M/s Raghuvar Automobiles &, Agra V. I.T.O., Ward-4(3), Agra

IntTA 2/AGR/2011

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 0425 (ITAT-AGRA)
• Duration Of Justice: 7 year(s) 8 month(s) 3 day(s)
• Appeal Type: Cross Objection
• Pronouncement Date: 16-05-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 07-05-2013
• Assessment Year: 1998-1999
• Appeal Filed On: 12-09-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: KK MISHRA
• Keywords: Set aside

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, AGRA BENCH, AGRA BEFORE : SHRI BHAVNESH SAINI, JUDICIAL MEMBER AND SHRI A.L. GEHLOT, ACCOUNTANT MEMBER INTT. TAX APPEAL NO. 01 & 02/ AGRA/2011 ASSTT. YEAR : 1997-98 & 1998-99 M/S. RAGHUVAR AUTOMOBILES & VS. INCOME-TAX OFFIC ER, GENERAL FINANCE P. LTD., WARD 4(3), AGRA. RAM BHAWAN, MAU ROAD, DAYALBAGH, AGRA. (PAN : AABCR 6879 G) (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI RAJENDRA SHARMA, ADVOCATE RESPONDENT BY : SHRI K.K. MISHRA, JR. D.R. DATE OF HEARING : 07.05.2013 DATE OF PRONOUNCEMENT OF ORDER : 07.05.2013 ORDER PER BHAVNESH SAINI, J.M.: BOTH THE APPEALS BY THE ASSESSEE ARE DIRECTED AGAI NST DIFFERENT ORDERS OF LD. CIT(A)-II, DEHRADUN (CAMP AGRA) DATED 08.03.2011 FO R THE ASSESSMENT YEAR 1997- 98 AND 1998-99. 2. EARLIER, BOTH THESE APPEALS WERE DISMISSED BY TH E TRIBUNAL VIDE ORDER DATED 28.09.2012 HOLDING THEM TO BE TIME BARRED. THE ASSE SSEE PREFERRED APPEALS BEFORE THE HONBLE ALLAHABAD HIGH COURT IN ITA NO. 26 OF 2 013 AND 21 OF 2013 AND THE HONBLE HIGH COURT VIDE ORDER DATED 14.02.2013 COND ONED THE DELAY IN FILING THE INTT.TA NO. 01 & 02/AGRA/2011 2 APPEALS BEFORE THE TRIBUNAL, HOWEVER, SUBJECT TO CO ST OF RS.5,000/- IN EACH OF THE APPEALS. THE ASSESSEE PRODUCED THE COPY OF THE ORDE R OF THE HONBLE HIGH COURT AND ALSO DEPOSITED THE AMOUNT OF RS.5,000/- EACH. T HE ORDERS OF THE HIGH COURT WERE ALSO RECEIVED SEPARATELY. ACCORDINGLY, BOTH TH E APPEALS WERE FIXED FOR HEARING ON MERITS. 3. THE FACTS OF THE CASE ARE THAT EARLIER ORIGINAL ASSESSMENT ORDER WAS PASSED ON 27.03.2001 HOLDING THE ASSESSEE CHARGEABLE TO TAX U NDER THE INTEREST TAX ACT. THE ASSESSEE HAD GONE IN APPEAL BEFORE THE LD. CIT(A)-I , AGRA, WHO HAS ALLOWED THE APPEALS OF THE ASSESSEE VIDE ORDER DATED 31.10.2002 . THE DEPARTMENT PREFERRED THE APPEALS BEFORE THE ITAT, AGRA BENCH WHO VIDE ORDER DATED 17.02.2005 HAS SET ASIDE THE ORDER TO THE FILE OF AO. THE AO ACCORDING LY RE-FIXED THE MATTERS FOR HEARING AS PER DIRECTION