The DCIT- 1(1), Indore V. M/s. Beryl Securities Ltd., Indore

ITA 311/IND/2013

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 98925 (ITAT-INDORE)
• Duration Of Justice: 2 year(s) 2 month(s) 24 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 11-08-2015
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Assessment Year: 2008-2009
• Appeal Filed On: 17-05-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: R A VERMA
• Keywords: Additional evidence

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, INDORE BENCH, INDORE BEFORE SHRI D.T. GARASIA, J.M. AND SHRI B.C.MEENA, A.M. I.T.A.NO.311/IND/2013 A.Y. : 2008-09 DY. CIT, M/S.BERYL SECURITIES LIMITED, 1(1), VS. 43-44, DAWA BAZAR, INDORE 13-14, R.N.T.MARG, INDORE APPELLANT RESPONDENT PAN NO. AABCB2663A APPELLANT BY : SHRI R.A.VERMA, SR. DR RESPONDENT BY : SHRI SUBHASH JAIN, C. A. DATE OF HEARING : 16 . 0 7 .201 5 DATE OF PRONOUNCEMENT : 11. 0 8 .201 5 -: 2: - 2 O R D E R PER GARASIA, J.M. THIS IS AN APPEAL FILED BY THE REVENUE AGAINST THE ORDER OF CIT(A)-I, INDORE, DATED 30.01.2013 FOR THE ASSE SSMENT YEAR 2008-09. 2. THE ONLY GROUND RAISED BY THE REVENUE READS AS UNDE R :- ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) ERRED IN DIRECTING TO DELETE THE DISALLOWANCE OF RS. 13,20,976/- UNDER THE HEAD PROVISION OF NPA WRITTEN BACK ON THE GROUND THAT THE DISALLOWANCE ON THIS ACCOUNT WAS MADE BY THE ASSESSEE IN THE ASSESSMENT YEARS PRIOR TO ASSESSMENT YEAR 2006-07 BY ENTERTAINING THE ADDITIONAL EVIDENCE WITHOUT GIVING AN OPPORTUNITY T O THE AO UNDER RULE 46A OF THE I. T. RULES. -: 3: - 3 (I)(A) WHILE HOLDING SO, THE LD. CIT(A) ERRED IN NOT APPRECIATING THE CATEGORICAL FINDING OF THE AO GIVEN AFTER VERIFICATION OF RECORD IN THE ASSESSMEN T ORDER THAT PRIOR TO ASSESSMENT YEAR 2006-07 THE ASSESSEE HAD NOT DISALLOWED THE AMOUNT OF NPA PROVISION. 3. THE ASSESSEE IS FINANCIAL SERVICE COMPANY. THE ASSESSEE HAS CREDITED IN ITS PROFIT AND LOSS ACCOUN T A SUM OF RS. 15,08,,750/- BUT DEDUCTED THE SAME WHILE COMPUT ING THE TOTAL INCOME. THE ASSESSEE HAS TAKEN THE CONTENTION THAT THE ASSESSEE HAS WRITTEN BACK THIS AMOUNT BECAUSE IT HA S A PROVISION FOR THE REASON THAT THE RECOVERY HAS BEEN EFFECTED FROM THE DEBTORS WHOSE LOANS WERE TRANSFERRED IN TH E EARLIER YEARS. THE STATEMENT OF ACCOUNT NPA PROVISION WRI TTEN BACK WAS FURNISHED BEFORE THE AO. THE AO WAS OF THE VIEW THAT IF THE DEDUCTION OF NPA IS GRANTED TO THE ASSESSEE, TH EN IT WILL AMOUNT TO DOUBLE DEDUCTION. THE ASSESSEES INCOME I S DERIVED FROM BANK. THE ASSESSEES BUSINESS IS COVERED BY TH E GUIDELINES ISSUED BY THE RBI. FOLLOWING THE SAID GU IDELINES, -: 4: - 4 THE ASSESSEE WAS CREATING FOR NON-PERFORMING ASSETS AND THE AO WAS OF THE VIEW THAT THE AMOUNT OF RS. FOLLOWING THE SAID GUIDELINES, THE ASSESSEE WAS CREATING PROVISION FOR NON PERFORMING ASSETS AND THE AO WAS OF THE VIEW THAT T HE AMOUNT OF RS 1,87,774/- RELATES TO THE ASSESSMENT YEAR 200 6-07. THEREFORE, THE AMOUNT OF RS. 13,20,976/- WAS DISALL OWED AS THIS NPA RELATES TO THE EARLIER YEARS. 