APLAB LTD, THANE V. ACIT RG 1, THANE

ITA 8545/MUM/2011

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 4142 (ITAT-MUMBAI)
• Duration Of Justice: 4 year(s) 1 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 08-02-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 23-04-2015
• Assessment Year: 2008-2009
• Appeal Filed On: 16-12-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: M SUBRAMANIAN
• Keywords: Proportionate interest; Commercial expediency

Judgement Text

, , , IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES A, MUMBAI .. , , , BEFORE, SHRI G.S. PANNU, ACCOUNTANT MEMBER AND SHRI JOGINDER SINGH, JUDICIAL MEMBER ITA NO.8545/MUM/2011 ASSESSMENT YEAR: 2008-09 M/S APLAB HOUSE, A-5, WAGLE, INDUSTRIAL ESTATE, THANE / VS. ACIT, RANGE-1, THANE ( !'#$ /ASSESSEE) ( % / REVENUE) PAN. NO. AAACA1030H !'#$ / ASSESSEE BY SHRI M. SUBRAMANIAN % / REVENUE BY SHRI AARSI PRASAD & %'($) / DATE OF HEARING : 08/02/2016 ($) / DATE OF ORDER: 09/02/2016 / O R D E R PER JOGINDER SINGH (JUDICIAL MEMBER) THE ASSESSEE IS AGGRIEVED BY THE IMPUGNED ORDER D ATED 14/10/2011 OF THE LD. FIRST APPELLATE AUTHORITY, MU MBAI. THE ONLY GROUND AGITATED BY SHRI M. SUBRMANIAN, LD. COUNSEL ITA NO.8545/MUM/2011 M/S APLAB LTD. 2 FOR THE ASSESSEE, IS WITH RESPECT TO DISALLOWANCE O F RS.22,47,100/- MADE U/S 36(1)(III) OF THE INCOME TA X ACT, 1961 (HEREINAFTER THE ACT). 2. DURING HEARING, THE CRUX OF ARGUMENT ADVANCED B Y THE LD. COUNSEL FOR THE ASSESSEE IS THAT THE IMPUGN ED ISSUE IS COVERED BY THE DECISION OF THE TRIBUNAL IN THE CASE OF ASSESSEE ITSELF FOR ASSESSMENT YEAR 2007-08 (ITA NO.6931/MUM/2010) AND ANOTHER DECISION OF THE TRIBU NAL FOR A.Y. 2006-07 (ITA NO.3313/MUM/2010). THIS FACTU AL MATRIX WAS CONSENTED TO BE CORRECT BY THE LD. DR, S HRI AARSI PRASAD. 2.1. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD. THE FACTS , IN BRIEF, ARE THAT THE ASSESSEE COMPANY IS IN THE BUSINESS OF MANUFACTURING, ASSEMBLING AND TRADING IN POWER EQUIPMENTS, ELECTRONIC EQUIPMENTS, ETC. THE LD. ASS ESSING OFFICER DISALLOWED RS.22,47,100/- U/S 36(1)(III) AN D ASSESSED THE INCOME AT RS.8,09,20,910/-. ON APPEAL, BEFORE THE LD. COMMISSIONER OF INCOME TAX (APPEALS), THE ADDITION WAS AFFIRMED, AGAINST WHICH THE ASSESSEE IS IN FURTHER APPEAL BEFORE THIS TRIBUNAL. IT IS NOTED THAT FOR A.Y. 200 6-07, WHICH IS THE LEAD YEAR, IDENTICAL ADDITION WAS MADE BY TH E LD. ASSESSING OFFICER AND FINALLY, IT TRAVELLED TO THE TRIBUNAL, WHEREIN, VIDE ORDER DATED 