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TMI Blog1998 (12) TMI 107X X X X Extracts X X X X X X X X Extracts X X X X ..... ection 143(1)(a), the assessing officer made the following three adjustments - (1) Deduction claimed towards municipal taxes in the absence of evidence Rs. 1,190 (2) Maintenance allowance in the absence of evidence Rs. 12,000 (3) Collection charges claimed in the absence of evidence Rs. 3,896 Thus, after the above adjustments, the income of the assessee was determined for the assessment year 1991-92 at Rs. 66,130. The assessee filed rectification petition under section 154. In the order under section 154 dated 31-7-1992 for assessment year 1991-92, a sum of Rs. 3,896 was allowed as deduction on the ground that details of collection charges were filed by the assessee before the Assessing Officer. However, with regard to the other two claims, the deductions were maintained on the ground that municipal taxes cannot be allowed as deduction, since the evidence for payment of municipal taxes was purported to have been not furnished and secondly, maintenance allowance cannot be allowed as per the stand taken by the department in the earlier years. 3. For assessment year 1989-90, after sending the intimation under section 143(1)(a), notice under section 143(2) was issued and the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... charge on the assessee's properties. The Assessing Officer further felt that since the Hon'ble High Court stayed the lower court's decree and its execution, it cannot be regarded that a charge on the assessee's properties is subsisting, to expect the assessee to claim the benefit of deduction under section 24(1)(iv) of the Act, for any payments made during the relevant accounting year. Therefore, the Assessing Officer concluded that the properties are not subject to any charge as envisaged under section 24(1)(iv). The Assessing Officer further stated that in any view, the assessee is not obliged to pay any further sum beyond what was required by the Hon'ble High Court, viz. Rs. 45,000 pending disposal of the appeal. Even before the Assessing Officer, an alternative claim was made, namely, that if the payment of Rs. 45,000 made in pursuance of the High Court's order is held to be not allowable, at least the balance of Rs. 16,000 should be allowed inasmuch as it was paid in pursuance of the order of the lower court. Considering this alternative claim, the Assessing Officer held that from the records produced before him, it was evident that the assessee was paying Rs. 1,000 per mont ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 39/86 was also filed. The text of that order is nearly as under- " In the peculiar circumstances of this case, there shall be stay of condition that the petitioner deposits a sum of Rs. 30,000-00 in the lower Court within two weeks from today and a further sum of Rs. 15,000-00 within two weeks thereafter in default of any of these conditions the stay stands vacated. No further extension will be granted. The respondent is entitled to withdraw the same without furnishing any security." There are two interim orders passed by the A.P. High Court. The portion extracted above is from the interim order dated 22-3-1988. Prior to that, on 18-7-1986, the following interim order is passed in CMP Nos. 5725 and 6143 of 1986 on the file of the A.P. High Court. "1. That, on condition that in the petitioner in C.M.P. No. 5725/86 deposit towards arrears of maintenance Rs. 30,000 (Rs. Thirty thousand) decreed against him to the credit of O. S. No. 857/70 on the file of the V Addl. Judge City Civil Court of Hyderabad within three months from the date of this order, the interim stay directed by the High Court dt. 18-4-1986 and made in the said C. M. P. No. 5725/86 shall be made absolute and th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... house properties held by the assessee were made charge for meeting the maintenance claim of the assessee's wife. 7. In Kedarnath Jute Mfg. Co. Ltd's. case , the Hon'ble Supreme Court held as follows- "Whether the assessee is entitled to a particular deduction or not will depend on the provision of law relating thereto and not on the view which the assessee might take of his rights nor can the existence or absence of entries in the books of account be decisive or conclusive in the matter.. . " It was also held that the liability remained intact even after the assessee took the matter in appeal before higher authorities or courts. Therefore, simply because the appeal is pending before the A.P. High Court and simply because A.P. High Court did not specifically mention about the subsistence of the charge over the properties of the assessee, it cannot be said that the charge created by the lower court over the properties of the assessee came to an end, but according to the Supreme Court decision in Kedarnath Jute Mfg. Co. Ltd's. case it should be deemed to have been subsisting or remaining intact. 8. In the case of Dalhousie Properties Ltd. , the ratio laid down by the Hon'ble ..... X X X X Extracts X X X X X X X X Extracts X X X X
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