Narasu's Spinning Mills, Salem V. ACIT, Salem

ITA 957/CHNY/2015

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 96582 (ITAT-CHENNAI)
• Duration Of Justice: 7 month(s) 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 09-12-2015
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: A
• Next Hearing Date: 19-11-2015
• Assessment Year: 2011-2012
• Appeal Filed On: 28-04-2015
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: P RADHAKRISHNAN JCIT H F I
• Assessee Lawyers: G BASKAR DEBC F G
• Keywords: Capital asset

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH, CHENNAI . . . , . !' , $ % BEFORE SHRI N.R.S. GANESAN, JUDICIAL MEMBER AND SHRI A. MOHAN ALANKAMONY, ACCOUNTANT MEMBER ./ ITA NO.957/MDS/2015 ' (' / ASSESSMENT YEAR : 2011-12 M/S NARASUS SPINNING MILLS, 9-E, GANDHI ROAD, SALEM 636 007. PAN : AABFN 5747 L V. THE ASSISTANT COMMISSIONER OF INCOME TAX, CIRCLE I(2), 3, GANDHI ROAD, SALEM-636 007. (BC/ APPELLANT) (DEBC/ RESPONDENT) BC F G / APPELLANT BY : SHRI G. BASKAR, ADVOCATE DEBC F G / RESPONDENT BY : SH. P. RADHAKRISHNAN, JCIT H F I$ / DATE OF HEARING : 19.11.2015 J!( F I$ / DATE OF PRONOUNCEMENT : 09.12.2015 / O R D E R PER N.R.S. GANESAN, JUDICIAL MEMBER: THIS APPEAL OF THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF THE COMMISSIONER OF INCOME TAX (APPEALS), SALEM, DA TED 27.03.2015 AND PERTAINS TO ASSESSMENT YEAR 2011-12. 2. SHRI G. BASKAR, THE LD.COUNSEL FOR THE ASSESSEE, SUBMITTED THAT THE ASSESSING OFFICER MADE A DISALLOWANCE OF ` 71,016/- UNDER 2 I.T.A. NO.957/MDS/15 SECTION 40(A)(IA) OF THE INCOME-TAX ACT, 1961 (IN S HORT 'THE ACT') ON THE GROUND THAT THE ASSESSEE HAS NOT MADE ANY TDS A T THE TIME OF PAYMENT AND THE RECIPIENT OF THE AMOUNT HAS SUBMITT ED FORM 15H ON 10.04.2011. ACCORDING TO THE LD. COUNSEL, THE RECIPIENT OF THE AMOUNT INFORMED THE ASSESSEE IN ADVANCE THAT SHE WO ULD PROVIDE FORM 15H, THEREFORE, THE AMOUNT WAS CREDITED TO THE ACCOUNT OF MS. M. KRISHNAVENI ON 31.03.2011. ACCORDING TO THE LD. COUNSEL, EVEN IN EARLIER ASSESSMENT YEARS, THE SAID MS. M. KRISHN AVENI USED TO FILE FORM 15H AND THE ASSESSEE HAS PAID THE AMOUNT WITHO UT DEDUCTING THE TAX. DURING THE YEAR CONSIDERATION, FORM 15H I N FACT WAS FILED ON 10.04.2011, BEFORE THE DUE DATE FOR DEPOSIT OF T HE TDS AMOUNT. SINCE THE ASSESSEE WAS INFORMED IN ADVANCE, ACCORDI NG TO THE LD. COUNSEL, THE TDS WAS NOT MADE AND IN FACT, THE ASSE SSEE HAS FILED THE TDS CERTIFICATE SUBSEQUENTLY. THEREFORE, THERE CANNOT BE ANY DISALLOWANCE. THE LD.COUNSEL PLACED HIS RELIANCE O N THE DECISION OF THE JODHPUR BENCH OF THIS TRIBUNAL IN ITO V. PEARL ORGANIC COATINGS (2004) 4 SOT 755, THE DECISION OF MUMBAI BENCH OF T HIS TRIBUNAL IN KARWAT STEEL TRADERS V. ITO (2013) 145 ITD 370 AND DELHI BENCH OF THIS TRIBUNAL IN VIJAYA BANK V. ITO (2014) 31 IT R(TRIB) 427. 