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M/s M.S. ASSOCIATES Versus ACIT, CENTRAL CIRCLE-4, NEW DELHI

2016 (7) TMI 138 - GUJARAT HIGH COURT

Rectification of mistake - Chargebility of Bank interest on Fixed Deposit - Held that:- Admittedly, where the Bank interest on Fixed Deposit which are pledged for Performance Guarantee is chargeable under the head ‘business income’ is supported by the decision of High Court in the case of CIT vs. Jaypee DSC Ventures Ltd. (2011 (3) TMI 309 - Delhi High Court). There are other contrary decisions also available and therefore, the issue becomes debatable with respect to the taxation of such interest .....

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MAHARISHI, ACCOUNTANT MEMBER FOR THE ASSESSEE : SH. SATYA JEET GOEL, CA FOR THE DEPARTMENT : S H . P. DAM KANUNJNA, SR. DR ORDER PER H.S. SIDHU : JM The Assessee has filed these two Appeals against the separate impugned Orders dated 22.1.2014 & 27.1.2014 of Ld. CIT(A)-XII, New Delhi pertaining to assessment year 2007-08. Since these appeals pertains to same assessment year i.e. 2007-08 of the same assessee, hence, these appeals were heard together and are being disposed of by this common or .....

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nses were in respect of the existing business and there being no dispute about the genuineness of the claim, orders of the lower authorities in rejecting the claim are without any legal and factual basis. (ii) That all the claim of expenses are relating to year under reference and claim being in accordance with mercantile system of accounting, there is no ground or basis for disallowance of same. (iii) That the Assessing Officer has even disallowed the expenses which are of statutory and inciden .....

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for considering the interest under the head income from other sources. (iii) That orders of the lower authorities are in total disregard to past history of the case. 4. That orders of the lower authorities are not justified on facts and the same are bad in law. 3. The brief facts of the case are that the assessee filed its return declaring loss of ₹ 97,95,818/- under the head Business & Profession on 31.10.2007. The same was processed and an intimation u/s. 143(1) was issued on 1.3.20 .....

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d to the AO. Thereafter, the AO completed the assessment u/s. 143(3) of the Act vide his order dated 27.11.2009 and loss allowed to be carried forward at ₹ 2,35,50,357/-. 4. Aggrieved by the aforesaid order of the Assessing Officer dated 27.11.2009, assessee filed an appeal before the Ld. First Appellate Authority, who vide impugned Order dated 22.1.2014 has dismissed the appeal of the Assessee. 5. Aggrieved with the aforesaid finding of the Ld. CIT(A), Assessee is in appeal before the Tri .....

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ssue afresh, under the law, after giving adequate opportunity of being heard to the assessee. He has also filed the copy of the aforesaid Tribunal s order dated 21.9.2015. 7. On the contrary, Ld. DR relied upon the order passed by the Revenue authorities. 8. We have heard both the parties and perused the records especially the orders of the revenue authorities and the order of the Tribunal s order dated 21.9.2015. For the sake of convenience, we are reproducing the relevant portion of the Tribun .....

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I also find from the record that the assessee is engaged in the business of lotteries and the business has never been closed or discontinued, as stated by the Ld. Counsel of the assessee. The firm is still in existence and maintaining regular establishment and infrastructure. The lottery business is being carried out on in terms of agreement with Nagaland and Meghalaya Authorities. However, the business was discontinued by these authorities on the technical reasons and dispute which is still pen .....

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acts and evidence filed by the Assessee before them which in my opinion, needs to be considered by the AO. In the interest of justice, we remit back the issues in dispute to the file of the AO with the directions to consider the written submission filed by the assessee before the Ld. CIT(A) and decide the case afresh, under the law, after giving adequate opportunity of being heard to the assessee. Assessee is also directed to cooperate with the AO and filed all the evidences / documents to the A .....

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iving adequate opportunity of being heard to the assessee. In the result, the ITA No. 2103/Del/2014 (AY 2007-08) is allowed for statistical purposes. ITA NO. 2104/DEL/2014 (AY 2007-08) 10. This appeal preferred by the Assessee against the order of the Ld. CIT(A) dated 27.1.2014 confirming the action of the AO wherein the AO passed the order u/s. 154 of the Act on 7.10.2010. He has rectified a mistake which is according to him apparent from record. The purported mistake is setting off of carry fo .....

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therefore, carry forward business loss of ₹ 2,38,548/- originally allowed to the assessee is a contentious issue, which cannot be rectified u/s. 154 of the Act. 11. The Grounds of Appeal raised by the Assessee read as under:- 1(i) That on the facts and circumstances of the case, the CIT(A) was not justified in confirming order u/s. 154 passed by the Assessing Officer and in disallowing claim of set off of carry forward business loss. (ii) That there is no mistake in the original order of t .....

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