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TMI Blog1982 (10) TMI 65X X X X Extracts X X X X X X X X Extracts X X X X ..... taken in the appeal is that the Commr. (A) erred in confirming the disallowance of an interest of Rs. 47,638 under s. 40A(8) of the IT Act, 1961. 3. The assessee-company carries on the business of construction of flats and sale of the same on ownership basis. With regard to a plot purchased by the assessee under a conveyance deed dt. 28th Feb., 1972, the total consideration payable by the assess ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f any money borrowed by a company which is not excluded by the sub-clauses of cl. (b). Sub-cl. (ix) excludes a loan which is secured by the creation of a mortgage of any assets of the company and where the amount of the relevant loan is not more than 75 per cent of the price which the mortgaged asset would ordinarily fetch on sale in open market on the date of creation of the mortgage. Sec. 40A(8) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he loan in the present case will not be a deposit within the meaning of s. 40A(8). The contention was negatived by the ITO and the Commr. (A), who held that the percentage of the loan has to be ascertained on the date of the loan and not on any subsequent day. The assessee has, therefore, come up in appeal. 4. Before us the ld. counsel for the assessee reiterated the contention advanced before t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the loan has to be decided with reference to the date of creation of the mortgage. The lower authorities were, therefore, perfectly justified in holding that the loan in the present case is not excluded by sub-cl. (ix). 5. The ld. counsel for the assessee also advanced a new contention, which had not been taken before the lower authorities. It was to the effect that s. 40A(8) will not be attr ..... X X X X Extracts X X X X X X X X Extracts X X X X
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