Mumbai v. M/S. Patodia Syntex Ltd.,Mumbai

IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION INCOME TAX APPEAL NO.2236 OF 2009 The Commissioner of Income Tax -3, Mumbai ..Appellant. Versus M/s. Patodia Syntex Ltd.,Mumbai...Respondent. .... Mr. Vimal Gupta, for the Appellant. Mr. P.R. Toprani a/w. Ms. Keyuri Desai, for the Respondent. .... CORAM : J. P. DEVADHAR & A.R. JOSHI, JJ. DATED : 23rd NOVEMBER, 2011. P.C. 1.Following five questions are raised by the Revenue in this Appeal: “A. Whether the disallowance made by the ITAT under the head repairs and maintenance expenses as capital in nature is proper and justifiable as these expenses related to digging tube well, purchase of portable generator, flower beds and lawns, manufacture of new dining table, sofa sets, purchase of carpets tiles and expenditure on major civil work and plumbing and these cannot be considered as repairs or maintenance?repairs and maintenance expenses as capital in nature is proper and justifiable as these expenses related to digging tube well, purchase of portable generator, flower beds and lawns, manufacture of new dining table, sofa sets, purchase of carpets tiles and expenditure on major civil work and plumbing and these cannot be considered as repairs or maintenance? B. Whether the addition made by the ITAT applying section 14A of the Act is proper and justified as the assessee had sizable investment of shares coming to Rs. 840.80 lacs in other companies and part of the borrowed money was utilized by the assessee for making such investment on dividend from such shares being exempt, pro-rata interest or funds borrowed relatable to such investment in shares has to be disallowed? C. Whether the decision of the ITAT is proper and justified for not allowing the claim of the assessee for netting of these receipts against expenses which had nexus with such receipts and assessee could not establish such nexus? D. Whether the ITAT is proper and justified for not allowing exclusion of depreciation from indirect expenses since it was not related to trading activity? E. Whether the respondent is justified of exclusion of gross dividend income while computing book profit u/s. 115JA of the Act?” 2.As regards the question (A) is concerned, the dispute is whether the ITAT was justified in holding that the expenses relating to digging tube well, purchase of portable generator, flower beds and lawns, manufacture of new dining table, sofa sets, purchase of carpets tiles and expenditure on major civil work and plumbing, were allowable business expenses. The decision of the Tribunal is based on finding of fact and, therefore, in our opinion, no interference is called for. Accordingly, question (A) cannot be entertained. 3.As to the remaining questions, Counsel for the parties state that in view of the decisions of this Court in the case of Godrej Boyce Mfg. Co. Vs. DCIT reported in 328 ITR 81 (Bom) AND CIT vs. Asian Star Co. Ltd. Reported in 326 ITR 56 (Bom), the remaining questions be remanded back to the Assessing Officer for fresh consideration in accordance with law in the light of aforesaid decisions. Accordingly, all other questions are restored to the file of the Assessing Officer for fresh consideration in the light of the aforesaid decisions and also consider the depriciation allowance by independently considering the manufacturing/trading activity carried by the assessee. 4.The Appeal is disposed of in the above terms with no order as to costs. (A. R. JOSHI, J.) (J. P. DEVADHAR,J.)