M/s i D Bhangarshattra and Sons , Bangalore V. Income Tax Officer Ward-1 , Gadag

ITA 3057/BANG/2018

• Counselvise Citation: [2019] 118 COUNSELVISE.COM (IT) 7186 (ITAT-BANGALORE)
• Duration Of Justice: 1 month(s) 26 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 09-01-2019
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: A
• Next Hearing Date: 07-01-2019
• Assessment Year: 2014-2015
• Appeal Filed On: 13-11-2018
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: D KIRAN JT BENGALURU
• Keywords: Reasonable cause; Corroborative evidences; Condonation of delay

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL SMC A BENCH : BANGALORE BEFORE SHRI CHANDRA POOJARI, ACCOUNTANT MEMBER ITA NO. 3057/BANG/2018 ASSESSMENT YEAR : 2014 - 15 I.D. BHANGARSHETTRA & SONS, MULGUND NAKA, GADAG. PAN: AAAFI 5040G VS. THE INCOME TAX OFFICER, WARD 1, GADAG. APP ELLANT RESPONDENT APP ELLANT BY : MS. R. MRINALINI, ADVOCATE RESPONDENT BY : SHRI D. KIRAN, JT.CIT(DR)(ITAT), BENGALURU. DATE OF HEARING : 07 . 01.2019 DATE OF PRONOUNCEMENT : 09 . 01 . 201 9 O R D E R THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF CIT(APPEALS), HUBBALLI, DATED 27.08.2018. 2. THERE IS A DELAY OF 4 DAYS IN FILING THE APPEAL. IN THE APPLICATION FOR CONDONATION OF DELAY ALONG WITH AN AFFIDAVIT, IT HA S BEEN STATED THAT THE ORDER OF THE CIT(A) WAS RECEIVED ON 10.09.2018 AND APPEAL WAS TO BE FILED ON OR BEFORE 09.11.2018, BUT SINCE ONE OF THE PARTN ERS OF THE ASSESSEE WAS NOT WELL AND APPEAL WAS PREPARED ON 09.11.2018 AND DUE TO HOLIDAYS THE APPEAL WAS BEFORE THE TRIBUNAL ONLY ON 13.11.2018. IN SUCH CIRCUMSTANCES, IT IS PRAYED THAT THE DELAY MAY BE C ONDONED AND APPEAL ADMITTED FOR HEARING ON MERITS. ON THESE FACTS, I AM OF THE VIEW THAT THERE ITA NO.3057/BANG/2018 PAGE 2 OF 5 WAS A REASONABLE CAUSE FOR DELAY IN FILING THE APPE AL BEFORE THE TRIBUNAL AND THEREFORE CONDONE THE DELAY IN FILING THE APPEA L. 3. THE FIRST GROUND OF APPEAL IS WITH REGARD TO CON FIRMING ADDITION OF RS.5,48,960 TOWARDS INTEREST FREE ADVANCE MADE TO P ARTNERS. THERE WAS DRAWINGS OF RS.25,74,672 BY THE PARTNERS. THE ASSE SSEE DID NOT CHARGE ANY INTEREST ON IT. 4. THE AO WAS OF THE OPINION THAT SINCE THE ASSESSE E HAS PAID THE INTEREST ON THE ADVANCE MADE BY THE PARTNER TO THE FIRM @ 12%, ON THE SAME PRINCIPLE THE ASSESSEE HAS TO RECEIVE INTEREST FROM MONEY ADVANCED TO ITS PARTNERS. ACCORDINGLY, HE CHARGED INTEREST @ 12% ON THE ADVANCED AMOUNT OF RS.25,74,672. FURTHER, THE ASSESSEE ADV ANCED ANOTHER RS.20 LAKHS TO THE PARTNERS WHICH WAS MEANT FOR PURCHASE OF LAND AND KEPT WITH THE PARTNER FOR SAFE KEEPING. ACCORDING TO THE AO, THE ASSESSEE HAS NOT EXPLAINED THE URGENT NEED TO KEEP SUCH AN AMOUNT IN CASH WITH THE PARTNERS INSTEAD OF DEPOSIT TO BANK. HENCE ON THIS AMOUNT ALSO, HE CHARGED INTEREST @ 12% P.A. AGAINST THESE ADDITION S, THE ASSESSEE IS IN APPEAL BEFORE THE TRIBUNAL. 