M/s Ashok Commercial Enterprises, V. The ACIT Cir - 12(3),

CO 410/MUM/2004

• Counselvise Citation: [2010] 122 COUNSELVISE.COM (IT) 5420 (ITAT-MUMBAI)
• Duration Of Justice: 6 year(s) 13 day(s)
• Appeal Type: Cross Objection
• Pronouncement Date: 30-11-2010
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: J
• Next Hearing Date: 03-06-2010
• Assessment Year: misc
• Appeal Filed On: 17-11-2004
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: SUM EET KUMAR
• Keywords: Capital asset; Business income; Depreciation; Additional evidence; Notional interest
• Section: 234B; 14A; 260A

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH J MUMBAI BEFORE SHRI S.V. MEHROTRA (AM) AND SMT. ASHA VIJAYARA GHAVAN (JM) ITA NO.7460/MUM/2002 ASSESSMENT YEAR-1999-2000 M/S. ASHOK COMMERCIAL ENTERPRISES, 711/712, DALAMAL TOWERS, 211, NARIMAN POINT, MUMBAI-400 021 PAN-AAAFA 9227A THE ACIT-12(3), AAYAKAR BHAVAN, MUMBAI-400 020 (APPELLANT) VS. (RESPONDENT) ITA NO.1003/MUM/2003 ASSESSMENT YEAR-1999-2000 THE ACIT-12(3), AAYAKAR BHAVAN, MUMBAI-400 020 M/S. ASHOK COMMERCIAL ENTERPRISES, 711/712, DALAMAL TOWERS, 211, NARIMAN POINT, MUMBAI-400 021 (APPELLANT) VS. (RESPONDENT) ITA NO.5701/MUM/2003 ASSESSMENT YEAR-2001-02 THE ACIT-12(3), AAYAKAR BHAVAN, MUMBAI-400 020 M/S. ASHOK COMMERCIAL ENTERPRISES, 711/712, DALAMAL TOWERS, 211, NARIMAN POINT, MUMBAI-400 021 PAN-AAAFA 9227A (APPELLANT) VS. (RESPONDENT) C.O. NO. 410/MUM/2004 (ARISING OUT OF ITA NO.5701/MUM/2003) ASSESSMENT YEAR-2001-02 M/S. ASHOK COMMERCIAL ENTERPRISES, 711/712, DALAMAL TOWERS, 211, NARIMAN POINT, MUMBAI-400 021 PAN-AAAFA 9227A THE ACIT-12(3), AAYAKAR BHAVAN, MUMBAI-400 020 (APPELLANT) VS. (RESPONDENT) M/S. ASHOK COMMERCIAL ENTERPRISES 2 ITA NO.180/MUM/2006 ASSESSMENT YEAR-2002-03 THE ACIT-12(3), AAYAKAR BHAVAN, MUMBAI-400 020 M/S. ASHOK COMMERCIAL ENTERPRISES, 711/712, DALAMAL TOWERS, 211, NARIMAN POINT, MUMBAI-400 021 PAN-AAAFA 9227A (APPELLANT) VS. (RESPONDENT) C.O. NO. 258/MUM/2006 (ARISING OUT OF ITA NO.180/MUM/2006) ASSESSMENT YEAR-2002-03 M/S. ASHOK COMMERCIAL ENTERPRISES, 711/712, DALAMAL TOWERS, 211, NARIMAN POINT, MUMBAI-400 021 PAN-AAAFA 9227A THE ACIT-12(3), AAYAKAR BHAVAN, MUMBAI-400 020 (APPELLANT) VS. (RESPONDENT) ASSESSEE BY: SHRI DR. K. SHIVARAM WITH SHRI AJAY R. SINGH DEPARTMENT BY: SHRI SUMEET KUMAR O R D E R PER ASHA VIJAYARAGHAVAN (JM) THE APPEALS ARE FILED BY THE REVENUE AND THE CROSS OBJECTIONS ARE FILED BY THE ASSESSEE AGAINST THE ORDERS OF THE LD. CIT(A). ITA NO.7460/MUM/2002 - ASSESSEES APPEAL 2. THE ASSESSEE IS A REGISTERED PARTNERSHIP FIRM OF TWO PARTNERS CONSTITUTED UNDER THE PARTNERSHIP DEED DT. 2.7.1992 . THE ASSESSEES BUSINESS IS EXPORT/IMPORTS, COMMISSION AGENTS, BROK ERS, BUILDERS, DEVELOPERS AND INVESTORS IN REAL ESTATE AND CONSULT ANT ETC. M/S. ASHOK COMMERCIAL ENTERPRISES 3 3. GROUND N. (I) & (II) RELATES TO BIFURCATION OF R S. 6,84,000/- P.M. BEING 60% AS HOUSE PROPERTY AND 40% AS INCOME FROM OTHER SOURCES. THE ASSESSING OFFICER HELD THAT INCOME FROM LICENSI NG OF PROPERTIES TO DREDNER KLENWORTH BENSON SECURITIES LTD., WAS ASSES SABLE UNDER HEAD HOUSE PROPERTY AND NOT BUSINESS INCOME. 4. THE LD. CIT(A) UPHELD THE CONTENTION OF THE AO A ND FOLLOWED THE ORDER OF THE CIT(A)S ORDER FOR THE ASSESSMENT YEAR 1998-99 WHICH IS AS FOLLOWS: OBJECTING TO THE ACTION OF THE AO THE APPELLANT SU BMITS THAT THE AGREEMENT FOR LEAVE AND LICENCE IS A COMPLETE A GREEMENT FOR LEAVE AND LICENCE OF A FULLY FURNISHED OFFICE PREM ISE. NO VALUES ARE ASCRIBED TO FURNITURE AND FIXTURES. THAT THE LICENC E FEE IS INDIVISIBLE IN TWO PARTS, ONE FOR THE PREMISES AND THE OTHER FO R FURNITURE AND FIXTURES. THERE IS NO ROOM IN THE AGREEMENT TO SUG GEST THAT SEPARATE LICENCE FEE COULD BE ASCRIBED TO THE LICENCING OF F URNITURE. THE ENTIRE INCOME IS RIGHTLY CLAIMED BY THE ASSESSEE AS INCOME FROM HOUSE PROPERTY. THAT A SIMILAR QUESTION HAD ARISEN FOR T HE A.Y. 1998-99 AND THE CIT(A) HAS NOT ACCEPTED OUR SUBMISSION VIDE PARA 4.2 OF THE CIT(A)S ORDER DT. 26.4.2001 (PAGE 35 OF THE PAPER BOOK.) THAT THE APPELLANT IS IN APPEAL TO THE ITAT AGAINST THE CIT( A)S DECISION FOR A.Y. 1998-99. 