3 I.T.A. NO.957/MDS/15 3. ON THE CONTRARY, SH. P. RADHAKRISHNAN,THE LD. DE PARTMENTAL REPRESENTATIVE, SUBMITTED THAT THE ASSESSEE AT THE TIME OF CREDITING THE INTEREST INCOME HAS TO DEDUCT TAX AS REQUIRED U NDER SECTION 194A OF THE ACT. IN THIS CASE, ADMITTEDLY, THE INT EREST WAS CREDITED IN THE BOOKS OF ACCOUNT BEFORE 10.04.2011 AND THE T AX WAS NOT DEDUCTED. THEREFORE, THE EXPENDITURE CLAIMED BY TH E ASSESSEE TO THE EXTENT OF ` 71,016/- TOWARDS PAYMENT OF INTEREST CANNOT BE ALLOWED UNDER SECTION 40(A)(IA) OF THE ACT. THEREF ORE, MERELY BECAUSE THE ASSESSEE HAS RECEIVED FORM 15H ON 10.04 .2011 THAT CANNOT BE A REASON FOR ALLOWING THE CLAIM OF THE AS SESSEE. 4. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS ON EITH ER SIDE AND PERUSED THE RELEVANT MATERIAL AVAILABLE ON RECORD. WE HAVE CAREFULLY GONE THROUGH THE PROVISIONS OF SECTION 40 (A)(IA) OF THE ACT. SECTION 40(A)(IA) OF THE ACT CLEARLY SAYS THAT WHEN THE TAX IS DEDUCTIBLE AT SOURCE AND SUCH TAX HAS NOT BEEN DEDU CTED OR AFTER DEDUCTION IT WAS NOT PAID BEFORE THE DUE DATE FOR F ILING THE RETURN OF INCOME, THEN THE EXPENDITURE, WHICH IS OTHERWISE AL LOWABLE UNDER THE PROVISIONS OF INCOME-TAX ACT, HAS TO BE DISALLO WED. IN THE CASE BEFORE US, ADMITTEDLY, THE INTEREST PAYMENT OF ` 71,016/- IS CLAIMED AS EXPENDITURE. THE QUESTION ARISES FOR CONSIDERAT ION IS WHEN THE 4 I.T.A. NO.957/MDS/15 ASSESSEE HAS NOT DEDUCTED TAX UNDER SECTION 194A OF THE ACT IN RESPECT OF THE PAYMENT OF INTEREST INCOME, WHETHER SUCH EXPENDITURE OTHERWISE ALLOWABLE CAN BE ALLOWED IN V IEW OF SECTION 40(A)(IA) OF THE ACT. SECTION 40(A)(IA) CLEARLY SA YS THAT THE TAX IS DEDUCTIBLE AT SOURCE. THE FACT REMAINS THAT THE AS SESSEE IS MAKING SIMILAR PAYMENT TO THE VERY RECIPIENT IN THE EARLIE R ASSESSMENT YEAR AND TAX WAS NOT DEDUCTED AS REQUIRED UNDER SECTION 40(A)(IA) OF THE ACT ON THE BASIS OF FORM 15H FILED BY THE RECIPIENT . THE FACT IS THAT THE RECIPIENT OF INTEREST AMOUNT INFORMED THE ASSES SEE THAT SHE WILL FILE FORM 15H. ACCORDINGLY, AT THE TIME OF CREDIT, THE TAX WAS NOT DEDUCTED. SUBSEQUENTLY FORM 15H WAS FILED ON 10.04 .2011, BEFORE THE DUE DATE FOR DEPOSITING THE AMOUNT IN THE GOVER NMENT ACCOUNT. WHEN THE RECIPIENT FILED FORM 15H, THERE IS NO LIAB ILITY ON THE PART OF THE ASSESSEE TO DEDUCT TAX. ADMITTEDLY, THE TAX WA S NOT DEDUCTED AT THE TIME OF CREDIT. HOWEVER, BEFORE THE DUE DATE F OR FILING RETURN OF INCOME, THE RECIPIENT FILED FORM 15H. THEREFORE, O N THE DATE OF FILING OF RETURN OF INCOME, TAX IS NOT DEDUCTIBLE O N THE AMOUNT PAID TO THE RECIPIENT SINCE FORM 15H IS FILED. WHEN THERE IS NO REQUIREMENT FOR DEDUCTION OF TAX IN VIEW OF FILING OF FORM 15H BY THE RECIPIENT ON 10.04.2011, THIS TRIBUNAL IS OF THE CONSIDERED OPIN ION THAT THERE CANNOT BE ANY DISALLOWANCE UNDER SECTION 40(A)(IA) OF THE ACT. 5 I.T.A. NO.957/MDS/15 THEREFORE, THIS TRIBUNAL IS UNABLE TO UPHOLD THE OR DER OF THE LOWER AUTHORITY AND ACCORDINGLY, THE ORDER OF THE LOWER A UTHORITY IS SET ASIDE AND THE ADDITION OF ` 71,016/- IS DELETED. 