23/12/2011 (ITA NO.3313/MUM/2010), THE ISSUE WAS DECIDED IN FAVOUR OF THE ITA NO.8545/MUM/2011 M/S APLAB LTD. 3 ASSESSEE. THE RELEVANT PORTION OF THE SAME IS REPRO DUCED HEREUNDER FOR READY REFERENCE:- 5. THE ONLY OTHER GROUND WHICH SURVIVES FOR OUR CO NSIDERATION IS AGAINST THE CONFIRMATION OF DISALLOWANCE OF RS.5,36 ,520 MADE BY THE ASSESSING OFFICER U/S 36(1)(III) OF THE ACT. BR IEFLY STATED THE FACTS OF THE CASE ARE THAT THE ASSESSEE HAD MADE CE RTAIN LOANS AND ADVANCES TOTALING TO RS.11.95 CRORE WHICH INCLUDED A SUM OF RS.21,58,000 ADVANCED TO M/S. INTEL INSTRUMENT & SY STEMS LIMITED AND RS.23,13,002 TO M/S. APLAB SEBA ELECTRONICS. BO TH THESE COMPANIES HAPPENED TO BE THE GROUP CONCERNS. THE AS SESSING OFFICER NOTED THAT THE ASSESSEE HAD OBTAINED CERTAI N LOANS ON INTEREST AND THE INTEREST COST DEBITED TO THE PROFI T AND LOSS ACCOUNT WAS RS.2.42 CRORE. CONSIDERING THE FACT THAT THE LO ANS OF RS.44.71 LAKH WERE ADVANCED TO THE SISTER CONCERNS WITHOUT I NTEREST, THE A.O. MADE PROPORTIONATE DISALLOWANCE OF INTEREST U/ S.36(1)(III) AT THE RATE OF 12% WHICH RESULTED INTO AN ADDITION OF RS.5,36,520. NO RELIEF WAS ALLOWED IN THE FIRST APPEAL. 6. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE RELEVANT MATERIAL ON RECORD. THE LEARNED A.R. HAS HEAVILY RE LIED ON THE JUDGMENT OF THE HONBLE SUPREME COURT IN THE CASE O F S.A.BUILDERS LTD.VS. CIT(A) & ANR. [(2007) 288 ITR 1 (SC)] TO BUTTRESS HIS SUBMISSION THAT THE INTEREST BE ALLOWE D AS DEDUCTION AS THE ADVANCE WAS GIVEN TO ITS SUBSIDIARY COMPANIE S. HOWEVER NO MATERIAL WAS PLACED ON RECORD TO INDICATE AS TO HOW SUCH AMOUNT WAS UTILIZED BY THE SISTER CONCERNS. ITA NO.8545/MUM/2011 M/S APLAB LTD. 4 7. THE ASSESSEE IN THE CASE BEFORE THE HONBLE SUMM IT COURT IN S.A.BUILDERS LTD. (SUPRA) TRANSFERRED SUBSTANTIAL A MOUNT TO ITS SUBSIDIARY COMPANY OUT OF ITS CASH CREDIT ACCOUNT I N WHICH THERE WAS A HUGE DEBIT BALANCE. THE AO HELD THAT THE ASSE SSEE HAD DIVERTED ITS BORROWED FUNDS TO A SISTER CONCERN WIT HOUT CHARGING ANY INTEREST. PROPORTIONATE INTEREST RELATING TO TH E SAID AMOUNT, OUT OF THE TOTAL INTEREST PAID BY THAT ASSESSEE TO THE BANK, WAS DISALLOWED. THE CIT(A) ALLOWED PARTIAL RELIEF BUT T HE TRIBUNAL RESTORED THE ACTION OF THE AO IN SUSTAINING COMPLET E DISALLOWANCE OF INTEREST. THE HIGH COURT DISMISSED THE APPEAL FI LED BY THE ASSESSEE. WHEN THE MATTER CAME UP BEFORE THE HONBL E SUPREME COURT, THE ASSESSEE CONTENDED THAT INTEREST WAS TO BE ALLOWED IN FULL AS