Hem Kiran Diesels, V. Deputy Commissioner of Income-tax,

ITA 1333/PUN/2014

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 1827 (ITAT-PUNE)
• Duration Of Justice: 1 year(s) 10 month(s) 21 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 11-05-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2007-2008
• Appeal Filed On: 20-06-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S K RASTOGI
• Keywords: Commercial expediency
• Section: 143(3)

Judgement Text

] ]] ] IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH A, PUNE , !, # $ BEFORE MS. SUSHMA CHOWLA, JM AND SHRI PRADIP KUMAR KEDIA, AM ITA NO.1333/PN/2014 ASSESSMENT YEAR : 2007-08 HEM KIRAN DIESELS, 1227 E RAJARAM ROAD, KOLHAPUR 416 008. PAN : AABFH6497B . APPELLANT VS. THE DY. COMMISSIONER OF INCOME TAX, (CENTRAL) CIRCLE, KOLHAPUR. . RESPONDENT / APPELLANT BY : SHRI C. H. NANIWADEKAR / RESPONDENT BY : SHRI S. K. RASTOGI, CIT / DATE OF HEARING : 03.05.2016 / DATE OF PRONOUNCEMENT: 11.05.2016 % / ORDER PER PRADIP KUMAR KEDIA, AM : THE CAPTIONED APPEAL FILED BY THE ASSESSEE IS AGAIN ST THE ORDER OF CIT(A), KOLHAPUR DATED 21.02.2014 RELATING TO ASSES SMENT YEAR 2007-08 PASSED UNDER SECTION 143(3) OF THE INCOME-TAX ACT, 1961 (IN SHORT THE ACT). 2. BY WAY OF THE PRESENT APPEAL, THE ASSESSEE HAS A SSAILED THE ACTION OF THE CIT(A) IN CONFIRMING THE ADDITION OF RS.7,47,482/- MADE BY THE ASSESSING OFFICER ON ACCOUNT OF DISALLOWANCE OF INTEREST CLAI MED UNDER SECTION 36(1)(III) OF THE ACT ON ADVANCES GIVEN TO SISTER CONCERN AMOU NTING TO RS.60,60,518/- FOR NON-BUSINESS PURPOSES. 3. AT THE TIME OF HEARING OF THE SAID CAPTIONED APP EAL, THE LD. AUTHORIZED REPRESENTATIVE FOR THE ASSESSEE POINTED OUT THAT ID ENTICAL ISSUE CAME UP FOR ADJUDICATION BEFORE THE CO-ORDINATE BENCH OF THE TR IBUNAL IN ASSESSEES OWN 2 ITA NO.1333/PN/2014 CASE FOR ASSESSMENT YEAR 2006-07 IN ITA NO.891/PN/2 010, ORDER DATED 30.12.2011 WHEREIN THE TRIBUNAL FOLLOWING ITS EARLI ER ORDER IN ASSESSEES OWN CASE IN ITA NO.155 & 156/PN/2008 RELATING TO ASSESS MENT YEAR 2003-04 & 2004-05, ORDER DATED 15.12.2009 AND ISSUE HAS BEEN REMITTED BACK TO THE FILE OF THE ASSESSING OFFICER FOR A FRESH ADJUDICATION IN T HE LIGHT OF DECISION OF THE JURISDICTIONAL HIGH COURT IN THE CASE OF CIT VS. RE LIANCE UTILITIES AND POWER LTD. IN INCOME TAX APPEAL NO.1398 OF 2008, ORDER DA TED 09.01.2009. THE RELEVANT OBSERVATIONS OF THE ORDER OF THE TRIBUNAL IN ASSESSEES OWN CASE FOR ASSESSMENT YEAR 2006-07 IN ITA NO.891/PN/2010, ORDE R DATED 30.12.2011 IS REPRODUCED HEREUNDER FOR READY REFERENCE :- 2. AT THE OUTSET OF HEARING, THE LEARNED COUNSEL F OR THE ASSESSEE POINTED OUT THAT SIMILAR ISSUE CAME FOR CONSIDERATION BEFORE CO-ORDI NATE BENCH OF THIS TRIBUNAL IN THE ASSESSEES OWN CASE FOR A.Y. 2003-04 AND 2004-05 IN ITA NO. 155 AND 156/PN/2008 WHEREIN THE ISSUE HAS BEEN REMITTED BACK TO THE FIL E OF THE ASSESSING OFFICER FOR A FRESH DECISION IN THE LIGHT OF JURISDICTIONAL HIGH COURT IN THE CASE OF CIT VS