DELTA DISTRILLERIES P. LTD, MUMBAI V. DCIT C-3(1), MUMBAI

ITA 339/MUM/2011

• Counselvise Citation: [2013] 120 COUNSELVISE.COM (IT) 3494 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 4 month(s) 30 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 12-06-2013
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: D
• Next Hearing Date: 06-06-2013
• Assessment Year: 2006-2007
• Appeal Filed On: 13-01-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Additional evidence
• Section: 234B

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL IN THE INCOME TAX APPELLATE TRIBUNAL IN THE INCOME TAX APPELLATE TRIBUNAL IN THE INCOME TAX APPELLATE TRIBUNAL D DD D BENCH, BENCH, BENCH, BENCH, MUMBAI MUMBAI MUMBAI MUMBAI , . . . !' !' !' !' , # # # # $% $% $% $% BEFORE BEFORE BEFORE BEFORE SHRI SHRI SHRI SHRI VIJAY PAL RAO, JM VIJAY PAL RAO, JM VIJAY PAL RAO, JM VIJAY PAL RAO, JM & & & & SHRI SHRI SHRI SHRI . N. K. BILLAIYA N. K. BILLAIYA N. K. BILLAIYA N. K. BILLAIYA, ,, , AM AM AM AM , , , , ./ I.T.A. NO. I.T.A. NO. I.T.A. NO. I.T.A. NO.339/MUM/2011 339/MUM/2011 339/MUM/2011 339/MUM/2011 ( & & & & ' ' ' ' / ASSESSMENT YEAR:2006-07) DELTA DISTILLERIES PVT. LTD. C/O FACT FILMS PVT. LTD., BLOCK 1, 2 ND FLOOR, VEER NARIMAN ROAD, CHURCHAGATE MUMBAI-400020 / VS. DCIT(CIRCLE)-3(1) MUMBAI %( # ./ ) ./ PAN/GIR NO. : AAACD3799C ( (* / APPELLANT APPELLANT APPELLANT APPELLANT) .. ( +,(* / RESPONDENT RESPONDENT RESPONDENT RESPONDENT) (* (* (* (* - - - - / APPELLANT BY : SHRI K. GOPAL +,(* +,(* +,(* +,(* . .. . - - - - /RESPONDENT BY : SHRI JAVED AKHTAR . .. . /# /# /# /# / DT. OF HEARING : 6 TH JUNE 2013 01' 01' 01' 01' . .. ./# /# /# /# / DT.OFPRONOUNCEMENT: 12 TH JUNE 2013 $2 / O R D E R PER : , . . / VIJAY PAL RAO, JM THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST TH E ORDER DATED 13.12.2010 OF CIT(A) FOR THE ASSESSMENT YEAR 2006-0 7. 2. THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS AS UNDER: 1. THE LD. COMMISSIONER OF INCOME TAX (APPEALS) [H EREINAFTER REFERRED TO AS LD. CIT(A)J ERRED IN CONFIRMING THE ACTION OF THE ASSESSING OFFICER IN DETERMINING THE TOTAL INCOME OF THE APPELLANT AT ` 5,31,710/- AS AGAINST RETURNED LOSS OF ` 7,50,519/- WITHOUT APPRECIATING THE FACTS AND CIRCUMSTANCES OF THE CASE. 2. THE LD. CIT(A) ERRED IN CONFIRMING THE ACTION O F THE ASSESSING OFFICER IN MAKING AN ADDITION OF ALLEGED ACCRUAL OF INTEREST A MOUNTING TO ` 12,82,299/- WITHOUT APPRECIATING THE FACTS AND CIRC UMSTANCES OF THE CASE. THE APPELLANT PRAYS THAT THE ADDITION MADE BY THE A SSESSING OFFICER IS WITHOUT ANY BASIS AND HENCE, THE SAME MAY BE DELETE D. ITA NO. 339/M/2011 . 2 3. WITHOUT PREJUDICE TO THE ABOVE LD. CIT(A) FAILE D TO APPRECIATE THAT THE AGREEMENT DATED 24.10.2002 PROVIDED FOR INTEREST AT RATE OF 21% UPTO ` 50,00,000/- INFUSED AS WORKING CAPITAL BY THE APPEL LANT. HENCE, THE LD. A.0. AS WELL AS THE CIT(A) ARE NOT JUSTIFIED IN ADD ING ` 12,82,299/-. THUS, THE ADDITION OF ` 6,62,539/- MAY BE DELETED. 4. THE APPELLANT DENIES ANY LIABILITY TO PAY INTERE ST U/S 234B AND 234C. HENCE, THE SAME IS NOT LEVIABLE. 