The ACIT- 1(2), Bhopal V. Shri Sandeep Maheshwari, Bhopal

ITA 178/IND/2013

• Counselvise Citation: [2013] 120 COUNSELVISE.COM (IT) 2994 (ITAT-INDORE)
• Duration Of Justice: 3 month(s) 25 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-07-2013
• Appeal Filed By: Department
• Order Result: Partly Allowed
• Bench Allotted: DB
• Assessment Year: 1997-1998
• Appeal Filed On: 04-04-2013
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: R A VERMA
• Assessee Lawyers: S S DESH
• Keywords: Income from undisclosed sources; Opportunity of being heard; Retrospective amendment
• Section: 14A

Judgement Text

1 INCOME TAX APPELLATE TRIBUNAL INDORE BENCH, INDORE BEFORE SHRI JOGINDER SINGH, JUDICIAL MEMBER AND SHRI R.C. SHARMA, ACCOUNTANT MEMBER ITA NO.178/IND/2013 A.Y. 1997-98 ACIT-1(2), BHOPAL :: APPELLANT VS SANDEEP MAHESHWARI, BHOPAL PAN AAYPM 3483 D :: RESPONDENT REVENUE BY S HRI R.A. VERMA ASSESSEE BY SHRI S.S. DESHPANDE DATE OF HEARING 29 . 7 .2013 DATE OF PRONOUNCEMENT 29 . 7 .2013 O R D E R PER JOGINDER SINGH, JUDICIAL MEMBER THE REVENUE IS AGGRIEVED BY THE IMPUGNED ORDER DATED 29.1.2013 OF THE LD. CIT(A), RAIPUR, CAMP AT BHOPAL. 2 2. DURING HEARING, WE HAVE HEARD SHRI R.A. VERMA, LD. SR. DR AND SHRI S.S. DESHPANDE, LEARNED COUNSEL FOR TH E ASSESSEE. THE FIRST GROUND RAISED BY THE REVENUE PERT AINS TO DELETING THE ADDITION OF RS.18 LACS MADE ON ACCOUNT OF CHARGEABILITY OF PERQUISITES U/S 17(2) OF THE ACT. THE CRUX OF THE ARGUMENTS ON BEHALF OF THE REVENUE IS IN SUPPORT OF THE ASSESSMENT ORDER WHEREAS THE LEARNED COUNSEL FOR THE ASSESSEE DEFENDED THE IMPUGNED ORDER. 2.1 THE FACTS, IN BRIEF, ARE THAT THE ASSESSING OFFICE R MADE ADDITION OF RS.18 LACS U/S 17(2) OF THE ACT ON ACCOUNT OF TDS ON SALARY INITIALLY PAID BY THE EMPLOYER WHICH WAS LATER ON RECOVERED FROM THE ASSESSEE. ON APPEAL, THE L D. CIT(A) DELETED THE ADDITION, AGAINST WHICH, THE REVENU E IS IN APPEAL BEFORE THIS TRIBUNAL. BEFORE US, THE CLAIM OF THE ASSESSEE IS THAT THE IMPUGNED ISSUE IS COVERED BY THE DECISION OF THE TRIBUNAL. THIS FACTUAL MATRIX WAS NOT CONTROVERTED BY THE REVENUE EXCEPT BY SAYING THAT TH E 3 DEPARTMENT HAS GONE IN APPEAL BEFORE THE HON'BLE HIGH COURT. HOWEVER, NO SUCH DECISION, AGAINST THE DECISIO N OF THE TRIBUNAL, WAS BROUGHT TO OUR NOTICE. MERE FILING OF APPEAL BEFORE THE HON'BLE HIGH COURT AUTOMATICALLY DOES NOT LEAD TO THE CONCLUSION THAT THE RELIEF GRANTED TO THE ASSESSEE WAS CONTRARY TO THE FACTS. IN THE ORDER OF THE TRIBUNAL (ITA NO.480, 385/IND/2005 AND ITA NO.334/IND/2007), THE ENTIRE EXCESS SALARY PAID INCLUD ING TDS THEREON, HAVING ACTUALLY BEEN REFUNDED TO THE EMPLOYER, CONSEQUENTLY, NO PERQUISITE ACCRUED TO THE ASSESSEE, WHICH CAN BE TAXED U/S 17(2) OF THE I.T. AC T. THEREFORE, WE FIND NO MERIT IN THE GROUND NO.1 OF T HE APPEAL OF THE REVENUE. 