Appeal details
Counselvise Citation
[2019] 116 COUNSELVISE.COM (IT) 9846 (ITAT-AHMEDABAD)
Assessee PAN
Bench
Appeal Number
Duration Of Justice
3 year(s) 3 month(s) 16 day(s)
Appellant
Respondent
Appeal Type
Income Tax Appeal
Pronouncement Date
07-05-2019
Appeal Filed By
Assessee
Order Result
Partly Allowed
Bench Allotted
Not Allotted
Assessment Year
2012-2013
Appeal Filed On
21-01-2016
Judgement Text
IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD C BENCH (BEFORE SHRI MAHAVIR PRASAD, JUDICIAL MEMBER & SHRI WASEEM AHMED, ACCOUNTANT MEMBER) ITA. NO: 155/AHD/2016 (ASSESSMENT YEAR: 2012-13) M/S. UNIVERSAL MEDICAP LTD., VILLALGE RANIA, TAL. SAVLI, VADODARA-391780 V/S ASSTT. COMMISSIONER OF INCOME TAX CIRCLE-2(1)(1), BARODA (APPELLANT) (RESPONDENT) PAN: AAACU2331D APPELLANT BY : SHRI NIMIT MEHTA, AR RESPONDENT BY : SHRI LALIT P. JAIN, SR. D.R. ( )/ ORDER DATE OF HEARING : 05 -03-201 9 DATE OF PRONOUNCEMENT : 07-05-2019 PER MAHAVIR PRASAD, JUDICIAL MEMBER 1. THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAIN ST THE ORDER OF THE LD. CIT(A)-2, VADODARA DATED 13.11.2015 PERTAINING TO A .Y. 2012-13 AND FOLLOWING GROUNDS HAVE BEEN TAKEN: ITA NO. 155/ AHD/2016 . A.Y. 2012-1 3 2 1.THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS)- 2, BARODA [THE 'CIT(A)'] ERRED IN FACT AND IN LAW IN CONFIRMING THE ACTION O F THE ASSISTANT COMMISSIONER OF INCOME TAX CIRCLE-2(L)(L), BARODA ['THE AO'] IN MAKI NG DISALLOWANCE OF RS. 37,712 U/S 14A OF THE INCOME TAX ACT, 1961 ('THE ACT'). 2. THE ID. CIT(A) ERRED IN FACT AND IN LAW IN RESTR ICTING THE CLAIM OF DEPRECIATION ON PLANT AND MACHINERY TO 50% OF THE ELIGIBLE DEPRECIA TION AND THUS MAKING A DISALLOWANCE OF RS. 56,70,020, ON THE GROUNDS THAT PLANT AND MACHINERY HAS BEEN PUT TO USE FOR LESS THAN 180 DAYS. 3.THE ID. CIT(A) HAS ERRED IN FACT AND IN LAW IN LE VYING INTEREST U/S 234B. 4.THE ID. CIT(A) HAS ERRED IN FACT AND IN LAW IN LE VYING INTEREST U/S 234C. 5.THE ID. CIT(A) HAS ERRED IN FACT AND IN LAW IN NO T ADJUDICATING THE INITIATION OF PENALTY PROCEEDINGS U/S 271(L)(C). 2. FACTS OF THE CASE ARE EMANATED FROM THE ASSESSMENT ORDER: 4.2 DISALLOWANCES U/S 14A R.W. RULE 8D : DURING THE YEAR UNDER CONSIDERATION, THE ASSESSEE H AS EARNED DIVIDEND OF RS.92,687/-. IN THE COMPUTATION OF INCOME, THE ASSE SSEE HAS CLAIMED IT AS EXEMPT DIVIDEND INCOME U/S.IO(34) OF THE ACT. HOWEV ER, IT IS SEEN THAT THE ASSESSEE HAS NOT MADE DISALLOWANCE U/S. 14A AS PRES CRIBED IN. RULE 8D OF THE I T RULES, 