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TMI Blog2016 (1) TMI 675X X X X Extracts X X X X X X X X Extracts X X X X ..... d its opinion may be set out as below. "i. Whether on the facts and in the circumstances of the case, the Income Tax Appellate Tribunal was right in law in deleting the disallowance of service charges paid to M/s Universal Trading Company made under Section 40A(2)? ii. Whether on the facts and in the circumstances of the case, the Tribunal was justified in holding that the loss shown by the assessee in the film business amounting to Rs. 31,48,670/- was allowable? iii. Whether on the facts and in the circumstances of the case, the Tribunal was justified in allowing the assessee's claim for deduction under Section 35(2A) in respect of donation to Aparna Ashram?" 3. The necessary discussions can best be unfolded by taking up each ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mary and First Appellate Authority primarily on the ground that the order of the CIT (Appeals) in the earlier assessment proceeding, relied upon by the Assessing Officer, was reversed in appeal by the ITAT and also that in the course of said earlier assessment proceeding the legal effect of the advice tendered by the Chartered Accountant to reduce the incidence of Income Tax was found to be permissible in law. The High Court reversed the said conclusion of the ITAT which has been challenged by the assessee in the present appeal. A reading of the order of the ITAT in favour of the assessee which has been reversed by the High Court would indicate that the learned ITAT did not address itself to a very fundamental issue that had arisen before ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the learned ITAT. The learned ITAT while allowing the deduction appears to have taken into account the view recorded in another proceeding by the ITAT itself in the case of a sister concern [ITA No.3717/Mds/1987]. The relief granted in the case of the sister concern in ITA No.3717/Mds/1987 was on identical facts and, therefore, perhaps, ITAT did not think it proper to depart from the view already taken in the said case of the sister concern. However, the High Court found the aforesaid view taken by the Tribunal in ITA No.3717/Mds/1987 to be wholly untenable and, therefore, interfered with the reliance placed by the ITAT on the aforesaid decision in the present case. There was no legal bar for the High Court in taking the aforesaid view. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not entitled to the benefit of donation made to Aparna Ashram can be faulted. 7. An issue on which there could be little dispute on law, nevertheless, needs to be dealt with in view of the elaborate arguments advanced on behalf of the appellant - assessee, namely, that the High Court had relied on findings of fact independent of those considered by the learned ITAT which is the final fact finding authority. Reliance in this regard has been placed on several judgments of this Court to contend that issues of fact determined by the Tribunal are final and the High Court in exercise of its reference jurisdiction should not act as an appellate Court to review such findings of fact arrived at by the Tribunal by a process of reappreciation and re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dditional facts, already on record, which were however not taken note of by the Tribunal to arrive at its findings, e.g., that the appellant - assessee had failed to furnish any proof of service rendered by UTC in the course of the relevant Assessment Year i.e. 1984-1985. Alternatively, the High Court construed certain facts as, for example, compliance of the conditions subject to which registration was granted to the Aparna Ashram under Section 35(2A) of the Act to be of significance as against the contrary/different view of the learned Tribunal on this score. There was no departure from the basic facts found by the learned Tribunal in the two illustrative situations cited above, namely, that (i) the assessee had not adduced any proof of s ..... X X X X Extracts X X X X X X X X Extracts X X X X
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