5. WE FIND THAT THIS ISSUE IS COVERED BY THE ITAT J BENCH IN ASSESSEES OWN CASE IN ITA NO. 1058/M/02 FOR THE A. Y. 1998-99 WHEREIN IT HAS BEEN HELD AS FOLLOWS: FACTS RELATING TO THE RENTING OUT OF FOUR PROPERTIE S BUT THE ASSESSEE HAS ALREADY BEEN DEALT GIVEN AT PARAS 3 TO 7 ABOVE. AS MENTIONED THEREIN, AMONG THESE PROPERTIES, THERE WAS ONLY ONE PROPERTY WHICH INCLUDED FURNITURE AND FIXTURES. ASSESSEES CONTENTION WAS THAT AS PER PA RTNERSHIP DEED, ITS BUSINESS WAS THAT OF BUILDERS, DEVELOPERS, INVESTORS AND HEN CE GIVING THE PROPERTY ON LEAVE AND LICENSE COULD NOT TO BE CONSIDERED AS BU SINESS INCOME. IN OUR OPINION, THIS IS A SETTLED ISSUE IN VIEW OF THE DECISION OF THE HONBLE APEX COURT IN THE CASE OF EAST INDIA HOUSING & LAND DEVELOPMENT V. CI T (42 ITR 49). IT WAS HELD THEREIN THAT INCOME FROM TENANTS OF SHOPS AND STALL S WAS INCOME FROM PROPERTY IRRESPECTIVE OF THE FACT THAT IT WAS RECEIVED BY A COMPANY FORMED WITH THE OBJECT OF DEVELOPING AND SETTING UP OF LANDED PROPE RTIES AND MARKETS. IN OTHER M/S. ASHOK COMMERCIAL ENTERPRISES 4 WORDS, ACCORDING TO THE APEX COURT, THE OBJECT FOR WHICH AN ENTITY IS PROVED IS IRRELEVANT IN DECIDING THE HEAD OF INCOME UNDER WHI CH ANY INCOME EARNED BY SUCH ENTITY WAS TO BE TAXED. AGAIN IN THE CASE OF SHAMBU INVESTMENT P. LTD. V.CIT, 263 ITR 143, IT WAS HELD THAT INCOME DERIVED FROM LEASING HAS TO BE ASSESSED AS INCOME FROM PROPERTY AND NOT AS BUSIN ESS INCOME. ASSESSEE HAS NO CASE HERE THAT IT WAS DOING COMMERCIAL EXPLOITATION FOR A TEMPORARY PERIOD OF ITS BUSINESS ASSETS BY GIVING THE PROPERTY FOR LEAVE AN D LICENCE. THEREFORE, THE RENTAL INCOME WAS RIGHTLY ASSESSED UNDER THE HEAD INCOME FROM HOUSE PROPERTY. GROUND NOS. 1 TO 3 OF THE ASSESSEE, THEREFORE, STAN D DISMISSED. 6. WE FIND THAT THE FACTS FOR THIS YEAR ARE IDENTIC AL THAT OF 1998-99 AND THE LD. COUNSEL SUBMITTED THAT THE SAME HAS BE EN AFFIRMED BY THE BOMBAY HIGH COURT. THEREFORE RESPECTFULLY FOLLOWING THE ABOVE DECISION, WE DISMISS ASSESSEES APPEAL ON THIS ISSUE. 7. GROUND NO. (III) RELATES TO INCOME FROM CAR PARK ING SPACES RS. 35,200/- CONSIDERED AS INCOME FROM OTHER SOURCES INSTEAD OF HOUSE PROPERTY. 8. THE ASSESSEE SUBMITS THAT IT IS OWNING THE OFFIC E PREMISES ALONGWITH CAR PARKING SPACES. OUT OF THE OFFICE PR EMISES AND CAR PARKING SPACES, NO. 27 & 28 WERE LICENCED OUT TO SAIPEM UK LTD. THE ASSESSEE SUBMITTED THAT THE CAR PARKING SPACE FORMS PART OF THE OFFICE PREMISES. IT IS SUBMITTED THAT THE LICENCE FEES OF RS. 17,600/- PER CAR PARKING SPACE SHOULD HAVE BEEN ASSESSED AS INCOME FROM HOUSE PROP ERTY AND NOT AS INCOME FROM OTHER SOURCES. 9. THE AO CONFIRMED THE AFORESAID RECEIPTS AS INCOM E FROM OTHER SOURCES AS PER THE LAST YEARS ASSESSMENT. 10. AGGRIEVED, ASSESSEE PREFERRED AND APPEAL BEFORE THE LD. CIT(A). THE LD. CIT(A) CONFIRMED THE SAME BY OBSERVING AS UNDER: I HAVE CAREFULLY CONSIDERED THE APPELLANTS SUBMIS SION. THE LD. AUTHOR, CHATURVEDI AND PITHISARIAS IN THEIR BO OK ON INCOME TAX LAW HAVE OPINED THAT THE WORD BUILDING IN THE SE CTION 22 HAS A WIDER CONNOTATION THAN WHAT IS CARRIED ON BY THE WO RK HOUSE M/S. ASHOK COMMERCIAL ENTERPRISES 5 PROPERTY WHICH IS USED IN THE CAPTION OF THE HEAD C INCOME FROM HOUSE PROPERTY IN SEC. 14. THEY FURTHER OBSERVED T HAT FOR THE PURPOSE OF THE CHARGE UNDER THE HEAD INCOME FROM H OUSE PROPETY, THE CRUCIAL WORDS ARE BUILDINGS OR LANDS APPURTENA NT THERETO. THE PURPOSE FOR WHICH THE BUILDING ETC. IS BEING USED IS NOT MATERIAL CIT VS KANAIYALAL MIMMANI 120 ITR 892 (CAL). IN VIEW OF THE ABOVE, I AM OF THE OPINION THAT THERE IS NO JUSTIFI CATION FOR TREATING THE WAREHOUSING CHARGE AS INCOME FROM OTHER SOURCE S SINCE THE GARAGE PREMISES IN THE BUILDING PRABHAT WOULD COM E WITHIN THE WIDER MEANING OF THE BUILDING. THE WAREHOUSING CHA RGES OF RS. 90,000/- IS DIRECTED TO BE ASSESSED AS INCOME FROM HOUSE PROPERTY. AS REGARDS THE CAR PARKING FREES OF RS. 35,200/- IN RESPECT OF SAHATA CAR PARKING SPACES NO. 27 & 28, AS THE PARKING SPAC E CAN IN NO WAY BE CONSIDERED AS BUILDING, THE FEES RECEIVED EX CLUSIVE FOR LETTING OUT OF THE CAR PARKING SPACE INDEPENDENT OF THE OFF ICE PREMISES IS FOUND TO HAVE BEEN CORRECTLY ASSESSED UNDER THE HEA D INCOME FROM OTHER SOURCES AND THE SAME IS CONFIRMED. 