Lincon Parenterals Pvt.Ltd.,, Ahmedabad v. The Income tax Officer, Ward-4(3),, Ahmedabad

ITA 2745/AHD/2007 | 2003-2004
Pronouncement Date: 26-02-2010 | Result: Partly Allowed

Appeal Details

RSA Number 274520514 RSA 2007
Assessee PAN AAACL3228G
Bench Ahmedabad
Appeal Number ITA 2745/AHD/2007
Duration Of Justice 2 year(s) 8 month(s) 7 day(s)
Appellant Lincon Parenterals Pvt.Ltd.,, Ahmedabad
Respondent The Income tax Officer, Ward-4(3),, Ahmedabad
Appeal Type Income Tax Appeal
Pronouncement Date 26-02-2010
Appeal Filed By Assessee
Order Result Partly Allowed
Bench Allotted B
Tribunal Order Date 26-02-2010
Date Of Final Hearing 23-02-2010
Next Hearing Date 23-02-2010
Assessment Year 2003-2004
Appeal Filed On 18-06-2007
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD B BENCH BEFORE S/SHRI BHAVNESH SAINI J.M. AND SHRI A.N.PAH UJA A.M. ITA NO.2745/AHD/2007 ASSESSMENT YEARS: 2003-2004 LINCON PARENTERALS PVT. LTD. 2 ND FLOOR NIRAV COMPLEX OPP.NAVRANG HIGH SCHOOL NARANPURA AHMEDABAD. V/S INCOME TAX OFFICER WARD- 4(3) NAVJIVAN TRUST BUILDING OFF.ASHRAM RD. AHMEDABAD PAN NO. AAACL 3228 G (ASSESSEE) (RESPONDENT) FOR ASSESSEE: SHRI A.C.SHAH A.R FOR DEPARTMENT: SHRI C.K.MISHRA SR.DR O R D E R PER SHRI BHAVNESH SAINI J.M. THIS APPEAL BY ASSESSEE IS DIRECTED AGAINST THE ORD ER OF LEARNED COMMISSIONER OF INCOME TAX (APPEALS)-VIII AHMEDABA D DATED 20.03.2007 FOR ASSESSMENT YEAR 2003-2004 ON THE FOL LOWING GROUNDS. 1. IN LAW AND IN THE FACTS AND CIRCUMSTANCES OF TH E ASSESSEE'S CASE THE ORDER PASSED BY CIT(A) IS BAD IN LAW AND DESERVES TO BE CANCELLED AS HE HAS PASSED AN ORDER WITHOUT CONSIDERING AND APPRECIATING THE FACTS OF C ASE OF ASSESSEE. 2. IN LAW AND IN THE FACTS AND CIRCUMSTANCES OF THE ASSESSEE'S CASE THE LEARNED CIT(A) HAS GROSSLY ERRED IN UPHOL DING THE DISALLOWANCE OF INTEREST EXPENDITURE OF RS. 11 18 4 00 ON THE GROUND THAT SUCH INTEREST IS ALLOWABLE U/S. 57 OF T HE ACT AS AGAINST CLAIM OF ASSESSEE FOR BUSINESS EXPENDITURE U/S. 36(I)(III)..HE OUGHT TO HAVE ALLOWED THE CLAIM OF T HE ASSESSEE. 3. IN LAW AND IN THE FACTS AND CIRCUMSTANCES OF THE ASSESSEE'S CASE THE LEARNED CIT(A) HAS GROSSLY ERRED IN UPHOL DING THE DISALLOWANCE OF INTEREST PAID TO BANK FOR RS. 2 37 453 ON THE GROUND THAT IT WAS DEBITED ON THE FIRST DAY OF THE FINANCIAL 2 YEAR AND THEREFORE THE EXPENDITURE DOES NOT PERTAI N TO CURRENT YEAR. 2. WE HAVE HEARD LEARNED REPRESENTATIVES OF BOTH TH E PARTIES PERUSED THE FINDINGS OF AUTHORITIES BELOW AND CONSI DERED THE MATERIAL AVAILABLE ON RECORD. 