the assessee by the same decision of the ITAT in the case of Gujarat Gas Financial Services (supra). This ground of the assessee is also rejected. As the Ld. Counsel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... axable. It has been held by the Hon ble Uttaranchal High Court that interest cannot be levied under section 234B if there is a dispute regarding taxability of amount. Learned DR on other hand submitted that charging of interest under Section 234B is mandatory in view of the decision Hon ble Supreme Court M.H. Ghaswala s case, 252 ITR 1 and this has to be levied on the basis of assessed income and is consequential. In view of this, interest under Section 234B and for that matter under Section 234C depends upon the finally assessed income. Therefore, no interference is called for in the order of learned CIT(A). This part of the ground is also rejected. Respectfully following the decision of this Tribunal, we dismiss this issue ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s to the order of CIT(A) deleting the disallowance of depreciation on assets of sale and lease back transaction. For this, Revenue has raised the following effective ground No.1 to 4:- 1. The Ld. CIT(A) erred in law and do the facts of the case in directing the A.O to delete the disallowance of ₹ 2,48,94,452/- made on account of depreciation on assets of sale and lease back transactions. 2. On the facts and in the circumstances of the case the Ld. CIT(A) ought to have upheld the order of the Assessing Officer. 3. It is, therefore, prayed that the order of the Ld. CIT(A) may be cancelled and that of the Assessing Officer may be restored to the above effects. 4. In this case, the order of the Ld. CIT(A) was received ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... place this year and depreciation in respect of old lease transactions has only been claimed this year. Therefore, following the principle of consistency, as propounded in CIT Vs. H.P. Cotton Textile Mills Ltd., 311 ITR 436, CIT Vs. Malborough Polychem Pvt. Ltd., 309 ITR 43; CIT Vs. Moonlight Builders and Developers, 307, ITR 197 and ACIT Vs. Gendalal Hazarilal Co. 263 ITR 679 wherein it is held that even though in income-tax proceedings principle of res-judicata is not applicable, but consistency has to be maintained unless there is manifest distinguishable facts. In earlier years, claim of depreciation was accepted by the revenue which has now become final, the revenue cannot disallow the present claim, unless facts and circumstance ..... X X X X Extracts X X X X X X X X Extracts X X X X
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