ITO, New Delhi V. Sh. Rajesh Joharsingh Karki, New Delhi

ITA 3549/DEL/2013

• Counselvise Citation: [2014] 120 COUNSELVISE.COM (IT) 5475 (ITAT-DELHI)
• Duration Of Justice: 7 month(s) 27 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-01-2014
• Appeal Filed By: Department
• Order Result: Partly Allowed
• Bench Allotted: F
• Next Hearing Date: 06-01-2014
• Assessment Year: 2009-2010
• Appeal Filed On: 03-06-2013
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: MEENAKSHI VOHRA SENIOR
• Assessee Lawyers: S S SILWAL
• Keywords: Gift; Opportunity of being heard; Additional evidence

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL (DELHI BENCH F : NEW DELHI) BEFORE SHRI R.P. TOLANI, JUDICIAL MEMBER AND SHRI B.C. MEENA, ACCOUNTANT MEMBER ITA NO.3549/DEL./2013 (ASSESSMENT YEAR : 2009-10) ITO, WARD 24 (1), VS. SHRI RAJNISH JOHARSINGH KAR KI, NEW DELHI. L 1/13, HAUZ KHAS ENCLAVE, NEW DELHI 110 016. (PAN : AJFPK8684C) (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI S.S. SILWAL, ADVOCATE REVENUE BY : MS. MEENAKSHI VOHRA, SENIOR DR ORDER PER B.C. MEENA, ACCOUNTANT MEMBER : THIS APPEAL FILED BY THE REVENUE EMANATES FROM THE ORDER OF THE CIT (APPEALS)-XXIII, NEW DELHI DATED 15.03.2013. 2. THE RETURN OF INCOME WAS FILED ON 30.09.2009 THR OUGH E.FILING. THE ASSESSEE IS RUNNING A PROPRIETORSHIP CONCERN IN THE NAME AND STYLE AS M/S. RAJNISH KARKI & ASSOCIATES AND ENGAGED IN THE CONSULTANCY, DESIGNIN G STRATEGY AND ORGANIZATION PLANNING. THE ASSESSEE IS EARNING INCOME FROM BUSI NESS OR PROFESSION, INCOME FROM CAPITAL GAIN AND INCOME FROM OTHER SOURCES. THE AS SESSING OFFICER MADE CERTAIN ADDITIONS WHICH HAVE BEEN DELETED BY THE CIT (A) AG AINST WHICH THE REVENUE IS IN APPEAL BEFORE US BY TAKING THE FOLLOWING GROUNDS :- ITA NO.3549/DEL./2013 2 1. ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LD. CIT (A) HAS ERRED IN ACCEPTING THE ADDITIONAL EVIDENCE IN VIOLA TION OF RULE 46A OF THE INCOME TAX ACT. 2. ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LD. CIT (A) HAS ERRED IN DELETING DISALLOWANCE OF RS.1,09,456/-. 3. ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LD. CIT (A) HAS ERRED IN DELETING DISALLOWANCE OF RS.3,21,360/-. 4. ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LD. CIT (A) HAS ERRED IN DELETING DISALLOWANCE OF RS.60,00,000/- 5. THE APPELLANT CRAVES LEAVE TO ADD, ALTER OR AMEN D ANY OF THE GROUNDS OF APPEAL BEFORE OR DURING THE COURSE OF HE ARING OF THE APPEAL. 