Sri Poorna Prakash Karkala , Bangalore V. Income Tax Officer Ward-3(3)(3), Bangalore

ITA 2499/BANG/2018

• Counselvise Citation: [2018] 119 COUNSELVISE.COM (IT) 4088 (ITAT-BANGALORE)
• Duration Of Justice: 1 month(s) 25 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 26-10-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Assessment Year: 2009-2010
• Appeal Filed On: 31-08-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: DR S PALANI KUMAR
• Assessee Lawyers: C SANDEEP
• Keywords: Opportunity of being heard; Additional evidence

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL SMC-C BENCH : BANGALORE BEFORE SHRI ARUN KUMAR GARODIA, ACCOUNTANT MEMBER ITA NO. 2499 /BANG/201 8 ASSESSMENT YEAR : 20 09 - 10 SHRI POORNA PRAKASH KARKALA, NO. 505, C, WILSON MANOR APARTMENTS, AREKIMPHALLI, 13 TH CROSS, WILSON GARDEN, BANGALORE 560 027. PAN: ADCPR4410N VS. THE INCOME TAX OFFICER, WARD 3 (3) (3), BANGALORE. APPELLANT RESPONDENT ASSESSEE BY : SHRI C. SANDEEP, CA REVENUE BY : DR. S. PALANI KUMAR, ADDL. CIT (DR) DATE OF HEARING : 1 7 . 10 .2018 DATE OF PRONOUNCEMENT : 26 . 10 .2018 O R D E R PER SHRI A.K. GARODIA, ACCOUNTANT MEMBER THIS APPEAL IS FILED BY THE ASSESSEE AND THE SAME I S DIRECTED AGAINST THE ORDER OF LD. CIT(A)-3, BANGALORE DATED 02.07.2018 F OR ASSESSMENT YEAR 2009- 10. 2. THE GROUNDS RAISED BY THE ASSESSEE ARE AS UNDER. 1. THAT THE ORDER OF THE LEARNED COMMISSIONER OF IN COME TAX (APPEALS), IN SO FAR IT IS PREJUDICIAL TO THE INTER EST OF THE APPELLANT, IS BAD AND ERRONEOUS IN LAW AND AGAINST THE FACTS AND CIRCUMSTANCES OF THE CASE. 2. THAT THE LEARNED COMMISSIONER OF INCOME TAX (APP EALS) ERRED IN LAW AND ON FACTS IN CONFIRMING THE DISALLOWANCE OF INTEREST CLAIMED U/S. 24(B) TO THE EXTENT OF RS. 8,05,086/-. 3. THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) ERRED IN LAW AND ON FACTS IN HOLDING THAT THE APPELLANT HAS EVAD ED THE STAMP DUTY BY REGISTERING AT THE LOWER VALUE EVEN THOUGH THE A PPELLANT HAS REGISTERED THE LAND AT GUIDANCE VALUE AND THE FINDI NG OF THE LEARNED CIT(A) IS PERVERSE. 4. NAGARJUNA GREEN RIDGE - FLAT NO. 301 4.1. THAT THE LEARNED COMMISSIONER ERRED IN LAW AND ON FACTS IN HOLDING THAT THE LOAN HAS NOT BEEN UTILIZED FOR PUR CHASE OF LAND AND MODIFICATIONS/IMPROVEMENTS TO THE FLAT ON THE GROUN D THAT THE LOAN HAS BEEN SANCTIONED MUCH LATER THAN THE COST INCURRED W HICH IS INCORRECT ITA NO.2499/BANG/2018 PAGE 2 OF 4 ON THE FACTS. 4.2. THAT THE LEARNED COMMISSIONER OF INCOME TAX (A PPEALS) OUGHT TO HAVE APPRECIATED THE FACT THAT THE LOAN HAS BEEN UT ILIZED FOR PURCHASE OF FLAT BASED ON THE LETTER FOR SANCTION OF LOAN, I NTEREST CERTIFICATE AND STATEMENT OF LOAN DISBURSEMENT. 