11. AGGRIEVED BY THE ORDER OF THE LD. CIT(A), ASSES SEE PREFERRED AN APPEAL BEFORE US. 12. THE LD. DEPARTMENTAL REPRESENTATIVE RELIED ON T HE ORDER OF THE LD. CIT(A). HE SUBMITTED THAT THE CAR PARKING SPACES N O. 27 & 28 FOR RS. 35,200/- CAN IN NO WAY BE CONSIDERED AS BUILDING, T HE FEES RECEIVED EXCLUSIVE FOR LETTING OUT OF THE CAR PARKING SPACE INDEPENDENT OF THE OFFICE PREMISES IS FOUND TO HAVE BEEN CORRECTLY ASSESSED U NDER THE HEAD INCOME FROM OTHER SOURCES. 13. WE HEARD BOTH THE PARTIES. CAR PARKING SPACES ARE PART OF THE PROPERTY / OFFICE PREMISES AND THEREFORE CAR PARKIN G FEES IS TO BE ASSESSED UNDER THE HEAD INCOME FROM THESE PROPERTY . ASSESSEES APPEAL ON THIS ISSUE IS ALLOWED. 14. WITH RESPECT TO GROUND NO. (IV) , ASSESSING A S UM OF RS. 24,96,272/- AS INCOME FROM OTHER SOURCES INSTEAD OF INCOME FROM BUSINESS. THE ASSESSEE HAS NOT PRESSED THIS GROUND , THEREFORE IT IS DISMISSED AS NOT PRESSED. M/S. ASHOK COMMERCIAL ENTERPRISES 6 15. WITH RESPECT TO GROUND NO. (V) & (VI) DISALLOWA NCE OF RS. 24,28,906/- BEING INTEREST BEARING LIABILITY OF THE FIRM, THE AO CALCULATED INTEREST @ 15% ON 1,61,92,707/- UTILIZED FOR MAKING INVESTMENTS. 16. THE AO HELD THAT THE INTEREST BEARING FUND OF RS. 1,61,92,707/- HAS BEEN DIVERTED TO NON INTEREST BEARING ADVANCES AND NON INCOME GENERATING ASSETS. HE FURTHER HELD THAT AS PER SEC . 14A INTRODUCED BY FINANCE ACT, 2001 W.E.F. 1.4. 1962 SUCH INTEREST IS NOT ALLOWABLE UNDER THE ACT. ACCORDINGLY INTEREST AT THE RATE OF 15% O N THE TOTAL AMOUNT OF RS. 1,61,92,707/- WHICH COMES TO 24,28,906/- IS DIS ALLOWED AND ADDED BACK TO THE TOTAL INCOME OF THE ASSESSEE, TREATING THE CORRESPONDING BORROWING HAVING BEEN NOT UTILIZED FOR THE PURPOSE OF BUSINESS. 17. AGGRIEVED, ASSESSEE PREFERRED AND APPEAL BEFORE THE LD. CIT(A). THE FACTS OF THE ISSUE ARE THAT THE DISALLOWANCE HA S BEEN MADE ON THE GROUND THAT THE ASSESSEE HAS UTILIZED INTEREST BEAR ING FUNDS TO THE TUNE OF RS. 1,61,92,707/- FOR MAKING INTEREST FREE INVES TMENTS. THE SUM OF RS. 1,61,92,707/- IS ARRIVED AT AS UNDER: NON INCOME GENERATING ASSETS - RS. 11,03,08,319/ - LESS: INTEREST FREE FUNDS -RS. 9,41,15,612/- INTEREST BEARING FUNDS UTILIZED FOR THE -RS. 1 ,61,92,707/- PURPOSE OF NON-INTEREST BEARING FUNDS 18. INVOKING THE PROVISIONS OF SEC. 14A THE AO WORK ED OUT INTEREST @ 15% ON THE TOTAL AMOUNT OF RS. 1,61,92,707/- WHICH COMES TO RS. 24,28,906/- AND THE SAME WAS DISALLOWED AND ADDED B ACK TO THE ASSESSEES INCOME HOLDING THAT THE AMOUNT OF RS. 1. 61 CRORES HAS NOT BEEN UTILIZED FOR THE PURPOSE OF BUSINESS. 19. THE ASSESSEE MADE ELABORATE SUBMISSIONS BEFORE THE LD. CIT(A)WHICH IS AS FOLLOWS: M/S. ASHOK COMMERCIAL ENTERPRISES 7 THE ASSESSEE SUBMITTED THAT WHEN WE COMPARE THE FI GURES OF INTEREST FREE FUNDS AVAILABLE FOR MAKING INTEREST F REE INVESTMENT MADE IN A.Y. 1998-99 WITH THOSE OF A.Y. 1999-2000, IT COULD BE OBSERVED THAT ACTUALLY THERE IS NO INCREASE IN THE INTEREST FREE INVESTMENT. THERE IS A FALL IN SUCH INTEREST FREE INVESTMENT FROM RS. 13,85,98,595/- IN THE A.Y. 1998-99 TO RS. 11,03,08, 320/- FOR THE YEAR UNDER REFERENCE. AT THE SAME TIME IT COULD BE SEEN THAT THE INTEREST FREE FUNDS AVAILABLE WITH THE ASSESSEE HAD GONE DOWN FROM RS. 12,61,17,536/- TO RS. 9,41,15,612/- I.E. A REDUCTION OF RS. 3.20 CRORES. THE REDUCTION IN THE INTERESTS FREE F UNDS AVAILABLE IS MAINLY ON ACCOUNT OF THE REDUCTION IN THE BALANCES IN THE CAPITAL ACCOUNT OF PARTNERS ON ACCOUNT OF LOSS OF RS. 50 LA CS SUFFERED BY THE FIRM ON ACCOUNT OF WITHDRAWALS BY THE PARTNERS FOR CONTRIBUTION OF CAPITAL IN OTHER SISTER CONCERN. NO NEW LOAN IS TAKEN. THESE FACTS, NAMELY NO NEW INVESTMENTS BARRING INVESTMENT OF A FEW THOUSAND RUPEES AS EXPLAINED HEREINUNDER, WOULD SHO W