TMI Blog2016 (9) TMI 553X X X X Extracts X X X X X X X X Extracts X X X X ..... ially a question of fact. The authority up to the level of Tribunal has recorded finding of fact for non-discharge of burden by appellant-asses see. So far as applicability of Section 14-A read Rule 8D(2)(iii) is concerned when the assessee has failed to discharge the burden of proving quantification of the amount for disallowance towards exempted income, there would be hardly any scope for consideration of the matter as any substantial questions of law. The aforesaid is coupled with the aspects as referred by us hereinabove that the finding of fact for non-discharge of the burden which is upto the level of the Tribunal which is the ultimate fact finding authority, has remained final. The finding of fact in our view is outside the scope ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he order of the Assessing Officer because the relevant portion of the reasoning of the assessing officer are already considered in the order of the CIT (Appeals). We may record that, the CIT (Appeals) has examined the rejection of the claim of the assessee for disallowance of the expenses to the extent of ₹ 4 lakhs towards exempted income and has further observed at para.3.1(D) to 3.2(A) which reads as under: 3.1(D) I have considered the rival contentions carefully. I find that the argument of the appellant is vague in as much as when the AO has asked to prove that the appellant has own funds to substantiate the investment as and when the investments are made the appellant is only trying to explain the opening and cl figures of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nitaryware Inds. (P) Ltd. V. ITO : ITA No.2028 (Del) of 2008, IV). Apollo Textiles Agency (2006) 283 ITR 591 (All) V). Goetze (India) Ltd. V. Dy. CIT (2008) 115 ITD 119 (Del-Trib). VI). CIT v. Swadeshi Cotton Floor Mills (P) Ltd. (1964) 53 ITR 134 (SC). c) is not justified in law by overlooking the decisions in the following cases where it was held that the year of allowance is not material when the tax rate is the same. I). CIT v. Nagri Mills Co. Ltd. [1958] 33 ITR 681 (Bom.), II). CIT vs. Bilahari Investment (P.) Ltd (2010) 299 ITR 1 (SC). III). CIT vs. Dinesh Kumar Goel (2011) 331 ITR 10 (Delhi H) d) The Appellant craves leave to add, to amend and/or alter any of the foregoi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... efore, the addition sustained by the CIT(A) has to be upheld. Accordingly ground No. II raised by the assessee is dismissed. 5. In our view, when the quantification of the amount of expenses of ₹ 4 lakhs is towards exempted income i s not accepted by the assessing officer, he is required to follow the procedure and calculate the amount for the purpose of disallowance as per Rule- 8D(2)(iii) and accordingly, the figure is arrived a t ₹ 14,00,530/-. Further out of the said amount, ₹ 4 lakhs has been deducted and the only the net additional amount is added for dis allowance towards expenses of exempted income. 6. However, the learned counsel appearing for the appellant by relying upon the decision of this Court i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arge the burden of proving quantification of the amount for disallowance towards exempted income, there would be hardly any scope for consideration of the matter as any substantial questions of law. The aforesaid is coupled with the aspects as referred by us hereinabove that the finding of fact for non-discharge of the burden which is upto the level of the Tribunal which is the ultimate fact finding authority, has remained final. The finding of fact in our view is outside the scope of judicial scrutiny in the present appeal. 9. Considering the facts and circumstances, we find that the decision upon which the reliance has been placed is of no help because the assessee in the present case has not been able to prove that the interest free f ..... X X X X Extracts X X X X X X X X Extracts X X X X
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