TaxTMI 
TaxTMI 
2011 (4) TMI 1350
X X X X Extracts X X X X
X X X X Extracts X X X X
....sessment year 2004-05. 2. The Ground No.1 of assessee's appeal in ITA No.2176/Ahd/2007 reads as under:- "1. The learned Commissioner of Income Tax (Appeals) erred in confirming the disallowance under section 14A of the Act in respect of interest paid on borrowings made for investments in tax free securities of ₹ 10.31 crores (96.64 - 86.33) crores. In the facts and circumstances of the case it is submitted that the provisions of section 14A are not applicable. It is submitted it be so held now. 1.2 The learned Commissioner of Income Tax (Appeals) has erred in reducing gross block of asset out of own funds for determining own funds available for investment in tax free securities. Appellant submits that in the facts and circumstance....
X X X X Extracts X X X X
X X X X Extracts X X X X
....oonlight Builders and Developers 307 ITR 197 and ACIT vs. Gendalal Hazarilal & Co. 263 ITR 679 wherein it is held that even 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." In view of the above we set aside this issue to the fi....
X X X X Extracts X X X X
X X X X Extracts X X X X
....h the orders of the authorities. We are of the considered view that the authorities concerned have not correctly appreciated the facts and brought relevant material on record for making proportionate disallowance. It has to be shown that interest has been paid on funds which were invested in tax free securities. Since the assessee is making claim of ₹ 28.65 crores, onus is on the assessee to prove 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....
X X X X Extracts X X X X
X X X X Extracts X X X X
....d. The third lease transaction was entered into in F.Y. 1996-97 on which the depreciation approx of ₹ 2,00,06,325/- was claimed. Forth transaction took place in A.Y 1998-99 in which depreciation of ₹ 4,01,38,576/- was claimed and allowed. Fifth also took place in A.Y 1998-99 in which the depreciation of ₹ 7,99,42,946/- was claimed. It is stated by the learned AR of the assessee that no fresh lease transaction has taken place this year and depreciation in respect of old lease transactions has only been claimed this year. Therefore, following the principle of consistency, as propounded in CIT vs. H.P. Cotton Textile Mills Ltd. 311 ITR 436, CIT vs. Malborough Polychem Pvt. Ltd.¸308 ITR 43; CIT vs. Moonlight Builders an....