1962. DURING THE COURSE OF ASSESSMENT PROC EEDINGS, THE ASSESSEE WAS REQUESTED TO STATE AS TO WHY THE DISALLOWANCE U/S 1 4A READ WITH RULE 8D SHOULD NOT BE MADE. IN ITS REFERENCE, VIDE LETTER DATED 30 .10.2014 THE ASSESSEE HAS SUBMITTED AS UNDER : 'WE HAVE INVESTED RS. 1,50,00,000/- IN SBI DEBT FUN D AND SBI MAGNUM INSTA CASH FUND. MUTUAL FUND ON 18.1.2011 RS. 50 LAKHS AND RS.L,00,00,000/- ON 10.3.2011 FOR GO DAYS. WHEN WE HAVE INVESTED IN MUT UAL FUND THERE WAS CREDIT BALANCE IN OUR BANK AND WE WERE NOT UTILIZING CASH CREDIT LIMIT. FOR YOUR PERUSAL AND VERIFICATION OF COPY OF BANK STATEMENTS ARE ENC LOSED. SINCE EXCESS FUND AVAILABLE TO US, WE HAVE TEMPORARILY INVESTED IN MU TUAL FUND. ' 4.2.2: THE REPLY OF THE ASSESSEE HAS BEEN DULY CONS IDERED. IN THIS CASE, THE ASSESSEE IS IN RECEIPT OF INCOME WHICH HAS BEEN CLA IMED AS EXEMPT OUT OF THE MUTUAL FUND INVESTMENT. FURTHER THE ASSESSEE COMPAN Y IS NOT IN THE BUSINESS OF INVESTMENT, THEREFORE THERE CERTAINLY IS SOME EXPEN DITURE ATTRIBUTABLE TO EARNING THE EXEMPT INCOME. THE ONUS IS ON THE ASSESSEE TO P ROVE THAT THERE WAS NO EXPENDITURE INCURRED FOR EARNING THE EXEMPT INCOME. CONSEQUENT UPON THE ITA NO. 155/ AHD/2016 . A.Y. 2012-1 3 3 INSERTION OF SUB-SECTION (2) TO SECTION 14A, THE DI SPUTES WHICH HAD ARISEN BETWEEN TAXPAYERS AND THE REVENUE ON THE METHOD OF DETERMINING THE EXPENDITURE TO BE DISALLOWED HAVE BEEN GIVEN A QUIE T US BY ADOPTING A UNIFORM METHOD OF DETERMINATION. HOWEVER, THE ASSESSEE HAS NOT WORKED OUT THE DISALLOWANCE AS PRESCRIBED IN RULE 8D OF THE INCOME -TAX RULES, 1962. 4.2.3: IT IS FURTHER SEEN THAT ASSESSEE HAD MADE TH E INVESTMENTS IN EARLIER YEAR I.E. F.Y. 2010-11, WHICH WERE REDEEMED 'DURING THE YEAR UNDER CONSIDERATION. IN SUPPORT OF IMMEDIATE SOURCE OF INVESTMENT, THE ASSE SSEE HAS FURNISHED COPY OF BANK STATEMENT FOR RELEVANT PERIOD, WHICH INDICATES THAT ASSESSEE HAD INVESTED IN MUTUAL FUND OUT OF ITS OWN FUNDS I.E. ON THE DAY OF INVESTMENT IN THE MUTUAL FUND, THE ASSESSEE COMPANY HAD CREDIT BALANCE IN ITS BANK ACCOUNT. THE INTENTION OF LEGISLATURE IS THAT THE EXPENSES WHICH ARE INCURRED DIRECTLY OR INDIRECTLY TO THE INCOME WHICH IS NOT INCLUDIBLE TO THE 1 INCOME HAVE TO BE DISALLOWED. THE SCHEME OF SECTION 14 A ENVISAGE THAT WHEN SUCH EXPE NSES RELATED TO EXEMPT INCOME CANNOT BE QUANTIFIED INCURRED ON ADMINISTR ATIVE SUCH AS SALARY, BANK CHARGES, OFFICE EXPENDITURE & ANCILLARY EXPENSES GROUPED UNDER SUCH ADMINISTRATIVE COST SHALL BE QUANTIFIED BY WAY OF F