- (1.) The Court : The appeal is directed against the judgment and order dated January 23, 2009, passed by the learned Income Tax (Appellate) Tribunal, "A" Bench, Kolkata, in ITA No.1665/Kol/2008, pertaining to the assessment year 2003 -04.
(2.) The following questions were formulated at the time of admission of the appeal on January 14, 2010: "(a) Whether on the facts and in the circumstances of the case, the learned Income Tax Appellate Tribunal erred in law in upholding the order of the Commissioner of Income Tax (Appeals) in deleting the disallowance of Rs.12,01,320/ - being the rent allegedly paid in Dakorjee Properties (b) Whether on the facts and in the circumstances of the case, the learned Income Tax Appellate Tribunal erred in law in upholding the order of the Commissioner of Income Tax (Appeals) in treating the inclusion of Rs.484.34 lakhs on account of foreign exchange fluctuation upto date as the outstanding balance as on March 31, 2003 - It appears that the learned Tribunal accepted the contention of the assessee as regards payment of Rs.12,01,320/ - on account of rental to Dakorjee Properties on the basis of an assessment order in respect of an earlier assessment year, wherein the ITAT had held as follows: "4. In Ground No.1 the Revenue has objected to the relief allowed by the CIT(A) in respect of rent paid to M/s. Dakorji Properties Ltd. Before us, it was pointed out that this issue is concerned in assessee's favour by the appellate orders passed by the Tribunal: in the assessee's own case for the A.Y. 1997 -98 in ITA No.959/K/02 dated 01.07.04 and ITA No.455/K/03 dated 12.01.07 for the A.Y. 1998 - 99. Respectfully following the same, we uphold the order of CIT(A) and reject Ground No.1."
(3.) Mr. Dudheria was unable to point out as to whether payment made by the assessee to Dakorji Properties in the earlier years and allowed by the Tribunal was appealed against. In the absence of an appeal against the order passed by the learned Tribunal for the assessment year 2000 -01, there is no reason why a separate stand should be taken. No reason was disclosed by Mr. Dudheria. We as such find no substance in the first question which is answered in the negative and against the revenue.;