9911796707
TMI Blog2016 (11) TMI 1664X X X X Extracts X X X X X X X X Extracts X X X X ..... t of the Revenue to contend that the finding arrived at by the Tribunal is perverse by misconstruing the order of Commissioner of Income-tax (Appeals) cannot be countenanced for three fold reasons as the Department itself before the Tribunal did not dispute the aforesaid finding of fact recorded by the Commissioner of Income-tax (Appeals) - it is not only at one place the aforesaid finding of fact is recorded but subsequently as observed earlier at two places similar factum is also recorded and when such finding of fact was not disputed and was also reiterated by the Commissioner (Appeals) and the said reiteration was also not disputed and the Tribunal has relied upon the same and has proceeded as an undisputed fact, such a view on the part of the Tribunal cannot be said to be perverse view. When one talks about perversity, the test would be that no reasonable person would take such view. But if the view taken by the Tribunal is a possible reasonable view, such view cannot be said to be perverse. If the perversity is tested from the material on record, then also, we cannot accept the contention that the finding of fact so recorded by the Tribunal is perverse or without there being ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aspects of dealing with the income from house property, found that the assessee is in the business of construction of one building after another including acquiring property rights in Diamond District, Platinum City and India Builder Association. However, so far as the interest over the amount of loan utilised for giving advance to the aforesaid two sister concerns, viz., Diamond District and Platinum City, the Commissioner (Appeals) found no proof was produced and therefore, he dismissed the appeal of the assessee to the said extent. The matter was further carried in appeal before the Tribunal and the Tribunal ultimately at paragraph 5.2 has observed thus : '5.2. The Commissioner of Income-tax (Appeals) has recorded the following finding at para 5.3 (page 31) of the appellate order. Moreover the appellant company has continued to construct one building after another and also acquiring property rights in M/s. Diamond District, M/s. Platinum City and M/s. India Builders Association. So the appellant's activity as a developer and contractor is well organised and continuous.' Similar findings are also recorded at pages 31, 32 and 33 of the appellate order. Before us, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cussion made by the Commissioner of Income-tax (Appeals), it was pertaining to the income from house property and it cannot be mixed up with the issue for disallowance of interest of the advances given to the sister concerns, viz., Diamond District and Platinum City. He therefore submitted that the Tribunal has committed a serious error and in any case the finding of the Tribunal is perverse and hence this court may set aside the order of the Tribunal to that extent and allow the appeal of the Revenue. 6. Whereas the counsel appearing for the respondent-assessee supported the finding recorded by the Tribunal and contended that the finding is based on 'a finding of fact' recorded by the Commissioner of Income-tax (Appeals) coupled with the aspect that the Department had not disputed the above finding recorded by the Commissioner of Income-tax (Appeals). He submitted that if the advances were given to sister concerns for acquiring proprietary rights, viz., Diamond District and Platinum City, the interest is allow able as deduction under section 36 of the Act. He submitted that the appeal of the Revenue be dismissed. 7. As we have already reproduced the observations of the T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ny advance given by the assessee to M/s. Diamond District and M/s. Platinum City is to be treated for acquiring property rights and once it is treated as for acquiring property rights may be of a sister concern, it would be an allowable deduction under section 36 of the Income-tax Act, since it is for the business activity. 12. The aforesaid fact is coupled with the aspect that in the very observation of the Tribunal, it has been recorded as under : 'Before us, the Department has not disputed the above finding of fact recorded by the Commissioner of Income-tax (Appeals).' Meaning thereby, the aforesaid finding was not even disputed by the Department before the Tribunal. 13. The attempt on the part of the Revenue to contend that the finding arrived at by the Tribunal is perverse by misconstruing the order of Commissioner of Income-tax (Appeals) cannot be countenanced for three fold reasons : One is that the Department itself before the Tribunal did not dispute the aforesaid finding of fact recorded by the Commissioner of Income-tax (Appeals). The second is that it is not only at one place the aforesaid finding of fact is recorded but subsequently as observed earlier ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
