ITO, Ward - 6(2), Kolkata, Kolkata V. M/s. Gemini Mobiles Pvt. Ltd., Kolkata

ITA 26/KOL/2010

• Counselvise Citation: [2010] 136 COUNSELVISE.COM (IT) 7981 (ITAT-KOLKATA)
• Duration Of Justice: 1 month(s) 30 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 05-03-2010
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: C
• Assessment Year: 2006-2007
• Appeal Filed On: 06-01-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: B R PUKAYASTHA

Judgement Text

, , , IN THE INCOME TAX APPELLATE TRIBUNAL, BENCH - C , CALCUTTA ( ) BEFORE . . , SHRI B.R.MITTAL, JUDICIAL MEMBER. /AND . . , , SHRI B.K.HALDAR, ACCOUN TANT MEMBER / I.T.A.NO. 26/KOL/2010 / ASSESSMENT YEAR 2006 - 07 INCOME - TAX OFFICER, WARD 6(2), KOLKATA. - - - VERSUS - . GEMINI MOBILES PVT. LTD., 28, STRAND ROAD, KOLKATA 700 001. ( / A PPELLANT ) ( / RESPONDENT ) / FOR THE APPELLANT : / SHRI B.R.PUKAYASTHA, D R / FOR THE RESPONDENT : / S MT. NILIMA JOSHI, A R / ORDER . . , SHRI B.R.MITTAL, JUDICIAL MEMBER. THIS IS AN APPEAL FILED BY TH E REVENUE AGAINST ORDER DT.12.10.2009 OF THE COMMISSIONER OF INCOME - TAX (APPEALS) VI, KOLKATA FOR THE ASSESSMENT YEAR 2006 - 07 ON THE FOLLOWING GROUND. THAT THE LD. CIT(A) VI, KOLKATA HAS ERRED IN LAW AND ON FACTS IN DELETING THE ADDITION OF RS.10,31,263 AS DISALLOWABLE INTEREST. 2. THE RELEVANT FACTS, IN BRIEF, ARE THAT FOR PURCHASE OF A PLOT OF LAND BEARING NO.C MEASURING ABOUT 14173.65 SQ.FT., SITUATED AT 3, SHAHANAJAF ROAD, LUCKNOW, THE ASSESSEE HAD TAKEN LOAN FROM M/S. LIBERSON SALES AGENCY LTD., A - 1 /343/2, INDIRA NAGAR, LUCKNOW AND EMKAY COMMERCIAL CO., LTD., 3, SHAHANAJAF ROAD, LUCKNOW @8% OF INTEREST PER ANN NUM AND DEBITED RS.10,31,263 TO ITS PROFIT & LOSS ACCOUNT. ON THE FINDING THAT THERE WAS NO EVIDENCE THAT THE LAND IN QUESTION WAS UTILIZED FOR THE PURPOSE OF BUSINESS, THE ASSESSING OFFICER DISALLOWED THE AMOUNT OF INTEREST OF RS.10,31,263 AND ADDED THE SAME TO THE TOTAL INCOME OF THE ASSESSEE. THE ASSESSEE CARRIED THE MATTER TO THE FIRST APPELLATE AUTHORITY AND THE LEARNED CIT(A) DELETED THE SA ID DISALLOWANCE/ADDITION BY FOLLOWING THE ORDER OF THE ITAT IN CASE OF THE ASSESSEE FOR THE ASSESSMENT YEAR 2004 - 05 WHEREIN THE / I.T.A.NO.26/KOL/2010 2 ITAT HAS DELETED SIMILAR DISALLOWANCE/ADDITION. IT IS AGAINST SUCH ORDER OF THE LEARNED CIT(A) THAT THE REVENUE IS IN APPEAL HER E BEFORE THE TRIBUNAL. 3. WE HAVE HEARD THE LEARNED REPRESENTATIVES OF BOTH THE PARTIES AND GONE THROUGH THE ORDERS OF THE AUTHORITIES BELOW. THE LEARNED DR SUPPORTED THE ORDER OF THE ASSESSING OFFICER WHEREAS THE LEARNED AR OF THE ASSESSEE SUPPORTED THE O RDER OF THE LEARNED CIT(A). SHE PLEADED THAT THE FACTS AND ISSUE IN THE PRESENT CASE ARE SAME EXCEPT THE AMOUNT IN DISPUTE AS IN THE ASSESSMENT YEAR 2004 - 05 AND SINCE THE ITAT HAS DELETED SIMILAR DISALLOWANCE/ADDITION, THE LEARNED CIT(A) IS JUSTIFIED IN DE LETING THE IMPUGNED DISALLOWANCE/ADDITION BY FOLLOWING THE ORDER OF THE ITAT. SHE FURNISHED A COPY OF THE ORDER OF THE ITAT, B - BENCH, KOLKATA IN ASSESSEES OWN CASE FOR THE ASSESSMENT YEAR 2004 - 05 IN ITA NO.2224/KOL/2007 DT.31.12.2007. WE FIND THAT VIDE PA RAGRAPH 11 OF THE SAID ORDER DT.31.12.2007 , THE TRIBUNAL HAS CATEGORICALLY CAME TO CONCLUDE THAT THE BORROWED FUND WAS UTILIZED FOR THE PURPOSE OF ASSESSEES BUSINESS AND HENCE, THE PAYMENT OF INTEREST IS AN ALLOWABLE DEDUCTION. THE LEARNED DR DID NOT DISP UTE THE ABOVE FACTS EXCEPT RELYING ON THE ORDER OF THE ASSESSING OFFICER. HE ALSO COULD NOT BRING ANY EVIDENCE ON RECORD CONTRARY TO THE FINDINGS OF THE ITAT ON THE ISSUE SIMILAR TO THE PRESENT ONE. THEREFORE, CONSIDERING THE FACTS AND CIRCUMSTANCES OF THE CASE AND PARTICULARLY IN VIEW OF THE DECISION OF THE ITAT ON SIMILAR ISSUE , AS DISCUSSED EARLIER, WE DO NOT FIND ANY INFIRMITY IN THE IMPUGNED ORDER OF THE LEARNED CIT(A) IN DELETING THE DISALLOWANCE/ADDITION OF RS.10,31,263 BY FOLLOWING THE ORDER OF THE ITAT (SUPRA). THE GROUND RAISED BY THE REVENUE IS, THEREFORE, DISMISSED. 4. IN THE RESULT, THE APPEAL OF THE REVENUE IS DISMISSED. THIS ORDER IS PRONOUNCED IN OPEN COURT ON DT. 05.03.2010 SD/ - SD/ - ( . . ) ( B.K.HALDAR), ACCOUNTANT MEMBER . ( . . ), ( B.R.MITTAL ) , JUDICIAL MEMBER ( ) DATE: 05.03.2010 ( /) H.K.PADHEE / SNR.PRIVATE SECRETARY. / I.T.A.NO.26/KOL/2010 3 - COPY OF THE ORDER FORWARDED TO : 1 . / THE APPELLANT : INCOME - TAX OFFICER, WARD 6(2), KOLKATA. 2 / TH E RESPONDENT - GEMINI MOBILES PVT. LTD., 28, STRAND ROAD, KOLKATA 700 001. 3 . / THE CIT, 4 . ( )/ THE CIT(A), 5 . / DR, KOLKATA BENCH 6 . GUARD FILE . / TRUE COPY , / BY ORDER , / DEPUTY REGISTRAR .