OF THE TRIBUNAL. THE ASSES SEE FILED REPLY AND CERTAIN DOCUMENTS AND CLAIMED THAT THE HIRE CHARGES ARE NOT IN THE NATURE OF INTEREST INCOME. THE AO, HOWEVER, DID NOT ACCEPT THE CONTENT ION OF THE ASSESSEE AND HELD THAT THE ASSESSEE COMPANY IS ENGAGED IN FINANCING B USINESS ONLY ADVANCING LOAN ON INTEREST AND IT CANNOT BE CONSIDERED AS HIRE PURCHA SE. THE ASSESSEE WAS, THEREFORE, DIRECTED TO PAY TAX UNDER INTEREST TAX ACT. THE ASS ESSEE PREFERRED APPEALS BEFORE THE LD. CIT(A), HOWEVER, ON THE DATE OF HEARING, NO NE APPEARED BEFORE THE LD. CIT(A) AND ACCORDINGLY, BOTH THE APPEALS OF THE ASS ESSEE WERE DISMISSED. INTT.TA NO. 01 & 02/AGRA/2011 3 4. THE LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE ASSESSEE IS NOT LIABLE FOR LEVY OF TAX UNDER THE INTEREST TAX ACT BECAUSE THE TRANSACTIONS OF THE ASSESSEE ARE HIRE PURCHASE IN NATURE. HE HAS RELIED UPON THE ORD ER OF THE ORDER OF ITAT, AGRA BENCH IN THE CASE OF M/S. AUTOMOBILES AND GENERAL F INANCE CO. PVT. LTD. DATED 27.10.2005, IN WHICH THE TRIBUNAL CONFIRMED THE VIE W OF THE LD. CIT(A) HOLDING THE SIMILAR TRANSACTION TO BE OF HIRE PURCHASE TRAN SACTION AND ALSO RELIED UPON THE DECISION IN THE CASE OF M/S. ASHOKA AUTO FINANCE & LEASING LTD. DATED 29.08.2008 IN WHICH ALSO THE DEPARTMENTAL APPEAL WAS DISMISSED HOLDING THAT THE TRANSACTION IN QUESTION IS HIRE PURCHASE. THEREFORE, HIRE CHARGES CANNOT BE BROUGHT WITHIN THE AMBIT OF DEFINITION OF INTEREST AS GIVEN IN SECTION 2(7) OF THE INTEREST TAX ACT. THE LD. COUNSEL FOR THE ASSESSEE, THEREFORE, SUBMITTED THAT THE APPEALS OF THE ASSESSEE MAY BE ALLOWED. ON THE OTHER HAND, THE LD. DR RELIE D UPON THE ORDERS OF THE AUTHORITIES BELOW AND SUBMITTED THAT THE ASSESSEE F AILED TO SUBSTANTIATE THIS CLAIM BEFORE THE AUTHORITIES BELOW. THEREFORE, THE APPEAL S OF THE ASSESSEE MAY BE DISMISSED. 5. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND PER USED THE FINDINGS OF AUTHORITIES BELOW. THE ASSESSEE ADMITTEDLY DID NOT APPEAR BEFORE THE LD. CIT(A) ON THE DATE OF HEARING. THE LD. CIT(A) IN ABSENCE OF A NY REPRESENTATION FROM THE SIDE OF ASSESSEE, DISMISSED THE APPEAL OF THE ASSESSEE. ACCORDING TO SECTION 250(6) OF THE IT ACT, THE LD. CIT(A) SHALL HAVE TO DECIDE THE APPEAL OF THE ASSESSEE ON MERITS INTT.TA NO. 01 & 02/AGRA/2011 4 GIVING REASONS FOR DECISION IN THE APPELLATE ORDER. EVEN IF THE ASSESSEE DID NOT APPEAR BEFORE HIM, THE LD. CIT(A) SHOULD HAVE GIVEN REASONS IN THE APPELLATE ORDER FOR DISMISSING THE