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TMI Blog2015 (12) TMI 1078X X X X Extracts X X X X X X X X Extracts X X X X ..... subject Assessment Years but also by the decision of the Apex Court in Toshoku Ltd. (1980 (8) TMI 2 - SUPREME Court ) in favour of the Respondent-Assessee. - Decided against revenue Disallowance of interest - availability of sufficient free funds - ITAT deleted the addition - Held that:- It is undisputed that the Respondent-Assessee has interest free funds aggregating to ₹ 16.09 Crore. The advances and interest made to group companies by the Respondent-Assessee is to the tune of ₹ 26.55 lakhs. The amounts borrowed in the aggregate being to the extent of ₹ 6.81 lakhs i.e. both working capital and term loans. Thus, as held by this Court in CIT v/s. Reliance Utilities & Power Ltd. (2009 (1) TMI 4 - BOMBAY HIGH COURT ] that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lt with identical issue for both Assessment Years 200708 and 200809. However, the only difference between the two is that for the Assessment Year 200708, the Commissioner of Income Tax (Appeals) [CIT(A)] decided in favour of the Revenue while for the Assessment Year 200809 the very issue is decided by the CIT(A) in favour of the Assessee. 5 Re:Question (a):( a) For the subject Assessment Year, the RespondentAssessee had during two Assessment Years made payment of commission to nonresident agent in respect of sales made out side India. The Assessing Officer in both the Assessment Years passed an order disallowing the payments made to nonresident agent under Section 40(a) (i) of the Act for failure to deduct tax at source. The basis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l not have retrospective effect so as to render Circular No.23 of 1965 and 786 of 2000 inoperative for the Assessment Years; (d) Being aggrieved, the RespondentAssessee as well as Revenue preferred an Appeal to the Tribunal from the order of CIT(A). In respect of the order of CIT(A) for Assessment Year 200708 RespondentAssessee's filed an appeal, while in respect of order of the CIT(A) for the Assessment Year 200809 Revenue has filed Appeal; (e) By the common impugned order, the Tribunal after considering the submissions places reliance upon the decision of its Coordinate Bench in Armayesh Global v/s. ACIT, 50 SOT 564, the decision of the Delhi High Court in CIT v/s. Eon Technology 343 ITR 366 and the reasons recorded by the C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r for Assessment Year 200809 while allowing the appeal of the RespondentAssessee places reliance upon the decision of the Tribunal in case of Ardeshi B. Cursetjee (supra) which in turn relies upon the decision of the Supreme Court in CIT v/s. Toshoku Ltd. 125 ITR 525 wherein on almost identical facts, the Apex Court held that the commission earned by the nonresident agent who carried on the business of selling Indian goods outside India, cannot be said have deemed to be income which has accrued and/or arisen in India. This view of the CIT(A) for Assessment Year 200809 was found acceptable by the Tribunal in its impugned order and applied the same even for Assessment Year 200708. In view of the fact that the issue sands concluded in favour o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the question framed for our consideration. Accordingly, Question (a) not entertained. 6 Re:Question (b):- a) We find that the impugned order of the Tribunal allows the RespondentAssessee's appeal by following its decision in DCIT v/s. Mohit Diamonds Pvt. Ltd. in Appeal No.2097/M/2011 for Assessment Year 200708 dated 31st July, 2012. (b) However, Mr. Pinto, learned Counsel appearing for the Revenue is unable to inform us in the absence of the instructions from the Officer even though sought for by Mr. Pinto whether or not any appeal has been preferred by the Revenue from the order of the Tribunal in M/s. Mohit Diamond (supra) and if no appeal has been preferred, therefrom the reason/justification for preferring the appeal aga ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ous issue. The parties who seek to file such appeals (which are normally after two tiers of appeal before the authorities under the Act) must do so after due application of mind and not raise frivolous/ concluded issues. This is certainty expected of the State. The Registry has informed us that out of 4784 appeals from the order of the Tribunal filed in this court during the period January 1, 2014 to June 1,2014, the appeals filed by the Revenue are 3968 and only 816 by the class of the assessee as a whole. (d) In spite of the aforesaid observations repeatedly made, no explanation is forthcoming either in the grounds of Appeal or by filing an affidavit explaining the reason why the present appeal is being filed against the impugned or ..... X X X X Extracts X X X X X X X X Extracts X X X X
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