M/s. Alamc Corporation, Ahmedabad V. The Dy.CIT.,Circle-10, Ahmedabad

ITA 3094/AHD/2010

• Counselvise Citation: [2011] 134 COUNSELVISE.COM (IT) 6743 (ITAT-AHMEDABAD)
• Duration Of Justice: 5 month(s) 17 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 06-05-2011
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 06-05-2011
• Assessment Year: 2007-2008
• Appeal Filed On: 19-11-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S A BOHRA
• Keywords: Business income

Judgement Text

ITA.NO.3094/AHD/2010 ASSESSMENT YEAR 2007- 08. 1 IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH, AHMEDABAD (BEFORE SHRI D.K. TYAGI AND SHRI A. K. GARODIA) I.T.A. NO.3094/AHD/2010 (ASSESSMENT YEAR: 2007-2008 ) M/S. ALMAC CORPORATION, 43, PHASE-I, G.I.D.C. ESTATE, VATVA, AHMEDABAD. (APPELLANT) VS. DEPUTY COMMISSIONER OF INCOME TAX, CIRCLE-10, NARAYAN CHAMBERS, ASHRAM ROAD, AHMEDABAD. (RESPONDENT) PAN: AAHFA 1695 E APPELLANT BY : MS. URVASHI SHODHAN RESPONDENT BY : SHRI S.A. BOHRA, JCIT. ( )/ ORDER PER: SHRI A.K. GARODIA , A.M. THIS IS AN ASSESSEES APPEAL DIRECTED AGAINST THE ORDER OF LD. CIT (A)- XVI, AHMEDABAD DATED 16-9-2010 FOR ASSESSMENT YEAR 2007-08. 2. THE GROUNDS RAISED BY THE ASSESSEE ARE AS UNDER: - 1. THE LD. COMMISSIONER OF INCOME TAX HAS ERRED IN LAW AND FACTS IN NOT PASSING THE SPEAKING ORDER AND IN NOT CONSIDERING, STATING, EXPLAINING, ELABORATING THE WRITTEN SUBMISSION FILE D DURING THE COURSE OF HEARING. 2. THE LD. ASSESSING OFFICER AND THE LD. CIT HAS ER RED IN ARRIVING AT THE CONCLUSION THAT INTEREST RECEIVED FROM M/S. PARISHOASONS AND ITA.NO.3094/AHD/2010 ASSESSMENT YEAR 2007- 08. 2 FDR WITH BANK IS NOT THE RECEIPT IN NATURE OF BUSIN ESS INCOME IN SPITE OF THE FACT THAT APPELLANT HAS SHOWN THE SAID RECEI PT OF INTEREST UNDER THE HEAD BUSINESS INCOME. THE APPELLANT HAS ALREADY SHOWN AND THE DEPARTMENT HAS ACCEPTED THE SAID INTEREST INCOME AS BUSINESS INCOME IN ALL PREV IOUS YEARS. 3. THE LD. ASSESSING OFFICER AND THE LD. CIT HAS ER RED IN DISALLOWING RS.4,33,507/- INTEREST INCOME FOR THE P URPOSE OF CLAIM FOR WORKING PARTNERS REMUNERATION U/S. 40A(2)(B) OF TH E ACT. 4. THE LD. ASSESSING OFFICER AND THE LD. C.I.T. HAS ERRED IN DISALLOWING RS.1,73,004/- BEING WORKING PARTNERS RE MUNERATION UNDER SECTION 40(B) OF THE ACT. 5. IN THE ALTERNATE, NET INTEREST RECEIVED FRO M M/S. PARISHASONS & FDR WITH BANK LESS INTEREST PAID TO PARTNERS ARE TO BE CONSIDERED FOR THE PURPOSE OF CALCULATION OF WORKING PARTNER REMUN ERATION BEING THE SAME IS EFFECTIVE ACCORDING TO ARRIVING AT BOOK PRO FIT. 3. THE LD. A.R. OF THE ASSESSEE SUBMITTED THAT THE ISSUE IN DISPUTE BEFORE US IS SQUARELY COVERED BY THE TWO TRIBUNAL DECISION S NAMELY IN THE CASE OF S.P. EQUIPMENT & SERVICES VS. ACIT AS REPORTED IN ( 2010) 36 SOT 325 (JP) AND IN THE CASE OF ACIT VS. SHETH BROTHERS AS REPOR TED IN (2006) 99 TTJ 189 (RAJ). AT THIS JUNCTURE, IT WAS POINTED OUT BY THE BENCH THAT AS PER GROUND NO.1 OF THE APPEAL RAISED BY THE ASSESSEE, THE GRIE VANCE OF THE ASSESSEE IS THAT THE ORDER OF THE LD. CIT (A) IS NOT A SPEAKING ORDER AND HE HAS NOT CONSIDERED THE WRITTEN SUBMISSIONS FILED BEFORE HIM IN COURSE OF HEARING. IT WAS POINTED OUT BY THE BENCH THAT AS PER THIS GROUN D NO.1, THE ISSUE HAS TO BE RESTORED BACK TO THE FILE OF THE CIT (A) FOR A F RESH DECISION. IN REPLY, IT WAS SUBMITTED BY THE LD. A.R. OF THE ASSESSEE THAT IN THAT SITUATION, THE ASSESSEE SHOULD BE ELIGIBLE TO RAISE ALL ARGUMENTS INCLUDING CITING OF THESE TWO TRIBUNAL DECISIONS WHICH ARE CITED BEFORE THE T RIBUNAL AND WERE NOT CITED ITA.NO.3094/AHD/2010 ASSESSMENT YEAR 2007- 08. 