TMI Blog2016 (11) TMI 1665X X X X Extracts X X X X X X X X Extracts X X X X ..... als, the Revenue has approached to this court by raising the substantial questions of law as mentioned in the appeal. 2. Considering the facts and circumstances, we find that the only substantial question of law which may arise for consideration is : Whether the Tribunal was right in holding that the interest deduction claimed by the assessee is an allowable deduction on the premise that the loan was utilised by the assessee for giving advance to the sister concern and whether the finding recorded by the Tribunal can be said as perverse or not? 3. We have heard Mr. K. V. Aravind, learned standing counsel appearing for the appellant-Revenue and Mr. Shankar, learned counsel appearing for the assessee. The learned counsel appearing for both the sides are unable to dispute that the questions which arise for consideration in the present appeal is covered by the decision of this court in Appeal No. 29 of 2013 decided today. As such, the said decision was for the very assessee except that the present appeals are for the year 2003-04 and 2004-05 respectively. 4. We may record that this court in the above referred to decision in I.T.A. 29 of 2013 for merits of the appeal of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Commissioner (Appeals) found no proof was produced and therefore, he dismissed the appeal of the assessee to the said extent. The matter was further carried in appeal before the Tribunal and the Tribunal ultimately at paragraph 5.2 has observed thus : '5.2. The Commissioner of Income-tax (Appeals) has recorded the following finding at para 5.3 (page 31) of the appellate order. Moreover the appellant company has continued to construct one building after another and also acquiring property rights in M/s. Diamond District, M/s. Platinum City and M/s. India Builders Association. So the appellant's activity as a developer and contractor is well organised and continuous.' Similar findings are also recorded at pages 31, 32 and 33 of the appellate order. Before us, the Department has not disputed the above finding of fact recorded by the Commissioner of Income-tax (Appeals). Therefore, it is an undisputed fact that the payments made by the assessee to its sister concerns are only to acquire property rights. It is also an admitted fact that the assessee is in real estate business and acquiring property rights is a part of its business. Thus, the payments made b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erse and hence this court may set aside the order of the Tribunal to that extent and allow the appeal of the Revenue. 6. Whereas the counsel appearing for the respondent-assessee supported the finding recorded by the Tribunal and contended that the finding is based on 'a finding of fact' recorded by the Commissioner of Income-tax (Appeals) coupled with the aspect that the Department had not disputed the above finding recorded by the Commissioner of Income-tax (Appeals). He submitted that if the advances were given to sister concerns for acquiring proprietary rights, viz., Diamond District and Platinum City, the interest is allow able as deduction under section 36 of the Act. He submitted that the appeal of the Revenue be dismissed. 7. As we have already reproduced the observations of the Tribunal, we need not repeat the same but the additional aspect is that in the above observation of the Tribunal, there is also reference to similar finding recorded by the Commissioner of Income-tax (Appeals) on pages 32 and 33. As the said finding is not reproduced by the Tribunal in its order, we find it appropriate to reproduce the same. 8. When the Commissioner of Income ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pled with the aspect that in the very observation of the Tribunal, it has been recorded as under : 'Before us, the Department has not disputed the above finding of fact recorded by the Commissioner of Income-tax (Appeals).' Meaning thereby, the aforesaid finding was not even disputed by the Department before the Tribunal. 13. The attempt on the part of the Revenue to contend that the finding arrived at by the Tribunal is perverse by misconstruing the order of Commissioner of Income-tax (Appeals) cannot be countenanced for three fold reasons : One is that the Department itself before the Tribunal did not dispute the aforesaid finding of fact recorded by the Commissioner of Income-tax (Appeals). The second is that it is not only at one place the aforesaid finding of fact is recorded but subsequently as observed earlier at two places similar factum is also recorded. The third is that when such finding of fact was not disputed and was also reiterated by the Commissioner (Appeals) and the said reiteration was also not disputed and the Tribunal has relied upon the same and has proceeded as an undisputed fact, such a view on the part of the Tribunal c ..... X X X X Extracts X X X X X X X X Extracts X X X X
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