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TMI Blog2013 (3) TMI 169X X X X Extracts X X X X X X X X Extracts X X X X ..... ssessee, the notional interest cannot be disallowed on the reason that the assessee should have used its non interest bearing funds for the purpose of its own business purpose instead using borrowed funds for its business. - Decided in favor of assessee. - I.T.A. No. 1698/Hyd/2011 - - - Dated:- 25-1-2012 - SHRI CHANDRA POOJARI And SMT. ASHA VIJAYARAGHAVAN, JJ. Appellant by: Shri V. Srinivas Respondent by: Shri S. Rama Rao ORDER PER CHANDRA POOJARI, AM: This appeal by the Revenue is directed against the order of the CIT(A)-IV, Hyderabad dated 29.7.2011 for A.Y. 2008-09. 2. The first ground in this appeal is general in nature and needs no adjudication. 3. The second ground raised by the Revenue ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he provisions of sec. 37 of the Income-tax Act. Sec. 37 provides for deduction of expenditure not being in the nature described in sections 30 to 36 and not being in the nature of capital expenditure or personal expenditure of the assessee, but laid out and expended wholly and exclusively for the purposes of the business or profession, while computing income chargeable to tax. The main contention of the Revenue is that under sec. 36(1)(v), the payment made by the assessee as employer could be allowed only in respect of approved gratuity fund. Since the Group Gratuity Scheme is not approved by the CIT, according to the Revenue, it cannot be allowed. However, the contention of the assessee is that in view of the judgement of the Madras High C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the investments made and loans advanced to its subsidiary." 7. This ground is covered in favour of the assessee in I.T.A. No. 198/Hyd/2011 in assessee s own case and the Tribunal vide order in dated 16th December, 2011 held as follows: "We have heard both the parties and perused the material available on record. As seen from the order of the CIT(A) similar issue came up for consideration before this Tribunal in assessee s own case for the assessment years 2002-03 to 2005-06 wherein this issue was decided in favour of the assessee by holding as follows: "6. We have heard both the parties and perused the material on record. If the assessee diverted its interest bearing funds to the sister concern for any purpose other than business ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rovides for deduction of interest on the loans raised for business purposes. Once the assessee claims any such deduction he books of account, the onus will be on the assessee to satisfy the assessing officer that whatever loans were raised by the assessee, the same were used for business purpose. If in the process of examination of genuineness of such deduction, it transpires that the assessee advanced certain funds to its sister concern at no interest, there would be a very heavy onus on the assessee to be discharged before the assessing officer to effect that in spite of heavy interest payable on fresh borrowings and pending loans on which the assessee incurring interest liability, still there is a justification to advance loans to sister ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... upra supports the assessee s claim. Accordingly this ground taken by the assessee is allowed." In view of the above order of the Tribunal, this issue is decided against the Revenue and in favour of the assessee." 8. In view of the above decision of the co-ordinate Bench on this issue, the ground raised by the Revenue is dismissed. 9. Ground No. 4 raised by the Revenue is as follows: "The learned CIT(A) erred in allowing depreciation on intangible assets." 10. With reference to the above ground, the learned DR relied on the order of the Tribunal in the case of R.G. Keswani vs. ACIT (120 TTJ 1081)(Mum) and requested the Bench to refer the case to Special Bench. However, in view of the order of the Tribunal in assessee s own case c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ee has fulfilled the conditions prescribed in the said section. Thereafter, it is not open for the AO to reexamine the issue all over again and come to a different conclusion in a subsequent year without justifying such departure. In the assessment order, there is no discussion by the assessing officer on this aspect in spite of the fact that the assessee had taken a specific position based on the relief allowed in the past. Further, the claim accepted by the AO in the asst. yr. 2001-02 and thereafter in 2002-03 has not been disturbed. Clearly, in a such a situation, the onus which was on the Revenue has not been discharged. Insofar as the justification for the claims of exemption/tax reliefs are concerned the onus is on the assessee to e ..... X X X X Extracts X X X X X X X X Extracts X X X X
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