Bansilal Ramnath Agarwal (HUF), Pune V. Assistant Commissioner of Income tax, Pune

ITA 1172/PUN/2017

• Counselvise Citation: [2019] 116 COUNSELVISE.COM (IT) 1327 (ITAT-PUNE)
• Duration Of Justice: 2 year(s) 3 month(s) 28 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 09-09-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2006-2007
• Appeal Filed On: 11-05-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Principle of natural justice
• Section: 143(3); 201

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH B , PUNE , , BEFORE MS. SUSHMA CHOWLA, JM AND SHRI ANIL CHATURVEDI, AM . / ITA NO. 1172 /P U N/201 7 / ASSESSMENT YEAR : 20 0 6 - 07 BANSILAL RAMNATH AGARWAL (HUF), 283, BUDHWAR PETH, PUNE 411002 . / APPELLANT PAN: AA CHA7282E VS. THE ASST. COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE 1(2) , PUNE . / RESPONDENT / APPELLANT BY : SHRI KISHORE PHADKE / RESPONDENT BY : SHRI PANKAJ GARG / DATE OF HEARING : 25 . 0 7 .201 9 / DATE OF PRONOUNCEMENT: 09 . 0 9 .201 9 / ORDER PER SUSHMA CHOWLA, J M : THE APPEAL FILED BY ASSESSEE IS AGAINST ORDER OF CIT (A) - 13 , PUNE , DATED 2 1 . 0 7 .201 6 RELATING TO ASSESSMENT YEAR 20 0 6 - 07 AGAINST ORDER PASSED UNDER SECTION 143(3) OF THE INCOME - TAX ACT , 1961 (IN SHORT THE ACT) . 2. TH E ASSESSEE HAS RAISED THE FOLLOWING GROUND S OF APPEAL: - 1. THE LEARNED CIT(A) - 13, PUNE ERRED IN LAW AND IN FACTS IN CONFIRMING TOTAL INCOME OF THE APPELLANT TO THE TUNE OF RS.27,94,694/ - AS AGAINST THE RETURN OF INCOME AS DECLARED BY APPELLANT OF RS . 5,53 ,885/ - . 2. THE LEARNED CIT(A) - 13,PUNE ERRED IN LAW AND IN FACTS BY DISALLOWING INTEREST OF RS.5,15,318 WITHOUT APPRECIATING THE FACT THAT THE APPELLANT HAS CLAIMED ONLY PROPORTIONATE AMOUNT OF INTEREST ON THE BORROWINGS WHICH ARE USED FOR THE PURPOSE OF BUSINESS. ITA NO. 1172 /P U N/20 1 7 BANSILAL RAMNATH AGARWAL (HUF) 2 3. THE LEARNED CIT(A) - 13, PUNE ERRED IN DISALLOWING THE AMOUNT OF RS . 11,29,570 CLAIMED BY THE ASSESSEE AS BROKERAGE. THE LEARNED CIT(A) OUGHT TO HAVE APPRECIATED THAT THE SAID BROKERAGE IS PART & PARCEL OF BORROWING COST WHICH IS INCURRED FOR OBTAINING LOANS FROM VARIOUS PARTIES FOR THE PURPOSE OF BUSINESS. 4. WITHOUT PREJUDICE TO GROUND NO 3, THE LEARNED CIT(A) - 13 OUGHT TO HAVE APPRECIATED THAT DISALLOWANCE OF BROKERAGE OUGHT TO BE RESTRICTED IN THE PROPORTION OF BORROWINGS WHICH ARE NOT UT ILIZED FOR THE PURPOSE OF BUSINESS. 