RELIANCE UTILITIES AND POWER LTD. (INCOME-TAX APPEAL NO. 139 8 OF 2008). THE RELEVANT OBSERVATIONS OF THE TRIBUNAL IS REPRODUCED AS UNDER : WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE FAC TS OF THE CASE AS WELL AS RECORDS AVAILABLE BEFORE US. WE HAVE ALSO GONE THRO UGH THE ABOVE REFERRED JUDGMENTS RELIED UPON BY BOTH THE PARTIES. WE HAVE ALSO CONSIDERED THE COUNSELS SUBMISSIONS THAT THE MATTER MUST GO TO TH E FILE OF THE AO FOR EXAMINING THE ISSUE AFRESH IN THE LIGHT OF JURISDIC TIONAL HIGH COURT IN THE CASE OF RELIANCE UTILITIES AND POWER LTD. (SUPRA) AND S. A BUILDERS (388 ITR 1). WE FIND THAT THERE IS NO FINDING OF FACT BY THE REV ENUE AUTHORITIES ON THE ISSUE OF AVAILABILITY OF SUFFICIENT NON-INTEREST OWN FUND S AS WELL AS THE COMMERCIAL EXPEDIENCY OF GIVING THE ADVANCES TO SISTER CONCERN . FROM THE ASSESSEES SIDE ALSO, THERE WAS NO OCCASION TO ESTABLISH OR DEMONST RATE THE ABOVE AS THE JUDGMENTS IN QUESTION ARE SUBSEQUENT IN TIME. IN TH ESE CIRCUMSTANCES, IT IS IN THE FITNESS OF THINGS THAT BOTH THE APPEALS MUST BE SET ASIDE TO THE FILE OF THE AO FOR A FRESH DECISION IN THE LIGHT OF ABOVE JURIS DICTIONAL HIGH COURT AS WELL AS HONBLE APEX COURT. THE AO SHALL GRANT AN OPPORT UNITY OF BEING HEARD TO THE ASSESSEE. FACTS BEING SIMILAR, SO FOLLOWING THE SAME, WE REST ORE THIS ISSUE TO THE FILE OF THE ASSESSING OFFICER WITH A DIRECTION TO DECIDE THE SA ME AFRESH IN THE LIGHT OF ABOVE JURISDICTIONAL HIGH COURT AS WELL AS HONBLE APEX C OURT AFTER PROVIDING ADEQUATE OPPORTUNITY OF HEARING TO THE ASSESSEE. 3. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED FOR STATISTICAL PURPOSES. 4. THE FACTS AND CIRCUMSTANCES OF THE PRESENT CASE ARE BEING SIMILAR TO ASSESSMENT YEAR 2006-07 IN ITA NO.891/PN/2010 (SUPR A) WHEREIN THE TRIBUNAL CONSISTENTLY FOLLOWING THE SAME VIEW TAKEN IN ITS E ARLIER DECISION IN ASSESSEES OWN CASE (SUPRA). FOLLOWING THE PARITY OF REASONIN G, WE REMIT THE ISSUE TO THE 3 ITA NO.1333/PN/2014 FILE OF THE ASSESSING OFFICER WITH A DIRECTION TO D ECIDE THE SAME AFRESH IN THE LIGHT OF ABOVE DECISION OF THE JURISDICTIONAL HIGH COURT AS WELL AS THE DECISION OF THE TRIBUNAL AFTER PROVIDING A REASONABLE OPPORT UNITY OF HEARING TO THE ASSESSEE. 5. NEEDLESS TO SAY, THE ASSESSING OFFICER SHALL ALL OW THE ASSESSEE A REASONABLE OPPORTUNITY TO PUT-FORTH MATERIAL AND SU BMISSIONS IN SUPPORT OF ITS STAND WHILE PASSING FRESH ORDER ON THIS ASPECT AS P ER LAW. THUS, ON THIS GROUND, ASSESSEE SUCCEEDS FOR STATISTICAL PURPOSES. 6. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED ON THIS 11 TH DAY OF MAY, 2016. SD/- SD/- ( SUSHMA CHOWLA ) ( PRADIP KUMAR KEDIA ) / JUDICIAL MEMBER # / ACCOUNTANT MEMBER PUNE ; DATED : 11 TH MAY, 2016. % & '() *)' / COPY OF THE ORDER IS FORWARDED TO : 1) THE ASSESSEE; 2) THE DEPARTMENT; 3) THE CIT(A), KOLHAPUR; 4) THE CIT- II, KOLHAPUR; 5) THE DR A BENCH, I.T.A.T., PUNE; 6) GUARD FILE. %+ / BY ORDER , ' # //TRUE COPY// $ %& # '( / SR. PRIVATE SECRETARY ) '* , / ITAT, PUNE