1 IN THE HIGH COURT OF JDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION INCOME TAX APPEAL NO.43 OF 2010 Santogen Textile Mills Limited .... Appellant Vs. Dy. Commissioner of Income-Tax .... Respondent. Range 8(3), Mumbai Mr. Pramod Kumar Parida with Ms. Sanjukta Chowdhary i/by PKP Legal Solution for Appellant. Mr. Suresh Kumar, Advocate for respondent. CORAM : J.P. DEVADHAR AND SMT.R.P. SONDURBALDOTA, JJ. DATE : 15TH JUNE, 2011. P.C. 1. Admit on following questions of law : (i) Whether the Hon ble ITAT erred in not upholding the ’ submissions of the Appellant as regards the payment made under Section 43-B to PF and ESIC authorities which has been made within the accounting year and should have been allowed? (ii) Whether the Hon ble ITAT erred in disallowing the prior ’ period expenses which are genuine business expenses which should have been allowed based on the submissions made by the appellant? (iii) Whether the Hon ble ITAT erred in not allowing the capital ’ loss on account of sale of shares which has been duly documented stating that documentary evidence was not available? 2 2. As regards the first question is concerned, the counsel for the parties states that the said question is covered in favour of assessee by the decision of the Apex Court in the case of Commissioner of Income-Tax vs. Alom Extrusions Limited, reported in (2009) 319 ITR 306 (SC). Accordingly the first question is answered in favour of the assessee and against the revenue. 3. As regards the second question is concerned, the expenditure of Rs.11,53,527/- has been disallowed on the ground that the said expenditure related to the earlier assessment year and does not relate to assessment year in question. In paragraph 4 of the judgment, the Tribunal has recorded a finding of fact that the representatives of both the parties agree that the expenditure does not relate to the assessment year in question. In this view of the matter, no fault can be found with the decision of the Tribunal in disallowing the claim of the assessee. Accordingly, the decision of the Tribunal on the second question cannot be faulted. 4. As regards the third question is concerned, the Tribunal in paragraph 6 of its decision, has recorded a finding of fact that the sale of shares in the assessment year in question actually did 3 not taken place, inter-alia, on the ground that though the assessee sold shares on 9th November 2011, the said shares had actually been transferred in the name of Santogen Polyester, the buyer only on 15th November 2005 i.e. after a period of four years. The Tribunal has recorded a finding of fact that on the date of sale, shares in question were pledged as security to IDBI against loans taken by Santogen Mills Limited and therefore the shares could not be sold without the consent of I.D.B.I. The decision of the Tribunal is based on a finding of fact and hence the decision of the Tribunal on the third question cannot be faulted. 5. Accordingly, the appeal is disposed off by answering the first question in favour of the assessee and against the revenue, with no order as to costs. ( SMT. R.P. SONDURBALDOTA, J. ) (J.P. DEVADHAR, J.)