3. THE FACTS ON GROUND NO.1 AND 2 OF THE CASE ARE T HAT THE ASSESSING OFFICER ON EXAMINATION OF THIS ISSUE IN DETAIL FOUN D THAT A SUM OF RS.223.68 LACS WAS INVESTED AS SHARES IN LINCOLN PH ARMACEUTICALS LIMITED (FOR SHORT LPL) ON WHICH DIVIDEND INCOME OF RS.4 92 198/- WAS EARNED. THE ASSESSEE HAD OBTAINED SECURITY DEPOSIT OF RS.310.50 LACS FROM LINCOLN PHARMACEUTICALS LIMITED ON WHICH INTER EST OF 5% WAS PAID DURING THE YEAR. THE ASSESSING OFFICER FOUND THAT T HE SECURITY DEPOSIT WAS RECEIVED IN THE YEAR ENDED 1997 AND FOR EARLIER YEA RS NO INTEREST WAS PAID WHEN THE ASSESSING OFFICER CALLED FOR EXPLANA TION THE ASSESSEE EXPLAINED THAT INTEREST WAS PAID ON A TRADE DEPOSIT AND HENCE WAS A BUSINESS EXPENDITURE. THE ASSESSING OFFICER PROPOSE D TO TREAT THE EXPENDITURE AS FALLING UNDER-OTHER SOURCES AS CONNE CTED WITH SHARE INVESTMENT AND HENCE THE EXPENDITURE BEING INTEREST AND THE DIVIDEND INCOME SHOULD BE CONSIDERED UNDER THE HEAD OTHER SO URCES AND IN THE ALTERNATIVE ALLOWED THE CLAIM FOR SOT OFF OF INTERE ST EXPENSES UNDER OTHER SOURCES. THE ASSESSING OFFICER AFTER DUE CONSIDERAT ION HELD THAT THE INTEREST EXPENDITURE WAS HIT BY THE PROVISIONS OF S ECTION 36(1)(III) AND THE NEXUS FOR BUSINESS WAS NOT PROVED AND HENCE CONSIDE RED THE ALTERNATIVE CLAIM OF THE ASSESSEE FOR ALLOWING THE INTEREST EXP ENDITURE U/S.37. IN DOING SO HE WORKED OUT PROPORTIONATE INTEREST PAYMENT IN THE RATIO OF INVESTMENT IN SHARES TO THE TOTAL SECURITY DEPOSIT TAKEN FROM LINCOLN PHARMACEUTICAL LIMITED (RS. 223.68 LACS VS. 310.50 LACS). THE DISA LLOWANCE WAS RS.11 18 400/-UNDER THE BUSINESS HEAD. 3.1 DURING THE COURSE OF THE APPELLATE PROCEEDINGS BEFORE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) IT WAS CONTEN DED THAT THE 3 EXPENDITURE WAS ALLOWABLE U/S. 37 AND HENCE NO DISA LLOWANCE COULD BE MADE U/S. 36(L)(III). THE ASSESSEE WAS SPECIFICALLY ASKED TO EXPLAIN HOW THE DEPOSIT RECEIVED FROM THE SISTER CONCERN WAS UT ILIZED FOR BUSINESS PURPOSE. FURTHER THE SECURITY TRADE DEPOSIT AGREEM ENT DATED 1.4.2000 AS TO THE NEED FOR THE PAYMENT OF INTEREST WAS FILED A S NEW EVIDENCE AND HENCE THE SAME WAS FORWARDED TO THE ASSESSING OFFIC ER FOR HIS REMARKS. THE ASSESSING OFFICER AFTER CONSIDERING THE RELEVAN T EVIDENCE AND THE MATERIAL ON RECORD REITERATED THAT THE DISALLOWANC E AS TO THE EXTENT OF DIVERSION OF SECURITY DEPOSIT AT RS.223.68 LACS FOR INVESTMENT IN SHARES OF LINCOLN PHARMACEUTICALS LIMITED AND THE INTEREST DI SALLOWED WAS NOT IN FULL BUT ONLY ON PROPORTIONATE BASIS. HE ALSO LINKED REC EIPTS FROM THE SISTER CONCERNS AND THE INVESTMENT IN SHARES IMPLYING THAT THE DIVERSION WAS OUT OF BORROWED MONEY ON WHICH INTEREST WAS PAID DURING THE YEAR FOR THE FIRST TIME. THE ASSESSEE CLAIMED THAT THE FUND FLOW WAS R OUTED THROUGH CASH CREDIT ACCOUNT ON WHICH INTEREST WAS PAID AND INTER EST IS ALLOWABLE U/S.37 AND NOT U/S. 36(1)(III). THE LEARNED COMMISSIONER O F INCOME TAX (APPEALS) CONSIDERING THE SUBMISSION OF THE ASSESSE E CONFIRMED THE ADDITION. HIS FINDINGS ARE REPRODUCED AS UNDER:- 