TMI Blog2003 (1) TMI 711X X X X Extracts X X X X X X X X Extracts X X X X ..... tax effect is less than ₹ 25,000 therefore, it is covered by the CBDT Instruction No. 1903, dt. 28th Oct., 1992 and accordingly the case may be decided in the light of the said instruction. 3. However, we find that the cumulative effect of tax in ground Nos. 1 and 2 of this appeal is more than ₹ 25,000 therefore, the plea of the learned Departmental Representative cannot be accepted and accordingly the learned Departmental Representative was directed to argue the case on merits. 4. Ground No. 1 in the asst. yr. 1993-94 is against the deletion of commission of ₹ 67,147. 5. The learned Departmental Representative submitted that it was found by the AO that the assessee has paid commission of ₹ 67,147 on t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the payment of commission is not incidental to business, we are of the view that the payment of commission has rightly been held by the CIT(A) as incidental to business and allowable as business expenditure and accordingly the ground taken by the Revenue is rejected. 8. Ground No. 2 in the asst. yr. 1993-94 is against the deletion of interest charged under s. 234B of the Act. 9. The learned Departmental Representative submitted that interest under s. 234B is chargeable on the income as per Expln. 1 to s. 234B substituted by Finance Act, 2001, with retrospective effect from 1st April, 1989, therefore, the CIT(A) was not justified in holding that the said interest should be charged on the returned income and not on the assessed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... w.e.f. 1st April, 1989 until and unless it was held otherwise by the Hon'ble High Court/Supreme Court. In the absence thereof we are bound to follow the amended provisions of the Finance Act, 2001, with retrospective effect from 1st April, 1989 and accordingly the ground taken by the Revenue is allowed. 12. Ground No. 1 in the asst. yr. 1994-95 is against the deletion of interest of ₹ 49,339 on income-tax. 13. The learned Departmental Representative submitted that the assessee has claimed interest of ₹ 5,45,774 which includes interest on income-tax of ₹ 49,339. Since income-tax and the interest thereon are not deductible expenses, therefore, the AO has rightly disallowed the claim of ₹ 49,339 and added ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s. 36, s. 37 or under s. 57 of the Act or not? Since the interest income was assessed as other sources, therefore, the deductions which are allowable under s. 57 can only be allowed. Since neither the assessee has claimed the deduction of such interest under s. 57 nor there is any provision under s. 57 to allow such interest therefore deduction of such interest cannot be allowed under s. 57 or under s. 57(iii) of the Act. This view finds support from the decision of the Hon'ble Supreme Court in the case of CIT Vs. Dr. V.P. Gopinathan (2001) 166 CTR (SC) 504 : (2001) 248 ITR 449 (SC) in which it was held at p. 449 (short note) as under:- Held, that the interest that the assessee received from the bank on the fixed deposit was inco ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... from the decision in the case of Fenner (India) Ltd. us. CIT (1998) 146 CTR (Mad) 502 : (1997) 223 ITR 738 (Mad) and again in the same case reported in Fenner (India) Ltd. us. CIT (2002) 177 CTR (Mad) 318 : (2002) 124 Taxman 264 (Mad). In this view of the matter the order passed by the CIT(A) is reversed on this account and that of the AO is upheld and accordingly the ground taken by the Revenue is allowed. 18. Ground No. 2 in asst. yr. 1994-95 is against the deletion of interest charged under s. 234B of the Act. 19. The learned Departmental Representative submitted that his plea for the earlier asst. yr. i.e. 1993-94 may be considered for this year also and accordingly it was submitted that the order passed by the CIT(A) should b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... are therefore of the view that it is permissible on the part of the Tribunal to entertain a ground beyond those incorporated in the memorandum of appeal though the party urging the said ground had neither appealed before it nor had filed a cross-objection in the appeal filed by the other party. Respectfully following the above decisions, in the absence of any objection by the Revenue for the admission of the same and keeping in view that therefore of such arguments are available on record i.e., in the assessment order itself, therefore, we entertain the new argument taken by the learned Authorised Representative of the assessee. From the assessment order we find that there is no order of the AO to charge interest. We therefore, resp ..... X X X X Extracts X X X X X X X X Extracts X X X X
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