2.1 THE ONLY ISSUE ARISES IN THIS APPEAL OF THE ASS ESSEE IS WHETHER IN THE FACTS AND CIRCUMSTANCES OF THE CASE, THE CIT(A) IS JUSTIFIED IN CONFIRMING THE ADDITION MADE BY THE ASSESSING OFFICER ON ACCOU NT OF ACCRUAL OF INTEREST OF ` 12,82,299/-. 2.2 THE ASSESSING OFFICER NOTICED THAT THE ASSESSEE HAS CREDITED ` 24,41,330/- BEING INTEREST @ OF 21% CHARGED FROM TH E M/S CHHABRIA MARKETING PVT. LTD.. HOWEVER, AT THE TIME OF COMPUT ATION OF INCOME FOR INCOME TAX PURPOSES, THE ASSESSEE REDUCED THE RATE OF INTEREST TO 10% AT ` 11,65,401/- ONLY. THE ASSESSEE CONTENDED BEFORE T HE ASSESSING OFFICER THAT THE ASSESSEE MADE THE PROVISION AT 21% AND THE RE WAS A DISPUTE WITH THE PRINCIPLE M/S CHHABRIYA MARKETING PVT. LTD. WHI CH WAS SETTLED IN THE NEXT YEAR FOR THE INTEREST PAYMENT @ 10% ONLY. THE ASSESSING OFFICER DID NOT ACCEPT THE CONTENTION OF THE ASSESSEE AND MADE THE ADDITION BY CONSIDERING THE FACT THAT THE ASSESSEE IS ENTITLED TO RECEIVE INTEREST AT 21% ON THE AMOUNT. 2.3 ON APPEAL, THE CIT(A) HAS CONFIRMED THE ADDITIO N MADE BY THE ASSESSING OFFICER. ITA NO. 339/M/2011 . 3 3. BEFORE US THE ASSESSEE HAS FILED THE PETITION U/ S 46A FOR ADMISSION OF ADDITIONAL EVIDENCE ALONG WITH THE ADDITIONAL EV IDENCE IN THE SHAPE OF CORRESPONDENCE BETWEEN THE ASSESSEE AND M/S CHHABRI YA MARKETING PVT. LTD. WHICH HAS BEEN PLACED AT PAGE NO. 73-78 OF THE PAPER BOOK. THE LD. AR HAS SUBMITTED THAT THE ADDITIONAL EVIDENCE NOW F ILED BY THE ASSESSEE IS RELEVANT FOR DECIDING THE ISSUE IN QUESTION; THE REFORE, THE SAME MAY BE ADMITTED. HE HAS PLEADED THAT THE ADDITIONAL EVIDE NCE SUPPORTS THE CLAIM OF THE ASSESSEE THAT THE PARTIES HAS SETTLED THE DISPUTE AND FINALLY ARRIVED AT AN AGREEMENT FOR PAYMENT OF INTEREST AT 10% PER ANNUM. 3.1 ON THE OTHER HAND, THE LD. DR HAS RELIED UPON T HE ORDERS OF THE AUTHORITIES BELOW AND SUBMITTED THAT THE ASSESSEE H AS FAILED TO PRODUCE IN EVIDENCE BEFORE THE AUTHORITIES BELOW; THEREFORE, T HE PRAYER OF THE ASSESSEE FOR ACCEPTING THE ADDITIONAL EVIDENCE BE REJECTED. 4. WE HAVE CONSIDERED THE RIVAL SUBMISSION AS WELL AS THE RELEVANT MATERIAL PLACED BEFORE US. THE ADDITIONAL EVIDENCE FILED BY THE ASSESSEE IS REGARDING THE CORRESPONDENCE BETWEEN THE PARTIES ON THE POINT THAT THE PARTIES HAVE SETTLED THE DISPUTE AND FINALLY AGREED FOR THE PAYMENT OF INTEREST AT 10% PER ANNUM. THE EVIDENCE FILED BY TH E ASSESSEE IS RELEVANT FOR THE PURPOSE OF ADJUDICATING THE ISSUE UNDER CON SIDERATION; BUT SINCE THE SAME HAS NOT BEEN EXAMINED BY THE AUTHORITIES B ELOW, THEREFORE, IN THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN THE INTEREST OF JUSTICE, WE ITA NO. 339/M/2011 . 4 SET ASIDE THE MATTER TO THE RECORD OF THE CIT(A) TO CONSIDER THE ADDITIONAL EVIDENCE FILED BY THE ASSESSEE AND THAN DECIDE THE ISSUE AFRESH. 5. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED FOR STATISTICAL PURPOSES. 3 /4 & 3/ 5 6. 789 : :2 %/ ; . / =! ORDER PRONOUNCED IN THE OPEN COURT ON THIS DAY OF 1 2 TH JUNE 2013 $2 . 01' # 5 >$4 1 . ? SD/- SD/- ( . . !' !' !' !' ) # $% ( N. K. BILLAIYA N. K. BILLAIYA N. K. BILLAIYA N. K. BILLAIYA ) ACCOUNTANT MEMBER ( ) & $% (VIJAY PAL RAO ) JUDICIAL MEMBER PLACE: MUMBAI : DATED: 12 TH JUNE 2013 SUBODH COPY FORWARDED TO: 1 APPELLANT 2 RESPONDENT 3 CIT 4 CIT(A) 5 DR /TRUE COPY/ BY ORDER