ORMULA LAID DOWN UNDER RULE 8D OF I. T. RULES 1962. HENCE, THE REPLY OF THE ASSESS EE IS NOT ACCEPTABLE IN VIEW OF THE METHOD LAID DOWN VIDE RULE 8D OF L.T. RULES 196 2. I) THE AMOUNT OF EXPENDITURE DIRECTLY RELATI NG TO INCOME WHICH DOES NOT FORM PART OF TOTAL INCOME; II) IN CASE WHERE THE ASSESSEE HAS INCURRED EXPENDI TURE BY WAY OF INTEREST DURING THE PREVIOUS YEAR WHICH IS NOT DIRECTLY ATTRIBUTABL E TO ANY PARTICULAR INCOME OR RECEIPT, AN AMOUNT COMPUTED IN ACCORDANCE WITH THE FOLLOWING FORMULA, NAMELY:- AXB A - AMOUNT OF EXPENDITURE BY WAY OF INTEREST OT HER THAN THE AMOUNT OF INTEREST INCLUDED IN CLAUSE INCURRED DURING THE PREVIOUS YE AR, B - THE AVERAGE OF VALUE OF INVESTMENT, INCOME F ROM WHICH DOES NOT OR SHALL NOT FORM PART OF THE TOTAL, INCOME, AS APPEARING IN THE BALANCE SHEET OF THE ASSESSEE, OIL THE FIRST DAY AND THE LAST DAY OF THE PREVIOUS YEAR; C - THE AVERAGE OF TOTAL ASSETS AS APPEARING IN THE BALANCE SHEET OF THE ASSESSEE, ON THE FIRST DAY AND THE LAST DAY OF THE PREVIOUS YEAR; III) AN AMOUNT EQUAL TO ONE HALF PER CENT OF THE AVERAGE OF THE VALUE OF INVESTMENT, INCOME FROM WHICH DOES NOT OR SHALL NOT FORM PART OF THE TOTAL ITA NO. 155/ AHD/2016 . A.Y. 2012-1 3 4 INCOME, AS APPEARING IN THE BALANCE SHEET OF THE AS SESSEE, ON THE FIRST DAY AND THE LAST DAY OF THE PREVIOUS YEAR. NIL = RS.NIL NIL = RS.NIL [ 75,000/- + 1,50,10,000/- 1 X 0.50% = RS. 37,712/- 2 TOTAL = RS.37,712/- THEREFORE AN AMOUNT OF RS.37,712/- IS DISALLOWED U/ S 14A READ WITH RULE 8D AND ADDED TO THE TOTAL INCOME OF THE ASSESSEE. 4.3: DEPRECIATION ON COBALT 60 SOURCE; DURING THE YEAR UNDER CONSIDERATION ASSESSEE COMPAN Y HAS MADE ADDITION TO COBALT 60 SOURCE; WHICH IS USED FOR THE IRRADIATION PROCESS AND CLAIMED DEPRECIATION ON THE SAME @8O%. FROM THE DETAILS FUR NISHED DURING THE COURSE OF ASSESSMENT PROCEEDINGS, IT WAS SEEN THAT THE ADDITI ON TO COBALT 60 SOURCE WAS MADE ON 26TH & 27* SEPTEMBER, 2011. THEREFORE THE A SSESSEE WAS ASKED TO FURNISH EVIDENCE IN RESPECT OF THE COBALT 60 SOURCE SO ADDED, BEING PUT TO USE. 4.3.2:- IN SUPPORT OF THE SAME, ASSESSEE FURNISHED COPY OF LETTER DATED 07/10.10.2011 FROM HEAD, RDS (RADIOLOGICAL SAFETY D IVISION) OF ATOMIC ENERGY REGULATORY BOARD. ON PERUSAL OF THE SAID LETTER, IT IS GATHERED THAT COBALT 60 SOURCE REPLENISHMENT OPERATIONS WERE CARRIED OUT ON 26TH & 27TH SEPTEMBER, 2011 AT THE ASSESSEE PREMISES AT UNIVERSAL, ISO-MED GAMMA RADIATION PROCESSING FACILITY(GRPF) AT DASHRATH VADODARA, GUJ ARAT. THE LETTER