THAT NO DISALLOWANCE OF INTEREST FOR ALLEGED USER OF INTERE ST BEARING FUNDS FOR INTEREST FREE INVESTMENT IS CALLED FOR. IT MAY FURTHER BE NOTED THAT THE INTEREST FREE INVESTMENT IN THE YEAR UNDER APPEAL ACTUALLY REPRESENTS OPENING BALANCES IN MAJOR ACCOUNT, SUCH AS INVESTMENT IN PROPERTY AND SHARES AS DISCUSSED HEREUNDER. IT MAY BE MENTIONED HERE THAT THE AO HAS TAKEN INTO ACCOUNT T HE INVESTMENT IN IMMOVABLE PROPERTY OF RS. 8,63,92,500/- IN THE I MMOVABLE PROPERTY ACCOUNT IS TO BE EXCLUDED FROM THE INTERES T FREE INVESTMENT AS THIS INVESTMENT IS NOT MADE IN THE YEAR OF ACCOU NT RELEVANT TO THE ASSESSMENT YEAR UNDER APPEAL. APART FROM THE A FORESAID FACT, IT MAY BE PLACED ON RECORD THAT THE APPELLANT HAD I NTEREST FREE INVESTMENT OF RS. 2,99,21,095/- AS ON 1.4.1998 IN S HARES. THE APPELLANT HAD SOLD DURING THE YEAR CERTAIN SHARES A ND IS IN RECEIPT OF SALE PROCEEDS OF RS. 1,52,56,928/-. THE APPELLA NT HAS INVESTED A MERE SUM OF RS. 4,000/- IN FRESH INVESTMENT IN SH ARES AND THE CLOSING BALANCE IN SHARES IS OF RS. 71,17,041/-. T HIS BALANCE IS WHOLLY OUT OF THE OPENING BALANCE APART FROM THE RS . 4,000/- INVESTED IN THE CURRENT YEAR. THE APPELLANT, THERE FORE, SUBMITS THAT TAKING INTO ACCOUNT AFORESAID TWO FACTS NAMELY DISI NVESTMENTS IN SHARES AND THE OPENING BALANCE IN THE ACCOUNT OF IN VESTMENT IN IMMOVABLE PROPERTY, THERE IS NO INVESTMENT OF INTER EST BEARING FUNDS INTO INTEREST FREE INVESTMENT DURING THE YEAR . THE APPELLANT FOR THE PROPOSITION THAT THE OPENING BALANCES IN AN ACCOUNT CANNOT BE CONSIDERED FOR THE PURPOSE OF WORKING OUT DISALL OWABLE ON ACCOUNT OF INVESTMENT OF INTEREST BEARING FUNDS IN INTERESTS FREE INVESTMENTS, RELIES ON THE JUDGMENT OF THE KARNATAK E HIGH COURT IN THE CASE OF SRIDEV ENTERPRISES 192 ITR 165. THE AP PELLANT HAS ALSO RELIED ON THE DECISION OF THE CALCUTTA HIGH COURT I N THE CASE OF BRITISH PAINTS (I) LTD. VS CIT REPORTED IN 190 ITR 196 AND BOMBAY HIGH COURT IN THE4 CASE OF CIT VS BOMBAY SAMACHAR L TD. 74 ITR M/S. ASHOK COMMERCIAL ENTERPRISES 8 723. IN ADDITION THE APPELLANT HAS HEAVILY RELIED ON THE ORDER OF THE LD. CIT(A)-XII, MUMBAI FOR A.Y. 1998-99 REFERRE D TO ABOVE. THE APPELLANT FURTHER SUBMITS THAT THE AO HAS WRONGLY T AKEN THE HELP OF THE PROVISIONS OF SEC. 14A WHICH DEALT WITH THE DISALLOWANCE OF EXPENSES PERTAINING TO THE INCOME WHICH IS CLAIMED TO BE EXEMPT OR DOES NOT FORM PART OF THE TOTAL INCOME. IT IS ARGU ED THAT THE INCOME FROM PROPERTY AND BUSINESS AGAINST WHICH THE INTERE ST CLAIM IS MADE IS NOT CLAIMED AS EXEMPT BY THE APPELLANT AND THUS, SEC. 14A IS NOT APPLICABLE TO THE APPELLANTS CASE. 20. THE LD. CIT(A) CONFIRMED THE ADDITION OF RS. 2 4,28,906/- AT PARA 8.3 AT PAGE 7 OF HIS ORDER. 21. AGGRIEVED, ASSESSEE IS ON APPEAL BEFORE US. THE LD. COUNSEL FOR THE ASSESSEE SHRI K. SHIVRAM POINTED OUT THE ORDER OF THE ITAT J BENCH IN ASSESSEES OWN CASE IN ITA NO. 1058/M/02 FOR A.Y. 1998-99 WHICH IS AS FOLLOWS: WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED TH E ORDERS OF THE AUTHORITIES BELOW. THERE IS NO DISPUTE THAT THE INT EREST DISALLOWANCE PERTAINED TO INVESTMENT OF RS.10,52,09,820/-, DETAILS OF WHICH A RE GIVEN AT PARA 15 ABOVE. THERE IS ALSO NO DISPUTE THAT THE ASSESSEES BUSINE SS CONSISTED OF DEALING IN PROPERTIES. THEREFORE, RELATED INVESTMENTS COULD N ECESSARY BE CONSIDERED ONLY AS MADE FOR BUSINESS PURPOSES AND NOT OTHERWISE. EV EN OTHERWISE, ASSESSEE WAS ABLE TO SHOW THAT IT WAS HAVING OWN FUNDS MORE THAN RS. 12 CRORES. HONBLE JURISDICTIONAL HIGH COURT IN THE CASE OF CIT V. REL IANCE UTILITIES & POWER LTD., ITA NO. 1398 OF 2008 DATED 9.01.2009, HAS HELD AT PARA 10 OF ITS ORDER THAT IF THERE WERE INTEREST FREE FUNDS AVAILABLE TO AN ASSESSEE S UFFICIENT TO MEET IS INVESTMENTS AND AT THE SAME TIME THE ASSESSEE HAD R AISED A LOAN, IT COULD BE PRESUMED THAT INVESTMENTS WERE FROM THE INTEREST FR EE FUNDS AVAILABLE. EVEN OTHERWISE, ASSESSEE HERE HAS BEEN ABLE TO ESTABLISH THAT THE INVESTMENTS WERE FOR ITS BUSINESS. IN OUR OPINION, LD.CIT(A) HAD CO RRECTLY APPRECIATED