Sh. Shailendra Agarwal, Agra V. A.C.I.T.-1, Agra

ITA 130/AGR/2013

• Counselvise Citation: [2013] 140 COUNSELVISE.COM (IT) 67456 (ITAT-AGRA)
• Duration Of Justice: 4 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 26-08-2013
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 22-08-2013
• Assessment Year: 2009-2010
• Appeal Filed On: 25-04-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: E PASS AGRA AGRA PAN ABMPA D
• Assessee Lawyers: MANUJ SHARMA S REVE
• Keywords: Salary income; Additional evidence

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AGRA BENCH, AGRA BEFORE SHRI BHAVNESH SAINI, JUDICIAL MEMBER AND SHRI A.L. GEHLOT, ACCOUNTANT MEMBER ITA NO. 130/AGRA/ 2013 ASSESSMENT YEAR 2009-2010 SHAILENDRA AGARWAL VS. ACIT-1 13 NIRBHAYA NAGAR SANJAY PLACE, GAILLANA, BYE PASS , AGRA. AGRA (PAN ABMPA 3957 D) (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI RAJENDRA SHARMA & SHRI MANUJ SHARMA, ADVOCATES REVENUE BY : SHRI K.K. MISHRA, JR. D.R. DATE OF HEARING : 22.08.2013 DATE OF PRONOUNCEMENT : 27.08.2013 ORDER PER A.L. GEHLOT,ACCOUNTANT MEMBER: THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST TH E ORDER OF THE LD. CIT(A)-I AGRA, DATED 28.12.2012 FOR A.Y. 2009-10. 2. THE ASSESSEE HAS RAISED AS MANY AS FIVE GROUNDS OF APPEAL. HOWEVER, THE EFFECTIVE GROUND IS IN RESPECT OF SUSTAINING AD DITION OF RS.18,63,242/- ON ACCOUNT OF INTEREST PAID UNDER SECTION 36(III)(A) O F THE I.T. ACT. ITA NO.130 /AGRA/2013, A.Y. 2009-10 2 3. THE BRIEF FACTS OF THE CASE ARE THAT THE A.O. HA S NOTICED THAT THE ASSESSEE HAS BEEN SHOWN SALARY INCOME AND INCOME FR OM BUSINESS & PROFESSION AND SURRENDERRED INCOME AS MISC. INCOME. DURING THE ASSESSMENT PROCEEDINGS, THE A.O. NOTICED THAT THE ASSESSEE HAS CLAIMED EXPENDITURE OF RS.19,90,164/-. THE A.O. FURTHER NOTICED THAT THE A SSESSEE HAS SURRENDERED RS.23,00,000/- AS MISC. INCOME. HE FURTHER NOTICED THAT THE SAID EXPENDITURE INCLUDES INTEREST PAYMENT OF RS.18,63,242/-. IN THE ABSENCE OF THE DETAILS, THE A.O. HAS MADE ADDITION OF RS.19,90,164/-. 4. THE CIT(A) NOTICED THAT THE EXPENDITURE OF RS.1, 26,921/- WAS IN NATURE OF LEGAL EXPENSES, INSURANCE EXPENSES, TELEP HONE EXPENSES. THE CIT(A) FOUND THAT THESE EXPENSES WERE INCURRED FOR THE PURPOSE OF BUSINESS. THE CIT(A) ACCORDINGLY DELETED THE ADDITION OF RS.1 ,26,921/- AND CONFIRMED THE ADDITION TO THE EXTENT OF RS.18,63,242/-. THE C IT(A) DID NOT ACCEPT THE ASSESSEES CONTENTION THAT THE ASSESSEE TAKEN THE L OAN FROM BANK FOR MAKING INVESTMENT IN LAND AS THE ASSESSEE DEALING IN THE B USINESS OF REAL ESTATE. 