5. THE NEXT ISSUE ARISES FOR CONSIDERATION IS WITH REGARD TO DISALLOWANCE OF ` 3,70,377/- 6. SHRI G. BASKAR, THE LD.COUNSEL FOR THE ASSESSEE, SUBMITTED THAT THE ASSESSEE IS IN THE BUSINESS OF GENERATING ELECTRICITY THROUGH WINDMILL. DURING THE YEAR UNDER CONSIDERATION, THE ASSESSEE HAS ADDED ONE MORE WINDMILL TO THE EXISTING BUSINESS. THEREFORE, ACCORDING TO THE LD. COUNSEL, IT WAS AN EXPANSION O F BUSINESS AND NOT EXTENSION OF BUSINESS. THEREFORE, PROVISO TO SECTION 36(1)(III) OF THE ACT IS NOT APPLICABLE. HOWEVER, THE ASSESSI NG OFFICER FOUND THAT THE ASSESSEE HAS TO CAPITALIZE THE INTEREST ON THE BORROWED FUNDS TILL THE MACHINERY IS PUT TO USE. REFERRING TO SECTION 36(1)(III) OF THE ACT, THE LD.COUNSEL SUBMITTED THAT THE INTER EST PAYMENT TILL THE MACHINERY WAS PUT TO USE HAS TO BE CAPITALIZED WHEN THE BUSINESS OF THE ASSESSEE WAS EXTENDED. IN THIS CASE, IT IS NOT AN EXTENSION OF BUSINESS BUT EXPANSION OF BUSINESS. WHEN THE BUSIN ESS WAS EXPANDED BY ADDING ONE MORE WINDMILL, ACCORDING TO THE LD. COUNSEL, THE PROVISO TO SECTION 36(1)(III) OF THE A CT IS NOT APPLICABLE. 6 I.T.A. NO.957/MDS/15 THE LD.COUNSEL PLACED HIS RELIANCE ON THE DECISION OF AHMEDABAD BENCH OF THIS TRIBUNAL IN GUJARAT MINERAL DEVELOPME NT CORPORATION LTD. V. ACIT (2013) 140 ITD 603 AND THE JUDGMENT O F APEX COURT IN DCIT V. CORE HEALTH CARE LTD. (2008) 298 ITR 194. 7. ON THE CONTRARY, SH. P. RADHAKRISHNAN, THE LD. D EPARTMENTAL REPRESENTATIVE, SUBMITTED THAT SECTION 36(1)(III) O F THE ACT, WHICH IS VERY MUCH APPLICABLE DURING THE YEAR UNDER CONSIDER ATION, CLEARLY SAYS THAT WHEN THE ASSESSEE BORROWED FUNDS FOR ACQU ISITION OF ASSET, WHETHER IT IS CAPITALIZED IN THE BOOKS OF AC COUNT OR NOT. THE INTEREST PAID ON THE BORROWED FUNDS FROM THE DATE O F BORROWING TILL THE CAPITAL ASSET WAS PUT TO USE SHALL NOT BE ALLOW ED AS DEDUCTION. ACCORDING TO THE LD. COUNSEL, THE PARLIAMENT QUALIF IED THE EXTENSION OF BUSINESS WITH THE WORD EXISTING. THEREFORE, WHEN THE ASSESSEE BORROWED CAPITAL FOR ACQUISITION OF AS SET FOR EXTENSION OF EXISTING BUSINESS, THE INTEREST CANNOT BE ALLOWE D SINCE THE MACHINERY OR CAPITAL HAS TO BE PUT TO USE. REFERRI NG TO THE ARGUMENT OF THE LD.COUNSEL THAT IT WAS ONLY EXPANSI ON AND NOT EXTENSION, THE LD. D.R. POINTED OUT THAT THE EXTENS ION IS IN RESPECT OF EXISTING BUSINESS. ADMITTEDLY, WHEN THE ASSESSE