3. IN THE GROUND NO.1, THE ISSUE INVOLVED IS AGAINS T ACCEPTING THE ADDITIONAL EVIDENCE IN VIOLATION OF RULE 46A OF THE INCOME-TAX RULES, 1962. THE LD. DR SUBMITTED THAT THE CIT (A) HAS VIOLATED RULE 46A BY ADMITTING THE ADDITIONAL EVIDENCE. ON THE OTHER HAND, THE LD. AR SUBMITTED THAT THE CIT (A) HAS NOT VIOLATED RULE 46A. THE ASSESSEE HAS SUBMITTED ALL THE RELEV ANT DETAILS BEFORE THE ASSESSING OFFICER BUT HE HAS NOT CONSIDERED THE SAME. WITH R ESPECT TO THE PAYMENT OF INTEREST ON THE HOUSING LOAN FOR WHICH DEDUCTION U/S 24B OF INCOME-TAX ACT, 1961 WAS CLAIMED OF RS.1,09,456/-, THE LD. AR SUBMITTED THAT ASSESSEE HAS MADE SUBMISSIONS ON 03.11.2011 AND SUBMITTED COMPLETE DETAILS OF INT EREST PAID. HE ALSO SUBMITTED THAT ASSESSEE HAS MADE SUBMISSIONS WITH REGARD TO S ERVICE TAX AT RS.3,21,360/- ON 16.12.2011. ALL THE PAYMENTS OF SERVICE TAX WERE M ADE THROUGH ACCOUNT PAYEE CHEQUES AND SAME WAS REFLECTED IN THE BOOKS OF ACCO UNT. THE ASSESSEE SUBMITTED AN AFFIDAVIT IN THIS REGARD BEFORE THE ASSESSING OFFIC ER WHO HAS NOT APPRECIATED THE CONTENTS OF BONAFIDE AFFIDAVIT. ONLY THE CONFIRMAT ION FROM BANKS WAS SUBMITTED BEFORE CIT (A) TO SUPPORT THE ASSESSEES CONTENTION . FURTHER, WITH REGARD TO THE ITA NO.3549/DEL./2013 3 ADDITION OF RS.60 LACS U/S 56(2)(VI) OF THE INCOME- TAX ACT, 1961, THE LD. AR SUBMITTED THAT LOANS ARE NOT COVERED UNDER THIS PRO VISION AND THIS PROVISION WAS WRONGLY INVOKED. HE PLEADED THAT GROUND NO.1 IS MI SCONCEIVED AND NOT BASED ON THE FACTS. 4. WE HAVE HEARD BOTH THE SIDES ON THE ISSUE. THE ASSESSEE HAS SUBMITTED CERTAIN NEW DOCUMENTS LIKE CERTIFICATE ISSUED BY HS BC BANK SHOWING THE DETAILS OF INTEREST AND PRINCIPAL PAID DURING THE FINANCIAL YE AR 2008-09, THEREFORE, IN OUR CONSIDERED VIEW, THE CIT (A) SHOULD HAVE PROVIDED A N OPPORTUNITY TO THE ASSESSING OFFICER. SIMILARLY IN RESPECT OF DISALLOWANCE OF C LAIM OF SERVICE TAX, THE ASSESSEE HAS SUBMITTED COPY OF DAILY RECEIPTS SCROLL OF SERV ICE TAX OF BANK OF BARODA, POWAI, MUMBAI IN SUPPORT OF HIS CLAIM WHICH IS ALSO AN ADD ITIONAL EVIDENCE. ON THAT ISSUE ALSO, THE ASSESSING OFFICER DESERVES AN OPPORTUNITY OF BEING HEARD. CONSIDERING THESE FACTS IN VIEW, WE FIND THAT THERE IS A VIOLAT ION OF RULE 46A AND CIT (A) IS NOT JUSTIFIED IN GRANTING THE RELIEF ON THE ISSUES RAIS ED IN GROUND NOS.2 & 3 BASED ON THE ADDITIONAL EVIDENCES SUBMITTED BEFORE THE CIT (A). IN THE INTEREST OF JUSTICE AND EQUITY, WE ALLOW GROUND NO.1 AND SET ASIDE GROUND N OS.2 & 3 TO THE FILE OF THE ASSESSING OFFICER TO DECIDE DE NOVO. 5. AS FAR AS GROUND NO.4 IS CONCERNED, THE