5. THE LD. A.R. SUBMITTED THAT THE A.O. AND CIT(A) BOTH HAVE NOT APPRECIATED THE FACTS OF THE ISSUE AS EXPENDITURE D URING THE ASSESSMENT PROCEEDINGS THAT BORROWED FUND UTILIZED WHOLLY AND EXCLUSIVELY FOR THE PURPOSE OF BUSINESS. THE LD. A.R. SUBMITTED CIT(A) COULD NOT PROVIDE PROPER OPPORTUNITY TO SUBSTANTIATE THE SUBMISSION O F THE ASSESSEE ALTHOUGH THERE WAS AN AGREEMENT BETWEEN THE ASSESSEE AND MUK ESH YADAV IN RESPECT ITA NO.130 /AGRA/2013, A.Y. 2009-10 3 OF GIVING LOAN ON RENT FOR THE PURPOSE OF MARRIAGE AND ETC. THE LD. A.R. FILED COPY OF THE AGREEMENT AND SUBMITTED THAT THIS AGREE MENT IS IMPORTANT DOCUMENT RELATED TO THE RULE OF CASE OF DISPUTE WHI CH COULD NOT BE FILED BEFORE THE REVENUE AUTHORITIES AS NO SUFFICIENT OPP ORTUNITY WAS ALLOWED. THE LD. A.R. ACCORDINGLY REQUESTED THAT THIS ADDITI ONAL EVIDENCES I.E. A COPY OF AGREEMENT BETWEEN SHAILENDRA AGARWAL AND MUKESH YADAV, BALANCE SHEET AND FINANCIAL STATEMENT FOR THE YEAR 2009-10 MAY BE ADMITTED AND CONSIDERED FOR DECIDING THE ISSUE. 6. THE LD. D.R. ON THE OTHER HAND RELIED UPON THE O RDER OF THE CIT(A). THE LD. D.R. DID NOT OBJECT FOR THE ADMISSION OF TH ESE ADDITIONAL EVIDENCES IN THE FORM OF AGREEMENT AND FINANCIAL STATEMENT. 7. WE HAVE HEARD LEARNED REPRESENTATIVES OF THE PAR TIES AND RECORDS PERUSED. WE FIND THAT THE A.O. AND CIT(A) BOTH WITH OUT APPRECIATING THE ISSUE AND WITHOUT RECORDING THE COMPLETE FACTS AND CAME TO THE CONCLUSION. THAT THE REVENUE AUTHORITIES DID NOT APPRECIATE THE FACTS THAT THE INTEREST CLAIM WAS AGAINST THE INCOME EARNED FROM THE LAND, WHICH WAS GIVEN FOR MARRIAGE ETC AS CONTENDED BY THE A.R. THE ADDITIONA L EVIDENCE FILED IS IMPORTANT RELATED TO FACTS WE, THEREFORE, ADMITTED THE SAME. SINCE THE ISSUE REQUIRES EXAMINATION AS THE AGREEMENT WHICH IS SUBM ITTED IS IN THE FORM OF ADDITIONAL EVIDENCE WHICH IS ADMITTED. EXAMINATION OF THIS AGREEMENT ALONG WITH OTHER FACT IS NECESSARY FOR DECIDING THE ISSUE . SINCE THE COMPLETE FACTS ITA NO.130 /AGRA/2013, A.Y. 2009-10 4 ARE REQUIRED TO BE PUT ON RECORD, WE, THEREFORE, TH INK IT PROPER TO SEND BACK THIS ISSUE TO THE FILE OF THE A.O. WITH DIRECTION T O DECIDE THE ISSUE AFRESH, IN ACCORDANCE WITH LAW, AFTER PROVIDING REASONABLE OPP ORTUNITY OF HEARING AND AFTER CONSIDERING THE SUBMISSION OF THE ASSESSEE IN CLUDING THE CONSIDERATION OF THE ABOVE AGREEMENT FILED BEFORE US. 8. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. (ORDER PRONOUNCED IN THE OPEN COURT.) SD/- SD/- (BHAVNESH SAINI) (A.L. GEHLOT) JUDICIAL MEMBER ACCOUNTA NT MEMBER AMIT/ COPY OF THE ORDER FORWARDED TO:- 1. APPELLANT 2. RESPONDENT 3. CIT (APPEALS) CONCERNED 4. CIT CONCERNED 5. D.R., ITAT, AGRA BENCH, AGRA 6. GUARD FILE. BY ORDER SR. PRIVATE SECRETARY INCOME TAX APPELLATE TRIBUNAL, AGRA TRUE COPY