FURTHER STATED AS UNDER: 'IN VIEW OF THE SAFE COBALT 60 SOURCE LOADING OPERA TIONS, RADIATION PROTECTION SURVEY OF THE FACILITY AND ACCEPTABLE RESULTS OF THE PLANT RE -COMMISSIONING DOSIMETRY AFTER AUGMENTATION OF THE COBALT 60 SOURCE ACTIVITY BY AD DITIONAL 7.4 PBQ (-2OO.OKCI) AND NOW THE TOTAL ACTIVITY OF 29.34PBQ (~79'953 KD AS ON 21.9,2011),, DISTRIBUTED IN 82 INTEGRATED SOURCE UNITS (ISU), M/S. UNIVERSAL MEDICAL LTD., DASHRATH, VDODARA, GUJARAT IS HEREBY PERMITTED TO RESUME THE ROUTINE OPERATION OF GRPF FOR STERILIZATION OF HEALTH CARE PRODUCTS SUBJECT T O COMPLIANCE WITH CONDITIONS ITA NO. 155/ AHD/2016 . A.Y. 2012-1 3 5 STIPULATED IN THE REGULATORY CONSENT NO. AERB/RSD/L ICENSE/R2/UIM/2009/4092 DATED 06,04.2009.' 4.3.3: IN VIEW OF THE ABOVE FACTS, THE AUTHORIZED R EPRESENTATIVE OF THE ASSESSEE COMPANY VIDE ORDER SHEET NOTING DATED 11.11.2014 WA S ASKED TO EXPLAIN WHY DEPRECIATION ON COBALT 60 SOURCE SHOULD NOT BE REST RICTED TO @ 40% AS THE SAME IS PUT TO USE FOR LESS THAN 180 DAYS DURING THE YEA R UNDER CONSIDERATION? 4.3.4: THE ASSESSEE VIDE LETTER DATED 20.11.2014 SU BMITTED AS UNDER: THE 200 KCI COBALT 60 SOURCES WAS LOADED ON 26TH & 27TH SEPTEMBER, 2011 IN THE SOURCE A/C OF UML FACILITY. THE LOADING OPER ATION WAS- CARRIED OUT BY SHRI PRAVIN KUMAR, MANAGER, IS, SS&L, BRIT AND SHRI M.K. ERANDE, SA/F, IS, SS&L, BRIT. AFTER SOURCE LOADING FRAME WAS RAISED AND LOW ERED 5 (FIVE) TIMES AND IT WAS FOUND TO BE WORKING SATISFACTORILY AND THE PLAN T WAS HANDED OVER FOR FURTHER WORK TO DIRECTOR UML AND RSO, UML, THIS IS AS PER R EPORT GIVEN BY OFFER, BRIT AND COPY OF THE SAME ALREADY SUBMITTED TO YOUR GOOD OFFICE. SINCE TECHNICIANS OF BRIT HAS RAISED AND LOWERED SOURCE FIVE(S) TIMES ON 27TH SEPT. 2011 THIS CONFIRM THAT THE SOURCE WAS PUT TO USE ON 27TH SEPTEMBER SO IL. WE HAVE ALSO RECEIVED LETTER FROM HEAD, RSD, ATOMIC ENERGY REGULATORY BOA RD DATED 7/LOTH OCTOBER, SOIL STATING THAT REPLENISHMENT OPERATION CARRIED O UT ON 26TH & 27TH SEPT. 2011 AND INTEGRATED SOURCE UNITS (ISU) OF UML IS HEREBY PERMITTED TO RESUME THE ROUTINE OPERATION. IT IS NORMAL PROCEDURE THAT BRIT OFFICERS/TECHNICAL LOADED THE SOURCE GIVE US LOADING REPORT ON THE SPOT AND SEND LETTER AFTER THEY REACH AT THEIR OFFICE, WE HAVE STARTED THE OPERATION AND ALSO RAIS E; INVOICES FOR IRRADIATION SERVICES FOR RS, 1,64,263.75 EXCLUDING SERVICE TAX BETWEEN 28TH SEPT. TO 30TH SEPT. SOIL. COPY OF INVOICES ARE ENCLOSED.' 