Shri Hareshkumar S.Agrawal, Palanpur V. The Income tax Officer,Ward-1, Palanpur

ITA 316/AHD/2012

• Counselvise Citation: 31620514 RSA 2012
• Duration Of Justice: 7 month(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 21-09-2012
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Next Hearing Date: 05-09-2012
• Assessment Year: 2008-2009
• Appeal Filed On: 02-02-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: DINESH SINGH SR D R

Judgement Text

, , , , IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH, AHMEDABAD , .. , '# ' $ BEFORE SHRI MUKUL KR.SHRAWAT, JUDICIAL MEMBER AND SHRI T.R. MEENA, ACCOUNTANT MEMBER ./ I.T.A. NO.316/AHD/2012 ( & ' & ' & ' & ' / / / / ASSESSMENT YEAR : 2008-09) SHRI HARESHKUMAR S.AGRAWAL NEW MARKET YARD DAIRY ROAD PALANPUR & & & & / VS. THE ITO WARD-1 PALANPUR ( '# ./)* ./ PAN/GIR NO. : ABKPA 6472 H ( (+ / // / APPELLANT ) .. ( ,-(+ / RESPONDENT ) (+ . ' / APPELLANT BY : SHRI MANISH RAJVAIDYA ,-(+ / . ' / RESPONDENT BY : SHRI DINESH SINGH, SR.D.R. &0 / # / / / / DATE OF HEARING : 05/09/2012 12' / # / DATE OF PRONOUNCEMENT : 21/09/12 '3/ O R D E R PER SHRI MUKUL KR. SHRAWAT, JUDICIAL MEMBER : THIS IS AN APPEAL FILED BY THE ASSESSEE ARISING F ROM THE ORDER OF LEARNED CIT(APPEALS)-XX AHMEDABAD DATED 15/11/2011 PASSED FOR A.Y. 2008-09. THE SUBSTANTIVE GROUND RAISED BY THE ASSESSEE IS AS UNDER:- THE LEARNED CIT(A) HAS ERRED IN LAW AND ON FACTS WH ILE CONFIRMING THE ADDITION MADE BY THE A.O. OF RS.6,57,166/- OUT OF I NTEREST EXPENSES CONSIDERING THAT THE APPELLANT HAS CHARGED LOWER IN TEREST TO OUTSIDER PARTIES AND PAID HIGHER INTEREST TO RELATED PARTIES U/S.40A(2)(B) AS WELL AS THE APPELLANT HAS NOT CHARGED INTEREST, WITHOUT CONSIDERING THE FACT THAT THERE ARE SUFFICIENT INTEREST FREE FUNDS IN TH E FORM OF PROPRIETORS ITA NO .316/AHD/2012 SHRI HARESHKUMAR S.AGRAWAL VS. ITO ASST.YEAR - 2008-09 - 2 - CAPITAL ACCOUNT AND CERTAIN UNSECURED LOANS AS WELL AS NOT CONSIDERING THE FACT THAT THE LOANS ACCEPTED ARE OLD LOANS AND THERE IS NO DIRECT NEXUS BETWEEN THE LOAN ACCEPTED AND LOANS GRANTED A S WELL AS THE LOANS ACCEPTED ARE FOR A LONG PERIOD FOR WHICH INTEREST H AS TO BE PAID AT A HIGHER RATE. 2. HOWEVER, ASSESSEE HAS ALSO RAISED AN ADDITIONAL GROUND WHICH PERTAINED TO NON-GRANT OF OPPORTUNITY OF HEARING BY THE LEARNED CIT(APPEALS) AND READS AS UNDER:- THE LEARNED CIT(A) HAS ERRED IN LAW AND ON FACTS W HILE NOT CONSIDERING THAT NONE OF THE APPEAL NOTICES WERE RE CEIVED BY THE APPELLANT AND HENCE THE APPELLATE PROCEEDINGS WERE NOT ATTENDED. THE APPELLANT HAD ALSO NOT RECEIVED THE APPELLATE ORDER AND THE COPY OF THE APPELLATE ORDER WAS ALSO PROCURED FROM THE OFFICE T HE ADDL.COMMISSIONER OF INCOME TAX, B.K.RANGE, PALANPU R TO FILE THE APPEAL BEFORE THE HON'BLE TRIBUNAL. 