MAKING OF INVESTMENT IN SUBSIDIARY COMPANY IS A BUSINESS PURPOSE. THE HONBLE SUPREME COURT APPRECIATED THE AMBIT OF THE EXPRESSION FOR THE PURPOSE OF BUSINESS USED IN SE CTION 36(1)(III) AND HELD THAT THE SAME SHOULD NOT BE CONFUSED WITH THE NARROWER EXPRESSION FOR THE PURPOSE OF EARNING INCOME, PROF ITS OR GAINS. IN THE LIGHT OF SUCH OBSERVATION, THE HONBLE APEX COURT REMITTED THE MATTER TO THE TRIBUNAL FOR A FRESH DECISION BY CONSIDERING DEDUCTIBILITY OR OTHERWISE OF INTEREST AFTER EXAMIN ING WHETHER THE FUNDS ADVANCED BY THE ASSESSEE HOLDING COMPANY TO I TS SUBSIDIARY COMPANY WERE USED BY THE SUBSIDIARY COMPANY FOR SOM E BUSINESS PURPOSE OR NOT. 8. FROM THE ABOVE JUDGMENT, IT CAN BE NOTICED THAT THE RATIO DECIDENDI OF THE JUDGMENT IS THAT INTEREST ON BORRO WED LOANS ADVANCED TO A SISTER CONCERN WITHOUT INTEREST IS AL LOWABLE AS DEDUCTION, IF THERE IS A COMMERCIAL EXPEDIENCY IN A DVANCING SUCH ITA NO.8545/MUM/2011 M/S APLAB LTD. 5 LOAN. TO DECIDE THE COMMERCIAL EXPEDIENCY IN THE HA NDS OF HOLDING COMPANY, IT IS VITAL TO EXAMINE THE PURPOSE FOR WHI CH THE ASSESSEE ADVANCED THE MONEY TO THE SISTER CONCERN AND WHAT T HE SISTER CONCERN DID WITH THIS MONEY. THUS, IT IS OBVIOUS TH AT WHEN A HOLDING COMPANY HAS ADVANCED BORROWED MONEY TO ITS SUBSIDIARY, WHICH IS USED BY THE SUBSIDIARY FOR SOME BUSINESS P URPOSE, THERE CANNOT BE DENIAL OF DEDUCTION ON ACCOUNT OF INTERES T. 9. THE HONBLE SUPREME COURT, IN THIS CASE, AFTER L AYING DOWN THE BROAD PARAMETERS HELPFUL IN TAKING DECISION ABOUT T HE DEDUCTIBILITY OR OTHERWISE OF INTEREST IN THE HANDS OF THE HOLDIN G COMPANY, BEING THE PURPOSE FOR WHICH THE FUNDS WERE ULTIMATELY USE D BY THE SUBSIDIARY COMPANY, REMITTED THE MATTER TO THE FILE OF THE TRIBUNAL AND NOT GRANTED DEDUCTION AT ITS OWN. IT IS NOT CRU X OF THE JUDGMENT THAT IN EACH AND EVERY CASE OF THE HOLDING COMPANY ADVANCING LOAN TO THE SISTER CONCERN, ENTITLES IT TO DEDUCTIO N OF INTEREST PAID ON THE FUNDS BORROWED AND IN TURN ADVANCED TO ITS S UBSIDIARY COMPANY. IN OTHER WORDS, THERE ARE TWO QUESTIONS WH ICH REQUIRE ANSWERS. FIRST IS THE ADVANCING OF LOAN TO THE SUBS IDIARY COMPANY AND SECOND IS THE UTILIZATION OF SUCH FUNDS BY THE SUBSIDIARY COMPANY. THE CRUCIAL CRITERIA FOR DECIDING THE SECO ND QUESTION IS THE COMMERCIAL EXPEDIENCY, THAT IS, THE USER OF SU CH FUNDS BY THE SUBSIDIARY FOR BUSINESS PURPOSE. IT IS ONLY WHEN A NSWER TO BOTH THE QUESTIONS IS IN AFFIRMATIVE THAT THE HOLDING CO MPANY QUALIFIES FOR DEDUCTION