4.3.5: THE SUBMISSION MADE BY THE ASSESSEE HAS BEEN PERUSED. IT IS GATHERED FROM THE DETAILS FURNISHED DURING THE COURSE OF ASS ESSMENT PROCEEDINGS THAT COBALT 60 SOURCE IS USED FOR GAMMA IRRADIATION CARR IED OUT BY THE ASSESSEE. A PROCEDURE IS REQUIRED TO BE FOLLOWED FOR SECURITY R EASONS FOR REPLENISHING THE SOURCE, AND AS SUCH NECESSARY CLEARANCE IS REQUIRED TO BE OBTAINED BY AERB (ATOMIC ENERGY REGULATORY BOARD). FURTHER THE PROCE DURE OF REPLENISHMENT OF SOURCE IS REQUIRED TO BE DONE UNDER THE SUPERVISION OF BRIT OFFICERS/TECHNICIANS AS WELL AS RSO (RADIATION SAFETY OFFICER) OF THE AS SESSEE COMPANY. 4.3.6: THE ASSESSEE HAS FURNISHED COPY OF REPORT FOR LOADING OF COBALT-60. FACTS EMERGED FROM THE SAID REPORT ARE AS UNDER: ITA NO. 155/ AHD/2016 . A.Y. 2012-1 3 6 (I) 2 FLASKS CONTAINING 10 NUMBER OF SOURCE PENCILS WERE UNLOADED ON 26.9.2011. (II) 2 PERSONS FROM BRIT WERE INVOLVED IN THE LOADI NG OPERATION. (III) EACH BLC-100 FLASK WAS LOWERED INTO THE WATER POOL BY USING ELECTRIC HOIST ON 26.09.2011. (IV) FOR LOWERING THE FLASKS, ALL BOLTS, COVER PLAT ES AND VENT PLUG WERE REMOVED FROM THE FLASKS. (V) SOURCE CAGE CONTAINING SOURCE PENCILS WAS REMOV ED FROM EACH FLASK AND KEPT ON BOTTOM OF WATER POOL. (VI) ALL THE EXISTING PENCILS WERE RESHUFFLED AND 1 0 NUMBER OF NEWLY FABRICATED PENCILS WERE LOADED IN THE RACKS. (VII) AFTER SOURCE LOADING, SOURCE FRAME WAS RAISED AND LOWERED 5 TIMES. (VIII) NECESSARY CLEARANCE FROM AERB WAS OBTAINED B Y THE ASSESSEE FOR REPLENISHING THE SOURCE. 4.3.7: FROM THE ABOVE FACTS IT CAN BE OBSERV ED THAT THE PROCEDURE FOR REPLENISHING THE SOURCE IS HIGHLY TECHNICAL IN NATU RE AND IS REQUIRED TO BE CARRIED OUT PROPERLY FOR THE SAFETY REASONS AS IT CONCERNS THE EXPOSURE TO RADIATION OF ALL THE ITEMS/PERSONS INVOLVED INTO THIS PROCEDURE AND AS SUCH IT IS CARRIED OUT UNDER WATER UNDER THE TECHNICAL SUPERVISION. FURTHER REPO RT SUGGESTS THAT FLASKS & SOURCE CAGE ARE ARE LOWERED AFTER REMOVING ALL THE BOLTS,- PLATES & VENTS AND THE PENCILS ARE RESHUFFLED. OBVIOUSLY AFTER REPLENISHIN G THE SOURCE SUCCESSFULLY, THE SOURCE CAGE & FLASKS ARE REQUIRED TO RE-FIXED. THIS LEADS TO THE CONCLUSION THAT THE ENTIRE PROCESS OF REPLENISHING THE SOURCE IS TI ME CONSUMING. FURTHER THE SOURCE FRAME NEEDS TO BE CHECKED WHETHER THE LOADIN G HAS BEEN DONE CORRECTLY AND AS SUCH THE FRAME IS RAISED AND LOWERED NUMBER OF TIMES; TO BE PRECISE, 5 TIMES AS THE REPORT SUGGESTS. EVEN AFTER LOADING TH E SOURCE SUCCESSFULLY, THE TECHNICAL TEAM NEEDS TO CHECK WHETHER THE SOURCE/ P LANT