TMI Blog2016 (7) TMI 1217X X X X Extracts X X X X X X X X Extracts X X X X ..... society. In the present case, the loan was taken for business purpose more particularly purchase of yarn and not for fixed deposits. Questions raised in the present appeals are answered in favour of the assessee and against the revenue - TAX APPEAL NO. 93 of 2008 With TAX APPEAL NO. 94 of 2008 With TAX APPEAL NO. 95 of 2008 With TAX APPEAL NO. 96 of 2008 - - - Dated:- 12-7-2016 - MR.JUSTICE KS JHAVERI AND MR.JUSTICE G.R.UDHWANI MR MANISH J SHAH, ADVOCATE FOR THE APPELLANT MR SUDHIR M MEHTA, ADVOCATE FOR THE RESPONDENT ORAL JUDGMENT (PER : HONOURABLE MR.JUSTICE KS JHAVERI) 1. Being aggrieved and dissatisfied with the impugned judgment and order passed by the Income Tax Appellate Tribunal, Ahmedabad Bench A (hereinafter referred to as the Tribunal ), the assessee has preferred the present Tax Appeals assailing the following orders: Tax Appeal No. Date of Tribunal s order ITA/CO No. Assessment Year 93 of 2008 01/05/07 3848/Ahd/2002 1991-92 94 of 2008 01/05/07 384 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Disallowed by Assessing Officer 477863 640219 641273 76116 Deduction granted u/s 80P(2)(d) of the Act by Assessing Officer 549856 405079 581753 67618 4. Mr. Manish Shah, learned advocate appearing for the assessee has drawn the attention of this Court to Sections 28, 36(1), 56, 57 and 80P of the Act and contended that same deductions were allowed in the previous years. He submitted that in view of the decision of the Apex Court in the case of Excel Industries reported in 358 ITR 295, the respondent could not have taken a stand different than previous year . He has also relied upon the following decisions: (I) Bai Bhuriben Lallubhai vs. Commissioner of Income Tax, Bombay North Cutch and Saurashtra reported in [1956] 29 ITR 543 (Bom) (II) Commissioner of Income-tax vs. Doaba Cooperative Sugar Mills Ltd reported in [1998] 230 ITR 774 (P H) (III) Kaira District Co-operative Milk Producers Union Ltd. vs. Assistant Commissioner of Income Tax reported in [1996] 220 ITR 194 (Guj). 5. Mr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vocates for both the sides. So far as the contention regarding the benefit given to the assessee for earlier years is concerned, we are of the opinion that the same is required to be accepted. The Apex Court in the case of Kaira District Co-operative Milk Producers Union Ltd. (supra) has held that however wide the socpe for taking action under Section 148 of the Income tax Act, 1961, it does not confer jurisdiction on a change of opinion as to the interpretation of a particular provision earlier adopted by the assessing authority. We are therefore of the opinion that the assessee when had been once granted the benefit of deduction for the earlier years, he should have been granted for the relevant assessment years also. 7.1 It is required to be noted that the Tribunal has not challenged the decision of the Tribunal rendered in the case of Petlad Taluka Purchase and Sales Union (supra) and thereby has accepted the same. The Apex Court in the case of Kaumudini Narayan Dalal (supra) has already held that it was not open to the revenue to accept the earlier judgement in the case of one assessee and challenge its correctness without just cause in the case of other assessees. Similarl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the business income, and not from the interest received from the bank on the fixed deposits. The assessees were therefore right in the submissions which they made before the Commissioner of Income-tax in the revision petitions which they filed. This aspect of the matter has been overlooked by the Commissioner in passing the order, exhibit P-5. 8.1 Similarly, in the case of Doaba Co-operative Sugar Mills Ltd (supra), the Punjab Haryana High Court has held as under: 5. The contention of Mr. Gupta, learned counsel appearing for the Revenue, is that the Tribunal was wrong in allowing deduction under Section 80P(2) (d) of the Act because it is not established that the assessee had derived the interest by investing all the amount of surplus funds. It is further contended by Mr. Gupta that the assessee has paid interest to Jalandhar Central Co-operative Bank and has also received interest from the said cooperative bank, thereby showing that the assessee has on the aggregate paid interest to the bank and, therefore, no deduction under Section 80P(2)(d) can be allowed. To appreciate this argument, we have to look to the provisions of Section 80P(2)(d) of the Act, For facility of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e and in favour of the assessee. 8.2 Moreover, the Bombay High Court in the case of Bai Bhuriben Lallubhai (supra) has held that the purpose for which the assessee borrowed money had no connection whether direct or indirect with the income which she earned from the fixed deposit and that she was not entitled to the deduction claimed under Section 12(2). The High Court held that if an assessee had no option except to incur an expenditure in order to make the earning of an income possible, then undoubtedly the exercise of that option is compulsory and any expenditure incurred by reason of the exercise of that option would come within the ambit of section 12(2) of the Indian Income Tax Act but where the option has no connection with the carrying on of the business or the earning of the income and the option depends upon personal considerations or upon motives of the assessee, that expenditure cannot possibly come within the ambit of Section 12(2). In the present case, the loan was taken for business purpose more particularly purchase of yarn and not for fixed deposits. 9. In view of the above, the questions raised in the present appeals are answered in favour of the assessee ..... X X X X Extracts X X X X X X X X Extracts X X X X
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