The ACIT, Circle-5, Baroda V. M/s. Star Electromech Industries, Baroda

ITA 1375/AHD/2010

• Counselvise Citation: [2011] 134 COUNSELVISE.COM (IT) 6716 (ITAT-AHMEDABAD)
• Duration Of Justice: 11 month(s) 29 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-04-2011
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 29-04-2011
• Assessment Year: 2004-2005
• Appeal Filed On: 30-04-2010
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: R K DHANESTA SRDR
• Keywords: Opportunity of being heard

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD BENCH B AHMEDABAD BEFORE SHRI T.K. SHARMA, JUDICIAL MEMBER AND SHRI A.K.GARODIA, ACCOUNTANT MEMBER ITA NO.1375/AHD/2010 ASSESSMENT YEAR:2004-05 DATE OF HEARING:29.4.11 DRAFTED:.29.4.11 ASSTT. COMMISSIONER OF INCOME-TAX, CIRCLE-5, 5 TH FLOOR, AAYAKAR BHAVAN, RACE COURSE CIRCLE, BARODA-390007 V/S. M/S. STAR ELECTROMECH INDUSTRIES, 853, GIDC ESTATE, WAGHODIA, BARODA PAN NO.AAJFS6207L (APPELLANT) .. (RESPONDENT) APPELLANT BY :- SHRI R.K. DHANESTA, SR-DR RESPONDENT BY:- NONE (A/D ON RECORD) O R D E R PER T.K. SHARMA, JUDICIAL MEMBER:- THIS APPEAL BY THE REVENUE IS AGAINST THE ORDER DAT ED 16-02-2010 OF LD. COMMISSIONER OF INCOME(APPEALS)-V, BARODA FO R ASSESSMENT YEAR 2004-05. 2. THE VARIOUS GROUNDS RAISED IN THIS APPEAL ARE AS UNDER:- 1(I). ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LEARNED CIT(A) ERRED IN DELETING THE DISALLOWAN CE OF INTEREST PAID TO CREDITORS AMOUNTING TO RS.8,25,258/- OUT OF TOTAL DISALLOWANCE OF RS.11,49,644/- IN RESPECT OF PAYMEN T OF RS.7,96,865/- MADE TO NATIONAL LAMINATION AND RS.28 ,393/- PAID TO FIBRO LAMINATIONS. 1(II). THE CIT(A) FAILED TO APPRECIATE THAT THE PAY MENT OF RS.7,96,865/- MADE TO NATIONAL LAMINATION AND RS.28 ,393/- PAID TO FIBRO LAMINATIONS HAVE NOT BEEN MADE BY THE ASSE SSEE BUT BY M/S.PURVAM TRANSFORMERS AND M/S/. DANKE ELECTRICALS LTD. ITA 1375/AHD/2010 A.Y. 2004-05 ACIT CIR-5, BRD V. M/S STAR ELECTROMECH INDS. PAGE 2 RESPECTIVELY, WHO ARE SISTER CONCERNS OF THE ASSESS EE. FURTHER, THERE IS NO PROOF THAT THESE SISTER CONCERNS OF THE ASSESSEE. FURTHER, THERE IS NO PROOF THAT THESE SISTER CONCER NS HAD MADE THESE PAYMENTS ON BEHALF OF THE ASSESSEE. FURTHER, THERE WAS DISCREPANCY BETWEEN THE DATE OF PAYMENT AND THE CHE QUE NUMBER QUOTED IN THE ASSESSEES ACCOUNT REGARDING PAYMENT MADE TO NATIONAL LAMINATION AND THE CHEQUE NUMBER THROUGH W HICH THE PAYMENT IS CLAIMED TO HAVE BEEN MADE THROUGH SISTER CONCERN. HENCE, THE DISALLOWANCE OF RS.8,25,258/- WAS RIGHTL Y MADE BY THE A.O. 3. DESPITE THE SERVICE OF NOTICE THROUGH REGISTERED WITH A/D TODAY NEITHER ANYBODY APPEAR FROM THE SIDE OF ASSESSEE NO R APPLICATION FOR ADJOURNMENT WAS RECEIVED. 4. WE THEREFORE PROCEED THIS APPEAL ON THE BASIS OF SUBMISSION MADE BY LD. SR-DR AND MATERIALS AVAILABLE ON RECORD. 