IS READY FOR RESUMING ITS COMMERCIAL PRODUCTIONS. THE COPY OF LOADING REPORT SUBMITTED BY THE ASSESSEE, THOUGH SIGNED BY THE TECHNICIANS OF BRIT, IS UNDATE D. AND HENCE IT IS NOT KNOWN WHEN THE PLANT WAS HANDED OVER TO THE ASSESSEE FOR RESUMING THE OPERATIONS. THE REPORT ALSO SUGGESTS THAT THERE IS REQUIREMENT OF A CLEARANCE FROM AERB WHICH IS THE REGULATORY BOARD, FOR REPLENISHING THE SOURCE; WHICH HAS BEEN DULY OBTAINED BY THE ASSESSEE. AT THE SAME TIME, AERB AL SO REQUIRES TO CERTIFY THE RESUMPTION OF IRRADIATION PROCESS AFTER REPLENISHME NT OF THE SOURCE. FURTHER AERB HAS ALLOWED THE ASSESSEE TO RESUME THE ROUTINE OPERATION OF GRPF OF THE ITA NO. 155/ AHD/2016 . A.Y. 2012-1 3 7 ASSESSEE VIDE LETTER DATED 07/10.10.2011. THEREFORE UNLESS THE REGULATORY BOARD ALLOWS THE ASSESSEE TO RESUME THE OPERATION, THE AS SESSEE CAN NOT USE THE PLANT FOR ITS COMMERCIAL PRODUCTION. AND IF ASSESSEE HAS RESUMED THE OPERATIONS BEFORE RECEIVING THE CONSENT OF THE REGULATORY BOAR D, IT HAS PROBABLY DEFIED THE CONDITIONS STIPULATED IN THE REGULATORY CONSENT. 4.3.8: THE ASSESSEE COMPANY; IT IN ITS REPLY HAS ST ATED THAT THEY HAD ALREADY STARTED THE OPERATION AND ALSO RAISED INVOICES FOR IRRADIATION SERVICES BETWEEN 28TH SEPT. 2011 TO 30.9.2011. HOWEVER ASSESSEE COMP ANY HAS FAILED TO ESTABLISH THAT THE IRRADIATION SERVICES INDICATED I N THE INVOICES RAISED BETWEEN 28TH TO 30* SEPT. 2011 WERE CARRIED OUT OF THE COBA LT 60 SOURCE REPLENISHED ON 26TH/27TH SEPT. 2011. MOREOVER THE ASSESSEE COMPANY WAS ALLOWED TO RESUME THE ROUTINE -OPERATION OF GRPF ONLY AFTER O7/1Q.10. 2011 AS PER THE LETTER FROM ATOMIC ENERGY REGULATORY BOARD AND AS SUCH THE REPL ENISHED SOURCE HAS BEEN USED FOR COMMERCIAL PRODUCTION/ACTIVITIES OF THE AS SESSEE ONLY AFTER 07/10.10.2011. 4-3-9: IN VIEW OF THE ABOVE FACTS AND DISCUSSIONS, IT IS HELD THAT THE COBALT 60 SOURCE REPLENISHED DURING THE YEAR HAS BEEN USED FO R LESS THAN 180 DAYS AND AS SUCH DEPRECIATION ON THE SAME NEEDS TO BE .RESTRICT ED @5O% OF THE APPLICABLE RATE. THE ASSESSEE COMPANY HAS CLAIMED DEPRECIATION @ 80% AMOUNTING TO RS. 1,13,40,042/- ON THE ADDITION OF COBALT 60 SOURCE O F RS. 1,41,75,0527- DURING THE YEAR UNDER CONSIDERATION. SINCE THE COBALT 60 SOURC E SO ADDED HAS BEEN PUT TO USE FOR LESS THAN 180 DAYS, THE DEPRECIATION IS RES TRICTED TO 50% OF THE APPLICABLE RATE. THIS WORKS OUT TO RS.56,70,020/-. THEREFORE A N AMOUNT OF RS. 56,70,020/- IS ADDED TO THE TOTAL INCOME ON ACCOUNT OF EXCESS DEPR ECIATION CLAIMED BY THE ASSESSEE 3. AGAINST THE DISALLOWANCE U/S. 14A OF RS. 37,712/- A ND DISALLOWANCE OF DEPRECIATION OF RS. 56,70,020/-, ASSESSEE PREFERRED FIRST STATUTORY APPEAL BEFORE THE LD. CIT(A) WHO PARTLY ALLOWED THE APPEAL OF THE ASSESSEE. 