5. THE LD. AR REITERATED THE SAME ARGUMENTS RAISED BEFORE THE LOWER AUTHORITIES BEFORE ME AND PRAYED THAT THERE IS NO C ONDITION IN THE PARTNERSHIP DEED TO CHARGE ANY INTEREST ON AMOUNT A DVANCED TO ITS PARTNERS, HENCE INTEREST WAS NOT CHARGED. IT WAS A LSO SUBMITTED THAT THE ASSESSEE WAS RUNNING A PETROL BUNK AND THERE WAS A PROPOSAL OF ACQUISITION OF THIS LAND BY THE GOVT. AUTHORITIES, HENCE ALTERNATIVE PLOT HAD TO BE FOUND OUT DUE TO WHICH SURPLUS CASH WAS KEPT WITH THE PARTNER TO RECEIVE IT BACK ON CALL. ITA NO.3057/BANG/2018 PAGE 3 OF 5 6. WITHOUT PREJUDICE TO THE ABOVE ARGUMENTS, FURTHE R THE LD. AR SUBMITTED THAT THE AO CHARGED INTEREST ON CLOSING B ALANCE WITHOUT TAKING INTO CONSIDERATION THE OPENING BALANCE ALSO FOR THE ASSESSMENT YEAR UNDER CONSIDERATION, HENCE IT SHOULD BE EXCLUDED WHILE CH ARGING INTEREST. 7. THE LD. DR RELIED ON THE ORDER OF LOWER AUTHORIT IES. 8. I HAVE HEARD BOTH THE PARTIES AND PERUSED THE MA TERIAL ON RECORD. IN THE PRESENT CASE, THE ASSESSEE ADVANCED MONEY TO IT S PARTNERS AS WELL AS PARTNERS ADVANCED MONEY TO ASSESSEE ALSO. THE ASSE SSEE PAID INTEREST TO PARTNERS ON AMOUNT ADVANCED BY THE PARTNERS TO THE FIRM. ON THE OTHER HAND, THE ASSESSEE HAS NOT CHARGED ANY INTEREST TO THE AMOUNT ADVANCED BY THE ASSESSEE TO ITS PARTNERS WHICH IS NOT CORREC T. THE ASSESSEE OUGHT TO HAVE CHARGED INTEREST ON THE AMOUNT ADVANCED BY THE FIRM TO ITS PARTNERS. HENCE, I DO NOT FIND ANY INFIRMITY IN THE ORDER OF LOWER AUTHORITIES IN CHARGING THE INTEREST ON THE AMOUNT ADVANCED BY THE ASSESSEE TO ITS PARTNERS. HOWEVER, I MAKE IT CLEAR THAT INTEREST O N AMOUNT ADVANCED TO THE PARTNERS BY THE FIRM BE MADE ON DAILY CUMULATIVE BA LANCE INCLUDING OPENING BALANCE AND THE AO CANNOT CHARGE INTEREST ONLY ON C LOSING BALANCE. ACCORDINGLY, I DIRECT THE AO TO RECALCULATE THE INT EREST ON DAILY CUMULATIVE BALANCE. 9. THE NEXT GROUND IS WITH REGARD TO CONFIRMING THE ADDITION OF RS.3 LAKHS BY THE CIT(APPEALS) TOWARDS PAYMENT OF SALARY TO FAMILY MEMBERS OF THE PARTNERS AS AGAINST THE DISALLOWANCE OF RS.1 LA KH BY THE AO. 10. THE ASSESSEE PAID RS.3 LAKHS AS SALARY TO THE F AMILY MEMBERS OF THE PARTNERS. OUT OF THIS, THE AO DISALLOWED ONLY RS. 1 LAKH AS THE ASSESSEE DID NOT FILE ANY SUPPORTING EVIDENCE. ON APPEAL, THE CIT(APPEALS) DIRECTED THE AO TO DISALLOW RS.3 