TaxTMI 
TaxTMI 
2009 (9) TMI 963
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....he Asstt. Commissioner of Income-tax, Circle-4, Ahmedabad u/s. 143(3) r.w.s. 147 of the Income-tax Act, 1961 (hereinafter referred to as 'the Act') vide his orders dated 30-11-2005 and 27-12- 2005 for the assessment years 2000-01 and 2003-04 respectively. 2. The first common issue in these appeals of the Revenue is against the order of CIT(A) in deleting the disallowance made out of depreciation on assets of sale & lease back transactions. Since the issue is common except the amount, we will take the ground raised in Revenue's appeal in assessment year 2000-01 as under:- "1. The Ld. CIT(A) erred in law and on the facts of the case in deleting the disallowance made of ₹ 6,52,56,469/- out of depreciation on assets of sale and lease ba....
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....en though in income-tax proceedings principle of res-judicata is not applicable, but consistency has to be maintained unless there is manifest distinguishable facts. In earlier years, claim of depreciation was accepted by the revenue which has now become final, the revenue cannot disallow the present claim, unless facts and circumstances are distinguishable. Therefore, the revenue is required to maintain a judicial consistency between itself and taxpayers. As a result, we do not find any merit in the claim of the revenue and this ground of the revenue is dismissed." 4. The Ld. DR has not disputed that the transactions in the present year are regular transaction from earlier years. Accordingly, we are of the view that once the Tribunal has ....
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....in not giving the set off of MAT credit in working out the tax payable by the assessee for the purpose of determination of payment of advance tax and consequently for the purpose of levy of interest under sections 234B and 234C. We accordingly set aside his order as well as the order of the CIT(A) and allowed the appeal of the assessee. The Assessing Officer is directed to recalculate the interest, if any, payable under sections 234B and 234C as per this decision. We direct accordingly." Respectfully following, the decision of this Tribunal in the case of Phillips India Ltd.(supra), we allow the claim of the assessee. Hence, this issue of the Revenue's appeal is dismissed. 7. The next issue in this appeal of Revenue in ITA No.2158/Ahd/200....
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....that interest bearing funds are not invested in tax free securities. If it is unable to prove so, then following the decision of Special Bench ITO vs. Daga Capital Management Pvt. Ltd. 312 ITR (AT) 01, a proportionate disallowance AO for deciding the issue afresh after giving assessee reasonable opportunity of being heard. This ground of the revenue is allowed for statistical purpose." 9. Respectfully following the above view of this Tribunal, we set aside the issue to the file of the Assessing officer to decide in terms of Tribunal's decision in assessment year 2001-02. Needless to say, that the Assessing officer will provide reasonable opportunity of being heard to the assessee. This issue of the Revenue's appeal is allowed for statistic....
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....otal disallowance would amount to ₹ 99,11,062/-. Since learned CIT(A) has restricted the disallowance to ₹ 9.91 lakhs, which is only about 1% of the total claim and not 10% and revenue has not filed any appeal against this working, the disallowance is to be treated as most reasonable, and no interference is called for in the impugned order on this issue. This ground of the assessee is rejected." 12. We find that in the present year, the facts are not available, accordingly, this issue is being set aside to the file of the Assessing officer to follow the decision taken in assessee's own case in ITA No.403/Ahd/2005 for assessment year 2001-02 dated 0-07-2009 after providing reasonable opportunity of being heard to the assessee. ....
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....ervices Ltd. v. ACIT 115 ITD 218 (Ahd) has rejected the claim of the assessee. Respectfully following the Tribunal's decision in assessee's own case, we reject this ground of the CO of the assessee. 16. The next issue in CO of assessee's is as regards to charging of interest u/s.234B of the Act. 17. We find that this issue has already been dealt with in assessee's own case in ITA No.229/Ahd/2005 for assessment year 2001-02 in para-13, wherein the Tribunal has held as under:- "13. Fourth issue relates to charging of interest under Section 234B and 234D of the Act. The assessee claimed that it paid advance tax on the basis of the decision of ITAT Mumbai in the case of Datamatics Ltd. Vs. ACIT, 110 ITR 24. The Tribunal has followed that dec....