TMI Blog2014 (5) TMI 1202X X X X Extracts X X X X X X X X Extracts X X X X ..... Tribunal declining to refer the question for our opinion. Deduction on account of interest paid to the third parties is to be allowed to the assessee and modify the earlier order passed by the ITAT to this extent. - MA No.04 /Jodh/2013, (Arising out of ITA No. 430/JU/2008) - - - Dated:- 2-5-2014 - Shri Hari Om Maratha, Judicial Member And Shri N.K. Saini, Accountant Member Appellant by: Shri Suresh Ojha Department by: Shri N.A. Joshi, D.R. ORDER N.K. Saini, This Miscellaneous Application arising out of the order dated 16/04/2009 in ITA No. 430/JU/2008 for the A.Y. 2004-05 has been filed by the assessee stating therein as under:- 2 In this Misc. Application, the assessee contended as under:- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Hon'ble Bench decided in case of Dr. Ashok Upal. In the order in question is squarely applicable decided the issue where the judgment of Hon'ble Rajasthan High Court remain un-adjudicated, therefore, the issue involved is squarely covered by the judgment of Hon'ble Rajasthan High Court. Your kind attention is invited towards the case law referred by the Hon'ble Member while deciding the appeal in case of 245 ITR Page No. 527. The Hon'ble Tribunal while deciding the appeal picks up part of the judgment and not considered rest of the part. Though, the judgment of Hon'ble Rajasthan High Court on which the Hon'ble Bench relied was in respect of reopening of the assessment under section 263. While delivering the ju ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lied upon was also adjudicated. In this respect your kind attention is invited towards the case reported in 94 TTJ Page No. 133 in which the Hon'ble Bench held that not considering and adjudicating the case law referred by the Advocate in course of hearing will constitute a mistake apparent from the record. In above mentioned facts and circumstances you will observe that the finding recorded by the Hon'ble Bench in Paragraph 12 seems to be under some wrong impression and without appreciating case law. The Hon'ble Tribunal consistently held that past history should be considered and can be a gauge and guide. In this connection your kind attention is further invited towards the order of M/s G.R. Contractor, Sri Ganganagar in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ut above may kindly be rectified under section 254 (2) of the Income Tax Act. In this respect it is stated that the judgment of the binding nature was not considered and argument not considered is/ are mistakes covered u/s 254(2) of the I. T. Act. Challan being the miscellaneous application fees amounting to ₹ 50 is being annexed herewith. Copy of order of the Hon'ble Tribunal dated 16.4.2009 is also being annexed herewith for your kind perusal. Thanking you, Yours faithfully, For M/s Ganeshgarhia Construction Co. Sd/- X XXX X Partner Encl: -As above Date: - 26/04/2011 3. During the course of hearing, ld. counsel for the assessee reiterated the contents of the aforesaid Misc. App ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... along with this Misc. Application. 7. Learned counsel for the assessee submitted that this issue has been decided in the case of M/s. B. Ratan Company by the Hon'ble Jurisdictional High Court vide order dated 24/09/1999 in I.T. Ref.No. 76/1999 and also in the case of CIT Vs. Bhawan Va Path Nirman (Bohra) and Co. (No.1) reported in 258 ITR 431 (supra). 8. In his rival submissions, Ld. D.R. although supported the order of the Ld. CIT(A), but could not controvert the aforesaid contention of the learned counsel for the assessee. 9. We have considered the submissions of both the parties and carefully gone through the material available on record. It is noticed that the Hon'ble Jurisdictional High Court while deci ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ining the net profit rate. Consequently, the trading result obtained by applying such net profit rate need further appropriation towards allowable depreciation and interest on borrowings. The Tribunal was right in modifying the order passed by the Assessing Officer by making the net profit rate subject to adjustment towards depreciation and interest on borrowings. This conclusion was a pure finding of fact and would not give rise to a question of law much less a substantial question of law. 11. We, therefore, in view of the ratio laid down by the Hon'ble Jurisdictional High Court in the aforesaid referred to cases, are of the confirmed view that the deduction on account of interest paid to the third parties is to be allowed to ..... X X X X Extracts X X X X X X X X Extracts X X X X
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