LAKHS AS AGAINST RS.1 LAKH DISALLOWED BY THE AO WITHOUT GIVING ANY ENHANCEMENT NOTICE AS REQUIRED ITA NO.3057/BANG/2018 PAGE 4 OF 5 U/S. 251(1)(A) OF THE INCOME-TAX ACT, 1961 [THE AC T]. AGAINST THIS, THE ASSESSEE IS IN APPEAL BEFORE ME. 11. I HAVE HEARD BOTH THE PARTIES AND PERUSED THE M ATERIAL ON RECORD. THE MAIN PLEA OF THE LD. AR IS THAT THE FAMILY MEMB ERS OF PARTNERS HAVE RENDERED SERVICES TO THE ASSESSEE FIRM AND EXPENDIT URE WAS INCURRED WHOLLY AND EXCLUSIVELY FOR THE PURPOSE OF BUSINESS OF ASSESSEE. FURTHER, IT WAS SUBMITTED THAT THE AMOUNT WAS TAXED IN THE HAND S OF THE PARTNERS AND IT COULD BE ALLOWED AS AN EXPENDITURE IN THE HANDS OF THE ASSESSEE FIRM. 12. ON THE CONTRARY, THE LD. DR SUBMITTED THAT SALA RY WAS PAID TO ALL THE 3 FAMILY MEMBERS OF PARTNERS VIZ., MR. VAIBHAV BHAN GARSHETTRA, MR. VAISHAK BHANGARSHETTRA AND MS. AISHWARYA BHANGARSHE TTRA. ACCORDING TO THE LD. DR, THERE ARE REGULAR EMPLOYEES IN THE FIRM WHO MANAGE THE PETROL BUNK AND THERE WAS NO ROLE OF THESE FAMILY MEMBERS IN THE DAY TO DAY CONDUCT OF BUSINESS SO AS TO PAY SALARY TO THEM. 13. I HAVE HEARD BOTH THE PARTIES AND PERUSED THE M ATERIAL ON RECORD. IN THE PRESENT CASE, FIRSTLY, THE AO HAS NOT AT ALL BR OUGHT ANY MATERIAL ON RECORD TO SHOW THAT THE FAMILY MEMBERS OF PARTNERS ARE NOT INVOLVED IN THE DAY TO DAY AFFAIRS OF ASSESSEE FIRM, BEFORE INVOKIN G THE PROVISIONS OF SECTION 40A(2)(A). IT IS INCUMBENT UPON THE AO TO BRING ON RECORD WHETHER THESE PERSONS RENDERED ANY SERVICES OR NOT BEFORE I NVOKING THE ABOVE PROVISIONS. HE DISALLOWED RS.1 LAKH OUT OF RS.3 LA KHS PAID TO FAMILY MEMBERS OF PARTNERS. CONTRARY TO THIS, THE CIT(APP EALS) ENHANCED THE DISALLOWANCE TO THE TUNE OF RS.3 LAKHS WITHOUT ISSU ING ANY MANDATORY NOTICE REQUIRED U/S. 251(1)(A) OF THE ACT, WHICH IS BAD IN LAW. ACCORDINGLY, IN MY OPINION, FIRST OF ALL, THE ADDITION MADE BY T HE AO ITSELF IS NOT BASED ON ANY MATERIAL BROUGHT ON RECORD. SECONDLY, THE ENHA NCEMENT BY THE CIT(APPEALS) WITHOUT GIVING ANY MANDATORY NOTICE IS ALSO AGAINST ALL NORMS ITA NO.3057/BANG/2018 PAGE 5 OF 5 OF THE LAW. IN VIEW OF THIS, I AM INCLINED TO DELE TE THE ADDITION MADE BY THE LOWER AUTHORITIES. THUS, THIS GROUND OF APPEAL OF THE ASSESSEE IS ALLOWED. 14. IN THE RESULT, THE APPEAL BY THE ASSESSEE IS PA RTLY ALLOWED. PRONOUNCED IN THE OPEN COURT ON THIS 09 TH DAY OF JANUARY, 2019. SD/- ( CHANDRA POOJARI ) ACCOUNTANT MEMBER BANGALORE, DATED, THE 09 TH JANUARY, 2019. / D ESAI S MURTHY / COPY TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR, ITAT, BANGALORE. 6. GUARD FILE BY ORDER ASSISTANT REGISTRAR, ITAT, BANGALORE.