OF INTEREST PAID. IF ANSWER TO THE FI RST QUESTION IS IN POSITIVE, THE STAGE OF FINDING OUT THE ANSWER TO TH E SECOND QUESTION COMES. ONLY WHEN THE ANSWER TO THE FIRST AS WELL AS THE SECOND QUESTIONS IS GIVEN IN POSITIVE THAT THE RATIO OF TH IS JUDGMENT APPLIES ITA NO.8545/MUM/2011 M/S APLAB LTD. 6 AND THE HOLDING COMPANY BECOMES ENTITLED TO CLAIM D EDUCTION OF INTEREST. 10. IT IS IMPERATIVE TO NOTE THAT THE HONBLE SUPRE ME COURT, ON NOTING THAT THE FUNDS WERE ADVANCED AS LOAN BY THE HOLDING COMPANY TO ITS SUBSIDIARY COMPANY, BEING THE ANSWER TO THE FIRST QUESTION IN POSITIVE, DID NOT STRAIGHTWAY PROCEED T O ALLOW DEDUCTION OF INTEREST. AS THE ANSWER TO THE SECOND QUESTION WAS NOT AVAILABLE FROM FACTS ON RECORD, IT RESTORED THE MAT TER TO THE TRIBUNAL FOR EXAMINING IT AND THEN TAKING FINAL DEC ISION. THAT IS WHY IT CATEGORICALLY OBSERVED : WE WISH TO MAKE IT CLEAR THAT IT IS NOT OUR OPINION THAT IN EVERY CASE INTEREST ON BORR OWED LOAN HAS TO BE ALLOWED IF THE ASSESSEE ADVANCES IT TO A SISTER CONCERN. IT ALL DEPENDS ON THE FACTS AND CIRCUMSTANCES OF THE RESPE CTIVE CASE. THEREAFTER, IT HAS BEEN OBSERVED THAT : FOR INSTAN CE, IF THE DIRECTORS OF THE SISTER CONCERN UTILIZE THE AMOUNT ADVANCED TO IT BY THE ASSESSEE FOR THEIR PERSONAL BENEFIT, OBVIOUSLY, IT CANNOT BE SAID THAT SUCH MONEY WAS ADVANCED AS A MEASURE OF COMMER CIAL EXPEDIENCY. THE GIST OF THE JUDGMENT FOR ALLOWING DEDUCTION ON ACCOUNT OF INTEREST IN THE HANDS OF HOLDING COMPANY IS THE USER OF FUNDS BY THE SUBSIDIARY FOR SOME BUSINESS PURPOSE . UNLESS BUSINESS PURPOSE IS PROVED, THE DEDUCTION CANNOT BE ALLOWED. THAT APPEARS TO BE THE SOLE REASON FOR THE HONBLE SUPREME COURT TO REMIT THE MATTER TO THE FILE OF THE TRIBUNAL FOR CONSIDERING THE COMMERCIAL EXPEDIENCY OR BUSINESS PURPOSE IN THE HA NDS OF THE SUBSIDIARY COMPANY. IF THE MERE FACT OF ADVANCING L OAN BY HOLDING COMPANY TO SUBSIDIARY COMPANY HAD BEEN SUFFICIENT E NOUGH FOR GRANTING DEDUCTION OF INTEREST TO THE HOLDING COMPA NY, THERE WAS ITA NO.8545/MUM/2011 M/S APLAB LTD. 7 NO NEED TO RESTORE THE MATTER. THE HONBLE SUPREME COURT, IN SUCH A SITUATION, WOULD HAVE ITSELF GRANTED DEDUCTION OF INTEREST IN THE HANDS OF HOLDING COMPANY. 