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TMI Blog2022 (1) TMI 46X X X X Extracts X X X X X X X X Extracts X X X X ..... actually in the statute. Therefore, question no.2 stands rejected. Disallowance u/s 14A r.w.r. 8D - HELD THAT:- Tribunal considered the correctness of the same and held that the assessing officer neither examined the assessee s account nor recorded satisfaction about the correctness of the claim and that it is incumbent upon the assessing officer to indicate reasons for rejecting the assessee s claim. An alternate contention was also raised before the Tribunal contending that investment made for acquiring controlling interest in their Group concerns and not for income. In support of such contention, the assessee placed reliance on DCIT vs. Selvel Advertising [ 2015 (5) TMI 682 - ITAT KOLKATA] . Before we examine as to whethe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Ms. Aesa Dey, Adv. ...for the respondent. The Court : This appeal filed by the revenue under Section 260A of the Income Tax Act, 1961 (the Act in brevity) is directed against the composite order dated 5th April, 2017 passed by the Income Tax Appellate Tribunal, A Bench, Kolkata (the Tribunal in short) in ITA No.866/Kol/2012 and ITA No.932/2012 for the assessment year 2008-09. The revenue has raised the following substantial questions of law for consideration: (i) Whether on the facts and in the circumstances of the case, the Learned Tribunal erred in law in deleting the disallowance of ₹ 1,99,56,281/- being 60% of the aggregate expenditure incurred on running and maintenance of aircrafts without considering that t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... who disallowed 0.5% of average investment by applying rule 8D of income tax rules and made disallowance of expenses under Section 14A ? (vi) Whether on the facts and in the circumstances of the case, the Learned Tribunal erred in law in deleting the addition on account of interest amounting to ₹ 1,71,99,475/- being 12% of interest free advances given to subsidiary companies for non business purpose based on the presumption that those advances were made by the assessee out of its own funds and not out of the borrowed funds bearing interest? (vii) Whether on the facts and in the circumstances of the case, the Learned Tribunal erred in law in deleting the disallowance under Section 40(a)(i) of ₹ 18,29,94,840/- paid as co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dismissed the appeal filed by the revenue. Thus, our task has become easier as the said judgment has attained finality and will bind the revenue. Substantial question of law no.1 was question no.4 therein and we find from the judgment dated 23rd July, 2018 passed in ITAT/53/2017 that the said question was not pressed by the revenue and consequently rejected. Therefore, the substantial question of law no.1 raised before us stands rejected. Substantial question of law no.2 was also question no.2 in ITAT/53/2017. The Division Bench in its judgement dated 23rd July, 2018 found that the Tribunal held the addition to be erroneous and has considered in detail the nature and expenses in respect of which the assessee was sought to be penalize ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3/2008, the High Court of Bombay held that the person mentioned in Section 195 of the Act cannot be expected to do the impossible, namely, to apply the expanded definition of royalty inserted by Explanation 4 to Section 9(1)(vi) of the Act for the assessment years in question, at a time when such Explanation was not actually and factually in the statute. Therefore, question no.2 stands rejected. Question nos.3 and 4 are identical to question no.1 framed in ITAT/53/2017, which was rejected. That apart, the decision in the case of Engineering Analysis Centre of Excellence P. Ltd. (supra) would come to the aid and assistance of the assessee. Therefore, question nos. 3 and 4 are rejected. So far as question no.5 is concerned, the sa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oner of Income Tax vs. REI Agro passed in ITAT/161/2013, which was dismissed by judgment dated 23rd December, 2013. Thus, we find that the question no.5 has to be decided against the revenue and in favour of the assessee. With regard to question no.6, the same is identical to question no.5 in ITAT/53/2017 and the said question was not pressed by the revenue and the same was rejected. Therefore, question no.6 before us stands rejected. So far as question no.7 is concerned, the Tribunal rightly held the amendment to Section 194J was with effect from 1st July, 2012 and the assessment year under consideration being 2008- 09, the same cannot be made applicable. Furthermore, the observations contained in Engineering Analysis Centre of Excel ..... X X X X Extracts X X X X X X X X Extracts X X X X
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