Shri Rakesh Kantilal Mehra, Ahmedabad V. The Dy.CIT.,Valsad Circle, Valsad

ITA 183/AHD/2012

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 0790 (ITAT-AHMEDABAD)
• Duration Of Justice: 4 year(s) 6 month(s) 18 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 11-08-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: D
• Next Hearing Date: 10-08-2016
• Assessment Year: 2008-2009
• Appeal Filed On: 23-01-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH, AHMEDABAD BEFORE SHRI RAJPAL YADAV, JUDICIAL MEMBER AND SHRI MANISH BORAD, ACCOUNTANT MEMBER ./ ITA.NO.183/AHD/2012 / ASSTT. YEAR: 2008-2009 SHRI RAKESH KANTILAL MEHTA 21-22, SHATABDI MARKET STATION ROAD VALSAD 396 001. PAN : ACSPM 1332 P. VS DCIT, VALSAD CIRCLE VALSAD. ! / (APPELLANT) '# ! / (RESPONDENT) ASSESSEE BY : SHRI HARDIK VORA, AR REVENUE BY : SHRI SANJAY KUMAR, SR.DR / DATE OF HEARING : 10/08/2016 / DATE OF PRONOUNCEMENT: 11/08/2016 $%/ O R D E R PER RAJPAL YADAV, JUDICIAL MEMBER ASSESSEE IS IN APPEAL AGAINST THE ORDER OF THE LD.C IT(A), VALSAD DATED 18.10.2011 FOR THE ASTT.YEAR 2008-09. 2. ASSESSEE HAS RAISED TWO SUBSTANTIAL GROUNDS OF A PPEAL, WHEREIN, HE HAS CHALLENGED CONFIRMATION OF ADDITION AMOUNTING TO RS .30,54,701/- WHICH WAS DISALLOWED OUT OF INTEREST EXPENDITURE AND CONFIRMA TION OF ADDITION OF RS.1,23,792/- WHICH WAS DISALLOWED OUT OF CHARGES P AID FOR PREPARATION OF DOCUMENTS FOR ACQUISITION OF RESIDENTIAL PROPERTY. ITA NO.183/AHD/2012 2 3. REGISTRY HAS POINTED OUT THAT THE APPEAL IS TIME BARRED BY 29 DAYS. THE LD.COUNSEL FOR THE ASSESSEE SUBMITTED THAT IN FACT THE APPEAL IS NOT TIME BARRED, BUT IN COLUMN NO.9 OF FORM NO.36 THE ASSESSEE HAS W RONGLY MENTIONED THE DATE OF COMMUNICATION OF THE IMPUGNED ORDER AS 26.1 0.2011 INSTEAD OF 26.11.2011. HE FILED A FRESH COPY OF FORM NO.36. HE ALSO APPRAISED THAT ON THE RIGHT CORNER OF FIRST PAGE OF THE CIT(A)S ORDE R, DATE WRITTEN BY THE RECIPIENT OF THE ORDER IS 26.11.2011. AFTER CONSID ERING THE EXPLANATION THE ASSESSEE, WE ARE OF THE VIEW THAT IT WAS A TYPOGRAP HICAL ERROR, AND IN FACT APPEAL IS NOT TIME BARRED. 4. BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE IS AN INDIVIDUAL. HE HAS FILED HIS RETURN OF INCOME ON 26.9.2008 DECLARING A TOTAL INCOME AT RS.11,400/-. THE CASE OF THE ASSESSEE WAS SELECTED FOR SCRUTINY ASSESSMENT AND NOTICE UNDER SECTION 143(2) WAS ISSUED AND SERV ED UPON THE ASSESSEE. ON SCRUTINY OF THE ACCOUNTS, IT REVEALED THAT THE ASSE SSEE HAS TAKEN LOAN FROM J.M. FINANCE AT THE RATE