TaxTMI 
TaxTMI 
2013 (1) TMI 1070
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..../-. 4. The CIT (A) erred in law and in facts in holding that the rent income of Rs. 29,48,093/- was eligible for deduction u/s. 80IA of the Income tax Act, 1961. 5. The CIT (A) erred in law and in facts in holding that the sum of Rs. 68,69,828/- being depreciation on container yard can not be added back while computing book profit u/s. 115JB of the Act. 6. The CIT (A) erred in law and in facts in holding that the sum of Rs. 26,94,255/- being amortization of lease premium on leasehold land can not be added back while computing book profit u/s. 115JB of the Act. 7. The CIT (A) erred in law and in facts in holding that the sum of Rs. 2,22,421/- being proportionate interest expenses on exempt income worked out u/s. 14A r.w.r. 8D can not be added back while computing book profit u/s. 115JB of the Act. 8. That on the facts and in the circumstances of the case, the Ld. CIT (A) ought to have upheld the order of the Assessing Officer. 9. It is therefore prayed that the order of the Ld. CIT (A) be set aside and that of the Assessing Officer be restored. 10. That the revenue craves leave to add, amend, alter or withdraw any ground....
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....e expenditure. The Ld. CIT (A) considering the details laid on his record, deleted the entire disallowance. 3. Heard parties with reference to material on record. The Ld. CIT (A) has taken evidence which was not laid before the Assessing Authority nor provided any opportunity to him for verification of correctness of such evidence which was made a basis for deleting the disallowance. This was in defiance of Rule 46A of I.T. Rules, 1962. We, therefore, set aside his order and in the interests of substantial justice remit the matter back to the Assessing Authority for evaluating the evidence and taking decision in accordance with law after providing reasonable and effective opportunity of being heard to the assessee. 4. Ground No. 2 in ITA No. 1083/Rjt/2010 relates to deletion of disallowance of Rs. 46,180/- made under section 40A(3) of IT Act, 1961 by the Assessing Authority on the ground that the payments were made in cash for Rs. 2,30,900/-. 5. The Ld. CIT (A) however, deleted the disallowance by accepting the assessee's version that the payment was made as a deposit in the Petro Card which can be used by the driver for getting fuel from the Petrol Pumps. The amount s....
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....e assessing authority is a bona fide estimate and is based on a rational basis, the fact that there is no good proof in support of that estimate is immaterial. Prima facie, the assessing authority is the best judge of the situation. It is his "best judgment" and not of anyone else. The High Court could not substitute its "best judgment" for that of the assessing authority. 9. The Hon'ble Kerala High Court in the case of CIT vs. S.P. Nayak and Ramesh M 235 ITR 94 (Ker.) upheld the estimated deduction of expenses made by the Assessing Authority with reference to income. In the peculiar facts of this case, the Assessing Officer, therefore, was justified in allowing estimated deduction of such expenses and making disallowance of Rs. 5,25,258/- only. We, therefore, setting aside the order of Ld. CIT (A), restore the decision taken by Assessing Authority. 10. In ground No. 4 in appeal for assessment year 2007-08, the ground No. 1 in appeal for A.Y. 2008-09 and assessment year 09-10, the Assessing Officer did not allow deduction under section 80IA of the Act on the rental income derived by the assessee from letting out of its property owned for running a Container Freight Statio....
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....rd. The Apex Court in the said judgment has laid down as under :- 6. The word "derived" has been construed as far back in 1948 by the Privy Council in CIT vs. Raja Bahadur Kamakhaya Narayan Singh (1948) 16 ITR 325 (PC) when it said : The word 'derived' is not a term of art. Its use in the definition indeed demands an enquiry into the genealogy of the product. But the enquiry should stop as soon as the effective source is discovered. In the genealogical tree of the interest, land indeed appears in the second degree, but the immediate and effective source is rent, which has suffered the accident of non-payment. And rent is not land within the meaning of the definition. This definition was approved and reiterated in 1955 by a Constitution Bench of this Court in the decision of Mrs. Bacha F. Guzdar vs. CIT (1955) 27 ITR 1 (SC). It is clear, therefore, that the words 'derived from' is 80HH of the IT Act, 1961 must be understood as something which has direct or immediate nexus with the appellant's industrial undertaking. Although electricity may be required for the purposes of the industrial undertaking, the deposit required for its supply is a st....
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....n of law raised by revenue against the Tribunal's order dated 3.7.2009. In that case the Assessing Officer was of the opinion that the assessee has developed infrastructure on the leasehold land on which no depreciation was allowable whereas the Appellate Tribunal considered it as Plant and allowed depreciation. The Hon'ble High Court did not show any indulgence in the finding of fact reached by the Appellate Tribunal in that year under the peculiar facts set out in the order of the Appellate Tribunal as well as the Assessing Authority to the limited extent. The correct fact of the matter is that Indian Companies Act 1956 has not specified any depreciation on the asset of the nature created by the assessee. If no depreciation is provided under the Schedule contained under Companies Act, the same cannot be allowed as per Income tax rules, but this fact is not coming out from the order of the earlier Tribunal nor from the order of Hon'ble High Court. These decisions, therefore, cannot be made applicable to the peculiar facts and laws as contained in Indian Companies Act, 1956 read with section 115JB of the Act, particularly when subsequent to the judgment rendered by Apex....