Arun Babulal Shah, Mumbai V. CIT Appeal, NFAC

ITA 2460/MUM/2023

• Counselvise Citation: [2024] 101 COUNSELVISE.COM (IT) 5906 (ITAT-MUMBAI)
• Duration Of Justice: 11 month(s) 26 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 08-07-2024
• Appeal Filed By: Assessee
• Order Result: PartlyAllowed
• Bench Allotted: A
• Next Hearing Date: 01-07-2024
• Assessment Year: 2012-2013
• Appeal Filed On: 12-07-2023
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: MANOJ KUMAR SINHASR
• Assessee Lawyers: ARUN B SHAH
• Keywords: Opportunity of being heard; Set aside
• Section: 250; 13

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH “A”, MUMBAI BEFORE SHRI PRASHANT MAHARSHI, ACCOUNTANT MEMBER AND SHRI ANIKESH BANERJEE, JUDICIAL MEMBER ITA 2460/Mum/2023 (Assessment year: 2012-13) Arun Babulal Shah 206-B, Pranamghar, Malviya Road, Opp Post Office, Vile Parle (E), Mumbai-400 057 PAN: AADPS3674B vs CIT Appeal NFAC APPELLANT RESPONDENT Assessee by : Shri Arun B Shah Respondent by : Shri Manoj Kumar SinhaSR.DR Date of hearing : 02/07/2024 Date of pronouncement : 09/ 07/2024 O R D E R PER ANIKESH BANERJEE, J.M: Instant appeal of the assessee is preferred against the order of theNational Faceless Appeal Centre, Delhi [for brevity, ‘Ld.CIT(A)’] passed under section 250 of the Income-tax Act, 1961 (in short, ‘the Act’), for Assessment Year 2012-13, date of order 20.01.2023.The impugned order was emanated from the order of theld. Deputy Commissioner of Income-tax, Circle 7(2)(1),Mumbai (in short, ‘the A.O.’) passed under section 143(3)of the Act date of order24/03/2015. 2 ITA No.2460 /Mum/2023 Arun Babulal Shah 2. The assessee has taken the following grounds of appeal:- “Ground No. 1. AGAINST ADDITION OF Rs. 7,93,74,917/- AS UNPROVED LOANS (a) The Commissioner of Income-tax (Appeals), National Faceless Appeal Centre, Delhi [hereinafter referred to as "( (A)"] has erred in confirming addition in respect of Unsecured Loans outstanding as on 31 March 2012, which included those loans which were not taken during the year under appeal also, without considering all the facts available on the record in proper perspective. (b) The appellant respectfully submits that all the parties who have given unsecured loans are genuine, capable to give the same and the transactions are all real ones. Therefore, the impugned addition is not justified. (c) The appellant, therefore, prays that the addition of Rs. 7,93,74,91 II- be kindly deleted. Ground No. 2 AGAINST DISALLOWANCE OF INTEREST TO BANK- Rs. 56.06,404/- (a) The C1T (A) has erred in confirming disallowance of interest to UCO Bank - Rs. 56,06,404/- without appreciating t fact that it was paid on the Secured Loan taken from the Bank for and in the course of the business of the appellant. (b) The appellant humbly submits that the interest on the loan from UCO Bank which was taken and utilized in t course of business of the appellant is fully allowable and the same cannot be disallowed just because the business h faced temporary lull during the year under appeal. (c) In view of that, the appellant prays that the impugned disallowance be kindly deleted. Ground No. 3 .LEAVE TO ADD, ALTER. AMEND ETC. The Appellant craves leave to add, alter and/or amend the Grounds of Appeal, if required.” 3 ITA No.2460 /Mum/2023 Arun Babulal Shah 3. The brief facts of the case are that the assessee is a diamond merchantand also the Executive Chairman of M/s Asian Electronic Ltd. During the impugned assessment year, M/s Asian Electronic Ltd was suffering loss and downfall in the business including management problem accordingly the assessee was also in suffering. The assessee had taken secured loans from different banks. On the other hand, the assessee had also taken unsecured loan amount of Rs.7,93,74,917/- as the balance stood during the impugned assessment year. The assessment order was passed by the addition of the loan amount of Rs.7,93,74,917/- and also the interest disallowed amount of Rs.56,08,404/- for rejection of the interest of secured loan from the bank. Being aggrieved, the assessee filed an appeal before the ld. CIT(A) alongwith all the facts. But the Ld.CIT(A) without considering the same dismissed the appeal of the assessee. Being aggrieved, the assessee filed an appeal before us. 4. The assessee himself appeared and first explained about his distress and suffering in business during this impugned assessment year. The assessee argued and filed a written submission which is kept in the record, (in short APB). The assessee invited our attention in the order of the Hon’ble High Court of Judicature at Bombay bearing C.P. 492 of 2011 in the case of SBI Global Factors Limited (earlier known as Global Trade Finance) vs M/s Asian Electronics Limited. The assessee was Executive Chairman of M/s Asian Electronics Ltd., and the Court has appointed the Official Liquidator on this company. The assessee himself