Ashok Akheraj Khivasara, Pune V. Income-tax Officer, Ward - 6(2), Pune

ITA 1201/PUN/2018

• Counselvise Citation: [2019] 118 COUNSELVISE.COM (IT) 1765 (ITAT-PUNE)
• Duration Of Justice: 8 month(s) 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 20-03-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2012-2013
• Appeal Filed On: 09-07-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: RAJESH GAWLI

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH SMC, PUNE BEFORE SHRI R.S. SYAL, VICE PRESIDENT . / ITA NO.1201/PUN/2018 / ASSESSMENT YEAR : 2012-13 SHRI ASHOK AKHERAJ KHIVASARA, 148, BHAVANI PETH, PUNE 411 002 PAN : ABPPK8981Q VS. ITO, WARD-6(2), PUNE (APPELLANT) (RESPONDENT) / ORDER PER R.S.SYAL, VP : THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER PASSED BY THE CIT(A)-13, PUNE ON 07-05-2018 IN RELATION TO THE ASSESSMENT YEAR 2012-13. 2. THE ONLY ISSUE RAISED IS AGAINST THE CONFIRMATION OF DISALLOWANCE OF INTEREST OF RS.8,67,205/-. 3. THE FACTS APROPOS THIS ISSUE ARE THAT THE ASSESSEE PAID INTEREST TO VARIOUS RELATED PERSONS @24% WHICH WAS FOUND BY THE ASSESSING OFFICER (AO) TO BE HIGH. APPELLANT BY SHRI KISHOR PHADKE RESPONDENT BY SHRI RAJESH GAWLI DATE OF HEARING 20-03-2019 DATE OF PRONOUNCEMENT 20-03-2019 ITA NO.1201/PUN/2018 SHRI ASHOK AKHERAJ KHIVASARA 2 APPLYING THE PROVISIONS OF SECTION 40A(2), THE AO RESTRICTED THE ALLOWABILITY OF INTEREST AT 18%, THEREBY MAKING AN ADDITION FOR THE REMAINING 6% WHICH CAME AT RS.8,67,205/-. THE LD. CIT(A) DID NOT ALLOW THE ASSESSEE S STAND, AGAINST WHICH THE APPEAL HAS BEEN PREFERRED BEFOR E THE TRIBUNAL. 4. I HAVE HEARD BOTH THE SIDES AND GONE THROUGH THE RELEVANT MATERIAL ON RECORD. IT IS NOTICED THAT THE LD. CIT(A) DID NOT ALLOW THE ASSESSEES STAND BY NOTICING IN THE PENULTIMATE PARA OF HIS ORDER THAT THERE WAS NO EVIDENCE ON THE PART OF THE APPELLANT TO SHOW THAT HE HAD EARNED INTEREST AT 24%. IT REMAINS A MERE AVERMENT ON HIS PART. THE APPELLANT HAS NOT EVEN FILED COPIES OF HIS BALANCE SHEET, P&L A/C. AND COMPUTATION TO SHOW THAT HE HAS INDEED EARNED INTEREST LET ALONE THE RATE OF INTEREST. PAGE 33 ONWARDS OF THE PAPER BOOK IS A COPY OF THE LETTER DATED 03-08-2017 ADDRESSED BY THE ASSESSEE TO THE CIT(A). ON PAGE 34, THE ASSESSEE HAS CATEGORICALLY MENTIONED THAT HE RECOVERED INTEREST @24% PER ANNUM AND ALSO PAID INTEREST @24%. THERE IS SOME REFERENCE TO ITA NO.1201/PUN/2018 SHRI ASHOK AKHERAJ KHIVASARA 3 THE LEDGER EXTRACTS OF SOME PERSONS, NAMELY, AVIOR TECHNO FAB PVT. LTD., DHARMSHI SIGNATURE AND GANDHI BAFNA, FROM WHOM THE ASSESSEE RECEIVED INTEREST @24%. IT IS THUS APPARENT FROM THE ABOVE LETTER WRITTEN BY THE ASSESSEE TO THE LD. CIT(A) THAT HE GAVE INSTANCES IN WHICH INTEREST @24% WAS EARNED, WHICH POSITION HAS NOT BEEN PROPERLY RECORDED IN THE IMPUGNED ORDER. THE LD. AR FURTHER CLAIMED THAT THE ASSESSEE WAS CONSISTENTLY PAYING INTEREST @24% IN THE PRECEDING YEARS WHICH HAS BEEN ACCEPTED AS SUCH. IN VIEW OF THE FACT THAT THESE TWO RELEVANT FACTS, NAMELY, RECEIPT OF INTEREST @24% DURING THE YEAR FROM CERTAIN PERSONS AND PAYMENT OF INTEREST @24% IN PRECEDING YEARS, HAVE NOT BEEN PROPERLY TAKEN INTO CONSIDERATION BY THE AUTHORITIES BEFORE DECIDING THE ISSUE, I AM OF THE CONSIDERED OPINION THAT THE ENDS OF JUSTICE WOULD MEET ADEQUATELY IF THE IMPUGNED ORDER ON THIS SCORE IS SET-ASIDE AND THE MATTER IS REMITTED TO THE FILE OF AO. I ORDER ACCORDINGLY AND DIRECT HIM TO DECIDE THIS ISSUE AFRESH IN THE LIGHT OF ABOVE OBSERVATIONS. ITA NO.1201/PUN/2018 SHRI ASHOK AKHERAJ KHIVASARA 4 5. IN THE RESULT, THE APPEAL IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 20 TH MARCH, 2019. SD/- (R.S.SYAL) / VICE PRESIDENT PUNE; DATED : 20 TH MARCH, 2019 / COPY OF THE ORDER IS FORWARDED TO : 1. / THE APPELLANT; 2. / THE RESPONDENT; 3. ( ) / THE CIT (APPEALS)-7, PUNE 4. THE PR. CIT-6, PUNE 5. , , SMC / DR SMC, ITAT, PUNE; 6. / GUARD FILE. // TRUE COPY // / BY ORDER, // TRUE COPY // SENIOR PRIVATE SECRETARY , / ITAT, PUNE ITA NO.1201/PUN/2018 SHRI ASHOK AKHERAJ KHIVASARA 5 DATE 1. DRAFT DICTATED ON 20-03-2019 SR.PS 2. DRAFT PLACED BEFORE AUTHOR 20-03-2019 SR.PS 3. DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER JM 4. DRAFT DISCUSSED/APPROVED BY SECOND MEMBER. JM 5. APPROVED DRAFT COMES TO THE SR.PS/PS SR.PS 6. KEPT FOR PRONOUNCEMENT ON SR.PS 7. DATE OF UPLOADING ORDER SR.PS 8. FILE SENT TO THE BENCH CLERK SR.PS 9. DATE ON WHICH FILE GOES TO THE HEAD CLERK 10. DATE ON WHICH FILE GOES TO THE A.R. 11. DATE OF DISPATCH OF ORDER. *