5. NAGARJUNA GREEN WOODS - FLAT NO. 105 5.1. THAT THE LEARNED COMMISSIONER ERRED IN LAW AND ON FACTS IN HOLDING THAT THE LOAN HAS NOTBEEN UTILIZED FOR PURC HASE OF LAND, CONSTRUCTION AND MODIFICATIONS/IMPROVEMENTS TO THE FLAT THE GROUND THAT THE LOAN HAS BEEN SANCTIONED MUCH LATER THAN T HE COST INCURRED WHICH IS INCORRECT ON THE FACTS. 5.2. THAT THE LEARNED COMMISSIONER OF INCOME TAX (A PPEALS) OUGHT TO HAVE APPRECIATED THE FACT THAT THE LOAN HAS BEEN UT ILIZED FOR PURCHASE OF FLAT BASED ON THE LETTER FOR SANCTION OF LOAN, I NTEREST CERTIFICATE AND STATEMENT OF LOAN DISBURSEMENT. 6. PREMIER RESIDENCY - FLAT NO. 201 6.1. THAT THE LEARNED COMMISSIONER ERRED IN LAW AND ON FACTS IN HOLDING THAT THE LOAN HAS NOT BEEN UTILIZED FOR PUR CHASE OF LAND, CONSTRUCTION AND MODIFICATIONS/IMPROVEMENTS TO THE FLAT THE GROUND THAT THE LOAN HAS BEEN SANCTIONED MUCH LATER THAN T HE COST INCURRED WHICH IS INCORRECT ON THE FACTS. 6.2. THAT THE LEARNED COMMISSIONER OF INCOME TAX (A PPEALS) OUGHT TO HAVE APPRECIATED THE FACT THAT THE LOAN HAS BEEN UT ILIZED FOR PURCHASE OF FLAT BASED ON THE LETTER FOR SANCTION OF LOAN, I NTEREST CERTIFICATE AND STATEMENT OF LOAN DISBURSEMENT. EACH OF THE ABOVE GROUNDS IS WITHOUT PREJUDICE TO O NE ANOTHER AND THE APPELLANT CRAVES LEAVE OF THE HON'BLE INCOME TAX AP PELLATE TRIBUNAL, BANGALORE TO ADD, DELETE, AMEND OR OTHERWISE MODIFY ONE OR MORE OF THE ABOVE GROUNDS EITHER BEFORE OR AT THE TIME OF H EARING OF THIS APPEAL. 3. THE LD. AR OF ASSESSEE SUBMITTED THAT A PAPER BO OK HAS BEEN FILED BY THE ASSESSEE CONTAINING 234 PAGES AND OUT OF VARIOUS DO CUMENTS FILED IN THIS PAPER BOOK, THERE ARE VARIOUS ADDITIONAL EVIDENCES SUCH AS A) LOAN SANCTION LETTER DATED 19.05.2004 FROM IDBI, B) LOAN SANCTION LETTER FROM UTI BANK FOR RS. 22 LA KHS C) PERMISSION LETTER FROM NAGARJUNA CONSTRUCTION CO FOR MORTGAGE D) LOAN AGREEMENT DATED 24.02.2005 BETWEEN IDBI BAN K AND ASSESSEE E) AGREEMENT TO BUILD (SUPPLEMENTARY) DATED 28.11.2 006 F) LOAN SANCTION LETTER DATED 03.12.2005 FROM IDBI ITA NO.2499/BANG/2018 PAGE 3 OF 4 G) LOAN SANCTION LETTER DATED 11.12.2006 FROM IDBI H) LOAN SANCTION LETTER DATED 11.07.2008 FROM IDBI 4. HE SUBMITTED THAT A REQUEST LETTER DATED 24.09.2 018 REQUESTING FOR LEAVE TO FILE THE ADDITIONAL EVIDENCES IS ALSO FILED. HE AL SO SUBMITTED THAT IN VIEW OF THESE VARIOUS ADDITIONAL EVIDENCES, THE MATTER SHOU LD BE RESTORED BACK TO THE FILE OF CIT (A) FOR FRESH DECISION AFTER CONSID ERING THE ADDITIONAL EVIDENCES WHICH ARE ALREADY FILED OR OTHER DOCUMENT S WHICH MAY BE FILED BEFORE CIT (A). HE ALSO SUBMITTED THAT THE ISSUE I N PRESENT CASE IS REGARDING ALLOWABILITY OF INTEREST U/S. 24B OF IT A CT IN RESPECT OF THREE PROPERTIES OWNED BY THE ASSESSEE BEING A) FLAT NO. 301-NAGARJUNA GREEN RIDGE, B) FLAT NO. 105 NAGARJUNA GREEN WOODS AND C) FLAT NO. 201 PREMIER RESIDENCY. REGARDING FIRST