4. WE HAVE GONE THROUGH THE RELEVANT RECORD AND IMPUGN ED ORDER. ASSESSEE IS IN THE BUSINESS OF MANUFACTURING OF PHARMACEUTICALS RU BBER CLOSURES & ITA NO. 155/ AHD/2016 . A.Y. 2012-1 3 8 PROVIDING SERVICE OF GAMMA IRRADIATION ETC. HAVING INVESTED RS. 1,50,00,000/- IN SBI DEBT FUND AND SBI MAGNUM INSTA CASH FUND (MU TUAL FUND) ON 18.01.2011 AND EARNED DIVIDEND INCOME ON THE SAID I NVESTMENT. ASSESSEE ALSO MADE INVESTMENT IN EARLIER FINANCIAL YEAR I.E. 2010 -11, WHICH WERE REDEEMED DURING THE YEAR UNDER CONSIDERATION. 5. IN SUPPORT OF ITS CONTENTION FOR SOURCE OF INVESTME NT, ASSESSEE FURNISHED COPY OF BANK STATEMENT FOR RELEVANT PERIOD, WHICH INDICA TES THAT ASSESSEE HAD INVESTED IN MUTUAL FUND OUT OF ITS OWN FUNDS I.E. O N THE DAY OF INVESTMENT IN THE MUTUAL FUND, ASSESSEE COMPANY HAD CREDIT BALANC E IN ITS BANK ACCOUNT. AS PER RULE 8D, REVENUE AUTHORITIES ARE DUTY BOUND TO CHARGE AN AMOUNT EQUIVALENT TO HALF PERCENT OF THE AVERAGE VALUE OF THE INVESTMENT IN RELATION TO INCOME WHICH DOES NOT FORM PART OF THE TOTAL INCOME UNDER THE ACT FOR SUCH PREVIOUS YEAR. WE DO NOT FIND ANY AMBIGUITY IN THE ORDER PASSED BY THE LOWER AUTHORITIES. THEREFORE, WE DISMISS THIS GROUND OF A PPEAL. 6. NOW WITH REGARD TO GROUND NO. 2, LD. A.R. CONTENTIO N IS THAT HE FILED CERTAIN DOCUMENTS WHICH WERE ISSUED BY THE DEPARTMENT OF AT OMIC ENERGY, GOVERNMENT OF INDIA AND SAME ARE PART OF PAPER BOOK AND OTHER DOCUMENTS WERE NOT CONSIDERED BY THE LD. CIT(A) WHILE DECIDIN G THE MATTER. 7. IN THE INTEREST OF JUSTICE, WE THINK IT PROPER TO S ET ASIDE THE MATTER BACK TO THE FILE OF THE LD. CIT(A) WHO WILL EXAMINE ALL THE DOC UMENTS AND EVIDENCE WHICH ARE TO BE FILED BEFORE THE LD. CIT(A). THEREAFTER, LD. CIT(A) WILL DECIDE A MATTER AS PER PROVISION OF LAW. ITA NO. 155/ AHD/2016 . A.Y. 2012-1 3 9 8. IN THE RESULT, APPEAL FILED BY THE ASSESSEE IS PART LY ALLOWED. ORDER PRONOUNCED IN OPEN COURT ON 07 - 05- 2019 SD/- SD/- (WASEEM AHMED) (MAHAVIR PRASAD) ACCOUNTANT MEMBER TRUE COPY JUDICIAL MEMBER AHMEDABAD: DATED 07/05/2019 RAJESH COPY OF THE ORDER FORWARDED TO: - 1. THE APPELLANT. 2. THE RESPONDENT. 3. THE CIT (APPEALS) 4. THE CIT CONCERNED. 5. THE DR., ITAT, AHMEDABAD. 6. GUARD FILE. BY ORDER DEPUTY/ASSTT.REGISTRAR ITAT,AHME DABAD
