Shri Ghanshyambhai J. Vaidya, RAJKOT-GUJARAT V. The Deputy Commissioner of Income Tax, Circle-1, RAJKOT-GUJARAT

ITA 324/RJT/2013

• Counselvise Citation: [2015] 121 COUNSELVISE.COM (IT) 1114 (ITAT-RAJKOT)
• Duration Of Justice: 1 year(s) 9 month(s) 6 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-05-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 25-05-2015
• Assessment Year: 1998-1999
• Appeal Filed On: 22-08-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: AVINASH KUMAR
• Assessee Lawyers: DM RINDANI
• Keywords: Opportunity of being heard

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL RAJKOT BENCH , RAJKOT BEFORE SHRI SHAILEND RA K UMAR YADAV, JUDICIAL MEMBER, AND SHRI N. S. SAINI , ACCOUNTANT MEMBER . ITA. NO. 32 4 / RJT /20 1 3 (ASSESSMENT YEAR: 1998 - 99 ) SHRI GHANSHYAMBHAI J. VAIDYA SANGHAVI & CO., 112, ADITYA CENTRE, PHULCHHAB CHOWK, RAJKOT APPELLANT VS. DICT, CIRCLE - 1, RAJKOT RESPONDENT PAN: ABOPV5325J / BY APPELLANT : SHRI D. M. RINDANI , C.A. / BY RESPONDENT : SHRI AVINASH KUMAR , D.R. / DATE OF HEARING : 2 5 . 0 5 .2015 / DATE OF PRONOUNCEMENT : 28 . 0 5 .201 5 ORDER PER SHAILENDRA KUMAR YADAV, J.M: TH I S APPEAL HAS BEEN FILED BY ASSESSEE AGAINST THE ORDER OF COMMISSIONER OF INCOME TAX (APPEALS) - II , RAJKOT , DATED 2 5 . 0 6 . 20 1 3 ON THE FOLLOWING GROUND : 1 . THAT T HE LEARNED C.I.T. HAS GRIEVOUSLY ERRED IN CONFIRMING THE DISALLOWANCE OF TH E INTEREST OF I T A NO. 32 4 / RJT / 1 3 , A.Y. 1998 - 99 [ SHRI GHANSHYAMBHAI J. VAID YA VS. DC IT] PAGE 2 RS.4,65,803/ - PAID TO MAHARASTRA APEX CO - OPERATIVE BANK. 2. THAT THE LEARNED C.I.T. HAS GRIEVOUSLY ERRED IN CONFIRMING THE DISALLOWANCE OF THE INTEREST OF RS.1,06,169/ - PAID TO CORPORATION BANK. 2. ASSESSEE IS INDIVIDUAL ENGAGED IN THE BUSI NESS OF MANUFACTURING OF AYURVEDIC MEDICINES. IN THIS CASE ORIGINAL ASSESSMENT WAS PASSED U/S.143(3) R.W.S. 147, WHEREIN RETURN ED INCOME OF RS.22,67,420/ - WAS ENHANCED TO RS.28,39,392/ - . ASSESSING OFFICER MADE ADDITION OF RS.4,65,803/ - PAYABLE TO MAHARASH TRA APEX CO - OP. BANK AND INTEREST OF RS.1,06,169/ - PAYABLE TO CORPORATION BANK HAS NOT BEEN PAID AND THEREFORE THE SAME WAS DISALLOWED U/S.43B. CIT(A) - VI, AHMEDABAD VIDE ITS ORDER DATED 11/3/2005 DISMISSED THE APPEAL OF ASSESSEE CONSEQUENT TO WHICH ASSESS EE PREFERRED AN APPEAL BEFORE ITAT, RAJKOT BENCH, WHEREIN ITAT HAS SET ASIDE THE ORDER OF CIT(A) AND DIRECTED THE ASSESSING OFFICER TO ALLOW THE SAID EXPENDITURE AFTER DUE VERIFICATION. ASSESSING OFFICER PASSED ORDER DATED 18.12.2007 AS PER DIRECTION OF I TAT BY OBSERVING AS UNDER: THE ASSESSEE WAS GIVEN HEARING AND OPPORTUNITY OF BEING HEARD HOWEVER, HE HAS NOT CHOSEN TO APPEAR. THE MATTER IS THEREFORE DECIDED ON MERITS AND ON THE BASIS OF THE INFORMATION AVAILABLE ON THE RECORD. AS DIRECTED BY THE HON'BL E ITAT, CERTIFICATE OF THE BANK PLACED AT PAGE 3 OF THE PAPERBOOK FILED BY HIM IS GONE THROUGH. IT IS PLACED BY THE AR OF THE ASSESSEE BEFORE THE HON'BLE ITAT AND HAS BEEN ALLEGED THAT THE AUTHORITIES BELOW HAVE NOT PROPERLY APPRECIATED THE SAID CERTIFICAT ES. HOWEVER, ON