E IS GENERATING ELECTRICITY THROUGH WINDMILL BY ADDING ONE MORE WIN DMILL, THE 7 I.T.A. NO.957/MDS/15 ASSESSEE IS EXTENDING THE BUSINESS OF EXISTING GENE RATION OF ELECTRICITY. IT IS NOT A NEW BUSINESS OF THE ASSES SEE. THEREFORE, THE INTENTION OF THE PARLIAMENT IS THAT THE CAPITAL ASS ET SHALL BE UTILISED FOR EXTENDING THE EXISTING BUSINESS. IN THIS CASE, ADMITTEDLY, THE EXISTING BUSINESS WAS EXTENDED. THEREFORE, THERE I S NO QUESTION OF ANY EXPANSION AS CLAIMED BY THE ASSESSEE. HENCE, T HE CIT(APPEALS) HAS RIGHTLY CONFIRMED THE ADDITION MAD E BY THE ASSESSING OFFICER. 8. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS ON EITH ER SIDE AND PERUSED THE RELEVANT MATERIAL AVAILABLE ON RECORD. WE HAVE CAREFULLY GONE THROUGH THE PROVISIONS OF SECTION 36 (1)(III) OF THE ACT WHICH READS AS FOLLOWS:- 36(1) THE DEDUCTIONS PROVIDED FOR IN THE FOLLOWING C LAUSES SHALL BE ALLOWED IN RESPECT OF THE MATTERS DEALT WITH THE REIN, IN COMPUTING THE INCOME REFERRED TO IN SECTION 28- (III) THE AMOUNT OF THE INTEREST PAID IN RESPECT O F CAPITAL BORROWED FOR THE PURPOSES OF THE BUSINESS OR PROFES SION : PROVIDED THAT ANY AMOUNT OF THE INTEREST PAID, IN R ESPECT OF CAPITAL BORROWED FOR ACQUISITION OF AN ASSET FOR EXT ENSION OF EXISTING BUSINESS OR PROFESSION (WHETHER CAPITALISED IN THE BOOKS OF ACCOUNT OR NOT) ; FOR ANY PERIOD BEGINNING FROM THE DATE ON WHICH THE CAPITAL WAS BORROWED FOR ACQUISITION OF T HE ASSET TILL THE DATE ON WHICH SUCH ASSET WAS FIRST PUT TO USE, SHALL NOT BE ALLOWED AS DEDUCTION : 8 I.T.A. NO.957/MDS/15 EXPLANATION RECURRING SUBSCRIPTIONS PAID PERIODICALLY BY SHAREHOLDERS, OR SUBSCRIBERS IN MUTUAL BENEFIT SOCIE TIES WHICH FULFIL SUCH CONDITIONS AS MAY BE PRESCRIBED, SHALL BE DEEMED TO BE CAPITAL BORROWED WITHIN THE MEANING OF THIS CLAUSE ; AS RIGHTLY SUBMITTED BY THE LD. D.R., THE PARLIAMEN T QUALIFIED THE WORD EXTENSION WITH THE WORD EXISTING BUSINESS O R PROFESSION. THEREFORE, WHAT IS TO BE EXTENDED IS EXISTING BUSIN ESS OR PROFESSION. THE CONTENTION OF THE LD.COUNSEL FOR THE ASSESSEE I S THAT ADDITION OF ONE MORE WINDMILL DOES NOT AMOUNT TO EXTENSION, IT IS ONLY AN EXPANSION OF THE BUSINESS. THIS TRIBUNAL IS OF THE CONSIDERED OPINION THAT WHEN THE ASSESSEE IS ADMITTEDLY IN THE BUSINESS OF GENERATION OF ELECTRICITY THROUGH WINDMILL AND MADE ADDITION OF ONE MORE WINDMILL, IT IS AN EXTENSION OF SUCH EXISTING BUSINESS OF GENERATION OF ELECTRICITY THROUGH WINDMILL. THEREF ORE, THE CAPITAL BORROWED IS FOR ACQUISITION OF ASSET FOR EXTENSION OF THE EXISTING BUSINESS OR PROFESSION. WHEN THE ASSESSEE PAID INT EREST ON THE BORROWED CAPITAL, WHICH WAS USED FOR ACQUISITION OF ASSET FOR EXTENSION OF THE EXISTING BUSINESS OF GENERATION OF ELECTRICITY THROUGH WINDMILL, THIS TRIBUNAL IS OF THE CONSIDERE D OPINION THAT THE INTEREST CANNOT BE ALLOWED AS DEDUCTION TILL THE CA PITAL ASSET ACQUIRED BY THE ASSESSEE IS PUT TO USE. IN THIS CA SE, ADMITTEDLY, THE CAPITAL ASSET PURCHASED IS NOT PUT TO USE. THEREFO RE, THE 9 I.T.A. NO.957/MDS/15 CIT(APPEALS) HAS RIGHTLY CONFIRMED THE ADDITION MAD E BY THE ASSESSING OFFICER. 