3. AT THE OUTSET, WE HAVE BEEN INFORMED THAT BEFORE ASSESSING OFFICER THE ASSESSEE WAS PRESENT AND PLEADED HIS CASE REGUL ARLY AS IS EVIDENT FROM THE IMPUGNED ORDER OF THE ASSESSING OFFICER PASSED U/S.143(3) OF THE I.T.ACT DATED 10.12.2010. FURTHER, IT HAS BEEN INF ORMED THAT ALTHOUGH THE LEARNED CIT(APPEALS) HAS NOTED THAT CERTAIN NOTICES WERE ISSUED BUT THOSE WERE NOT PROPERLY SERVED. ON ACCOUNT OF NON- APPEARANCE FROM THE SIDE OF THE APPELLANT, THE LEARNED CIT(APPEALS) HAS AFFIRMED THE DISALLOWANCE OF RS.6,57,160/- OUT OF THE CLAIM OF I NTEREST EXPENSES. LD.AR MR.MANISH RAJVAIDYA HAS PLEADED THAT IF AN O PPORTUNITY BE GRANTED, THEN THE ASSESSEE IS IN A POSITION TO EXPL AIN THE UTILIZATION OF BORROWINGS FOR BUSINESS PURPOSE AND THERE SHOULD NO T BE ANY DISALLOWANCE U/S.36(1)(III) OF THE I.T.ACT. HE HAS ALSO GIVEN AN UNDERTAKING THAT, IN FUTURE, THERE SHALL BE NO SUCH FAILURE IN ATTENDING THE PROCEEDINGS BEFORE THE REVENUE AUTHORITIES. ITA NO .316/AHD/2012 SHRI HARESHKUMAR S.AGRAWAL VS. ITO ASST.YEAR - 2008-09 - 3 - 4. HAVING HEARD THE SUBMISSIONS, WE ARE OF THE CON SIDERED VIEW THAT SINCE THE LEARNED CIT(APPEALS) HAS NOT CONSIDERED T HE SUBMISSIONS OF THE ASSESSEE AND DECIDED EX-PARTE CONFIRMING THE ACTION OF THE ASSESSING OFFICER WHICH WAS OTHERWISE NOT IN THE LINE OF THE GUIDELINES PRESCRIBED U/S.250 SUB-SECTION (6) OF THE I.T.ACT WHICH SAYS T HAT AN ORDER OF LEARNED CIT(APPEALS) SHALL BE IN WRITING AND SHALL STATE TH E POINTS FOR DETERMINATION, THE DECISION THEREON AND THE REASON FOR THE DECISION, THEREFORE WE RESTORE THIS ISSUE BACK TO THE STAGE O F LEARNED CIT(APPEALS) TO DECIDE DE NOVO , NEEDLESS TO SAY AFTER PROVIDING AN ADEQUATE OPPORTUNITY OF HEARING TO THIS APPELLANT. WE ALSO DIRECT THE ASSESSEE TO BE PRESENT EITHER PERSONALLY OR THROUGH THE AUTHORI ZED REPRESENTATIVE BEFORE LEARNED CIT(APPEALS) WITHIN 20 DAYS ON RECEI PT OF THIS ORDER OF THE TRIBUNAL SUO MOTU WITHOUT WAITING FOR ANY NOTICE OF HEARING FROM THE OFFICE OF LEARNED CIT(APPEALS) WITH ALL THE DETAILS AND DOCUMENTS, SO THAT THE APPEAL CAN BE DECIDED AT AN EARLY DATE. R ESULTANTLY, THIS GROUND MAY BE TREATED AS ALLOWED BUT FOR STATISTICAL PURPO SES. 4. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS TREATED AS ALLOWED ONLY FOR STATISTICAL PURPOSES. SD/- SD/- ( .. ) ( ) '# ( T.R. MEENA ) ( MUKUL KR. SHRAWAT ) ACCOUNTANT MEMBER JUDICIAL ME MBER AHMEDABAD; DATED 21/ 09 /2012 ..&, .&../ T.C. NAIR, SR. PS ITA NO .316/AHD/2012 SHRI HARESHKUMAR S.AGRAWAL VS. ITO ASST.YEAR - 2008-09 - 4 - '3 / ,4 5'4' '3 / ,4 5'4' '3 / ,4 5'4' '3 / ,4 5'4'/ COPY OF THE ORDER FORWARDED TO : 1. (+ / THE APPELLANT 2. ,-(+ / THE RESPONDENT. 3. 6 / CONCERNED CIT 4. 6() / THE CIT(A)-XX, AHMEDABAD 5. 49: ,& , , / DR, ITAT, AHMEDABAD 6. :; <0 / GUARD FILE. '3& '3& '3& '3& / BY ORDER, -4 , //TRUE COPY// = == =/ // / ) ) ) ) ( DY./ASSTT.REGISTRAR) , , , , / ITAT, AHMEDABAD 1. DATE OF DICTATIONON 13.9.12 (DICTATION-PAD 4 PAGES ATTACHED) 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER 14.9.12 OTHER MEMBER 3. DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR.P. S./P.S.. 4. DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE D ICTATING MEMBER FOR PRONOUNCEMENT 5. DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR.P .S./P.S 21.9.12 6. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK 21.9.12 7. DATE ON WHICH THE FILE GOES TO THE HEAD CLERK . 8. THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT RE GISTRAR FOR SIGNATURE ON THE ORDER.. 9. DATE OF DESPATCH OF THE ORDER