GOING THROUGH THE SAID CERTIFICATE FOLLOWING DEFECTS HAVE BEEN I T A NO. 32 4 / RJT / 1 3 , A.Y. 1998 - 99 [ SHRI GHANSHYAMBHAI J. VAID YA VS. DC IT] PAGE 3 NOTICED. FIRSTLY, THE CERTIFICATE IS NEITHER SIGNED BY THE ISSUING AUTHORITY NOR BY THE ASSESSEE. THE LD. CIT(A) HAS ALSO OBSERVED THE SAME FACTS AND DID NOT ALLOW THE ASSESSEE' S CLAIM ON THIS PLEA. SECONDLY, ALTHOUGH THE CERTIFICATE CARRIES THE DATE OF ISSUE OF CERTIFICATE, HOWEVER IT DOES NOT CARRY THE DATES OF TRANSACTION. SO IT IS DIFFICULT TO ALLOW THE CLAIM OF THE ASSESSEE, WITHOUT HAVING ASCERTAINED AS TO WHEN THE ASSESSEE MADE GOOD THE STATUTORY LIABILITY U/S.43B. ONE MORE POINT. WHICH IS WORTH NOTING IS THAT IN THE BANK CERTIFICATE THE AMOUNT OF INTEREST SHOWN IS AT RS.4,22,321/ - AND NOT OF RS.4,65,000/ - AS CLAIMED BY THE ASSESSEE. AND ON TOP OF ALL, THE SAID CERTIFICATE CERTIFIES TO HAVE RECEIVED THE AMOUNT OF RS. 13,84,200/ - . HOWEVER, BOTH VERTICALLY AND HORIZONTALLY; THE FIGURES TOTAL TO RS.12,84,000/ - . THE AUTHENTICITY OF THE CERTIFICATE IS THEREFORE DOUBTFUL. IN VIEW OF THE DISCUSSION, THE LIABILITY OF THE ASSESSEE U/S.43B CANNOT BE ALLOWED. THE TOTAL INCOME REMAINS UNCHANGED AT RS.28,39,390/ - AS PER ORDER DATED 18.04.2005, ORDER GIVING EFFECT TO THE CIT(A) S ORDER. 2.1 CIT(A) CONFIRMED THE ORDER OF ASSESSING OFFICER BY OBSERVING THAT NONE OF ABOVE DOCUMENTS HAVE BEEN SIGNED BY ASSESSEE OR ANY OTHER PERSON AUTHORIZED BY HIM IN THIS BEHALF AND, THEREFORE, THESE DOCUMENTS CARRY NO EVIDENTIARY VALUE. THUS, IN ABSENCE OF SIGNATURE OF ASSESSEE OR ANY OTHER PERSON AUTHORIZED ON HIS BEHALF, MATTER WAS DISMISSED. AT THIS STAGE, LEARNED AUTHORIZED REPRESENTATIVE SUBMITTED THAT THEY FILED THE CERTIFICATE FROM THE LENDERS TO THE EFFECT THAT INTEREST HAS BEEN PAID AND NO INTEREST IS OUTSTANDING AS ON 31.03.1998 AND THEY ALSO REMOVE EFFICIENCY OF NON SIGNATURE AT RELEVANT DOCU MENTS AS DISCUSSED ABOVE. I T A NO. 32 4 / RJT / 1 3 , A.Y. 1998 - 99 [ SHRI GHANSHYAMBHAI J. VAID YA VS. DC IT] PAGE 4 2.2 WE ARE OF THE VIEW THAT ASSESSEE SHOULD NOT SUFFER FOR MINOR TECHNICAL MISTAKES COMMITTED AT RELEVANT POINT OF TIME , SO IN THE INTEREST OF JUSTICE, WE SET ASIDE THE ORDER OF AUTHORITIES BELOW AND RESTORE THE MATTER TO CIT(A) WITH DIRECTION TO DECIDE THE SAME AS PER FACT AND LAW AND ASSESSEE IS ALSO DIRECTED TO COOPERATE IN FILING RELEVANT DOCUMENT WHICH HAS BEEN BASIS OF REJECTION OF CLAIM AS DISCUSSED ABOVE. SINCE WE ARE RESTORING THE MATTER ON POINT OF TECHNICAL DEFICIENCY TO BE RECTIFIED BY ASSESSEE, SO WE ARE REFRAINING TO COMMENT ON MERIT OF ISSUE AT HAND. 3 . IN THE RESULT, APPEAL FILED BY ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSE. PRONOUNCED IN THE OPEN COURT ON THIS THE 28 TH DAY OF MA Y , 201 5 . SD/ - SD/ - ( N. S. SAINI) (SHAILENDRA KUMAR YADAV) ACCOUNTANT MEMBER JUDICIAL MEMBER RAJKOT : DATED 28 /0 5 /2015 TRUE COPY S K SINHA COPY OF THE ORDER FORWARDED TO: - 1. THE APPELLANT. 2. THE RESPONDENT. 3. THE CIT (APPEALS) 4. THE C IT CONCERNED. 5. THE DR., ITAT, RAJKOT . 6. GUARD FILE. BY ORDER DEPUTY/ASSTT.REGISTRAR ITAT, RAJKOT