3 BEFORE THE LD. CIT (A) EARLIER. THE LD. D.R. OF THE REVENUE SUPPORTED THE ORDERS OF THE AUTHORITIES BELOW. 4. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND PER USED THE MATERIAL AVAILABLE ON RECORD. WE FIND THAT THE AS PER GROUND NO.1, ASSESSEES GRIEVANCE IS THAT THE ORDER OF THE LD. CIT (A) IS N OT A SPEAKING ORDER AND THIS ORDER IS WITHOUT CONSIDERING THE WRITTEN SUBMISSION S FILED BEFORE HIM IN COURSE OF HEARING. UNDER THIS FACTUAL POSITION, WE FEEL THAT THIS MATTER SHOULD GO BACK TO THE FILE OF THE CIT (A) FOR A FRESH DECI SION AFTER CONSIDERING ALL THE ARGUMENTS OF THE ASSESSEE AND HE SHOULD PASS A SPEAKING ORDER. WE, THEREFORE, SET ASIDE THE ORDER OF THE LD. CIT (A) A ND RESTORE THIS MATTER BACK TO HIS FILE FOR A FRESH DECISION. HE SHOULD CONSIDE R WRITTEN SUBMISSIONS WHICH WERE EARLIER FILED BY THE ASSESSEE BEFORE HIM. IN A DDITION THERETO, THE ASSESSEE CAN MAKE FRESH ARGUMENTS AND CITE FRESH JU DGMENTS BEFORE THE LD. CIT (A) AND LD. CIT(A) SHOULD DECIDE THE ISSUE AFRE SH AFTER CONSIDERING ALL WRITTEN SUBMISSIONS AS WELL AS NEW ARGUMENTS/NEW JU DGMENTS WHICH MAY BE CITED BY THE ASSESSEE BEFORE HIM AND HE SHOULD PASS A SPEAKING ORDER. WITH THESE OBSERVATIONS, WE ALLOW GROUND NO.1 OF APPEAL RAISED BY THE ASSESSEE. 5. REGARDING OTHER GROUNDS RAISED BY THE ASSESSEE B EFORE US, WE WOULD LIKE TO OBSERVE THAT SINCE WE ARE RESTORING THE MAT TER BACK TO THE FILE OF THE CIT(A) FOR A FRESH DECISION, OTHER GROUNDS RAISED B EFORE US DO NOT CALL FOR ADJUDICATION AT THIS STAGE. 6. IN THE RESULT, THE APPEAL OF THE ASSESSEE STANDS ALLOWED FOR STATISTICAL PURPOSE IN TERMS AS INDICATED ABOVE. ITA.NO.3094/AHD/2010 ASSESSMENT YEAR 2007- 08. 4 ORDER PRONOUNCED IN THE OPEN COURT AT THE CLOSE OF HEARING ON 6-5- 2011. SD/- SD/- (D.K. TYAGI) (A. K. GARODIA) JUDICIAL MEMBER. AC COUNTANT MEMBER. AHMEDABAD. DATED: 06-05- 2011. S.A.PATKI. COPY OF THE ORDER FORWARDED TO: - 1. THE APPELLANT. 2. THE RESPONDENT. 3. THE CIT (APPEALS)-XVI, AHMEDABAD. 4. THE CIT CONCERNED. 5. THE DR.,ITAT, AHMEDABAD. 6. GUARD FILE. BY ORDER DEPUTY/ASSTT.REGISTRAR ITAT,AHMEDABAD. ITA.NO.3094/AHD/2010 ASSESSMENT YEAR 2007- 08. 5 1.DATE OF DICTATION 6 -5 -2011 2.DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE TH E DICTATING 6 / 5 / 2011 MEMBER.OTHER MEMBER. 3.DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR. P.S./P.S 6 - 5 -2011. 4.DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE DICTATING MEMBER FOR PRONOUNCEMENT 6 - 5-2011 5.DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR .P.S./P.S 6 -5 -2011 6.DATE ON WHICH THE FILE GOES TO THE BENCH CLERK 6 -5 -2011. 7.DATE ON WHICH THE FILE GOES TO THE HEAD CLERK . 8.THE DATE ON WHICH THE FILE GOES TO THE ASSTT. REG ISTRAR FOR SIGNATURE ON THE ORDER 9.DATE OF DESPATCH OF THE ORDER..