THE POSITION AND DELETED THE DISALLOWANCE. AS REGARDS CONTRAVEN TION OF RULE 46A OF THE INCOME-TAX RULES, ALLEGED IN THE GROUND, WE ARE AFR AID, THERE IS NOTHING COMING OUT OF THE ORDER OF THE CIT(A) WHICH CAN BE TERMED AS ANY ADDITIONAL EVIDENCE. THE LEARNED DEPARTMENTAL REPRESENTATIVE WAS ALSO UN ABLE TO POINT OUT ANY SUCH EVIDENCE OR HOW THE INVESTMENTS IN SOLITAIRE CORPOR ATE PARK COULD NOT BE CONSIDERED AS BUSINESS INVESTMENT DESPITE THE NATUR E OF THE BUSINESS OF THE ASSESSEE. THEREFORE, WE FIND NO NECESSITY TO INTER FERE WITH THE ORDER OF THE LEARNED CIT(A) IN THIS REGARD. GROUND NOS. 3 AND 3( B) OF THE REVENUE STAND DISMISSED. 22. THE LD. COUNSEL FOR THE ASSESSEE FURTHER SUBMIT TED THAT THERE IS NO INCREASE IN THE INTEREST FREE INVESTMENTS IN THI S YEAR AND THE MAJOR M/S. ASHOK COMMERCIAL ENTERPRISES 9 AMOUNTS ARE OPENING BALANCES AS CAN BE SEEN AT PAGE 183 TO 186 OF THE PAPER BOOK. HE FURTHER SUBMITTED THAT NO DIRECT NE XUS HAS BEEN PROVED BY THE AO FOR DIVERSION OF FUNDS. IT WAS POINTED O UT THAT NO DISALLOWANCE CAN BE MADE THIS YEAR AS THE AMOUNTS HAVE BEEN INVE STED IN EARLIER YEARS. RELIANCE WAS PLACED ON CIT VS SRIDEVI ENTERP RISES 192 ITR 165 (KAR.) AND RELIANCE UTILITIES 313 ITR 340(BOM). TH E LD. COUNSEL ALSO SUBMITTED THAT THE DEPARTMENT HAS FAILED TO SHOW NE XUS BETWEEN BORROWED FUNDS AND MONEY ADVANCED AND RELIED ON R.D . JOSHI 251 ITR 332 (M.P.) AND HOTEL SAVERA 239 ITR 795 (MAD). TH E COUNSEL ALSO WITHOUT PREJUDICE TO THE ABOVE SUBMISSIONS, SUBMITT ED THAT THE RATE OF INTEREST AT 15% IS WITHOUT ANY BASIS. 23. THE LD. DEPARTMENTAL REPRESENTATIVE OBJECTED TO TREATING THE ISSUE AS COVERED BY ITA NO. 1058/M/02 FOR A.Y. 1998-99 (SUPRA) AS SUBMITTED BY THE LD. COUNSEL FOR THE ASSESSEE SHRI SHIVRAM. 24. WE FIND THAT FROM THE PAPER BOOK SUBMITTED AT PAGE 183 THAT THERE ARE NO FRESH INVESTMENT AT ALL THIS YEAR AND THE DECISION IN THE CASE OF CIT VS SRIDEVI ENTERPRISES 192 ITR 165 (KAR.) AP PLIES TO THIS ISSUE IN THE PRESENT APPEAL. HOWEVER, WE REMIT THE ISSUE TO THE FILE OF THE AO TO VERIFY THE AVAILABILITY OF OWN FUNDS FOR MAKING INT EREST FREE ADVANCES AFTER GIVING A REASONABLE OPPORTUNITY TO THE ASSESSEE AND DECIDE THE ISSUE IN ACCORDANCE WITH LAW. 25. GROUND NO. (VII) & (VIII) RELATES TO SALE OF CA R PARKING SPACE CONSIDERED AS BUSINESS INCOME INSTEAD OF LTC LOSS O F RS. 6562/-. THE AO HELD THAT THE SHORT TERM CAPITAL GAIN AT RS. 1 L AKHS ON SALE OF 4 CAR PARKING SPACES. THE TOTAL SALE PROCEEDS WERE SHOW N BY THE ASSESSEE AT RS. 4 LAKHS AND THE COST OF 4 CAR PARKING SPACES AT RS. 3 LAKHS @ RS. 75,000/- PER CAR PARKING SPACE. THE AO REJECTED TH E ASSESSEES CLAIM FOR THE INDEXED COST WORKED OUT AT RS. 3,00,000X 351/25 9 RS. 4,06,562/- M/S. ASHOK COMMERCIAL ENTERPRISES 10 THEREBY REJECTING THE ASSESSEES CLAIM FOR CAPITAL LOSS OF RS. 6,562/- (4,00,000-406562). 26. THE LD. CIT(A) CONFIRMED THE ORDER OF THE AO A ND REJECTED THE ASSESSEES CLAIM FOR THE INDEXED COST WORKED OUT AT RS. 4,06,562/-, THEREBY REJECTING THE CLAIM FOR CAPITAL LOSS OF RS. 6,562/-. 27. AGGRIEVED, ASSESSEE PREFERRED AND APPEAL BEFORE US. THE LD. COUNSEL FOR THE ASSESSEE SHRI K. SHIVRAM SUBMITTED THAT NO DEPRECIATION HAS BEEN CLAIMED ON CAR PARKING AND CAR PARKING IS NOT BUSINESS ASSET, IT IS AN INVESTMENT. HE SUBMITTED THAT THE CAR PARKIN G IS NOT COVERED UNDER BLOCK OF ASSETS AND THERE IS CAPITAL LOSS OF RS. 6,562/- WHICH IS TO BE ALLOWED. . 28. WE FIND MERIT IN HIS ARGUMENT THAT CAR PARKING IS TO BE TREATED AS CAPITAL ASSET AS DISTINCT FROM BUSINESS ASSET AND N OT COVERED BY THE DEFINITION OF THE WORD BLOCK OF ASSETS. HENCE WE ALLOW THE CAPITAL LOSS OF RS. 6,562/-. 28.1 IN THE RESULT, THE ASSESSEES APPEAL IS PARTLY ALLOWED. ITA NO.1003/MUM/2003 -1999-2000(REVENUES APPEAL) 29. THE FIRST GROUND RAISED BY THE REVENUE RELATES TO NOTIONAL INTEREST ON INTEREST FREE DEPOSIT OF RS. 50 LACS FOR HARINIV AS PROPERTY. 