9. WE HAVE ALSO CAREFULLY GONE THROUGH THE DECISION OF THE AHMEDABAD BENCH IN GUJARAT MINERAL DEVELOPMENT CORP ORATION LTD. (SUPRA). IN THE CASE BEFORE AHMEDABAD BENCH, THE ASSESSEE IS ENGAGED IN THE BUSINESS OF MANUFACTURING LIGNITE. THE AHMEDABAD BENCH OF THIS TRIBUNAL FOUND THAT THE BORROWED FUND S ARE FOR THE PURPOSE OF SETTING UP A NEW UNIT OF THE EXISTING BU SINESS. HOWEVER, THE ASSESSEE BEFORE THE AHMEDABAD BENCH SET UP A NE W UNIT FOR PRODUCTION OF ALTOGETHER A NEW PRODUCT. THEREFORE, THE AHMEDABAD BENCH OF THIS TRIBUNAL FOUND THAT THE INTEREST ON B ORROWED FUNDS CANNOT BE ALLOWED AS DEDUCTION. THE PARLIAMENT, BY FINANCE ACT, 2003 W.E.F. 01.04.2004, INTRODUCED PROVISO TO SECTI ON 36(1)(III) TO CAPITALIZE THE INTEREST ON BORROWED FUNDS TILL THE ASSET WAS PUT TO USE. THE AHMEDABAD BENCH OF THIS TRIBUNAL HAD NO O CCASION TO GO THROUGH THE PROVISO TO SECTION 36(1)(III) OF THE AC T. THEREFORE, THIS TRIBUNAL IS OF THE CONSIDERED OPINION THAT THE DECI SION OF AHMEDABAD BENCH OF THIS TRIBUNAL MAY NOT BE OF ANY ASSISTANCE TO THE ASSESSEE. 10 I.T.A. NO.957/MDS/15 10. WE HAVE ALSO CAREFULLY GONE THROUGH THE JUDGMEN T OF APEX COURT IN THE CASE OF CORE HEALTH CARE LTD. (SUPRA). IN THIS CASE, THE APEX COURT FOUND THAT THE ASSESSEE WAS ENTITLED TO DEDUCTION UNDER SECTION 36(1)(III) OF THE ACT PRIOR TO AMENDMENT BY FINANCE ACT, 2003 IN RESPECT OF THE MONEY BORROWED FOR PURCHASE OF MACHINERY EVEN THOUGH THE ASSESSEE HAD NOT USED THE MACHINERY IN THE YEAR OF BORROWING. THE APEX COURT FOUND THAT PROVISO TO SECTION 36(1)(III) WILL OPERATE PROSPECTIVELY. ADMITTEDLY, THE PROVISO TO SECTION 36(1)(III) OF THE ACT IS EFFECTIVE DURING T HE YEAR UNDER CONSIDERATION. THEREFORE, UNLESS THE MACHINERY IS PUT TO USE, THE ASSESSEE CANNOT CLAIM DEDUCTION. THEREFORE, THIS J UDGMENT OF THE APEX COURT IS ALSO NOT OF ANY ASSISTANCE TO THE ASS ESSEE. 11. IN VIEW OF THE ABOVE DISCUSSION, WE DO NOT FIND ANY REASON TO INTERFERE WITH THE ORDER OF THE CIT(APPEALS) AND AC CORDINGLY, THE SAME IS CONFIRMED. 