TMI Blog2016 (7) TMI 963X X X X Extracts X X X X X X X X Extracts X X X X ..... (PER : HONOURABLE MR.JUSTICE KS JHAVERI) By way of this appeal, the appellant Department has challenged the order dated 10/02/2016 passed by the ITAT in ITA No.1966/Ahd/2000 for the assessment year 1995-96. 2. While admitting this appeal, following question of law was framed: Whether the Appellate Tribunal is right in law and on facts in confirming the order passed by the CIT (A) deleting the disallowance of ₹ 36,30,000/- made u/s 36(1)(iii) out of preoperative expenses ? 3. Learned Counsel for the assessee has submitted that the question raised in this appeal is squarely covered by a decision case of Deputy Commissioner of Incom-tax v. Core Health Care Ltd. [2008] 167 TAXMAN 206 (SC) and placed reliance upon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the transaction of investment. If this dichotomy is kept in mind it becomes clear that the transaction of borrowing attracts the provisions of Section 36(1)(iii). Thus, the decision of the Bombay High Court in Calico Dyeing Printing Works (supra) and the judgment of the Supreme Court India Cements Ltd. (supra) have been given with reference to the borrowings made for the purposes of a running business, while the decision of the Supreme Court in Challapalli Sugars Ltd. (supra) was given with reference to the borrowings which could not be treated as made for the purposes of business as no business had commenced in that case. Therefore, there is no inconsistency between the above decisions. CONCLUSIONS 14. For the above reasons, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... il Application Nos.53 and 54 of 2001. We are of the view that the High Court had erred in dismissing the above two civil applications for amendment of the Memo of Appeal in Tax Appeal Nos.449 and 450 of 2000. In our view the above three questions are substantial questions of law and, therefore, the High Court ought to have decided those questions. 17. Accordingly, we remit the above three questions to the High Court for fresh consideration by it in accordance with law. Accordingly, Civil Appeal Nos.395255 of 2002 and Civil Appeal Nos.85098510 of 2002 filed by the Department are partly allowed with no order as to costs. 4. Learned Counsel for the assessee has also submitted that the following above referred decision the Hon'b ..... X X X X Extracts X X X X X X X X Extracts X X X X
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