Nimesh Jaysukh Doshi , Kolkata V. ITO, Ward - 32(2) , Kolkata

ITA 2683/KOL/2018

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 6429 (ITAT-KOLKATA)
• Duration Of Justice: 4 month(s) 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 08-05-2019
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: SMC
• Assessment Year: 2013-2014
• Appeal Filed On: 27-12-2018
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: SANKAR HALDAR
• Assessee Lawyers: MANISH TIWARI
• Keywords: Set aside
• Section: 250

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL KOLKATA SMC BENCH, KOLKATA [BEFORE SRI J. SUDHAKAR REDDY, ACCOUNTANT MEMBER] I.T.A. NO. 2683/KOL/2018 ASSESSMENT YEAR: 2013-14 NIMESH JAYSUKH DOSHI..............APPELLANT 25, CAMAC STREET GROUND FLOOR KOLKATA 700 016 [PAN : AFHPD 0888 H] INCOME TAX OFFICER, WARD 32(2), KOLKATA..........................................................RESPONDENT APPEARANCES BY: SHRI MANISH TIWARI, FCA, APPEARED ON BEHALF OF THE ASSESSEE. SHRI SANKAR HALDAR, JCIT, SR. D/R, APPEARING ON BEHALF OF THE REVENUE. DATE OF CONCLUDING THE HEARING : MAY 1 ST , 2019 DATE OF PRONOUNCING THE ORDER : MAY 8 TH , 2019 O R D E R PER J. SUDHAKAR REDDY :- THIS APPEAL FILED BY THE ASSESSE IS DIRECTED AGAINST THE ORDER OF THE LD. COMMISSIONER OF INCOME TAX (APPEALS) - 09, KOLKATA, (HEREINAFTER THE LD. CIT (A)), PASSED U/S 250 OF THE INCOME TAX ACT, 1961 (THE ACT), DT. 22/10/2018, FOR THE ASSESSMENT YEAR 2013-14. 2. I HAVE HEARD RIVAL CONTENTIONS. ON CAREFUL CONSIDERATION OF THE FACTS AND CIRCUMSTANCES OF THE CASE, PERUSAL OF THE PAPERS ON RECORD, ORDERS OF THE AUTHORITIES BELOW AS WELL AS CASE LAW CITED, I HOLD AS FOLLOWS:- 3. GROUND NO. 1 IS AGAINST THE DISALLOWANCE OF INTEREST. I FIND THAT THE DISALLOWANCE HAS BEEN MADE ON THE GROUND THAT THE ASSESSEE HAS NOT FILED CERTIFICATE OF INTEREST. THE LD. CIT(A) RECORDS THAT THE ASSESSEE COULD NOT SUBMIT DETAILS OF ITS CLAIM THAT THE AMOUNT PAID ON LOAN TAKEN WAS FOR THE PURPOSE OF PURCHASE OF IMMOVABLE PROPERTY. BEFORE US, THE LD. COUNSEL FOR THE ASSESSEE PRODUCED EVIDENCE IN SUPPORT OF HIS CLAIMS. HE SUBMITS THAT CONFIRMATIONS WERE 2 I.T.A. NO. 2683/KOL/2018 ASSESSMENT YEAR: 2013-14 NIMESH JAYSUKH DOSHI FILED BEFORE THE LOWER AUTHORITIES AND THE ADDITION WAS MADE BY THE ASSESSING OFFICER FOR THE SOLE REASON THAT THE ASSESSEE FAILED TO PRODUCE CERTIFICATE FROM LOAN CREDITORS. 3.1. THE LD. D/R, THOUGH NOT LEAVING HIS GROUND SUBMITTED THAT THE ISSUE MAY BE RESTORED TO THE FILE OF THE ASSESSING OFFICER FOR CONSIDERATION OF THE EVIDENCE BEING PRODUCED BY THE ASSESSEE. 4. UNDER THESE CIRCUMSTANCES, I DEEM IT FIT TO RESTORE THIS ISSUE TO THE FILE OF THE ASSESSING OFFICER FOR FRESH ADJUDICATION IN ACCORDANCE WITH LAW AFTER CONSIDERING THE EVIDENCE BEING PRODUCED BY THE ASSESSEE. GROUND NO. 1 OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. 