2.2. I HAVE GONE THROUGH THE RELEVANT PORTION OF T HE ASSESSMENT ORDER AS WELL AS THE SUBMISSIONS OF THE ASSESSEE AT VARIOUS STAGES. IT IS CLEARLY ESTABLISHED THAT THOUGH THE A MOUNT WAS RECEIVED FROM THE SISTER CONCERN DURING THE YEAR EN DED 31.03.1997 IT WAS SPECIFICALLY LINKED FOR PURCHASE OF SHARES. A MERE ROUTING OF FUNDS THROUGH C.C. ACCOUNT DOES NOT MAKE ANY MATERIAL DIFFERENCE AS NO FRESH BORROWINGS WERE MAD E THROUGH C.C. ACCOUNT FOR PURCHASE OF SHARES. IN VIEW OF THE DIRECT NEXUS BEING ESTABLISHED THE INTEREST PAYMENT DURING THE YEAR THOUGH FOR THE FIRST TIME IS DEFINITELY FOR THE INVESTMENT IN SHARES WHICH WERE MADE IN THE YEAR WHEN THE AMOUNT WAS RECEIVED FROM THE SISTER- CONCERNS. THERE IS NO MATERIAL BROUGHT ON RECORD TH AT THE FUNDS TO THE TUNE OF RS223.68 LACS WERE USED FOR BUSINESS PU RPOSES AND THERE IS NO ROTATION OF FUNDS ONCE THEY WERE INVEST ED IN SHARES. THE AC HAD DISALLOWED ONLY RS.11.18 LACS AS AGAINST RS.15.63 LACS INTEREST CLAIMED. THAT MEANS ON THE BALANCE OF DEPOSITS USED AS CIRCULATING CAPITAL THE INTEREST STOOD ALL OWED ALREADY. THE ACTION OF THE AO IS REASONABLE AND CORRECT AND THE NEXUS HAVING BEEN ESTABLISHED BETWEEN THE BORROWINGS AND INVESTM ENTS LINKED THE SAID INTEREST RELATABLE TO THE SHARES AND THE S ET OFF AGAINST 4 DIVIDEND INCOME U/S. 57 IS QUITE IN ACCORDANCE WITH LAW AND THE CLAIM OF THE ASSESSEE IS DISMISSED AS UNTENABLE. 4. LEARNED COUNSEL FOR ASSESSEE REITERATED THE SUBM ISSION MADE BEFORE THE AUTHORITIES BELOW AND REFERRED TO PB-14 WHICH IS SECURITY TRADE DEPOSIT AGREEMENT DATED 1.04.2000 THROUGH WHICH INT EREST WAS CHARGED. HE HAS SUBMITTED THAT THE BUSINESS VOLUME OF THE AS SESSEE REDUCED WITH LPL AS THE MAJOR PRODUCTS ARE MANUFACTURED ON LOAN LICENSE BASIS. AS ASSESSEE HAS DIRECT SELLING NETWORK AND REBATE ON G OODS SUPPLIED TO LPL HAS SUBSTANTIALLY REDUCED AFORESAID LPL HAS ASKED EITHER TO REPAY THE SECURITY DEPOSIT ON PAY INTEREST @ 5% ON SUCH DEPOS ITS. THE ASSESSEE ACCORDINGLY AGREED TO PAY THE INTEREST ON THE DEPOS IT. THE ASSESSEE PAID INTEREST FOR BUSINESS PURPOSES AND THE SAID DEPOSIT WAS ALSO USED FOR THE PURPOSE OF THE BUSINESS. HE HAS SUBMITTED THAT THE AGREEMENT CLEARLY SUGGESTS THAT THE FUNDS WERE ACCEPTED BY THE ASSESS EE FOR ITS BUSINESS PURPOSE. THE ASSESSEE PAID INTEREST FROM THE CURREN T ASSESSMENT YEAR THEREFORE CO-RELATION BETWEEN BORROWED FUNDS TO IN VESTMENT IN SHARES HENCE TO BE SEEN IN CURRENT ASSESSMENT YEAR AND NOT IN THE EARLIER YEAR. THE ENTIRE INVESTMENT IN SHARE OF LPL AS ON 31.03.2 003 IS REPRESENTED BY INTEREST FREE FUNDS AVAILABLE WITH THE ASSESSEE TH E DETAILS OF SAME ARE FILED AT PB-3 WHICH READS AS UNDER:- 1. SHARE CAPITAL RS. 94 99 620/- 2. RESERVE AND SURPLUS RS. 1 41 57 178/- 3. SALES TAX DEFERMENT CREDIT FACILITY RS. 14 