Shri Hitesh Kantilal Shah, Ahmedabad V. The Income tax Officer,Ward-12(2), Ahmedabad

ITA 3198/AHD/2011

• Counselvise Citation: [2012] 140 COUNSELVISE.COM (IT) 60280 (ITAT-AHMEDABAD)
• Duration Of Justice: 3 month(s) 20 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 09-04-2012
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Next Hearing Date: 09-04-2012
• Assessment Year: 2008-2009
• Appeal Filed On: 19-12-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: J M TRIVEDI
• Keywords: Opportunity of being heard
• Section: 14A

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, C BENCH, AHMEDABAD BEFORE SHRI A. K. GARODIA, ACCOUNTANT MEMBER AND SHRI KUL BHARAT, JUDICIAL MEMBER I.T.A. NO. 3198/ AHD/2011 (ASSESSMENT YEAR 2008-09) HITESH KANTILAL SHAH, 9-B, RATNAMANI HINDU COLONY, STADIUM ROAD, NAVRANGPURA, AHMEDABAD VS. THE ITO ,WARD 12(2), AHMEDABAD PAN/GIR NO. : ACZPS4265L (APPELLANT) .. (RESPONDENT) APPELLANT BY: SHRI J M TRIVEDI, AR RESPONDENT BY: SHRI VINOD TANWANI, SR. DR DATE OF HEARING: 09.04.2012 DATE OF PRONOUNCEMENT: 09.04.2012 O R D E R PER SHRI A. K. GARODIA, AM:- THIS IS ASSESSEES APPEAL DIRECTED AGAINST THE ORD ER OF LD. CIT(A) XVI, AHMEDABAD DATED 03.10.2011 FOR THE ASSESSMENT YEAR 2008-09. 2. THE GROUNDS RAISED BY THE ASSESSEE ARE AS UNDER: 1.THAT THE LEARNED I.T.O. ERRED IN MAKING AND LEAR NED C.I.T.(A) ERRED IN CONFIRMING DISALLOWANCE OUT OF INTEREST EX P. U/S. 14A TO THE EXTENT OF RS.8,43,9067- FOR THE REASONS MENTIO NED IN RESPECT ORDERS. 2. THAT WHILE DOING SO, BOTH THE AUTOMATIC HAVE ERR ED IN NOT CONSIDERING VARIOUS SUBMISSIONS OF ASSESSEE AS WELL AS LAW AND CASE LAWS ON THE SUBJECT, 3.IN VIEW OF SAME, AND OR OTHERS FACT MAY BE URGED AT THE TIME OF HEARING THE APPELLANT PRAYS THAT ADDITION AS MADE B E DELETED, 4. RIGHT TO ADD, AMEND, ALTER OR MODIFY THE ABOVE G ROUNDS OF APPEAL IS RESERVE HERE BY. I.T.A.NO.3198 /AHD/2011 2 3. IT WAS SUBMITTED BY THE LD. A.R. THAT IN THIS YE AR, RULE 8D IS APPLICABLE BUT THE A.O. HAS NOT APPLIED RULE 8D AND , THEREFORE, THE MATTER SHOULD GO BACK TO THE FILE OF THE A.O. FOR A FRESH DECISION AFTER APPLYING RULE 8D. AT THIS JUNCTURE, A QUERY WAS RAISED BY T HE BENCH AS TO WHETHER THERE IS ANY INTEREST PAYMENT BY THE ASSESSEE. IN REPLY, IT WAS SUBMITTED BY THE LD. A.R. THAT ALTHOUGH IN THE P & L ACCOUNT, THERE IS NET CREDIT OF INTEREST OF RS.16,27,548/- BUT THE SAME IS AFTER DE DUCTION OF INTEREST PAYMENT OF RS.45,13,880/-. 4. AS AGAINST THIS, IT WAS SUBMITTED BY THE LD. D.R . THAT THE MATTER MAY BE RESTORED BACK TO THE FILE OF THE A.O. FOR A FRESH DECISION AFTER APPLYING RULE 8D AND AFTER CONSIDERING INTEREST PAY MENT OF RS.45,13,880/- FOR WORKING OUT THE DISALLOWANCE. 5. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS, PERUSE D THE MATERIAL ON RECORD AND HAVE GONE THROUGH THE ORDERS OF AUTHORIT IES BELOW. WE FIND THAT FOR THE ASSESSMENT YEAR 2008-09 I.E. THE PRESE NT YEAR, RULE 8D IS APPLICABLE BUT THE AUTHORITIES BELOW HAVE NOT APPLI ED RULE 8D AND, THEREFORE, THIS ISSUE SHOULD GO BACK TO THE FILE OF THE A.O. FOR A FRESH DECISION. ACCORDINGLY, WE SET ASIDE THE ORDER OF L D. CIT(A) ON THIS ISSUE AND RESTORE THE MATTER BACK TO THE FILE OF THE A.O. FOR A FRESH DECISION. HE SHOULD WORK OUT THE AMOUNT OF DISALLOWANCE U/S 1 4A BY APPLYING RULE 8D AND BY CONSIDERING INTEREST EXPENDITURE OF RS.45,13,880/-. HE SHOULD PASS NECESSARY ORDER AS PER LAW AS PER ABOVE DISCUSSION AFTER PROVIDING ADEQUATE OPPORTUNITY OF BEING HEARD TO TH E ASSESSEE. 6. IN THE RESULT, APPEAL OF THE ASSESSEE STANDS ALL OWED FOR STATISTICAL PURPOSES. 7. ORDER PRONOUNCED IN THE OPEN COURT ON THE DATE M ENTIONED HEREINABOVE. SD./- SD./- (KUL BHARAT) (A. K. GARODIA) JUDICIAL MEMBER ACCOUNTANT MEMBER SP I.T.A.NO.3198 /AHD/2011 3 COPY OF THE ORDER FORWARDED TO: 1. THE APPLICANT 2. THE RESPONDENT 3. THE CIT CONCERNED 4. THE LD. CIT (APPEALS) 5. THE DR, AHMEDABAD BY ORDER 6. THE GUARD FILE AR,ITAT,AHMEDABAD 1. DATE OF DICTATION 9/4 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER 11/4.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 9/4 5. DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR. P.S./P.S.12/4 6. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK 12/4 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. .