3. THE SECOND GROUND PERTAINS TO DELETING THE ADDITIO N OF RS.3,29,536/- MADE ON ACCOUNT OF DISALLOWANCE OF INTER EST EXPENSES. THE CRUX OF ARGUMENTS ON BEHALF OF THE REVE NUE IS IN SUPPORT TO THE ASSESSMENT ORDER WHEREAS THE LEAR NED 4 COUNSEL FOR THE ASSESSEE DEFENDED THE IMPUGNED ORDER . THE LD. SR. DR CONTENDED THAT THIS ISSUE WAS RESTORED TO THE FILE OF THE ASSESSING OFFICER WHEREAS THE LEARNED COUNSEL FOR THE ASSESSEE PLACED RELIANCE UPON THE DECISION FROM HONBLE DELHI HIGH COURT IN CIT VS. KRIBHCO (2012) 252 CTR (DEL) 374. SINCE THE TRIBUNAL REMANDED THE ISSUE BACK TO THE FILE OF THE LD. ASSESSING OFFICER WITH A DIRE CTION TO DECIDE THE ISSUE BY KEEPING IN MIND THE PROVISIONS OF SEC. 14A INTRODUCED WITH RETROSPECTIVE EFFECT FROM 1.4.2 006, THEREFORE, THIS ISSUE IS ALSO REMANDED BACK TO THE FI LE OF THE LD. ASSESSING OFFICER. THE AFORESAID DECISION FROM HO NBLE DELHI HIGH COURT MAY ALSO BE CONSIDERED. THE ASSESSEE BE PROVIDED DUE OPPORTUNITY OF BEING HEARD. THIS GROUND IS ALLOWED FOR STATISTICAL PURPOSES. 4. THE LAST GROUND IS WITH RESPECT TO DELETING THE AD DITION OF RS.93,55,000/- ON ACCOUNT OF INCOME FROM OTHER SO URCES RECEIVED AS LEASE RENT. THIS GROUND WAS CLAIMED TO BE 5 COVERED BY THE AFORESAID ORDER OF THE TRIBUNAL. THIS FACTUAL MATRIX WAS NOT CONTROVERTED BY THE REVENUE. 4.1 WE FIND THAT THE IMPUGNED AMOUNT WAS TREATED AS INCOME FROM UNDISCLOSED SOURCES BY THE ASSESSING OF FICER WHICH WAS RECEIVED ON ACCOUNT OF LEASE RENT. THE LD. CIT(A) DELETED THE ADDITION, WHICH IS UNDER CHALLENGE BEFORE THIS TRIBUNAL. WE NOTE THAT VIDE PARA 23 OF THE AFORESAID OR DER OF THE TRIBUNAL DATED 28.2.2011 AND ALSO THE DECISION I N THE CASE OF ASSOCIATE CONCERN OF THE ASSESSEE I.E. M/S. ENBEE FINLEASE LTD. (ITA NO.389/IND/2005 AND ITA NO.387/IND/2005 ETC. ORDER DATED 30.11.2010), THE RELEVANT PORTION OF WHICH IS AVAILABLE AT PAGE 24 & 25 OF THE AFORESAID ORDER DATED 28.2.2011, WE DIRECT THE ASSESSI NG OFFICER TO FOLLOW THE DIRECTIONS AS MENTIONED IN THE AFORESAID ORDER. THEREFORE, THIS GROUND OF THE REVENU E IS ALSO HAVING NO MERIT. 6 FINALLY, THE APPEAL OF THE REVENUE IS PARTLY ALLOWED FOR STATISTICAL PURPOSES. THIS ORDER WAS PRONOUNCED IN THE PRESENCE OF LD. REPRESENTATIVES OF BOTH SIDES IN THE OPEN COURT AT TH E CONCLUSION OF HEARING ON 29.7.2013. SD SD (R.C.SHARMA) (JOGINDER S INGH) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 29.7.2013 COPY TO: APPELLANT, RESPONDENT, CIT, CIT(A), DR, GU ARD FILE !VYAS!