30. THE LD. CIT(A) HELD AS FOLLOWS: SIMILAR ISSUE CAME UP IN APPEAL IN THE PRECEDING A. Y. 1998- 99. THE LD. CIT(A) VIDE HIS ORDER IN APPEAL NO. CI T(A)-XII/DCIT- CIR.29(1)/IT/131/2001-02 DT. 24.12.2001 HELD THAT T HE ACTION OF THE AO IS ERRONEOUS AND DECIDED THE ISSUE IN FAVOUR OF THE ASSESSEE FOLLOWING THE DECISION OF THE HONBLE BOMBAY COURT IN THE CASE OF J.K. INVESTOR LTD AND OF THE HON;BLE CALCUTTA HIGH COURT IN THE CASE OF SATYA & CO. LTD. AS THE FACTS OF THE CASE ARE ID ENTICAL, THE AO IS M/S. ASHOK COMMERCIAL ENTERPRISES 11 DIRECTED TO TAKE THE ALV AS SHOWN BY THE APPELLANT . THESE GROUNDS SUCCEED. 31. WE FIND THAT THE JURISDICTIONAL HIGH COURT IN T HE CASE OF J.K. INVESTORS 248 ITR 723 HELD AS FOLLOWS: ON APPEAL, THE TRIBUNAL FOUND THAT THE ACTUAL RENT RECEIVED BY THE ASSESSEE EVEN WITHOUT TAKING INTO A CCOUNT THE NOTIONAL INTEREST WAS MORE THAN THE ANNUAL LETTING VALUE OF THE PROPERTY DETERMINABLE UNDER SECTION 23(1)(A). THE T RIBUNAL HELD THAT SECTION 23(1)(B) APPLIED ONLY TO CASES OF ACTUAL RENT BEING RECEIVED BY THE ASSESSEE AND NOT TO CASES FAL LING UNDER SECTION 23(1)(A) WHICH PERMITS ADOPTION OF A NOTION AL VALUE AS THE ANNUAL LETTING VALUE OF THE PROPERTY, AND THERE FORE, NOTIONAL INTEREST COULD NOT BE TAKEN INTO ACCOUNT U NDER SECTION 23(1)(B). ON AN APPEAL UNDER SECTION 260A OF THE AC T : HELD, THAT IT WAS FOUND THAT THE ACTUAL RENT RECEIV ED BY THE ASSESSEE WAS MORE THAN THE FAIR RENT EVEN WITHO UT TAKING INTO ACCOUNT NOTIONAL INTEREST. GENERALLY, FAIR REN T IS FIXED EVEN UNDER THE BOMBAY MUNICIPAL CORPORATION ACT AND THE RENT ACT BY TAKING INTO ACCOUNT VARIOUS PRINCIPLES OF VALUAT ION, VIZ., THE CONTRACTORS METHOD, THE RENT METHOD. UNDER THE INC OME-TAX ACT, SECTION 23(1)(B) PROVIDES THAT WHERE THE ACTUA L RENT IS MORE THAN THE FAIR RENT, THE ACTUAL RENT WOULD BE T HE ANNUAL VALUE OF THE PROPERTY. THEREFORE, THE NOTIONAL INTE REST WOULD NOT FORM PART OF ACTUAL RENT RECEIVED OR RECEIVABLE UNDER SECTION 23(1)(B). 32. FURTHER THE DELHI HIGH COURT IN THE CASE OF CIT VS ASIAN HOTELS LTD. IN ITA NO. 794/2007 HAS HELD AS FOLLOWS: SEC. 23(1)(A) IS RELEVANT FOR DETERMINING THE INCO ME FROM HOUSE PROPERTY AND CONCERNS DETERMINATION OF THE AN NUAL LETTING VALUE OF SUCH PROPERTY. THAT PROVISION TALKS OF TH E SUM FOR WHICH THE PROPERTY MIGHT REASONABLY BE EXPECTED TO LET FROM YEAR TO YEAR. THIS CONTEMPLATES THE POSSIBLE RENT THAT THE PROPER TY MIGHT FETCH AND NOT CERTAINLY THE INTEREST IN FIXED DEPOSIT THAT MA Y BE PLACED BY THE TENANT WITH THE LANDLORD IN CONNECTION WITH THE LET TING OUT OF SUCH PROPERTY. IT MUST BE REMEMBERED THAT IN A TAXING STATUTE IT WOULD BE UNSAFE FOR THE COURT TO GO BEYOND THE LETTER OF THE AND TRY TO READ INTO THE PROVISION MORE THAN WHAT IS ALREADY PROVID ED FOR. THE ATTEMPT BY LD. COUNSEL FOR THE REVENUE TO DRAW AN A NALOGY FROM THE M/S. ASHOK COMMERCIAL ENTERPRISES 12 WEALTH TAX ACT, 1957 IS ALSO TO NO AVAIL. IT IS AN ADMITTED POSITION THAT THERE IS A SPECIFIC PROVISION IN THE WEALTH TA X ACT WHICH PROVIDES FOR CONSIDERING OF A NOTIONAL INTEREST WHE REAS SEC. 23(1)(A) CONTAINS NO SUCH SPECIFIC PROVISION. 33. THEREFORE, WE ARE OF THE OPINION THAT THE DELET ION OF ADDITION MADE ON ACCOUNT OF NOTIONAL INTEREST ON INTEREST FREE DE POSITS HAS BEEN RIGHTLY DONE BY THE LD. CIT(A) AND WE CONFIRM THE SAME. THE GROUND RAISED BY THE REVENUE IS DISMISSED. 34. THE NEXT ISSUE WITH RESPECT TO LEVY OF INTERES T U/S. 234B. THE ASSESSEE SUBMITTED BEFORE THE LD. CIT(A) IS AS FOLL OWS: AS REGARDS LEVY INTEREST U/S. 234B, THE APPELLANT SUBMITS THAT THE PROVISIONS OF SEC. 234B ARE NOT ATTRACTED IN ITS CA SE. AS STATED IN THE ASSESSMENT ORDER, A RETURN SHOWING INCOME OF RS . 18,720/- WAS FILED ON 24.5.1999 FOR THE A.Y. 1999-2000. THE TAX PAYABLE THEREON WORKED OUT TO RS. 6,552/- AGAINST WHICH THE APPELLA NT WAS ENTITLED TO TDS OF RS. 3,60,977/-. THE APPELLANT SUBMITS TH AT AS PER THE PROVISIONS OF SEC. 208, THE APPELLANT IS LIABLE TO PAY ADVANCE TAX ONLY IF THE TAX PAYABLE IN ACCORDANCE WITH THE PROV ISIONS OF PART C OF CHAPTER XVII IS RS. 5,000/- OR MORE AFTER CONSID ERING THE TAX DEDUCTED AT SOURCE. 