Assistant Commissioner Of Income Tax, Jabalpur V. M/s Shrimal Construction Pvt. Ltd., Jabalpur

ITA 135/JAB/2013

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 1063 (ITAT-JABALPUR)
• Duration Of Justice: 6 year(s) 18 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 28-05-2019
• Appeal Filed By: Department
• Bench Allotted: DB
• Next Hearing Date: 05-02-2015
• Assessment Year: 2005-2006
• Appeal Filed On: 10-05-2013
• Court: TRIBUNAL
• Department Lawyers: D R LAKHORIYA
• Section: 143(3); 143(1)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, JABALPUR BENCH, JABALPUR BEFORE SHRI D.T. GARASIA, J.M. AND SHRI B.C.MEENA, A.M. I.T.A.NO. 135/JAB/2013 A.Y. : 2005-06 ACIT, CIRCLE 1(1), JABALPUR VS M/S.SHRIMAL CONSTRUCTION PVT.LTD., A-103, KANHA VERTICAL, GOPAL VIHAR, GOPAL BAGH, JABALPUR APPELLANT RESPONDENT PAN NO. : AAGCS3760G DEPARTMENT BY : SHRI D. R. LAKHORIYA, DR ASSESSEE BY : SHRI SUMIT NEMA, ADV. DATE OF HEARING : 20.05.2015 DATE OF PRONOUNCEMENT : 30.07.2015 -: 2: - 2 O R D E R PER GARASIA, J.M. THIS IS AN APPEAL FILED BY THE REVENUE AGAINST THE ORDER OF CIT(A),JABALPUR, DATED 08.10.2012 FOR THE ASSES SMENT YEAR 2005-06. 2. THE SHORT FACTS OF THE CASE ARE AS UNDER. 3. THE ASSESSEE HAS FILED THE RETURN OF INCOME FOR THE ASSESSMENT YEAR 2005-06 DECLARING TOTAL INCOME AT R S. 7,59,073/-. THE RETURN WAS PROCESSED U/S 143(1) ON 17.04.2006 AND REFUND OF RS. 64,952/- WAS ISSUED. T HE CASE HAS BEEN SELECTED FOR SCRUTINY AND NOTICE U/S 143(2 ) WAS ISSUED. CONSEQUENTLY, THE ASSESSMENT WAS COMPLETED U/S 143(3) ON 23.11.2007 DETERMINING TOTAL INCOME OF RS . 18,56,430/-. DURING THE COURSE OF ASSESSMENT PROCEE DINGS, THE RECEIPTS OF RS. 8,54,18,000/- AS INCOME FROM OT HER SOURCES AND DISALLOWED THE ENTIRE EXPENSES CLAIMED IN THE B OOKS OF ACCOUNT AND PENALTY HAS BEEN LEVIED. -: 3: - 3 4. THE MATTER CARRIED TO LD. CIT(A). THE LD. CIT(A) HA S ALLOWED THE APPEAL BY OBSERVING AS UNDER :- DECISION ( GROUND NOS. 9 & 10) : ON CAREFULLY PERUS AL OF THE MATERIAL ON RECORD AND THE SUBMISSIONS OF TH E COUNSEL, I FIND THAT THE AO HAS TREATED THE SUM OF RS. 8,54,18,000/- FROM BENANI CEMENT LIMITED BY THE APPELLANT AS INCOME FROM OTHER SOURCES. IN VIEW OF MY DECISION, IN THE CASE OF THE VERY APPELLANT FOR ASSESSMENT YEAR 2008-09 AND RESPECTFULLY FOLLOWING THE DECISION OF HON'BLE I.T.A.T. IN I.T.A.NO. 181/JAB/2009 FOR ASSESSMENT YEAR 2005-06 AND THE DECISION OF CIT(A) CENTRAL-I, KOLKATA DATED 21.04.2011, WHO HELD THAT THE PAYMENTS MADE BY M/S. BENANI CEMENT LIMITED TO SHREEMAL CONSTRUCTIONS P.LTD. AS INCIDENTAL TO BUSINESS AND HAD ALLOWED THEM AS EXPENDITURE IN THE HANDS OF M/S. BENANI CEMENT LIMITED, THE ADDITION MADE BY THE ASSESSING OFFICER IN TREATING THE SUM OF RS. -: 4: - 4 8,54,18,000/- AS INCOME FROM OTHER SOURCES, IS DELETED. 5. WE HAVE HEARD THE RIVAL CONTENTIONS OF BOTH THE PARTIES. LOOKING TO THE FACTS AND CIRCUMSTANCES OF THE CASE, WE FIND THAT THE LD. CIT(A) FOLLOWING THE DECISION OF I.T.A.T. IN I.T.A.NO. 181/JAB/2009 FOR THE ASSESSMENT YEAR 2005 -06 HELD THAT THIS PAYMENT MADE BY BENANI CEMENT LIMITED TO SHREEMAL CONSTRUCTIONS PRIVATE LIMITED IS INCIDENTA L TO BUSINESS AND ALLOWED THEM AS EXPENDITURE IN THE HAN DS OF THE BENANI CEMENT LIMITED AND ADDITION WAS DELETED. WE ALSO FIND THAT THIS CONTROVERSY IS RESOLVED BY THE DECISION O F HON'BLE M.P. HIGH COURT PASSED IN I.T.A.NO. 16/2011 IN THE CASE OF CIT VS. M/S. MANMOHAN DAS, HUF, WHEREIN THE HON'BLE HIGH COURT HAS DISMISSED THE APPEAL, WHEREIN IT IS HELD THAT THE PAYMENT MADE TO ASSESSEE WOULD BE CHARGEABLE TO INC OME FROM BUSINESS AND THAT INCOME WAS TREATED AS INCOME FROM BUSINESS. -: 5: - 5 6. IN THE RESULT, THE APPEAL OF THE REVENUE IS DISMISS ED. THIS ORDER IS PRONOUNCED IN ACCORDANCE WITH RULE 34 (4) OF I.T.A.T. RULES, BY PUTTING THE COPY OF THE SAME ON NOTICE BOARD ON 30 TH JULY, 2015. SD/- (B. C. MEENA) ACCOUNTANT MEMBER SD/- ( D.T.GARASIA) JUDICIAL MEMBER DATED : 30 TH JULY, 2015. CPU* 13.30