5. THE LEARNED CIT (A) - 13, PUNE ERRED IN MAKING AN ADDITION OF RS.5,95,921 ON ACCOUNT OF EXCESS STOCK FOUND DURING SURVEY, WITHOUT APPRECIATING THE FACT THAT THE SAID AMOUNT HAS ALREADY INCLUDED IN THE STOCK DECLARED IN BOOKS OF ACCOUNT & THEREBY ALREADY OFFERED TO TAX. 3. THE PRESENT APPEAL WAS FILED AFTER DELAY OF 145 DAYS. THE LEARNED AUTHORIZED REPRESENTATIVE FOR THE ASSESSEE HAS FILED CONDONATION PETITION IN THIS REGARD. IN THE CONDONATION PETITION, THE LEARNED AUTHORIZED REPRESENTATIVE FOR THE ASSESSEE POINTED OUT THAT BECAUSE OF MULTIPLICITY OF APPELLATE PROCEEDINGS BEFORE THE CIT(A) IN THE CASE OF ASSESSEE AND HIS FAMILY MEMBERS AND CONCERNS, THERE WAS DELAY IN FILING THE APPEAL LATE BEFORE THE TRIBUNAL. IN THE AFFIDAVIT, THE LEARNED AUTHORIZED REPRESENTATIVE FOR THE ASSESSEE STATES THE ACTUAL DELAY IS 204 DAYS. THE LEARNED AUTHORIZED REPRESENTATIVE FOR THE ASSESSEE ALSO POINTS OUT THAT NO REASONABLE OPPORTUNITY OF HEARING WAS GRANTED BY THE CIT(A). 4. THE LEARNED DEPARTMENTAL REPRESENTATIVE FOR THE REVENUE HOWEVER, POINTED OUT THAT THE CIT(A) HAD GRANTED VARIOUS OPPORTUNITIES BUT THE ASSESSEE DID NOT APPEAR BEFORE HIM. 5. IN THE TOTALITY OF THE ABOVE S AID FACTS AND CIRCUMSTANCES AND FOLLOWING THE PRINCIPLE S OF NATURAL JUSTICE, WE HOLD THAT THE ASSESSEE WAS PREVENTED BY SUFFICIENT CAUSE IN NOT FILING THE PRESENT APPEAL IN TIME. ACCORDINGLY, WE CONDONE THE DELAY IN FILING THE PRESENT APPEAL LATE BEFORE US. WE FURTHER FIND THAT THE CIT(A) THOUGH HAD GIVEN OP PORTUNITY OF HEARING TO THE ASSESSEE BUT ITA NO. 1172 /P U N/20 1 7 BANSILAL RAMNATH AGARWAL (HUF) 3 THERE WAS SOME MISCOMMUNICATION AND THE ASSESSEE BECAUSE OF HIS MEDICAL PROBLEMS COULD NOT APPEAR BEFORE THE CIT(A). IT IS ALSO POINTED OUT BY THE LEARNED AUTHORIZED REPRESENTATIVE FOR THE ASSESSEE THAT SIMILAR ISS UES IN THE CASE OF OTHER FAMILY MEMBERS HAVE BEEN ALLOWED BY THE SAME CIT(A) AND THE ISSUE S RAISED IN THE PRESENT APPEAL ARE SIMILAR. IN SUCH FACTS AND CIRCUMSTANCES, WE DEEM IT FIT TO RESTORE THE PRESENT ISSUES TO THE FILE OF CIT(A), WHO SHALL AFFORD REA SONABLE OPPORTUNITY OF HEARING TO THE ASSESSEE. THE ASSESSEE IS ALSO DIRECTED TO COMPLY WITH THE NOTICES ISSUED BY CIT(A) AND FURNISH THE INFORMATION. HENCE, THE SAID GROUNDS OF APPEAL ARE ALLOWED FOR STATISTICAL PURPOSES. WE ARE NOT ADJUDICATING THE IS SUES ON MERITS. 6 . IN THE RESULT, THE APPEAL OF ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED ON THIS 9 TH DAY OF SEPTEMBER , 201 9 . SD/ - SD/ - (ANIL CHATURVEDI) (SUSHMA CHOWLA) / ACCOUNTANT MEMBER / JUDICIAL MEMBER / PUNE ; DATED : 9 TH SEPTEMBER , 201 9 . GCVSR / COPY OF THE ORDER IS FORWARDED TO : 1. / THE APPELLANT ; 2. / THE RESPONDENT; 3. ( ) / THE CIT(A) - 13 , PUNE ; 4. THE P CIT (CENTRAL) , PUNE ; 5. 6. , , / DR B , ITAT, PUNE ; / GUARD FILE . / BY ORDER , // TRUE COPY // / SR. PRIVATE SECRETARY , / ITAT, PUNE