Shri Sanjay Bhanwarlal Hundia, Ahmedabad V. The Income Tax Officer, War-4(4), Ahmedabad

ITA 1/AHD/2014

• Counselvise Citation: [2017] 130 COUNSELVISE.COM (IT) 9257 (ITAT-AHMEDABAD)
• Duration Of Justice: 3 year(s) 1 month(s) 5 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 06-02-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Next Hearing Date: 09-12-2016
• Assessment Year: 2009-2010
• Appeal Filed On: 01-01-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SUMIT KR VARMA

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL SMC BENCH, AHMEDABAD BEFORE SHRI R.P. TOLANI, JUDICIAL MEMBER ./ ITA NO. 01/AHD/2014 / ASSESSMENT YEAR : 2009-10 SANJAY BHANWARLAL HUNDIA, 10-B, SUMATINAGAR SOCIETY, NR. SINDHI HIGH SCHOOL, USMANPURA, AHMEABAD-13 PAN : AASPH 6788 G VS INCOME TAX OFFICER, WARD 4 (4), AHMEDABAD / (APPELLANT) / (RESPONDENT) ASSESSEE BY : ASTHA MANIAR, AR REVENUE BY : SUMIT KR. VARMA, DR DATE OF HEARING : 09 /12/2016 DATE OF PRONOUNCEMENT IN COURT : 06/02/20 17 / O R D E R THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF THE LEARNED COMMISSIONER OF INCOME-TAX (APPEALS)-III, A HMEDABAD DATED 13.11.2013 FOR ASSESSMENT YEAR 2009-10. 2. THE GROUNDS RAISED ARE AS UNDER:- 1. IN HIS ORDER DATED 22.12.2011, THE LD. AO HAS ERRED IN LAW BY MAKING A DISALLOWANCE OF RS.13,16,910/- OUT OF INTEREST EXPE NSES U/S 36[1][III] WITHOUT IDENTIFYING THE FACTS OF THE CASE AND REAL NATURE OF TRANSACTIONS INVOLVED. THE CIT(A) HAS ERRED IN LAW BY CONFIRMIN G THE SAME. 2. ANY OTHER GROUND OF APPEAL SHALL BE SUBMITTED AT TH E TIME OF HEARING. 3. THE LD. COUNSEL FOR THE ASSESSEE CONTENDS THAT T HE ASSESSEE HAS RAISED GROUND NO.3 AS UNDER, WHICH HAS NOT BEEN DECIDED BY LD. CIT(A):- ADDITION HAS DIRECTLY BEEN ADDED TO TOTAL INCOME AN D LOSSES HAS NOT BEEN DEDUCTED THEREFROM AS SHOWN IN S.T.I. AS C/F THEREFORE, THE ISSUE MAY BE SET ASIDE AND RESTORED BACK TO DECIDE THE SAME AFRESH. BESIDES, THE MERITS OF THE ASSESSEES CASE APROPOS MAIN GROUND ALSO HAVE NOT BEEN CONSIDERED. SMC-ITA NO. 01/AHD/2014 SANJAY BHANWARLAL HUNDIA VS. ITO AY : 2009-2010 2 4. THE LD. DR, ON THE OTHER HAND, VEHEMENTLY CONTEN DS THAT:- (I) THERE APPEARS TO BE SOME MISCHIEF IN THE PAPERS FIL ED BEFORE THE ITAT INASMUCH AS THE GROUND NO.3 HAS BEEN WRITTEN B Y THE ASSESSEE IN HANDWRITING, WHEREAS THE OTHER GROUNDS ARE TYPED GROUNDS. THEREFORE, IT IS TO BE ASCERTAINED WHETHER THE GROU ND NO.3 IS THERE IN THE PAPERS FILED BEFORE THE LD. CIT(A). IF IT IS FO UND THAT THIS GROUND WAS NOT RAISED, THEN THE ASSESSEE IS LIABLE FOR PRO CEEDINGS TO MISLEAD THE ITAT AND FILE A WRONG MEMORANDUM OF APPEAL; (II) THE ASSESSEE HAS NOT RAISED ANY GROUND BEFORE THE I TAT THAT THE GROUND NO.3 WAS NOT DECIDED BY LD. CIT(A); (III) THE ASSESSING OFFICER HAS CONSIDERED ALL THE REPLIE S OF THE ASSESSEE WHICH ARE COMMENTED UPON BY THE LD. CIT(A); THEREFO RE, THE ASSESSEES APPEAL TO BE DISMISSED. 5. THE LD. COUNSEL FOR THE ASSESSEE, ON THE OTHER H AND, CONTENDS THAT THE ISSUE MAY BE GET VERIFIED FROM THE AUTHORITIES BELO W. 6. I HAVE HEARD THE RIVAL CONTENTIONS, PERUSED THE MATERIAL AVAILABLE ON RECORD AND GONE THROUGH THE ORDERS OF THE AUTHORITI ES BELOW. THERE IS SOME WEIGHT IN THE OBJECTIONS OF THE LD. DR. HOWEVER, I N ORDER TO EXPLORE THE TRUTH ABOUT RAISING GROUND NO.3, IT WILL BE DESIRAB LE THAT THE VERIFICATION FILED BY THE ASSESSEE SHOULD BE VERIFIED. CONSEQUEN TLY, THIS APPEAL IS SET ASIDE AND RESTORED BACK TO THE FILE OF THE LD. CIT( A) TO VERIFY WHETHER THE GROUND NO.3 WAS IN FACT RAISED BEFORE HIM. IF IT I S SO, THE LD. CIT(A) MAY DECIDE THE SAME. IF IT IS FOUND THAT THE ASSESSEE HAD NOT RAISED THIS GROUND BEFORE THE LD. CIT(A) AND HAS INCORPORATED THE GROU ND IN FORM NO.35 BY HANDWRITING TO MISLEAD THE ITAT, THEN A SERIOUS VIE W IS TO BE TAKEN. IN THAT CASE, THE LD. CIT(A) MAY DECIDE THE ISSUE ABOUT FIL ING THE PROCEEDINGS SMC-ITA NO. 01/AHD/2014 SANJAY BHANWARLAL HUNDIA VS. ITO AY : 2009-2010 3 AGAINST THE ASSESSEE FOR MAKING A WRONG VERIFICATIO N AS PER THE PROVISIONS OF LAW AND OTHER SUITABLE ACTION WHICH THE FACTS OF TH E SITUATION MAY CALL FOR. THEREFORE, THE APPEAL IS ACCORDINGLY SET ASIDE FOR THIS LIMITED PURPOSE. 7. IN THE RESULT, ASSESSEES APPEAL IS ALLOWED FOR STATISTICAL PURPOSES. SD/- R.P. TOLANI (JUDICIAL MEMBER) AHMEDABAD; DATED 06/02/2017 *BIJU T., SR. PS / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. / CONCERNED CIT 4. ( ) / THE CIT(A) 5. , , / DR, ITAT, AHMEDABAD 6. / GUARD FILE . / BY ORDER, TRUE COPY / ( DY./ASSTT.REGISTRAR) , / ITAT, AHMEDABAD