11. FROM THE ABOVE JUDGMENT, IT IS MANIFEST THAT TH E ASSESSEE HAS TO PROVE THE COMMERCIAL EXPEDIENCY FOR ADVANCING TH E LOANS TO ITS SUBSIDIARY COMPANY. THE ONUS IS ON THE ASSESSEE TO PROVE THE BUSINESS USEFULNESS. IT IS THE PRIMARY DUTY OF THE ASSESSEE, ON INQUIRY BY THE AO, TO LEAD EVIDENCE DEMONSTRATING T HE USER OF FUNDS BY THE SUBSIDIARY FOR BUSINESS PURPOSE. ONLY WHEN SUCH INITIAL BURDEN IS DISCHARGED, THAT IT BECOMES INCUM BENT UPON THE AO TO ACCEPT OR REJECT SUCH EVIDENCE WITH COGENT RE ASONS. PRINCIPAL DUTY IS ALWAYS OF THE ASSESSEE. ADVERTING TO THE FACTS OF THE INSTANT CASE, IT IS OBSERVED THAT THE ASSESSEE FAILED TO PRODUCE ANY EVIDENCE EITHER BEFORE THE AO OR THE LD. CIT(A) TO PROVE THE COMMERCIAL EXPEDIENCY BY DEMONSTRATING AS TO HOW TH E FUNDS RECEIVED BY THE SUBSIDIARY FROM THE ASSESSEE COMPAN Y WERE UTILIZED. POSITION IS SAME BEFORE THE TRIBUNAL AS W ELL SINCE THERE IS NO DOCUMENTARY PROOF TO ESTABLISH THE COMMERCIAL E XPEDIENCY. THE SITUATION WOULD HAVE BEEN DIFFERENT IF THE ASSE SSEE HAD PLACED SUFFICIENT MATERIAL IN SUPPORT OF ITS CLAIM OF BUSI NESS PURPOSE IN ADVANCING THE AMOUNT TO ITS SISTER CONCERN BY PROPE RLY DOCUMENTING ITS CLAIM AND THE AO WOULD HAVE FAILED TO CONTROVERT SUCH MATERIAL. AS THE ASSESSEE FAILED TO SUBSTANTIA TE ITS CLAIM IN THIS REGARD BY ANY MATERIAL OR EVIDENCE, WE ARE OF THE CONSIDERED VIEW THAT THE ASSESSEE DOES NOT DESERVE TO SUCCEED ON THIS ISSUE. ITA NO.8545/MUM/2011 M/S APLAB LTD. 8 12. NOW WE WILL COME TO THE SECOND CONTENTION RAISE D BY THE LEARNED A.R. TO THE EFFECT THAT THE ASSESSEE HAD SU FFICIENT OWN FUNDS FOR THE PURPOSE OF MAKING ADVANCE TO THE SIST ER CONCERNS. THE ASSESSEES BALANCE SHEET AS ON 31.3.2006 HAS BE EN PLACED BEFORE US WHICH SHOWS THAT THE AMOUNT OF SHAREHOLDE RS FUND AT RS.27,52,14,000 COMPRISING OF SHARE CAPITAL OF RS.5 ,00,00,000 AND RESERVES AND SURPLUS OF RS 22,52,14,000. AS AGAINST THIS, THE ASSESSEE HAS ADVANCED ONLY A SUM OF RS 44.71 LAKH T O ITS SISTER CONCERNS WITHOUT INTEREST. 13. THE HONBLE JURISDICTIONAL HIGH COURT IN THE CA SE OF CIT VS. RELIANCE UTILITIES & POWER LTD. [(2009) 313 ITR 340 (BOM)] CONSIDERED ALMOST SIMILAR FACTS. IN THAT CASE THE A O RECORDED A FINDING THAT A SUM OF RS.213 CRORES WAS INVESTED BY THE ASSESSEE OUT OF THEIR OWN FUNDS AND RS.1.74 CRORES OUT OF BO RROWED FUNDS. ACCORDINGLY, DISALLOWANCE OF INTEREST WAS MADE TO T HE TUNE OF RS.2.40 CRORES. IT WAS ARGUED ON BEHALF OF THE ASSE SSEE THAT NO PART OF INTEREST BEARING FUNDS HAD GONE INTO INVEST MENT IN THOSE TWO COMPANIES IN RESPECT OF WHICH THE AO MADE DISAL LOWANCE OF INTEREST. IT WAS ALSO ARGUED THAT INCOME FROM OPERA TIONS OF THE COMPANY WAS RS.418.04 CRORES AND THE ASSESSEE HAD A LSO RAISED CAPITAL OF RS.7.90 CRORES, APART FROM