35. THE LD. CIT(A) HELD THAT THE CONTENTION OF THE ASSESSEE IS FOUND CORRECT. THE INTEREST U/S. 234B IS DIRECTED TO BE DELETED. 36. THE LD. DR SUBMITTED THAT THE INTEREST U/S. 234 B IS MANDATORY. 37. WE ARE OF THE OPINION THAT THE INTEREST U/S. 23 4B IS MANDATORY AND THEREFORE WE REMIT THE ISSUE TO THE FILE OF THE AO TO LEVY THE INTEREST UNDER 234B IN ACCORDANCE WITH LAW. 37.1 IN THE RESULT, THE APPEAL FILED BY THE REVENUE IS PARTLY ALLOWED FOR STATISTICAL PURPOSES. ITA NO.5701/MUM/2003 A.Y. 2001-02 REVENUES APP EAL M/S. ASHOK COMMERCIAL ENTERPRISES 13 38. THE FIRST GROUND RAISED BY THE REVENUE RELATES TO NOTIONAL INTEREST ON INTEREST FREE DEPOSIT OF RS. 50 LACS FOR HARINIV AS PROPERTY. THIS GROUND HAS ALREADY BEEN DISCUSSED IN ITA NO. 1003/M /09 IN REVENUES APPEAL AT PARA -33. RESPECTFULLY FOLLOWING THE ABO VE, WE DISMISS THIS GROUND RAISED BY THE REVENUE. 39. THE SECOND GROUND RELATES TO DEPRECIATION ON MO TOR CAR ON PERSONAL USER AT RS. 28,477/-. THE AO MADE THE ADD ITION AS THE ASSESSEE ITSELF HAS DISALLOWED 1/5 TH OF THE MOTOR CAR EXPENSES AND BY THE SAME LOGIC THE AO HELD THAT 1/5 TH OF MOTOR CAR DEPRECIATION BE DISALLOWED. 40. THE ASSESSEE SUBMITTED THAT THE DEPRECIATION OF THE VEHICLE IS NOT DEPENDANT ON THE USE OF THE CAR AND THE AO HAS ERRE D IN MAKING PROPORTIONATE DISALLOWANCE. 41. THE LD. CIT(A) DELETED THE ADDITION BY OBSERVI NG THAT THE FIXED RATE OF DEPRECIATION REMAINS UNAFFECTED WHETHER THE PART NERS ARE USING THE CAR PARTLY FOR THEIR PERSONAL PURPOSES OR NOT. 42. AGGRIEVED BY THE ORDER OF THE LD. CIT(A) REVENU E IS IN APPEAL BEFORE US. WE FIND NO INFIRMITY IN THE ORDER OF THE LD. CIT(A) AND CONFIRM THE SAME. THE REVENUES APPEAL IS DISMISSED ON THIS IS SUE. 42.1 IN THE RESULT, THE APPEAL FILED BY THE REVENU E IS DISMISSED. C.O. NO. 410/MUM/2004- A.Y. 2001-02 ASSESSEES AP PEAL 43. GROUND NO. (I) & (II) RELATES TO BIFURCATION OF RS. 6,84,000/- P.M. AS 60% AS HOUSE PROPERTY AND 40% AS INCOME FROM OTHER SOURCES. THIS GROUND HAS ALREADY BEEN DISCUSSED IN ITA NO.7460/MU M/2002 FOR A.Y. 1999-2000 IN ASSESSEES APPEAL AT PARA 6. RESPECTFULLY FOLLOWING THE ABOVE, WE DISMISS ASSESSEES APPEAL ON THIS ISSUE. M/S. ASHOK COMMERCIAL ENTERPRISES 14 44. GROUND NO. (III) RELATES TO INCOME FROM CAR PAR KING SPACES RS. 35,200/- CONSIDERED AS INCOME FROM OTHER SOURCES INSTEAD OF HOUSE PROPERTY. THIS GROUND HAS ALREADY BEEN DISCUSSED I N ITA NO.7460/MUM/2002 FOR A.Y. 1999-2000 IN ASSESSEES APPEAL AT PARA 13. RESPECTFULLY FOLLOWING THE ABOVE, WE DISMISS A SSESSEES APPEAL ON THIS ISSUE. 44.1 IN THE RESULT, THE APPEAL FILED BY THE ASSESS EE IS DISMISSED. ITA NO.180/MUM/2006 A.Y. 2002-03 REVENUES APPE AL 45. THE FIRST GROUND RAISED BY THE REVENUE RELATES TO RENTAL INCOME FROM GARAGE HAS TO BE TAXED AS INCOME FROM HOUSE P ROPERTY AT RS. 1,80,000/-. 46. THE LD. CIT(A) HELD AS FOLLOWS: IN THIS GROUND, THE APPELLANT HAS CHALLENGED IN AS SESSING RENTAL INCOME FROM WAREHOUSING OF RS. 1,80,000/- FR OM PRABHAT GARAGE AS INCOME FROM OTHER SOURCES AS AGAINST INCO ME FROM HOUSE PROPERTY DECLARED BY THE APPELLANT. IT IS CONTESTE D THAT THE APPELLANT RECEIVED RS. 1,80,000/- TOWARDS WAREHOUSING CHARGES FROM PRABHAT GARAGE WHICH THE AO HAS ASSESSED AS INCOME FROM OTH ER SOURCES. THE AO HAS NOT GIVEN ANY REASONS AS TO WHY INCOME F ROM WAREHOUSING IS ASSESSED AS INCOME FROM OTHER SOURCE S. THE INCOME HAS ARISEN FROM LETTING OUT THE PROPERTY AND THEREF ORE IS ASSESSABLE UNDER THE HEAD INCOME FROM HOUSE PROPERTY. I HAVE CONSIDERED THE SUBMISSIONS OF THE APPELLANT. I HAVE ALSO GONE THROUGH THE ASSESSMENT ORDER. FOR A.Y. 1 999-2000 THE INCOME FROM GARAGE HAS BEEN HELD AS INCOME FROM PRO PERTY AS AGAINST ASSESSING THE SAME AS INCOME FROM OTHER SOU RCES BY MY PREDECESSOR IN HIS ORDER DT. 3.12.2002. FOLLOWING THE DECISION OF MY PREDECESSOR FOR A.Y. 1999-2000, I HOLD THAT THE REN TAL INCOME FROM GARAGE HAS TO BE TAXED AS INCOME FROM HOUSE PROPERT Y. THE AO IS THEREFORE DIRECTED TO TREAT THE SAID RECEIPT AS INC OME FROM HOUSE PROPERTY. M/S. ASHOK COMMERCIAL ENTERPRISES 15 47. AGGRIEVED REVENUE IS IN APPEAL BEFORE US. WE F IND THAT INCOME ARISES FROM LETTING OF THE PROPERTY NAMELY GARAGE A ND THEREFORE ASSESSABLE UNDER THE HEAD INCOME FROM PROPERTY. HENCE WE CONFIRM THE ORDER OF THE LD. CIT(A) AND DISMISS THE REVENUE S APPEAL ON THIS GROUND 48. AS REGARDS SECOND GROUND THAT THE LD. CIT(A) E RRED IN ALLOWING SOCIETY CHARGES AMOUNTING TO RS. 8,75, 156/- OUT OF HOUSE PROPERTY INCOME. 