6 1 053/- TOTAL RS. 2 51 17 851/- LEARNED COUNSEL FOR ASSESSEE REFEREEING TO THE ABOV E SUBMITTED THAT ONLY INVESTMENT IN SHARES WAS MADE IN A SUM OF RS.2 23.68 LACS. THEREFORE LEARNED COMMISSIONER OF INCOME TAX (APPE ALS) FAILED TO APPRECIATE THAT INTEREST FREE FUNDS AVAILABLE WITH THE ASSESSEE WERE IN EXCESS OF INVESTMENT IN SHARES. THEREFORE INTEREST PAID ON BUSINESS DEPOSIT IS ALLOWABLE BUSINESS EXPENDITURE UNDER SEC TION 36(1)(III) OF THE INCOME TAX ACT 1961. HE HAS FURTHER SUBMITTED THA T AUTHORITIES BELOW 5 HAVE FAILED TO APPRECIATE THAT ASSESSEE HAS BEEN EN GAGED IN THE BUSINESS OF MANUFACTURE OF PHARMACEUTICALS PRODUCTS AND WITH A VIEW TO HAVE STRATEGIC INVESTMENT IN THE PHARMACEUTICALS IN DUSTRIES IT HAS MADE INVESTMENT IN SHARES OF LPL FOR BUSINESS PURPOSES. HE HAS SUBMITTED THAT SINCE INTEREST IS PAID WHOLLY AND EXCLUSIVELY FOR T HE PURPOSE OF BUSINESS THEREFORE DEDUCTION IS ALLOWABLE. HE HAS RELIED U PON DECISION OF BOMBAY HIGH COURT IN THE CASE OF CIT VS. RELIANCE UTILITIE S AND POWER LTD. 313 ITR 340 DECISION OF SUPREME COURT IN THE CASE OF D CIT VS. CORE HEALTH CARE LTD. 298 ITR 194 DECISION OF SUPREME COURT IN THE CASE OF MUNJAL SALES CORPORATION VS. CIT 298 ITR 298 AND DECISION OF SUPREME COURT IN THE CASE OF S.A. BUILDERS LTD. VS. CIT 288 ITR 1. ON THE OTHER HAND LEARNED DEPARTMENTAL REPRESENTATIVE RELIED UPON TH E ORDER OF THE ASSESSING OFFICER AND SUBMITTED THAT SINCE BORROWE D FUNDS ARE USED IN INVESTMENTS OF THE SHARES THEREFORE DIVIDEND INCO ME WAS INCOME FROM OTHER SOURCE THEREFORE AUTHORITIES BELOW WERE JUST IFIED IN PART DEDUCTION ON THE SAME HEAD. 5. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND MAT ERIAL AVAILABLE ON RECORD. IT IS NOT IN DISPUTE THAT THE ASSESSEE H AD OBTAINED TRADE SECURITY DEPOSITS FROM LPL VIDE AGREEMENT DATED 1.0 4.2000 TO THE TUNE OF RS.310.50 LACS ON WHICH INTEREST @ 5% WAS ALSO PAI D. ACCORDING TO THE AGREEMENT THE SECURITY DEPOSIT WAS GIVEN FOR THE B USINESS PURPOSE AND IN CASE OF CERTAIN CIRCUMSTANCES BREACH OF AGREEME NT ETC. THE INTEREST SHALL HAVE TO BE PAID BY ASSESSEE ON SECURITY DEPOS ITS AS MUTUALLY AGREED. THE ASSESSEE FILED EVIDENCE WITH REGARD TO NEED FOR PAYMENT OF THE INTEREST WHICH WAS FORWARDED TO THE ASSESSING OFFICER BUT ULTIMATELY NOTHING CAME OUT FROM THE OBSERVATION OF THE LEARNE D COMMISSIONER OF INCOME TAX (APPEALS). THEREFORE EVIDENCE OF THE AS SESSEE FOR PAYMENT OF INTEREST AS PER THE AGREEMENT IS NOT IN DISPUTE. LEARNED COUNSEL FOR ASSESSEE ON THE BASIS OF THE AVAILABILITY OF THE IN TEREST FREE FUNDS DEMONSTRATED THAT IT HAS INTEREST FREE FUNDS AVAILA BLE IN A SUM OF RS.2 51 17 851/- WHICH WERE MORE THAN THE ABOVE IN VESTMENTS IN THE 6 SHARES. HONBLE BOMBAY HIGH COURT IN THE CASE OF R ELIANCE UTILITIES AND POWER LTD. (SUPRA) HELD