RECEIVING INT EREST FREE DEPOSIT OF RS.10.03 CRORES. IT WAS, THEREFORE, SUBMITTED BE FORE THE FIRST APPELLATE AUTHORITY THAT THE BALANCE-SHEET OF THE A SSESSEE ADEQUATELY DEPICTED THAT THERE WERE ENOUGH INTEREST FREE FUNDS AT ITS DISPOSAL FOR MAKING INVESTMENT. THE LD. CIT(A) GOT CONVINCED WITH THE ASSESSEES SUBMISSIONS AND DELETED THE ADD ITION. BEFORE THE TRIBUNAL, IT WAS CONTENDED ON BEHALF OF THE REV ENUE THAT THE ITA NO.8545/MUM/2011 M/S APLAB LTD. 9 SHAREHOLDERS FUNDS WERE UTILIZED FOR THE PURCHASE OF ITS ASSETS AND HENCE THE ASSESSEE WAS LEFT WITH NO RESERVE OR OWN FUNDS FOR MAKING INVESTMENT IN THE SISTER CONCERN. THUS, IT W AS ARGUED THAT THE BORROWED FUNDS HAD BEEN UTILIZED FOR THE PURPOS E OF MAKING INVESTMENT IN THE SISTER CONCERN AND THE DISALLOWAN CE OF INTEREST WAS RIGHTLY CALLED FOR. THE TRIBUNAL, ON APPRECIATI ON OF FACTS, RECORDED A FINDING THAT THE ASSESSEE HAD SUFFICIENT FUNDS OF ITS OWNS FOR MAKING INVESTMENT WITHOUT USING THE INTERE ST BEARING FUNDS. ACCORDINGLY, THE ORDER OF CIT(A) WAS UPHELD. WHEN THE MATTER CAME UP BEFORE THE HONBLE JURISDICTIONAL HI GH COURT, IT WAS CONTENDED BY THE DEPARTMENT THAT THE SHAREHOLDE RS FUNDS STOOD UTILIZED IN THE PURCHASE OF FIXED ASSETS AND HENCE COULD NOT BE CONSTRUED AS AVAILABLE FOR INVESTMENT IN SISTER CONCERN. REPELLING THIS CONTENTION, THE HONBLE HIGH COURT O BSERVED THAT : IN OUR OPINION, THE VERY BASIS ON WHICH THE REVENU E HAD SOUGHT TO CONTEND OR ARGUE THEIR CASE THAT THE SHAREHOLDER S FUND TO THE TUNE OF OVER RS.172 CRORES WAS UTILIZED FOR THE PUR POSE OF FIXED ASSETS IN TERMS OF THE BALANCE-SHEET AS ON MARCH 31 , 1999, IS FALLACIOUS. IN UPHOLDING THE ORDER OF THE TRIBUNAL , THE HONBLE HIGH COURT HELD THAT : IF THERE BE INTEREST FREE F UNDS AVAILABLE TO AN ASSESSEE SUFFICIENT TO MEET ITS INVESTMENT AND A T THE SAME TIME THE ASSESSEE HAD RAISED A LOAN, IT CAN BE PRESUMED THAT THE INVESTMENTS WERE FROM THE INTEREST FREE FUNDS AVAIL ABLE. THEREAFTER, THE JUDGMENT OF THE HONBLE SUPREME COU RT IN THE CASE OF EAST INDIA PHARMACEUTICAL WORKS LTD. VS. CIT [(1 997) 224 ITR 627 (SC)] AND ALSO THE JUDGMENT OF THE HONBLE CALC UTTA HIGH COURT IN WOOLCOMBERS OF INDIA LTD. VS. CIT [(1981) 134 ITR 219 (CAL)] WERE CONSIDERED. IT WAS FINALLY CONCLUDED TH AT : THE ITA NO.8545/MUM/2011 M/S APLAB LTD. 10 PRINCIPLE, THEREFORE, WOULD BE THAT IF THERE ARE FU NDS AVAILABLE BOTH INTEREST FREE AND OVERDRAFT AND/OR LOANS TAKEN, THE N A PRESUMPTION WOULD ARISE THAT THE INVESTMENTS