2012 (4) TMI 297

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.... follows:  1.  "Whether on facts and on interpretation of law the Tribunal is right in confirming the disallowance of Rs. 2,39,490/- in respect of bona fide and legitimate deduction under section 36(1)(viii) of the Act ?  2.  Whether on facts and evidence on record read along with explanation of the appellant the Tribunal's findings and conclusions confirming the disallowance under section 36(1)(viia) and section 36(1)(viii) of the Act result in a 'vitiated' findings sustainable in law ?" 3. Though two questions are framed, issue is single and pertains to deduction under section 36(1)(viii) of the Income Tax Act, 1961 of Rs. 2,39,490/- claimed by the assessee and disallowed by the Assessing Officer. The assessee....

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....ucted. 4. The assessee approached the Tribunal. The Tribunal, however, dismissed the assessee's appeal making following observations : "12. We have heard both the parties and gone through the facts of the case. It is well settled that the onus is on the assessee, claiming deduction u/s 36(1)(viii) of the Act to establish that it fulfilled the conditions stipulated in the said section. The relevant provision of s.36(1)(viii) read with the Notes and the Memorandum for Notes and Clauses in the Finance Bill, 1995, we find that the purpose of amending the s.36(1)(viii) was to restrict the deduction available to the assessee in respect of any special reserves created not exceeding 40 per cent of the profits derived from the business of prov....

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....that the various borrowers requested for advance for purchase and construction of houses. Apart from copies of these applications, no evidence has been referred to before us suggesting that advances given by the assessee were indeed utilized for purchase or construction of residential houses. If an assessee claimed the benefit of deduction u/s.36(1)(viii) of the Act, the onus squarely rested upon them to satisfy the revenue authorities that they fulfilled the condition stipulated under the said provision i.e. the advances given by it were used only for the purpose of purchase or construction of residential houses in the case under consideration, the assessee did not establish their claim nor submitted the relevant evidence before the AO or ....