4. THE MATTER CARRIED TO LD. CIT(A). THE LD. CIT(A) HA S ALLOWED THE CLAIM BY OBSERVING AS UNDER :- 4.3 BESIDES THE AFORESAID SUBMISSION, THE APPELLANTS A/R ALSO FILED DETAILED PAPER BOOK, WHI CH IS ANNEXED WITH THE RELEVANT DOCUMENTS IN CONNECTIO N WITH APPELLANTS CLAIM IN THE PAPER BOOK AS PER PAG E -6 OF THE PAPER BOOK, WHEREIN THE APPELLANT SUBMITTED A CHART MADE FOR THE YEAR ENDING ON 31/03/02, 31/03/03, 31/03/06, 31/03/07 & 31/03/08. THE APPELLANT ALSO ALONG WITH PAPER BOOK ON PAGE 8, 10 & 11 HAS FILED COMPUTATION OF INCOME, WHEREIN THE AFORESAID PROVISION WERE DISALLOWED BY THE APPELLANT SUO-MOTO, AS THE SAME WAS NOT -: 5: - 5 ALLOWABLE. THE APPELLANTS A/R ALSO SUBMITTED BEFOR E ME THAT THE ADDITION OF THE SAID PROVISION WERE MAD E BY THE A.O. IN THE ASSESSMENT YEAR 07-08 ALSO, AGAINST WHICH THE APPELLANTS FILED AN APPEAL BUT LATER ON SUBSEQUENT TO APEX COURT DECISION IN THE CASE OF SOUTHERN TECHNOLOGIES LTD. VS. JCIT REPORTE D IN CTR (SC) 440, THE SAID APPEAL WAS WITHDRAWN BY THE APPELLANT. THE PERUSAL OF THE APPELLANTS SUBMISSION AND THE DOCUMENTS BROUGHT BEFORE ME CLEARLY SUGGESTS THAT THE APPELLANT COMPANY THOUGH MADE THE PROVISION AS PER RBI GUIDELINES BUT THE SAME WERE NOT CLAIMED AS DEDUCTION IN RESPECTIVE ASSESSMENT YEAR, AS THE SAME WERE ADDED TO THE INCOME OF THE APPELLANT THROUGH COMPUTATION OF INCOME. THIS ACT OF THE APPELLANT CLEARLY SUGGESTS THAT THE PROVISION WERE NOT CLAIMED AS DEDUCTION EVEN IN EARLIER YEARS. HENCE IN THIS BACKGROUND OF THE APPELLANTS ACT AS STATED ABOVE, SUBSEQUENTLY WHEN THE APPELLANT COMPANY WRITTEN BACK SUCH PROVISION THEN DEDUCTION CLAIMED AS PER COMPUTATION OF INCOME -: 6: - 6 IS COMPLETELY JUSTIFIED AND CORRECT. THE A.O.S ACT ION OF DENIAL OF SUCH CLAIM OF DEDUCTION OF SUCH WRITTE N BACK PROVISION WILL AMOUNTS TO DOUBLE TAXATION, WHICH CANNOT BE ALLOWED IN THE PROVISIONS OF LAW. I N VIEW OF THE SAME, THE ADDITION SO MADE BY THE A.O. IS DELETED. ACCORDINGLY THE APPELLANTS THIS APPEAL IS ALLOWED. 5. WE HAVE HEARD THE RIVAL CONTENTIONS OF BOTH THE PARTIES. LOOKING TO THE FACTS AND CIRCUMSTANCES OF THE CASE, WE FIND THAT BEFORE THE LD. CIT(A) THE ASSESSEE HAS MADE A CLAIM THAT IT HAS A NPA PROVISIONS FOR ASSESSMENT Y EAR 2002- 03, 2003-04, 2006-07 AND 2007-08 AND ASSESSEE HAS A LSO FILED THE COMPUTATION OF INCOME, WHEREIN THE SAID PROVISI ON WAS DISALLOWED BY THE ASSESSEE SUO MOTU AND THE ASSESSE E HAS PAID THE TAX. SUBSEQUENT TO THIS, THE ASSESSEE HAS ALSO FILED THE APPEAL BEFORE CIT(A) FOR ASSESSMENT YEAR 2007-0 8, BUT IN VIEW OF THE DECISION OF SOUTHERN TECHNOLOGIES LIMIT ED VS. JCIT, (2010) 320 ITR 0577 : 228 CTR 0440, THE APPEAL WAS WITHDRAWN. THEREFORE, THE ASSESSEE HAS ALREADY PAI D THE TAXES -: 7: - 7 FOR THE PROVISION AND AS THE ASSESSEE HAS RECEIVED THIS AMOUNT BACK IN THIS YEAR, THE ASSESSEE HAS CLAIMED THE DED UCTION. THEREFORE, THE LD. CIT(A) DELETED THE ADDITION AND OUR INTERFERENCE IS NOT REQUIRED. 6. DURING THE COURSE OF HEARING, THE LD. AUTHORIZED REPRESENTATIVE HAS ALSO DRAWN OUR ATTENTION THAT TH E ASSESSEE HAS NOT FILED ANY NEW EVIDENCE BEFORE THE CIT(A). T HE ASSESSEE ONLY PRODUCED THE EVIDENCE, WHICH WAS PRODUCED BEFO RE THE AO AND DURING THE COURSE OF HEARING, THE ASSESSEE H AS DRAWN OUR ATTENTION TO THE PAPER BOOK, WHEREIN ALL THESE DOCUMENTS WERE SUBMITTED BEFORE THE AO AND ASSESSEE HAS GIVEN THE CERTIFICATE THAT ALL THESE DOCUMENTS WERE PRODUCED BEFORE THE AO. THEREFORE, WE ARE OF THE VIEW THAT THE ASSESSEE HAS NOT PRODUCED ANY ADDITIONAL EVIDENCE BEFORE THE CIT(A). THEREFORE, WE DISMISS THE GROUND NO.1 AND 2 OF THE DEPARTMENT S APPEAL. -: 8: - 8 7. IN THE RESULT, THE APPEAL OF THE REVENUE IS DISMISS ED. THIS ORDER HAS BEEN PRONOUNCED IN THE OPEN COURT ON 11 TH AUGUST, 2015. SD/- (B. C. MEENA) ACCOUNTANT MEMBER SD/- ( D.T.GARASIA) JUDICIAL MEMBER DATED : 11 TH AUGUST , 2015. CPU* 17.11