APPEALS OF THE ASSESSEE. FURTHER , THE ASSESSEE PRODUCED CERTAIN DOCUMENTS AND FILED COPIES OF HIRE PURCHASE AGREEME NT AND OTHER MATERIAL BEFORE THE AO BUT THE SAME DID NOT FIND ANY SUPPORT FROM T HE SIDE OF THE AO. NOW, THE ASSESSEE HAS RELIED UPON TWO DECISIONS OF THE TRIBU NAL REFERRED TO ABOVE, BUT THE ASSESSEE SHALL HAVE TO DEMONSTRATE ON THE BASIS OF HIRE PURCHASE AGREEMENT AND OTHER MATERIAL AS TO HOW BOTH THE DECISIONS APPLY T O THE FACTS AND CIRCUMSTANCES OF THE CASE OF THE ASSESSEE. THE LD. CIT(A) DID NOT EX AMINE ANY OF THE DOCUMENTS OR HIRE PURCHASE AGREEMENT BEFORE ARRIVING AT THE DECI SION IN THE MATTER. THE ASSESSEE EQUALLY DID NOT PUT IN APPEARANCE BEFORE THE LD. CI T(A) AND THE ABOVE ORDERS OF THE TRIBUNAL WERE NOT CITED BEFORE HIM. THEREFORE, BEFO RE APPLYING THE ORDERS OF THE TRIBUNAL OR ANY JUDGMENT, THE ASSESSEE SHALL HAVE T O PROVE ON FACTS THAT THE FACTS OF THOSE CASES ARE SIMILAR TO THE CASE OF THE ASSESSEE . IN THE ABSENCE OF ANY REPRESENTATION BEFORE THE LD. CIT(A) AND ALSO IN TH E ABSENCE OF ANY FINDING OF FACT RECORDED BY THE LD. CIT(A), WE ARE OF THE VIEW THAT THE MATTER REQUIRES RECONSIDERATION AT THE LEVEL OF THE LD. CIT(A). WE, ACCORDINGLY SET ASIDE THE ORDERS OF THE LD. CIT(A) AND RESTORE BOTH THE APPEALS TO H IS FILE WITH THE DIRECTION TO RE- DECIDE BOTH THE APPEALS OF THE ASSESSEE ON MERITS G IVING REASONS FOR DECISION IN THE APPELLATE ORDER BY CONSIDERING THE ABOVE DECISIONS OF ITAT, AGRA BENCH IN THE CASES OF M/S. AUTOMOBILE AND GENERAL FINANCE CO. PV T. LTD. (SUPRA) AND M/S. INTT.TA NO. 01 & 02/AGRA/2011 5 ASHOKA AUTO FINANCE AND LEASING LTD. (SUPRA). THE L D. CIT(A) SHALL GIVE REASONABLE AND SUFFICIENT OPPORTUNITY OF BEING HEAR D TO THE ASSESSEE. THE LD. COUNSEL FOR THE ASSESSEE HAS GIVEN UNDERTAKING BEFO RE US THAT THE ASSESSEE WOULD NOT SEEK ADJOURNMENT BEFORE THE LD. CIT(A) AND SHAL L CO-OPERATE WITH HIM IN FINALIZATION OF THE MATTER IN ISSUE. WE HOPE THAT T HE ASSESSEE WOULD COMPLY WITH THE UNDERTAKING GIVEN BEFORE US. IN THE RESULT, BOT H THE APPEALS OF THE ASSESSEE DESERVE TO BE ALLOWED FOR STATISTICAL PURPOSES. 6. IN THE RESULT, BOTH THE APPEALS OF THE ASSESSEE ARE ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT. SD/- SD/- (A.L. GEHLOT) (BHAVNESH SAINI) ACCOUNTANT MEMBER JUDICIAL MEMBER *AKS/- COPY OF THE ORDER FORWARDED TO : 1. APPELLANT 2. RESPONDENT 3. CIT(A), CONCERNED BY ORDER 4. CIT, CONCERNED 5. DR, ITAT, AGRA 6. GUARD FILE SR. PRIVATE SECRETARY TRUE COPY