12. THE NEXT GROUND OF APPEAL IS WITH REGARD TO DIS ALLOWANCE OF ` 46,71,233/- BEING THE AMOUNT PAID TO LIFE INSURANCE CORPORATION OF INDIA, TOWARDS NARASUS SPINNING MILLS EMPLOYEES GR OUP GRATUITY FUND. 11 I.T.A. NO.957/MDS/15 13. SHRI G. BASKAR, THE LD.COUNSEL FOR THE ASSESSEE , SUBMITTED THAT THE ASSESSEE HAS ADMITTEDLY PAID ` 46,71,233/- TOWARDS EMPLOYEES GROUP GRATUITY FUND TO LIC. THE ASSESSEE HAS ALSO PRODUCED A COPY OF THE RECEIPT FOR PAYMENT OF MONEY BEFORE THE ASSESSING OFFICER. ACCORDING TO THE LD. COUNSEL, T HE PAYMENT OF MONEY IS NOT DISPUTED. ONCE THE MONEY IS PAID IN T HE YEAR OUT OF THE HANDS OF THE ASSESSEE, IN VIEW OF JUDGMENT OF A PEX COURT IN CIT V. TEXTOOL CO. LTD. (2013) 263 CTR 257, THE AMOUNT PAID BY THE ASSESSEE HAS TO BE ALLOWED UNDER SECTION 36(1)(V) O F THE ACT. 14. WE HEARD SH. P. RADHAKRISHNAN, THE LD. D.R. ALS O, WHO SUBMITTED THAT ADMITTEDLY, THE EMPLOYEES GROUP GRAT UITY FUND IS NOT APPROVED BY THE COMMISSIONER DURING THE YEAR UN DER CONSIDERATION. THEREFORE, THE PAYMENT MADE BY THE ASSESSEE CANNOT BE ALLOWED. 15. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS ON EIT HER SIDE AND PERUSED THE RELEVANT MATERIAL AVAILABLE ON RECORD. AN IDENTICAL SITUATION WAS CONSIDERED BY THE APEX COURT IN THE C ASE OF TEXTOOL CO. LTD. (SUPRA). THE APEX COURT FOUND THAT THE RE AL INTENTION BEHIND SECTION 36(1)(V) OF THE ACT IS THAT THE EMPL OYER SHOULD NOT HAVE ANY CONTROL OVER FUNDS OF IRREVOCABLE TRUST CR EATED EXCLUSIVELY 12 I.T.A. NO.957/MDS/15 FOR THE BENEFIT OF THE EMPLOYEES. SINCE THE FUND C REATED BY THE LIC FOR THE BENEFIT OF THE EMPLOYEES OF THE ASSESSEE AN D CONTRIBUTION MADE BY THE ASSESSEE ULTIMATELY CAME BACK TO THE EM PLOYEES GRATUITY FUND, THE APEX COURT FOUND THAT THE CONDIT IONS STIPULATED UNDER SECTION 36(1)(V) OF THE ACT IS SATISFIED. IN THE CASE BEFORE US, THE APPLICATION MADE BY THE ASSESSEE IS STILL PENDI NG BEFORE THE COMMISSIONER FOR APPROVAL AND THE AMOUNT WAS PAID T O THE LIC. THE ASSESSEE HAD NO CONTROL OVER THE FUND CREATED B Y THE LIC FOR THE BENEFIT OF ITS EMPLOYEES. SINCE THE ASSESSEE H AS NO CONTROL OVER THE FUNDS AND APPLICATION IS STILL PENDING BEF ORE THE COMMISSIONER, THIS TRIBUNAL IS OF THE CONSIDERED OP INION THAT THERE IS NO REASON TO DISALLOW THE CLAIM OF THE ASSESSEE. SINCE THE FUNDS OF THE ASSESSEE HAVE GONE OUT OF THE HANDS OF THE A SSESSEE AND THE ASSESSEE HAS NO CONTROL OVER THE FUNDS, THE DIC TUM LAID DOWN BY THE APEX COURT IS SQUARELY APPLICABLE TO THE FACTS OF THE CASE. ACCORDINGLY, WE SET ASIDE THE ORDERS OF THE LOWER A UTHORITIES AND THE ADDITION MADE BY THE ASSESSING OFFICER TO THE EXTEN T OF ` 46,71,233/- IS DELETED. 16. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS PA RTLY ALLOWED. 13 I.T.A. NO.957/MDS/15 ORDER PRONOUNCED ON 9 TH DECEMBER, 2015 AT CHENNAI. SD/- SD/- (. !' ) ( . . . ) (A. MOHAN ALANKAMONY) (N.R.S. GANESAN) $ / ACCOUNTANT MEMBER /JUDICIAL MEMBER /CHENNAI, K /DATED, THE 9 TH DECEMBER, 2015. KRI. F DILM NM(I /COPY TO: 1. BC /APPELLANT 2. DEBC /RESPONDENT 3. H OI () /CIT(A), SALEM 4. H OI /CIT, SALEM 5. MP DI /DR 6. Q' R /GF.