49. THE AO HELD THAT THE SOCIETY CHARGES ARE TO BE DISALLOWED ON THE GROUND THAT THE SAME ARE NOT ADMISSIBLE U.S 24 OF T HE I.T. ACT, 1961. 50. AGGRIEVED, ASSESSEE PREFERRED AN APPEAL BEFORE THE LD. CIT(A). THE LD. CIT(A) HELD AS FOLLOWS: I HAVE CONSIDERED THE SUBMISSIONS OF THE APPELLANT . I HAVE ALSO GONE THROUGH THE ASSESSMENT ORDER. THE SOCIET Y CHARGES IN RESPECT OF VARIOUS PROPERTIES AS CLAIMED BY THE APP ELLANT AMOUNTING TO RS. 8.75,156/- HAVE BEEN DISALLOWED BY THE AO ON THE GROUND THAT DEDUCTION U/S. 24 OF THE I.T. ACT 1961 HAS ALR EADY BEEN ALLOWED. AFTER VERIFYING THE FACTS, I FIND THAT TH E AO IS NOT CORRECT IN DISALLOWING SOCIETY CHARGES. IT HAS BEEN HELD BY M UMBAI TRIBUNAL IN THE CASE OF MS. NANDITA BANERJEE VS ITO IN ITA NO. 1360/M/2000 DT. 8.4.2004 THAT PAYMENT TO HOUSING SOCIETY TOWARD S MAINTENANCE CHARGES ETC. IS DEDUCTIBLE WHILE DETERMINING ANNUAL VALUE OF THE PROPERTY. CONSIDERING THIS DECISION OF THE ITAT, I FIND THAT THE APPELLANT IS ELIGIBLE FOR DEDUCTION OF SOCIETY CHAR GES AMOUNTING TO RS. 8,75,156/-. ACCORDINGLY, THE AO IS DIRECTED TO ALLOW THE SOCIETY CHARGES TO THE APPELLANT. 51. AGGRIEVED BY THE ORDER OF THE LD. CIT(A), REVEN UE IS IN APPEAL BEFORE US. 52. THE LD. COUNSEL FOR THE ASSESSEE SHRI SHIVRAM F AIRLY CONCEDED THAT THIS ISSUE IS COVERED AGAINST THE ASSESSEE BY THE D ECISION OF THE ITAT, RELIED ON BY THE DEPARTMENTAL REPRESENTATIVE, IN T HE CASE OF BARODAWALA M/S. ASHOK COMMERCIAL ENTERPRISES 16 PROPERTIES IN ITA NO. 6742/M/1998 DT. 26.12. 2001, ACCORDING TO WHICH MAINTENANCE CHARGES PAID ARE NOT ALLOWABLE AS DEDUC TION U/S. 23/24 OF THE I.T. ACT. 53. RESPECTFULLY FOLLOWING THE DECISION IN THE CASE OF BARODAWALA PROPERTIES, WE ALLOW THE APPEAL OF THE REVENUE ON T HIS ISSUE. 53.1 IN THE RESULT, THE REVENUES APPEAL IS PARTLY ALLOWED. C.O. NO. 258/MUM/2006- A.Y. 2002-03 ASSESSEES AP PEAL 54. THE FIRST GROUND RAISED BY THE REVENUE RELATES TO NOTIONAL INCOME FROM PROPERTY NAMELY FLAT NO. 25, HARINIWAS ON THE BASIS OF VALUATION MADE BY THE DEPARTMENTAL VALUER FOR THE A.Y. 1998-9 9 AND THEREBY ERRED IN CONFIRMING THE NOTIONAL INCOME OF RS. 6 LACS AS INCOME UNDER THE HEAD PROPERTY FROM FLAT NO. 25, HARINIWAS BLDG. 55. THIS GROUND HAS ALREADY BEEN DISCUSSED IN ITA NO. 1003/M/09 IN REVENUES APPEAL AT PARA -33. RESPECTFULLY FOLLOWI NG THE ABOVE, WE DISMISS THIS GROUND RAISED BY THE REVENUE. 56. THE SECOND GROUND RELATES TO DISALLOWANCE OF RS . 45,503 U/S. 14A ON THE GROUND THAT THE DIVIDEND INCOME IS EXEMPT FR OM TAX. 57. THIS GROUND HAS NOT PRESSED BY THE ASSESSEE THE REFORE IT IS DISMISSED AS NOT PRESSED. 58. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS DISMISSED. ORDER PRONOUNCED ON THIS 30 TH DAY OF NOVEMBER, 2010 SD/- SD/- (S.V. MEHROTRA) (ASHA VIJAYAR AGHAVAN) ACCOUNTANT MEMBER JUDICI AL MEMBER MUMBAI, DATED 30 TH NOVEMBER, 2010 RJ M/S. ASHOK COMMERCIAL ENTERPRISES 17 COPY TO : 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT-CONCERNED 4. THE CIT(A)-CONCERNED 5. THE DR J BENCH TRUE COPY BY ORDER ASSTT. REGISTRAR, I.T.A.T, MUMBAI M/S. ASHOK COMMERCIAL ENTERPRISES 18 DATE INITIALS 1 DRAFT DICTATED ON: 24.11.2010 SR. PS/PS 2. DRAFT PLACED BEFORE AUTHOR: 25.11.2010 ______ SR. PS/PS 3. DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER: _________ ______ JM/AM 4. DRAFT DISCUSSED/APPROVED BY SECOND MEMBER: _________ ______ JM/AM 5. APPROVED DRAFT COMES TO THE SR. PS/PS: _________ ______ SR. PS/PS 6. KEPT FOR PRONOUNCEMENT ON: _________ ______ SR. PS/PS 7. FILE SENT TO THE BENCH CLERK: _________ ______ SR. PS/PS 8. DATE ON WHICH FILE GOES TO THE HEAD CLERK: _________ ______ 9. DATE OF DISPATCH OF ORDER: _________ ______