WOULD BE OUT OF IN TEREST FREE FUNDS GENERATED OR AVAILABLE WITH THE COMPANY, IF THE INT EREST FREE FUNDS WERE SUFFICIENT TO MEET THE INVESTMENT. CONSEQUENT LY THE INTEREST WAS HELD TO BE DEDUCTIBLE IN FULL. 14. FROM THE ABOVE JUDGMENT, IT IS MANIFEST THAT TH ERE CAN BE NO PRESUMPTION THAT THE SHAREHOLDERS FUND OF A COMPAN Y IS UTILIZED FOR THE PURCHASE OF FIXED ASSETS. IF THE ASSESSEE H AS INTEREST FREE FUNDS AS WELL AS INTEREST BEARING FUNDS AT ITS DISP OSAL, THEN THE PRESUMPTION WOULD BE THAT INVESTMENTS WERE MADE FRO M INTEREST FEE FUNDS AT THE DISPOSAL OF THE ASSESSEE. THE FACT S OF THE INSTANT CASE ABUNDANTLY SHOW THAT THE SHAREHOLDERS FUND IS MUCH MORE THAN THE AMOUNT ADVANCED BY THE ASSESSEE WITHOUT AN Y INTEREST TO ITS SISTER CONCERNS. RESPECTFULLY FOLLOWING THE PRE CEDENT, WE HOLD THAT THE LD. CIT(A) WAS NOT JUSTIFIED IN SUSTAINING ADDITION UNDER THE PRESENT CIRCUMSTANCES. WE, THEREFORE, ORDER FOR THE DELETION OF ADDITION. GROUND NO.5 IS ALLOWED. IDENTICALLY FOR A.Y. 2007-08 (ITA NO.6931/MUM/2010) , THE ISSUE WAS DECIDED IN FAVOUR OF THE ASSESSEE VIDE OR DER DATED 08/02/2013 AND NO NEW FACTS WERE BROUGHT TO OUR NOT ICE, MORE SPECIFICALLY BY THE REVENUE. IT IS NOTED THAT THE BENCH IN ORDER DATED 23/12/2011 (A.Y. 2006-07), DULY CONSIDE RED THE DECISION FROM HONBLE APEX COURT IN S.A. BUILDERS L TD. VS CIT (2007) 288 ITR 1 (SC), JURISDICTIONAL HIGH COURT IN CIT VS RELIANCE UTILITIES AND POWER LTD. (2009) 313 ITR 34 0 (BOM.), ITA NO.8545/MUM/2011 M/S APLAB LTD. 11 EAST INDIA PHARMACEUTICALS WORKS LTD. VS CIT (1997) 224 ITR 627 (SC), WOOLCOMBERS OF INDIA LTD. VS CIT (1981) 1 34 ITR 219 (CAL.) AND THEN REACHED TO A PARTICULAR CONCLUSION. IN THE ABSENCE OF ANY CONTRARY FACTS, WE ALLOW THE APPEAL OF THE ASSESSEE, ON THIS ISSUE, AND DIRECT THE LD. ASSESSI NG OFFICER TO DELETE THE ADDITION. FINALLY, THE APPEAL OF THE ASSESSEE IS ALLOWED. THIS ORDER WAS PRONOUNCED IN THE OPEN COURT IN THE PRESENCE OF LD. REPRESENTATIVES FROM BOTH SIDES AT THE CONCLUSION OF THE HEARING ON 08/02/2016. SD/- SD/- ( G.S. PANNU ) (JOGINDER SINGH) '# / ACCOUNTANT MEMBER $# / JUDICIAL MEMBER & ' MUMBAI; + DATED : 09/02/2016 F{X~{T? P.S/. .. %$&'()(*& / COPY OF THE ORDER FORWARDED TO : 1. , -. / THE APPELLANT 2. /0-. / THE RESPONDENT. 3. 11 & 2$ ( , ) / THE CIT, MUMBAI. 4. 11 & 2$ / CIT(A)- , MUMBAI 5. 4%5/$! , 1, ),!6 , & ' / DR, ITAT, MUMBAI 6. 7'8' / GUARD FILE. / BY ORDER, 04$/$ //TRUE COPY// / (DY./ASSTT. REGISTRAR) , & ' / ITAT, MUMBAI