OF 14% FOR CONSTRUCTION OF A RE SIDENTIAL PROPERTY. THE ASSESSEE HAD PAID INTEREST OF RS.30,54,701/-. WHEN THE AO HAS CONFRONTED THE ASSESSEE AS TO HOW THE DEDUCTION OF THIS INTEREST E XPENDITURE CAN BE ALLOWED TO THE ASSESSEE, THEN, ACCORDING TO THE AO, THE ASSESS EE AGREED FOR ADDITION OF THIS AMOUNT. SIMILARLY, THE ASSESSEE HAS INCURRED AN EXPENDITURE OF RS.1,23,972/- FOR PREPARATION OF DOCUMENTS WITH RES PECT TO PURCHASE OF THIS PROPERTY. THIS EXPENDITURE HAS ALSO BEEN ADDED BY THE AO ON THE GROUND THAT THE ASSESSEE HAS ADMITTED FOR DISALLOWANCE. 5. ON APPEAL, THE LD.CIT(A) HAS CONFIRMED THE DISAL LOWANCES BY CONCURRING WITH THE AO. THE LD.COUNSEL FOR THE ASS ESSEE HAS FILED AN AFFIDAVIT OF THE ASSESSEE CONTENDED THERE IN THAT HE HAS TAKE N LOAN FROM J.M. FINANCE FOR A LIMIT OF RS.500.00 LAKHS. THIS LOAN WAS TAKE N FOR THE PURPOSE OF ACQUIRING SHARES OF LISTED COMPANIES. HE HAS NOT U SED THIS FUND FOR PURCHASE ITA NO.183/AHD/2012 3 OF HOUSE PROPERTY, AND HE HAS NEVER AGREED FOR THE DISALLOWANCE OF INTEREST EXPENDITURE. 6. WITH THE ASSISTANCE OF THE LD.REPRESENTATIVES, W E HAVE GONE THROUGH THE RECORD CAREFULLY. THE EXPLANATION OF THE ASSESSEE WAS NEVER CONSIDERED BY BOTH REVENUE AUTHORITIES ON MERIT. THE STAND OF TH E AO IS THAT VIDE LETTER DATED 28.12.2010, THE ASSESSEE HAS ADMITTED FOR DIS ALLOWANCE OF THE EXPENDITURE. BUT WE FAILED TO APPRECIATE AS TO HOW THIS REFERENCE HAS COME IN THE ORDER, WHICH WAS PASSED ON 27.12.2010. IF THAT BE SO, HOW THE APPLICATION OF THE ASSESSEE DATED 28.12.2010 CAN BE REFERRED TO I.E. SUBSEQUENT TO THE PASSING OF THE ASSESSMENT. CONSIDERING THIS IRREGU LARITY AND THE STAND OF THE ASSESSEE, WE ARE OF THE VIEW THAT BOTH THE ORDERS A RE NOT SUSTAINABLE IN THE EYES OF LAW, AND THE ISSUE IS REQUIRED TO BE CONSID ERED AFRESH AT THE LEVEL OF THE AO. THEREFORE, WE SET ASIDE THE IMPUGNED ORDER S ON BOTH THE ISSUES AND RESTORE THE ISSUE TO THE FILE OF THE AO FOR FRESH A DJUDICATION ON MERIT. THE ASSESSEE WILL BE AT LIBERTY TO SUBMIT ANY MATERIAL IN SUPPORT OF HIS CLAIM. THE AO SHALL PROVIDE DUE OPPORTUNITY OF HEARING TO THE ASSESSEE. IT IS NEEDLESS TO MENTION THAT OBSERVATIONS MADE BY US WILL NOT IMPAI R OR INJURE THE CASE OF THE AO AND WILL NOT CAUSE ANY PREJUDICE TO THE DEFENCE/EXPLANATION OF THE ASSESSEE. 7. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED IN THE COURT ON 11 TH AUGUST, 2016 AT AHMEDABAD. SD/- SD/- (MANISH BORAD) ACCOUNTANTN MEMBER (RAJPAL YADAV) JUDICIAL MEMBER AHMEDABAD; DATED 11/08/2016