C.I.T vs. PENCH POWER LTD


13-15

\* IN THE HIGH COURT OF DELHI AT NEW DELHI

+ ITA 854/2006

.... Appellant

.... Respondent

WITH

ITA 257/2008

..... Appellant

.... Respondent

WITH

ITA 275/2008/

..... Appellant

..... Respondent

Date of Decision: 15th January, 2009



CORAM:

HON'BLE MR. JUSTICE VIKRAMAJIT SEN HON'BLE MR. JUSTICE RAJIV SHAKDHER

- 1. Whether reporters of local papers may be allowed to see the Order? - 2. To be referred to the Reporter or not? - 3. Whether the Order should be reported in the Digest?

Admit.

After hearing learned counsel for the parties the following substantial questions of law are framed:-

- (a) Whether the Tribunal was correct in law in holding that the assessee could set-off interest earned from MPSEB deposit against interest paid on borrowings from GE Capital Service for the said purpose and capitalise the difference as preoperative expenses? - (b) Whether the Tribunal was correct in law in accepting the alternative plea of the assessee that even if interest earned on MPSEB deposit is held as 'income from other sources', the interest paid on borrowings could be set-off under Section 57(iii) of the Income Tax Act, 1961? - (c) Whether the Order passed by the learned ITAT is perverse.

These Appeals pertain to the Assessment Years (AY) 1999-2000, 2002-2003 and 2003-2004. The Assessee/Respondent had filed Returns declaring 'NIL' income, after setting-off interest



earned by it from short term deposits against interest paid on the capital borrowed by it, as per the following TABLE:

Relevant Assessment Year | Interest Paid | Interest Earned | Preoperative Expenditure Pending Capitalisation 1 | 2 | 3 | 4 1999-2000 | 4,22,50,205 | 2,79,73,601 | 1,42,76,604 2000-2001 | Not referred to | · 2001-2002 | -do- 2002-2003 | 7,39,72,162 | 5,00,06,026 | 29,79,75,019 2003-2004 | 9,24,29,121 | 6,12,52,861 | 3,11,76,260

The Assessing Officer (AO) applied the ratio of TuticorinAlkali Chemicals and Fertilizers Ltd. -vs- CIT, (1997) 227 ITR

172 and framed an assessment in which, inter alia, the interest earned was subjected to tax under the head – "Income from Other Sources". The Appeal for AY 2002-2003 was decided on 14.3.2005; and those for AY 1999-2000 and 2003-2004 by a common Order dated 24.7.2006 in which the previous Order dated 14.3.2005 was followed. The matter was, however, carried in Appeal to the ITAT. The Assessee's Appeal for AY 2002-2003 was allowed by Bench 'G' in terms of Orders dated 30.9.2005. The Appeals of the Respondent for AY 1999-2000 and 2003-2004 were dismissed by Bench 'C'.




interest paid by the MPSEB on the deposits. It was also of the view that Tuticorin Alkali was wrongly applied; that interest income had been permitted to be included in the cost of the project in Bokaro Steel Ltd. and Karnataka Power Corporation.

Having given the matter careful consideration, we are of the view that there is no perversity in the findings of fact returned by the ITAT. Tuticorin Alkali does not apply as the monies invested are not distinct to each other, and are not 'surplus funds'. In K. Ravindranathan Nair -vs- CIT, (2001) 247 ITR 178(SC): 2001(1) SCC 135 it has been prescribed that the Tribunal is the final fact finding forum and its decision can be questioned only if it partakes of a perverse nature, that is, it is indicative of an action, opinion or conclusion which could not reasonably be arrived at; that an incorrect conclusion is not invariably perverse unless it is palpably deliberate or mala fide.

In any event, the matter stands firmly concluded by the Judgment of the Supreme Court in CIT -vs- Karnal Cooperative Sugar Mills Ltd., (2000) 243 ITR 2 which is in these words:-

Leave granted.

In the present case, the assessee had deposited money to open a letter of credit for the purchase of the machinery required for setting up its plant in terms of



and exclusively for the said purpose and hence, the deduction under Section 57(iii) of the Act will be available to the assessee.

Mr. R.D. Jolly, learned counsel for the Revenue, sought to rely upon CIT -vs- Shri Ram Honda Power Equip, (2007) 289 ITR 475 to support his submission that the interest received on deposit with MPSEB, by the assessee could only be assessed under the head 'income from other sources'. A careful perusal of paragraph 35 of the Judgment in Shri Ram Honda would show that a Division Bench of this Court that an assessee whose income is assessed under the head "Income from other sources" the assessee would be entitled to deduction in terms of Section 57(iii) of the Act provided there is direct nexus between expense incurred and income earned. The Tribunal has, therefore, according to us, applied the correct principles of law even on this aspect of the matter.

Both the questions are answered in favour of the assessee and against the Revenue. In the result the appeals are dismissed.

VIKRAMAJIT SEN, J.

RAJIV SHAKDHER, J.

JANUARY 15, 2009 tp+kk

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