9911796707
TMI Blog2012 (10) TMI 896X X X X Extracts X X X X X X X X Extracts X X X X ..... e case the Tribunal erred in holding that allowability or disallowability of the sum of Rs.180.97 lakh under the heading "Return to Certificateholders" as outgoing from profit depends on the revenue or capital nature of the receipt of subscriptions from the certificate-holders, regardless of its decision to the contrary? II. Whether the Tribunal erred in remitting the matter to the Assessing Officer in departure from its earlier decision that return to certificate-holders represents the assessee's liability by way of interest and bonus due to the subscribers on their deposits, and partakes of the nature of revenue outgoing, while the subscriptions represent capital liability? III. Whether on the facts and in the circumstances of the case ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... clause (vi). In view of this submission we do not need to decide other points as formulated under grounds No.(i) to (iv). Hence we take up hearing on those two grounds only. Mr. Bagchi submits that the nature of the assessee's business is a nonbanking financing that includes acceptance of deposit from public to pool for making investments within the limitation of prudential norms issued by the RBI, and it obviously precludes the possibility of any purpose of capital nature. The continuity of collection in foreign exchange and the long history of regular campaign over years per se is a circumstance of substantially evidentiary value. He submits that both the assessing officer and the learned Tribunal had gone wrong not accepting this fact ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rpose of charging of the tax on 'income from house property' as amended by Finance Act, 1987 where the leasehold interest exists 12 years or more. It will appear from Section 269 UA(f) to the definition of owner in Section 27 of the Act that same definition has to be accepted. The explanation under Section 32(1) applies only in relation to any lease for less than 12 years. According to him that the concept of ownership is common for Section 22, the charging section of income from house property and under Section 32(1) of the Act for depreciation of allowance and this concept has been well settled in the following decisions of the Courts: 1. CIT v. U.P. Agro Industrial Corporation Limited reported in (1981) 127 ITR page 97 (All), 2. CIT v. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unity was given to produce the same. The appellant has not furnished full details and information with regard to following foreign trips by the personnel of the Assessing Officer. Hence, an adverse inference has been drawn against the assessee in terms of Section 114 of the Evidence Act, 1972 which is legally appropriate. The material produced before the authority was not adequate to accept this claim of allowance of deduction. It is the initial burden of the assessee to discharge, which was not done. On the question of disallowance of depreciation in relation to the leasehold interest of the properties including the lease for perpetuity he contends that the order of the learned Tribunal is with regard to the issue does not speak about any ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unsel for the respondent that despite opportunity being given they could not produce any materials that such foreign tour was undertaken in relation to the business of the company. Mere furnishing information and making of statement are not good enough to establish the case of foreign travel we, therefore, record the findings of the relevant portion of the Assessing Officer on fact as follows:- "The assessee was required to give the details of foreign visits and justification related to assessee's business. The assessee has replied that these are incurred for possible future expansion of business but no other details were given regarding what in the further expansion plan and which visit is for what particular project or purpose and in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... conducted fully for business purposes and that there was no personal element involved. Under such circumstances, it will be reasonable to restrict the claim to 50% which works out to Rs.8,38,604/- and the appellant will get a relief of Rs.8,38,604/- under this head." It will appear that the Commissioner of Income Tax (Appeals) has accepted mere statement made to be correct without caring for evidence and it would appear therefrom it is absolutely based on surmise and conjecture. We therefore find force in the submission of the learned Counsel for the respondent. Therefore the decision of the learned Tribunal is absolutely justified. We are of the view that the appellant-assessee has not been able to discharge initial burden to prove that t ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
