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TMI Blog2019 (4) TMI 218X X X X Extracts X X X X X X X X Extracts X X X X ..... URT] addition deleted by the Commissioner (Appeals) in the appeal filed by the Assessee, holding that the same is not correct or sustainable and that the said commission receipts were to be assessed at the hands of the investment companies and not at the hands of the Assessee. This was affirmed by the Tribunal in Annexure-C order, holding that the aforesaid commissions have already been substantively assessed at the hands of the investment companies. This being the position, it could not have been assessed at the hands of the Assessee under any circumstance. The said finding on fact is not assailable under any circumstance and we hold it against the Revenue. Concealment of income by selling good tyres as defective second tyres - HELD THAT:- As decided in assessee's own case there cannot be any addition on the basis of surmises or conjectures and that the accounts were accepted and not rejected; adding that such reduction in the value was because of the defects with reference to the consumer complaints. The said finding was affirmed by the Tribunal. We are of the view that this is purely a 'question of fact' answered with reference to the materials on record and no in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e instant case, the disputed income is the income generated by way of interest from the amounts deposited by the Assessee elsewhere and it is having no relation to the business activity of the Assessee. This is the dictum laid down in Commissioner of Income Tax vs. Jose Thomas [2001 (11) TMI 73 - KERALA HIGH COURT]. Though the said decision is with reference to the mandate for deduction under Section 80HHC, the ratio/dictum is the same. - I. T. Appeal Nos. 67 And 86 of 2009 - - - Dated:- 14-3-2019 - MR P. R. RAMACHANDRA MENON AND MR N. ANIL KUMAR, JJ. For The Appellant : SRI. CHRISTOPHER ABRAHAM, SC, INCOME TAX DEPARTMENT For The Respondent : ADV. SHRI JOSEPH MARKOS (Sr. ). , SRI. BINU MATHEW, SRI. B. J. JOHN PRAKASH, , RI. JOSEPH KODIANTHARA (SR. ), SRI. K. M. V. PANDALAI, INCOME TAX DEPARTMENT, , , RI. MATHEWS K. UTHUPPACHAN, , SRI. TERRY V. JAMES, SRI. TOM THOMAS (KAKKUZHIYIL) AND SRI. V. ABRAHAM MARKOS JUDGMENT P . R . Ramachandra Menon, J . The Assessee is a Company engaged in the manufacture and sale of automobile tyres and tubes. In respect of the assessment year 1995-96, the assessment was finalised by the Ass ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... #39;. The finding arrived at by the Tribunal is well supported by reasons. The amount spent for acquiring membership in the Clubs stands on a different pedestal from the amounts incurred for availing materials supplied or service provided in the clubs. This Court finds that the said issue is to be answered in favour of the Assessee. It is declared accordingly. 6. ii) Whether the sum of ₹ 2,63,38,783/- paid as Commission by the suppliers of the Assessee to various investment companies is assessable as income of the Assessee company treating the same as diversion of income. This question has already been dealt with and the position was answered against the Revenue, as per our verdict in I.T.Appeal No.973 OF 2009. The relevant portion of the said verdict is extracted below for easy reference: The Assessing Officer found that the commission paid by the suppliers to the investment companies was not accounted in the accounts of the Assessee and hence addition was made in this regard. This was deleted by the Commissioner (Appeals) in the appeal filed by the Assessee, holding that the same is not correct or sustainable and that the said commission receipts wer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... below for easy reference Being aggrieved of the course pursued by the Commissioner (Appeals), both the Assessee and the Revenue filed appeals before the Tribunal, to the extent they were aggrieved. As per Annexure-C order under challenge, the Tribunal held that there was no valid ground to call for interference with the order passed by the Commissioner. The said 'finding on fact' is not liable to be interdicted by this Court, for want of any substantial question of law. Question stands answered against the Revenue. 9. v) Is the Tribunal right in deleting the disallowance of ₹ 14,14,392/- being rent paid for a building not used for the business purpose of the Assessee? This issue has also been dealt with in detail and the position was answered against the Revenue as per our verdict in I.T.Appeal No.973 OF 2009 . The relevant portion of the said verdict is extracted below for easy reference A decision was taken by the Assessing Officer in favour of the Revenue, dis-allowing the said amount holding that it was for 'non-business purpose'. However, in the appeal preferred by the Assessee, considering the facts and circumstances 50% was interd ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l, who passed Annexure C order Paragraphs 23 to 23.3 are in the following terms: 23. Ground No.7 is with regard to the claim of deduction u/s.80HHC. The Assessing Officer allowed deduction under Section 80HHC at ₹ 87.02,948/- as per the Audit report filed by the Assessee. Before the first appellate authority the Assessee contended that the Assessing Officer has erred in not allowing the claim under section 80 HHC on the basis of the assessed income. The learned Commissioner of Income Tax (Appeals) allowed the claim of the Assessee by observing as under: This issue is also covered by Ground No.(xv) of my above mentioned appellate order for the assessment year 1994-95 order dated 31.12.1997. Following the same, the appeal on this ground is allowed. Aggrieved by the above finding of the first appellate authority, the Revenue is in appeal before the Tribunal. 23.1 At the time of hearing the learned departmental representative relied on the grounds of appeal raised before us, as his submissions. Said ground reads as under: On the facts and circumstances of the case, the learned Commissioner of Income Tax (Appeals) erred both on facts and in law in allo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r dated 08.12.2006. The order passed by the Commissioner of Income tax (Appeals) was not to the full satisfaction of the Assessee, who challenged the same by filing further appeal before the Tribunal. The Tribunal finalised the matter as per Annexure C order, which is sought to be challenged by the Assessee as per the present appeal. 15. It is seen that there was a delay of 74 days in the filing the appeal, which was sought to be condoned by filing C.M. Application, wherein notice was ordered. Delay is not seen condoned as on date. Appeal is not admitted and no substantial question of law has been framed. The Assessee has suggested some questions as involving 'substantial question of law', as framed in the following terms: Ought not the Tribunal have held that the amount of ₹ 1.12 crores received as interest on deposits by the Assessee unit at Baroda being amounts received during the course of the business of the Industrial undertaking is inextricably linked with its business and hence is to be considered for computing deduction under Section 80IA Income Tax Act. 16. Heard Mr.Joseph Markose, the learned Sr.Counsel for the Assessee as well as Mr. Christ ..... 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