V. S. GAITONDE, A.M.: This appeal is filed by assessee against order of CIT(A) Nasik dt. 31st Aug., 1984 for asst. yr. 1981-82 confirming disallowance of interest of Rs. 15,860 made by ITO in his order dt. 27th Jan., 1982 for asst. yr. 1981-82. facts of case are as below. assessee is firm of four partners. Unfortunately partnership deed is not made available to us but it is common ground that business of assessee is in Malegaon sarees including Adat business. extent of obligation of partners to contribute capital or their authority to siphon out firm s funds in favour of non partners is not known. For years in past (from 4th Nov., 1977 onwards) firm started creating debit balances in favour of Anilkimar and Dilipkumar sons of one of partners. As seen from p. 4 of compilation balance soared from Rs. 70,000 as on last day of asst. yr. 1978-79 to Rs. 1,11,840 for asst. yr. 1979-80 and further on to about Rs. 2,11,000 on first day of period of asst. yr. 1981-82 under appeals. debits in 1981-82 are nominal (662). On other hand capital and borrowed money position too have been fluctuating from time to time as summarised on p. 18 of compilation. assessee has been deriving interest from constituents who do not pay in time. assessee has also been borrowing from time to time. Thus there is continuos intermixing of funds making it impossible to identify funds which have gone into extraordinary indulgent treatment given to sons of partners as above. question whether all borrowing could be taken as wholly made for business has been subject matter of adjudication in past. This aspect is relevant because as noted above, all debit balance existed before commencement of accounting period. For asst. yr. 1980-81 (page 12 of new compilation) AAC did not approve any disallowance because no borrowed money could be linked definitely with funds made available to partner s sons. sum of Rs. 2,11,804 could as well be from non interest bearing funds which assessee had in plenty. For asst. yr. 1980-81 apart from capital of partners which did not bear interest (Rs. 1,26,349) assessee retained funds of weavers to tune of Rs. 13,57,488 without interest. There were of course matching advances to debtors to tune of Rs. 13,70,245. It was argued before us and before lower authorities that for year under appeal situation could not have been different. Whilst advance to sons of partners have stagnated at old level, there is plough-back of profits into capital bringing own capital to Rs. 1,35,492, weavers dues stood at Rs. 26,04,653. dues from traders stood at Rs. 26,05,929. Now whilst CIT(A) has stated that latter are not interest bearing Sri A. N. Shah has vehemently contended that this is factual mis-statement possibly on account of genuine oversight. Thus capital and weaver dues are enough for purpose. authorities below have not made any proportionate disallowance of interest claim but merely disallowed new debit balance to interest account thus justifying presumption that interest on borrowed money is to be disallowed only if capital and other funds are shown to be insufficient to cover debit balance above. There is also another old debit balance of ex partner Hirachand Pukhraj (Rs. 17,148) Sri Shah submitted that above factual position goes in favour of full allowance. Reference was also made to some case law. Some attempt was also made to distinguish case law referred to by CIT(A). In reply Sri Walvekar relied on orders of authorities below according to him what happened in earlier years, is not relevant as there is no estoppel or res judicata. It is for assessee to prove his case through facts. assessee cannot take advantage of his own wrong by not giving particulars properly. We have examined facts and arguments. In case of this type, one has to examine issue on broad basis. Unfortunately we do not have details o f partnership deed. How did all partners agree to grant such extra ordinary facility eating into their funds which would adversely affect share of profits? Until contrary is proved one has to assume that partnership considered it is sound business proposition to humour senior partner by allowing his sons to utilise funds of firm upon concessional terms. If so entire borrowed money has to be taken as used for business. Secondly one should be slow to depart from 1980-81 decision, all more so because, there are no additional funds made available. On contrary there is same plough- back of profits. Thirdly appears to be mis-statement in so far as charging of interest to debtors for goods is concerned. Thus substantial funds of weavers, not bearing interest were available. Coupled with fact that there are no fresh advance, this year, we agree with Sri Shah that borrowings were all for genuine business needs, no part having any direct nexus with interest free advances. Taking all these facts into consideration we hold that interest claim is allowable in full. second point in appeal regarding accrued commission was not pressed. Appeal is partly allowed. *** BABULAL SUKHALAL v. INCOME TAX OFFICER