has taken unsecured loan to coverup the downfall of business and payment of secured loan of business. The assessee argued and filed a chart of unsecured loan creditors of impugned assessment year, which is duly reproduced as below: - 4 ITA No.2460 /Mum/2023 Arun Babulal Shah S.No Lender Opening balance Received during the year Repaid during the year Closing balance 1 Shailee Capital Services Pvt Limited 22,50,000 - - 22,50,000 2 Rajesh Mehta 18,00,000 - - 18,00,000 3 Indumati Vasa + BS Vasa 5,00,000 - - 5,00,000 4 Binita Doshi 1,00,00,000 - 1,00,00,000 5 Integral Technologies Pvt Ltd - 29,00,000 - 29,00,000 6 Kishor G Sheth 9,00,000 - 9,00,000 7 Laxmi Manak Finance - 5,00,000 - 5,00,000 8 Pankit Mehta - 15,00,000 - 15,00,000 9 NIXXON ELECTRICALS PVT LTD 96,45,500 - 96,45,500 10 PEL Limited 25,00,000 - 25,00,000 11 One Up Advisory Pvt Ltd (Stake) 10,00,000 - 10,00,000 12 Pranamghar India Pvt Ltd 1,25,14,417 2,92,00,000 35,10,000 3,82,04,417 13 Metal Tube Pvt Ltd 25,00,000 25,00,000 14 Neelkanth Iyer 75,000 75,000 15 Guatam Shah 3,00,000 3,00,000 16 Guniben Shah - 3,00,000 - 3,00,000 2,15,64,417 6,13,20,500 35,10,000 7,93,74,917 5. The ld. DR fully relied on the order of the revenue authorities. 6. We heard the rival submission and considered the documents available in record. The assessee argued that related to serial numbers 1 to 3 of the abovementioned chart, i.e.M/s Shailee Capital Services Pvt Limited, Mr. Rajesh Mehta andMrs. Indumati Vasa + B.S.Vasa, all the loans are from earlier years and was only the balance is carried over to this year. So, the addition in impugned 5 ITA No.2460 /Mum/2023 Arun Babulal Shah assessment year is uncalled for. Therefore, it is directed to the ld. AO that the additionsamount of R.27,50,000/-, Rs.18 lakhs, Rs.50 lakhs are liable to be deleted on the ground that the loans are brought forwarded from earlier years, not related to this impugned assessment year. 6.1. Further, in the case of Mrs. Binita Doshi, the assessee received the amount of Rs.1 crore and the legal case was going on under section 138 of the N.I. Act, 1881. The documents are duly filed in APB pages 13 to 15. So, the assessee argued that entire loan is claimed as genuine considering the action is taken by the loan creditor against the assessee under section 138 of the N.I. Act. The confirmation is also attested by the assessee in APB page-15. The assessee has shifted the onus by submitting evidence in his favour. But the matter is unverified before the revenue authorities. In our considered view we remit the matter back to the file of the ld. AO to verify the loan creditor after giving the proper opportunity to the assesssee. 6.2. Related to other loans, which are taken during this year, the assessee submitted the confirmations, PAN, entry in bank account and the identity of loan creditors. There is valid reason to assessee for non-submission of evidence before the authorities below. But the verification is pending before the revenue authority related to the loan mentioned below: - S.No Lender Balance 1. Integral Technologies Pvt Ltd 29,00,000 2. Kishor G Sheth 9,00,000 3. Laxmi Manak Finance 5,00,000 4. Pankit Mehta 15,00,000 5. NIXXON ELECTRICALS PVT LTD 96,45,500 6. PEL Limited 25,00,000 7. One Up Advisory Pvt Ltd (Stake) 10,00,000 6 ITA No.2460 /Mum/2023 Arun Babulal Shah 8. Pranamghar India Pvt Ltd 3,82,04,417 9. Metal Tube Pvt Ltd 25,00,000 10. Neelkanth Iyer 75,000 11. Guatam Shah 3,00,000 12. Guniben Shah 3,00,000 We consider the submission of the assessee andremand the matter back to the file of the ld.AO for further verification of loan creditors. The ld. DR had not made any strong objection against the setting aside matter to the ld. AO. Accordingly, the impugned appeal order is set aside. The matter is remanded back to the file of the ld. AO. 7. With regard tothe interest of the bank, the issue is also unverified before any of the revenue authorities below. So, the interest amount from the bank to receive amount of Rs.56,08,404/- is also remitted back to the file of Ld.AO. Needless to say, the assessee should get a reasonable opportunity of being heard in set aside proceedings. 8. In our considered view, the appeal of the assesseeGround no-1 is partly allowed for statistical purpose, Ground no- 2 is allowed for statistical purpose and Ground no-3 is general in nature. 6. In the result, appeal of the assesseeITA 2460/Mum/2023 is partly allowed. Order pronounced in the open court on 9 th day of July, 2024. Sd/- sd/- (PRASHANT MAHARSHI) (ANIKESH BANERJEE) ACCOUNTANT MEMBER JUDICIAL MEMBER Mumbai,दिन ांक/Dated: 09/07/2024 Pavanan 7 ITA No.2460 /Mum/2023 Arun Babulal Shah Copy of the Order forwarded to: 1. अपील र्थी/The Appellant , 2. प्रदिव िी/ The Respondent. 3. आयकरआयुक्त CIT 4. दवभ गीयप्रदिदनदि, आय.अपी.अदि., मुबांई/DR, ITAT, Mumbai 5. ग र्डफ इल/Guard file. BY ORDER, //True Copy// (Asstt. Registrar), ITAT, Mumbai