PROPERTY I.E. F LAT NO. 301-NAGARJUNA GREEN RIDGE, HE SUBMITTED THAT IN THIS REGARD, THE RELEVANT GROUND RAISED BY ASSESSEE IS 4.1 AND THE DECISION OF CIT (A) IN THIS REGARD IS AS PER PARA NO. 4.18 OF THE ORDER OF CIT (A). HE POINTED OUT THAT AS PER THIS PARA OF THE ORDER OF CIT (A), HE HAS NOTED THAT THE LOAN OF RS. 8 LAKHS WHICH HAS BEEN CLAIMED BY THE ASSESSEE TO HAVE BEEN USED FOR THE P URCHASE OF THIS PROPERTY HAD BEEN SANCTIONED TO THE ASSESSEE BY IDB I BANK ON 15.10.2005. HE DRAWN MY ATTENTION TO PAGE NO. 55 OF THE PAPER B OOK BEING THE ADDITIONAL EVIDENCE AND POINTED OUT THAT IN THE LOAN SANCTION LETTER DATED 19.05.2004, THE LOAN AMOUNT IS RS. 19 LAKHS AND NOT RS. 8 LAKHS . THEREAFTER HE DRAWN MY ATTENTION TO PAGE NO. 56 OF THE PAPER BOOK AND P OINTED OUT THAT THIS WAS FILED BEFORE CIT (A) AND AO BOTH AND AS PER THIS SA NCTION LETTER WHICH IS DATED 11.10.2005 AS STATED BY CIT (A), THERE IS HOU SE LOAN OF RS. 8 LAKHS BUT THIS IS NOT A FRESH SANCTION BUT ENHANCEMENT OF EARLIER SANCTION AND THIS PART HAS BEEN TOTALLY MISSED BY THE AUTHORITIES BEL OW. 5. AT THIS JUNCTURE, THIS PROPOSITION WAS PUT FORWA RD BY THE BENCH THAT IN VIEW OF VARIOUS ADDITIONAL EVIDENCES WHICH THE ASSESSEE WAN TS TO BRING ON RECORD AND NON APPRECIATION OF EVIDENCES IN PROPER MANNER FILED BEFORE LOWER AUTHORITIES, IT WILL BE PROPER IF THE MATTER IS RES TORED BACK TO THE FILE OF CIT(A) FOR FRESH DECISION AFTER CONSIDERING THESE ADDITION AL EVIDENCES WHICH ARE ALREADY BROUGHT ON RECORD BEFORE THE TRIBUNAL AND O THER EVIDENCES WHICH HE MAY BRING ON RECORD BEFORE CIT(A) IF THE MATTER IS RESTORED BACK TO THE FILE OF CIT(A). IN REPLY BOTH SIDES AGREED TO THIS PROPOSI TION PUT FORWARD BY THE ITA NO.2499/BANG/2018 PAGE 4 OF 4 BENCH. IN VIEW OF THE ABOVE DISCUSSION, I FEEL IT PROPER TO SET ASIDE THE ORDER OF CIT(A) IN RESPECT OF ALL THREE PROPERTIES AND RE STORE THE MATTER BACK TO THE FILE OF CIT(A) FOR FRESH DECISION AFTER CONSIDERING THE ADDITIONAL EVIDENCES WHICH THE ASSESSEE HAVE ALREADY BROUGHT ON RECORD B EFORE THE TRIBUNAL AND HE SHOULD ALSO CONSIDER SOME OTHER ADDITIONAL EVIDE NCES WHICH THE ASSESSEE MAY BRING ON RECORD BEFORE CIT(A) IN COURS E OF SET ASIDE PROCEEDINGS AND THEREAFTER, PASS NECESSARY ORDER AS PER LAW AFTER PROVIDING ADEQUATE OPPORTUNITY OF BEING HEARD TO BOTH SIDES. IN VIEW OF THIS DECISION, NO ADJUDICATION IS CALLED FOR REGARDING THE MERIT O F THE CASE AT THE PRESENT STAGE. 6. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON THE DATE MENT IONED ON THE CAPTION PAGE. SD/- (ARUN KUMAR GARODIA) ACCOUNTANT MEMBER BANGALORE, DATED, THE 26 TH OCTOBER, 2018. /MS/ COPY TO: 1. APPELLANT 4. CIT(A) 2. RESPONDENT 5. DR, ITAT, BANGALORE 3. CIT 6. GUARD FILE BY ORDER ASSISTANT REGISTRAR, INCOME TAX APPELLATE TRIBUNAL, BANGALORE.