THAT INVESTMENT BY ASSESSEE . FINDING THAT INVESTMENTS WERE FROM INTEREST FREE FUNDS AVAILABLE WITH THE ASSESSEE. BORROWED CAPITAL USED FOR THE PURPOSE OF BUSINESS. INTEREST DEDUCTIBLE UNDER SECTION 36(1)(III) OF THE INCOME TAX ACT 196 1. HONBLE SUPREME COURT IN THE CASE OF CORE HEALTH CARE LTD. (SUPRA) HELD THAT BORROWING FOR PURCHASE OF MACHINERY FOR PURPOSE OF BUSINESS. INTE REST IS TO BE ALLOWED EVEN IF MACHINERY NOT USED IN THE YEAR OF BORROWING . HONBLE SUPREME COURT IN THE CASE OF MUNJAL SALES CORPORATION (SUPR A) HELD THAT UNDER THE INCOME TAX ACT AFTER AMENDMENT OF THE ACT BY FINAN CE ACT 1992 IN ORDER THAT INTEREST PAID ON BORROWINGS CAN BE ALLOW ED AS A DEDUCTION IN COMPUTING THE BUSINESS PROFITS EVERY ASSESSEE INC LUDING A FIRM HAS TO ESTABLISH IN FIRST INSTANCE THAT IT WAS ALLOWABLE U NDER SECTION 36(1)(III) OF THE INCOME TAX ACT 1961. HONBLE SUPREME COURT IN THE CASE OF S.A. BUILDERS (SUPRA) HELD THAT DECISIONS RELATING TO SE CTION 37 WILL ALSO BE APPLICABLE TO SECTION 36(1)(III) BECAUSE IN SECTION 37 ALSO THE EXPRESSION USED IS FOR THE PURPOSE OF THE BUSINESS. FOR THE PURPOSE OF BUSINESS INCLUDES EXPENDITURE VOLUNTARILY INCURRED FOR COMME RCIAL EXPEDIENCY AND IT IS IMMATERIAL IF A THIRD PARTY ALSO BENEFITS THE REBY. CONSIDERING THE FACTS OF THE CASE IN THE LIGHT OF THE SECURITY TRADE DEPO SIT AGREEMENT DATED 1.04.2000 IT IS CLEAR THAT ASSESSEE OBTAINED TRADE SECURITY DEPOSIT FROM LPL FOR THE PURPOSE OF BUSINESS AND PAID INTEREST T HEREON. THE ASSESSING OFFICER HOWEVER NOTED THAT THE ASSESSEE MADE INVESTMENT IN SHARES OUT OF THE SAME AMOUNT BUT THE ASSESSEE NOW EXPLAINED THAT IT HAS MORE INTEREST FREE FUNDS AVAILABLE AS COMPARED TO THE INVESTMENT MADE IN SHARES IN THE ASSESSMENT YEAR IN QUESTION. THESE FACTS WERE NOT PLEADED BEFORE THE AUTHORITIES BELOW EARLIER. THE P URPOSE OF THE BUSINESS NOW EXPLAINED WAS ALSO NOT EXPLAINED CLEARLY BEFORE ASSESSING OFFICER BECAUSE THE ASSESSEE CLAIMED DIVIDEND INCOME OUT OF INVESTMENT IN SHARES AS INCOME FROM OTHER SOURCES. THE ABOVE DISC USSION THEREFORE WOULD SHOW THAT THE MATTER REQUIRES RECONSIDERATION AT THE LEVEL OF THE ASSESSING OFFICER AFRESH. WE ACCORDINGLY SET ASIDE THE ORDERS OF 7 AUTHORITIES BELOW AND RESTORE THIS ISSUE TO THE FIL E OF ASSESSING OFFICER WITH A DIRECTION TO RE-DECIDE THIS ISSUE IN THE LIG HT OF THE SUBMISSIONS OF THE ASSESSEE ABOVE BY GIVING REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. AS A RESULT GROUND NOS.1 AND 2 OF TH E APPEAL OF THE ASSESSEE ARE ALLOWED FOR STATISTICAL PURPOSES. 