Asstt. Commissioner of Income Tax-1, Kanpur V. M/s Indus Technical Education, Kanpur

ITA 358/LKW/2013

• Counselvise Citation: [2014] 120 COUNSELVISE.COM (IT) 7990 (ITAT-LUCKNOW)
• Duration Of Justice: 1 year(s) 6 month(s) 30 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 16-12-2014
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Next Hearing Date: 21-10-2014
• Assessment Year: 2009-2010
• Appeal Filed On: 17-05-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Unexplained investment

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL LUCKNOW BENCH B, LUCKNOW BEFORE SHRI SUNIL KUMAR YADAV, JUDICIAL MEMBER AND SHRI A.K. GARODIA, ACCOUNTANT MEMBER ITA NO.358/LKW/2013 ASSESSMENT YEAR:2009 - 2010 M/S INDUS TECHNICAL EDUCATION, A - 1, ROOMA INDUSTRIAL AREA, KANPUR. PAN:AAATT4395L VS A.C.I.T. - 1, KANPUR. (RESPONDENT) (APPELLANT) SHRI O. N. PATHAK, D. R. APPELLANT BY SHRI RAKESH GARG, ADVOCATE RESPONDENT BY 21/10/2014 DATE OF HEARING 16 /12/2014 DATE OF PRONOUNCEMENT O R D E R PER A. K. GARODIA, A.M. THIS IS REVENUES APPEAL DIRECTED AGAINST THE ORDER PASSED BY LEARNED CIT(A) - II, KANPUR DATED 22/02/2013 FOR THE ASSESSMENT YEAR 2009 - 2010. 2. THE GROUNDS RAISED BY THE REVENUE ARE AS UNDER: 1. THAT THE LD CIT(A) - II, KANPUR HAS ERRED IN LAW AND ON FACTS IN DELETING THE ADDITION OF RS.16,60,453/ - MADE BY THE ASSESSING OFFICER ON ACCOUNT OF INTEREST PAID IN UNSECURED LOANS TO THE PERSONS SPECIFIED U/S 13(3)/40A(2)(B) OF INCOME TAX ACT, 1961 WITHOUT APPRECIATING THE FACTS BROUG HT ON RECORD BY THE ASSESSING OFFICER DURING THE COURSE OF ASSESSMENT PROCEEDINGS. 2. THAT THE LD. GIT (A) - II, KANPUR HAS ERRED IN LAW AND ON FACTS IN DELETING HE ADDITION OF RS.34,81,109/ - MADE BY THE ASSESSING OFFICER ON ACCOUNT OF UNEXPLAINED 2 INVESTMEN T MADE IN CONSTRUCTION OF BUILDING WITHOUT CONSIDERING THE REPORT OF THE DVO. 3. THAT THE ORDER OF LD. CIT (A) - II, KANPUR DATED 22.02.2013 NEEDS TO BE QUASHED AND THE ORDER PASSED BY THE ASSESSING OFFICER DATED 12.12.2011 TO BE RESTORED. 3. LEARNED D. R. OF THE REVENUE SUPPORTED THE ASSESSMENT ORDER WHEREAS LEARNED A. R. OF THE ASSESSEE SUPPORTED THE ORDER OF LEARNED CIT(A). HE ALSO SUBMITTED THAT THIS ISSUE IS COVERED IN FAVOUR OF THE ASSESSEE BY THE TRIBUNAL ORDER IN ASSESSEES OWN CASE FOR ASSESSME NT YEAR 2010 - 2011 IN I.T.A. NO.37/LKW/2014 DATED 11/04/2014. HE SUBMITTED COPY OF THE TRIBUNAL ORDER. 4. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS. WE FIND THAT THE FIRST ISSUE RAISED BY THE REVENUE IS REGARDING DELETION OF ADDITION MADE BY THE ASSESSING OFFICER ON ACCOUNT OF INTEREST PAID ON UNSECURED LOANS TO THE PERSONS SPECIFIED U/S 13(3)/40A(2)(B) OF THE ACT. IN ASSESSMENT YEAR 2010 - 11 ALSO, SIMILAR ISSUE WAS THERE BEFORE THE TRIBUNAL. IN FACT , THE DISPUTE IS THAT AS TO WHETHER RATE OF INTEREST PAID BY THE ASSESSEE @18% IS EXCESSIVE OR NOT. THIS ISSUE WAS DECIDED BY THE TRIBUNAL IN FAVOUR OF THE ASSESSEE BY FOLLOWING THE TRIBUNAL DECISION IN ASSESSEES OWN CASE IN I.T.A. NO.296/LKW/2011 AND 344 & 411/LKW/2011 DATED 28/05/2012. 5. LEARNED D.R. OF THE REVENUE COULD NOT POINT OUT ANY DIFFERENCE IN THE FACTS AND THEREFORE, THIS ISSUE IS DECIDED IN FAVOUR OF THE ASSESSEE BY FOLLOWING THE EARLIER TRIBUNAL ORDER BECAUSE NO DIFFERENCE IN FACTS COULD BE POINTED OUT BY LEARNED D.R. OF THE REVENUE. 6. THE S ECOND ISSUE IS THAT CIT(A) HAS ERRED IN DELETING THE ADDITION OF RS.34,81,109/ - MADE ON ACCOUNT OF UNEXPLAINED INVESTMENT MADE IN 3 CONSTRUCTION OF BUILDING WITHOUT CONSIDERING THE REPORT OF THE D.V.O. THIS ISSUE WAS BEFORE THE TRIBUNAL IN ASSESSEES OWN CA SE FOR ASSESSMENT YEAR 2005 - 06 TO 2008 - 09 IN I.T.A. NO.296 & 297 ALONG WITH I.T.A. NO.344 AND 411/LKW/2011 DATED 28/06/2013. IN THOSE YEARS, THE TRIBUNAL DECIDED THE ISSUE IN FAVOUR OF THE ASSESSEE ON THE BASIS THAT ALTHOUGH THE ASSESSING OFFICER MADE REF ERENCE TO D.V.O. BUT THERE IS NO WHISPER IN THE ENTIRE ASSESSMENT ORDER WITH REGARD TO THE REJECTION OF BOOKS OF ACCOUNT. THE TRIBUNAL FOLLOWED THE JUDGMENT OF HON'BLE APEX COURT IN THE CASE OF SARGAM CINEMA VS. CIT [2010] 328 ITR 513. IN THE PRESENT YEA R ALSO, THERE IS NO WHISPER REGARDING THE REJECTION OF BOOKS. IN FACT , THE ADDITION IS MADE ON THE BASIS OF OLD REFERENCE TO D.V.O., WHICH WAS HELD TO BE INVALID BY THE TRIBUNAL BECAUSE THE SAME WAS WITHOUT REJECTION OF BOOKS OF ACCOUNT AND THEREFORE, ON THIS ISSUE ALSO, THE DISPUTE IS SQUARELY COVERED IN FAVOUR OF THE ASSESSEE BY THE TRIBUNAL ORDER IN EARLIER YEARS. HENCE, WE DO NOT FIND ANY INFIRMITY IN THE ORDER PASSED BY LEARNED CIT(A). THIS GROUND OF REVENUE IS ALSO REJECTED. 7. IN THE RESULT, THE APPEAL OF THE REVENUE STANDS DISMISSED. (ORDER WAS PRONOUNCED IN THE OPEN COURT ON THE DATE MENTIONED ON THE CAPTION PAGE) SD/. SD/. (SUNIL KUMAR YADAV) ( A. K. GARODIA ) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 16 / 12/2014. *C.L.SINGH COPY OF THE ORDER FORWARDED TO : 1.THE APPELLANT 2.THE RESPONDENT. 3.CONCERNED CIT 4.THE CIT(A) 5.D.R., I.T.A.T., LUCKNOW ASSTT. REGISTRAR