5. GROUND NO. 2 IS ON THE ADDITION OF RS.3,56,772/-, BEING DISALLOWANCE OF INTEREST. THE ASSESSING OFFICER DISALLOWED THE INTEREST ON THE GROUND THAT THE EXPENSES INCURRED WERE NOT INCIDENTAL TO INCOME. THE ASSESSEES CASE IS THAT THE CLAIM WAS NOT U/S 36(1)(III) OF THE ACT, BUT WAS ONLY U/S 57(III) OF THE ACT. HE SUBMITTED THAT THE EXPENDITURE WAS INCURRED FOR EARNING INCOME WHICH IS BROUGHT TO TAX UNDER THE HEAD INCOME FROM OTHER SOURCES AND HENCE HAS TO BE ALLOWED. 5.1. THE LD. D/R RELIES ON THE ORDER OF THE ASSESSING OFFICER AS WELL AS THE LD. CIT(A). 6. ON HEARING RIVAL CONTENTIONS, I FIND THAT THE ENTIRE CLAIM OF INTEREST PAID HAS BEEN DISALLOWED. THE ASSESSEE SUBMITS THAT THE LOAN WAS UTILIZED FOR ACQUIRING PROPERTY WHICH WAS LET OUT AND THE INCOME WAS ASSESSABLE UNDER THE HEAD INCOME FROM HOUSE PROPERTY. IT WAS CLAIMED THAT A MISTAKE HAD OCCURRED AND THAT THIS AMOUNT WAS WRONGLY CLAIMED UNDER THE HEAD INCOME FROM OTHER SOURCES AND THAT THE CLAIM SHOULD BE ALLOWED UNDER THE HEAD INCOME FROM HOUSE PROPERTY. HE SUBMITS THAT THIS APPARENT MISTAKE WAS BROUGHT TO THE NOTICE OF THE LD. CIT(A) BUT THE LD. CIT(A) HAS NOT CONSIDERED THE SAME. IN MY VIEW, THIS ISSUE SHOULD BE SET ASIDE TO THE FILE OF THE ASSESSING OFFICER FOR CONSIDERING AS TO WHETHER THE ASSESSEE WAS RIGHT IN SUBMITTING THAT THE INTEREST IN QUESTION SHOULD BE ALLOWED AS A DEDUCTION UNDER THE HEAD INCOME FROM HOUSE PROPERTY AS THE BORROWINGS IN 3 I.T.A. NO. 2683/KOL/2018 ASSESSMENT YEAR: 2013-14 NIMESH JAYSUKH DOSHI QUESTION WERE IN FACT USED FOR ACQUIRING PROPERTY. HENCE, THIS GROUND OF THE ASSESSEE IS SET ASIDE TO THE FILE OF THE ASSESSING OFFICER. GROUND NO. 2 OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. 7. GROUND NO. 3, IS AGAINST THE ADDITION ON ACCOUNT OF TRAVELLING EXPENSES. 7.1. THE CLAIM OF THE ASSESSEE IS THAT IT GETS REIMBURSEMENT OF EXPENDITURE FROM M/S. RITIKA CONSTRUCTION PVT. LTD.. HE VEHEMENTLY CONTENDS THAT THE DIFFERENCE IN THE ACCOUNT WHERE REIMBURSEMENT OF EXPENDITURE IS MADE WAS WRONGLY CONSIDERED AS INTEREST INCOME BY THE ASSESSING OFFICER. THE LD. D/R, RELIED ON THE ORDER OF THE ASSESSING OFFICER. 8. IN MY VIEW, THIS ISSUE ALSO SHOULD BE SET ASIDE TO THE FILE OF THE ASSESSING OFFICER FOR EXAMINING AS TO WHETHER THE DIFFERENCE INCOME IS IN FACT INTEREST EARNED. JUST BECAUSE THERE IS A VARIATION IN THE ACCOUNTS, IT CANNOT BE ASSUMED THAT THE SAME IS INTEREST INCOME. GROUND NO. 3 OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. 9. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. KOLKATA, THE 8 TH DAY OF MAY, 2019. SD/- [ J. SUDHAKAR REDDY] ACCOUNTANT MEMBER DATED : 08.05.2019 {SC SPS} 4 I.T.A. NO. 2683/KOL/2018 ASSESSMENT YEAR: 2013-14 NIMESH JAYSUKH DOSHI COPY OF THE ORDER FORWARDED TO: 1. NIMESH JAYSUKH DOSHI 25, CAMAC STREET GROUND FLOOR KOLKATA 700 016 2. INCOME TAX OFFICER, WARD 32(2), KOLKATA 3. CIT(A)- 4. CIT- , 5. CIT(DR), KOLKATA BENCHES, KOLKATA. TRUE COPY BY ORDER ASSISTANT REGISTRAR ITAT, KOLKATA BENCHES