6. ON GROUND NO.3 LEARNED COMMISSIONER OF INCOME T AX (APPEALS) NOTED THAT ASSESSING OFFICER DISALLOWED THE SUM OF RS.2 37 453/- HOLDING THAT THE PURPOSE AND NATURE OF THE DEBIT OF THE AMO UNT ON 1.04.2002 IN THE BANK INTEREST ACCOUNT WAS NOT EXPLAINED. AS THI S WAS THE FIRST DAY OF THE PREVIOUS YEAR THERE WERE NO REASONS TO DEBIT T HIS EXPENDITURE. IN SHORT IT WAS UNPROVED EXPENDITURE. IT WAS EXPLAINE D BEFORE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) THAT IT WAS AN OMISSION FOR THE YEAR ENDED 2002 THEREFORE SAME IS NOT LIABLE IN T HE ASSESSMENT YEAR UNDER APPEAL I.E. 2003-2004. IT WAS REQUESTED TO AL LOW THE SAME IN THE PRECEDING ASSESSMENT YEAR 2002-2003. THE LEARNED CO MMISSIONER OF INCOME TAX (APPEALS) NOTED THAT THE EXPENDITURE WAS RELATABLE TO THE EARLIER ASSESSMENT YEAR AND AS SUCH DISMISSED THE A PPEAL OF THE ASSESSEE. 7. LEARNED COUNSEL FOR ASSESSEE SUBMITTED THAT THER E WAS A DIFFERENCE IN BOOK BALANCE AND BANK ACCOUNT AND THE ASSESSEE CAME TO KNOW ABOUT THIS FACT IN THE ASSESSMENT YEAR IN QUES TION THEREFORE IT WAS ASCERTAINED LIABILITY. ON THE OTHER HAND LEARNED D EPARTMENTAL REPRESENTATIVE SUBMITTED THAT THIS GROUND WAS NOT P RESSED BEFORE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) AND IT WAS ACCEPTED THAT DEDUCTION CANNOT BE ALLOWED IN THE ASSESSMENT YEAR UNDER APPEAL THEREFORE APPEAL OF THE ASSESSEE ON THIS GROUND MA Y BE DISMISSED. 8. WE HAVE CONSIDERED RIVAL SUBMISSIONS. IT IS NOT IN DISPUTE THAT THE ASSESSEE MADE THE STATEMENT BEFORE LEARNED COMMISSI ONER OF INCOME TAX (APPEALS) THAT IT WAS OMISSION FOR THE YEAR END ED 2002 AND AS SUCH DEDUCTION IS NOT ALLOWABLE IN THE ASSESSMENT YEAR U NDER APPEAL I.E. 2003- 2004. ACCORDING TO SECTION 253 OF THE INCOME TAX AC T 1961 THE 8 ASSESSEE BEING AGGRIEVED AGAINST THE ORDER OF THE L EARNED COMMISSIONER OF INCOME TAX (APPEALS) COULD PREFER APPEAL BEFORE THE TRIBUNAL. THE FINDINGS NOTED BY THE LEARNED COMMISSIONER OF INCOM E TAX (APPEALS) WOULD NOT SHOW ANY GRIEVANCE OF THE ASSESSEE BECAUS E THE ASSESSEE ADMITTED BEFORE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) THAT THE DEDUCTION DID NOT PERTAIN TO THE ASSESSMENT YEAR UN DER APPEAL. SINCE THERE IS NO GRIEVANCE OF THE ASSESSEE AGAINST THE O RDER OF THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) THEREFORE TH E APPEAL OF THE ASSESSEE ON THIS GROUND WOULD NOT BE MAINTAINABLE. WE ACCORDINGLY DO NOT FIND ANY JUSTIFICATION TO INTERFERE WITH THE OR DER OF THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS). THIS GROUND O F APPEAL OF THE ASSESSEE IS DISMISSED. 9. NO OTHER POINT IS ARGUED OR PRESSED. 10. AS A RESULT APPEAL OF THE ASSESSEE IS PARTLY A LLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 26 TH FEBRUARY 2010. SD/- SD/- (A.N.PAHUJA) ACCOUNTANT MEMBER (BHAVNESH SAINI) JUDICIAL MEMBER DATE : 26-02-2010 PARAS* COPY OF THE ORDER FORWARDED TO : 1. THE RESPONDENT 2. THE ASSESSEE 3. THE CIT CONCERNED 4. THE CIT(A) 5. THE DR ITAT 6. GUARD FILE BY ORDER //TRUE COPY// DY.R/AR ITA T AHMEDABAD