5. AT THE TIME OF HEARING, SHRI R.K.DHANESTA, DR AP PEARED FOR THE REVENUE POINTED OUT THAT EXPLANATION/DOCUMENT SUBMI TTED BEFORE THE LD. CIT(APPEALS) WERE NOT FILED BEFORE THE ASSESSIN G OFFICER AND IN SUPPORT OF THIS LD. DR RELIED ON PARA-4 POINTED OUT TO THE IMPUGNED ORDER. HE FURTHER SUBMITTED THAT LD. CIT(A) ADMITTE D THE FRESH DOCUMENT/EXPLANATION WITHOUT EITHER CALLING THE REM AND REPORT OR CONFRONTING THE SAME TO THE ASSESSING OFFICER. THER EFORE IN THE INTEREST OF JUSTICE IMPUGNED ORDER WE SET ASIDE AND ADDITION MADE BY ASSESSING OFFICER BE RESTORED. 6. HAVING HEARD LD. DR WE HAVE CAREFULLY GONE THROU GH THE ORDER OF AUTHORITIES BELOW. IT IS PERTINENT TO NOTE THAT BEF ORE ASSESSING OFFICER ASSESSEE PROVIDED LEDGER ACCOUNT OF GERARD ELECTRIC INDIA PVT. LTD. FOR DELETING IN PAYMENT FOR MATERIAL PURCHASE BUT THE L EDGER WAS NOT ITA 1375/AHD/2010 A.Y. 2004-05 ACIT CIR-5, BRD V. M/S STAR ELECTROMECH INDS. PAGE 3 CONFRONT BY GERARD ELECTRIC INDIA PVT LTD. NEITHER THERE IS ANY SIGNATURE OF AUTHORIZE SIGNATURE OF GERARD ELECTRIC INDIA PVT . LTD. NOR ANY PAN WAS MENTIONED. REGARDING INTEREST PAID TO NATIONAL LAMI NATION LTD. ASSESSING OFFICER ASKED THE ASSESSEE TO PROVIDE THE COPY OF BANK PASS BOOK OF NATIONAL LAMINATION LTD. RELATED TO RECEIVE OF INTEREST AMOUNT IN ITS BOOK THROUGH ORDER-SHEET ENTRY DATED 17-11-2009 TO BRING IT ON 20-11- 2009. BEFORE THE AO ASSESSEE COULD NOT PRODUCE THE COPY OF BANK PASS BOOK. IN THIS CIRCUMSTANCES, WE ARE CONVINCED THAT BEFORE LD. CIT(A) ASSESSEE HAS FURNISHED FRESH EVIDENCE/EXPLANATION W HICH LD. CIT(A) ACCEPTED WITHOUT CONFRONTING THE SAME TO THE AO. TH US, THERE IS CLEAR VIOLATION OF RULE-46A OF THE INCOME-TAX RULE, 1962. 7. IN VIEW OF THE ABOVE, WE SET ASIDE THE IMPUGNED ORDER OF LD. CIT(A) IN RESPECT OF CONTROVERSY INVOLVED IN THIS A PPEAL AND RESTORE THE SAME TO THE FILE OF AO WITH A DIRECTION THAT ASSESS EE SHALL FURNISH ALL THE DOCUMENT/EXPLANATION WHICH IS FURNISHED BEFORE LD. CIT(A). THE AO WILL EXAMINED THE SAME AND RE-ADJUDICATE TO THE EXTENT S USTAINED BY LD. CIT(A) IN IMPUGNED ORDER AFRESH IN ACCORDANCE WITH LAW AFTER PROVIDING REASONABLE OPPORTUNITY OF BEING HEARD TO ASSESSEE. 8. IN THE RESULT FOR THE STATISTICAL PURPOSES THE APP EAL OF REVENUE IS ALLOWED. ORDER PRONOUNCED IN OPEN COURT ON 29/04/2011 SD/- SD/- (A.K.GARODIA) (T.K. SHARMA) (ACCOUNTANT MEMBER) (JUDICIAL MEMBER) AHMEDABAD, DATED : 29/04/2011 *DKP COPY OF THE ORDER FORWARDED TO :- ITA 1375/AHD/2010 A.Y. 2004-05 ACIT CIR-5, BRD V. M/S STAR ELECTROMECH INDS. PAGE 4 1. THE APPELLANT. 2. THE RESPONDENT. 3. THE CIT(APPEALS)-V, BARODA 4. THE CIT CONCERNS. 5. THE DR, ITAT, AHMEDABAD 6. GUARD FILE. BY ORDER, /TRUE COPY/ DEPUTY / ASSTT.REGISTRAR ITAT, AHMEDABAD