CIT (A) HAS GRANTED THE RELIEF BY HOLDING AS UNDER :- 4.5 GROUND OF APPEAL NO. 9 PERTAINS TO ADDITION O F RS.60,00,000/- U/S 56(2)(VI). THE APPELLANT IS SEEN TO HAVE FILED CONF IRMATIONS, WITH ADDRESS AND PAN, OF THE LENDERS CONCERNED, NAMELY SH. A.G. KARKHANIS AND M/S. SUPRA BIOTECH PVT. LTD. IT IS SEEN THAT THE APPELLA NT HAS REPAID THE LOANS IN THE SUBSEQUENT YEARS, AS NOTED BY THE ASSESSING OFF ICER IN THE CHART REPRODUCED IN THE ASSESSMENT ORDER. IN THE CASE OF SH. A.G. KARKHANIS, RS.40,00,000/- WAS PAID ON 30.04.2009 AND RS.5,00,0 00/- ON 16.12.2010. IN THE CASE OF SUPRA BIOTECH PVT. LTD., THE ENTIRE AMOUNT OF ITA NO.3549/DEL./2013 4 RS.10,00,000/- WAS REPAID ON 10.09.2009. THE LENDER S ARE STATED TO HAVE FILED REPLIES TO THE ASSESSING OFFICER IN RESPONSE TO ENQUIRY LETTERS AND HAVE CONFIRMED THAT THEY HAD ADVANCED LOANS TO THE APPELLANT. THE APPELLANT HAS ALSO SUBMITTED THAT INTEREST WAS PAID ON THE LOAN TAKEN FROM SH. A. G. KARKHANIS. THERE IS EVIDENT MERIT IN THE CLAIM OF THE APPELLANT THAT THE PROVISIONS OF SECTION 56(2)(VI) CANNOT BE APPLIED TO UNSECURED LOANS, UNLESS THERE WAS NO INTENTION TO REPAY THE S AME. THE PROVISIONS OF SECTION 56(2)(VI) ARE MEANT TO BE APPLIED IN THE CA SES OF BOGUS GIFTS. THE APPELLANT HAS RELIED ON A NUMBER OF CASE LAWS TO AR GUE THAT LOANS ARE NOT COVERED UNDER THE PROVISIONS OF SECTION 56(2)(VI). THE FACT THAT THE APPELLANT HAS REPAID THE LOANS, AS NOTED BY THE ASS ESSING OFFICER HIMSELF, PROVES THAT THE SUMS WERE NOT RECEIVED WITHOUT CON SIDERATION, WITH NO EXPECTATION OF REPAYMENT. THE ADDITION MADE OF RS. 60,00,000/- IS CLEARLY MISCONCEIVED, AND IS HEREBY DELETED. 6. AFTER HEARING BOTH THE SIDES, WE FIND NO MERIT I N THE GROUND OF REVENUE AS THE RELIEF HAS BEEN GRANTED BY PROPER APPRECIATION OF T HE CONFIRMATIONS FILED FROM THE LENDERS BY THE CIT (A). THESE CONFIRMATIONS WERE A LSO FILED BEFORE THE ASSESSING OFFICER IN RESPONSE TO THE ENQUIRY LETTERS, THEREFO RE, WE FIND NO MERITS IN THIS GROUND OF REVENUES APPEAL. 7. GROUND NO.5 IS GENERAL IN NATURE AND DOES NOT RE QUIRE ANY ADJUDICATION. 8. IN THE RESULT, THE APPEAL OF THE REVENUE IS PART LY ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN OPEN COURT ON THIS 30 TH DAY OF JANUARY, 2014. SD/- SD/- (R.P. TOLANI) (B.C. MEENA) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED THE 30 TH DAY OF JANUARY, 2014 TS ITA NO.3549/DEL./2013 5 COPY FORWARDED TO: 1.APPELLANT 2.RESPONDENT 3.CIT 4.CIT(A)-XXIII, DELHI. 5.CIT(ITAT), NEW DELHI. AR, ITAT NEW DELHI.