Dy.Commissioner of Income Tax-6, Kanpur V. M/s Dinesh Oils Ltd., Kanpur

ITA 459/LKW/2014

• Counselvise Citation: 45923714 RSA 2014
• Duration Of Justice: 1 year(s) 3 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 11-09-2015
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 13-08-2015
• Assessment Year: 2008-2009
• Appeal Filed On: 27-05-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL LUCKNOW BENCH A, LUCKNOW BEFORE SHRI SUNIL KUMAR YADAV, JUDICIAL MEMBER AND SHRI A.K. GARODIA, ACCOUNTANT MEMBER ITA NO. 459 /LKW/201 4 ASSESSMENT YEAR:200 8 09 DCIT, - 6, KANPUR VS. M/S DINESH OILS LTD., 3/44, VISHNUPURI, KANPUR 208001. PAN:AAACD4990K (APPELLANT) (RESPONDENT) C.O.NO. 28 /LKW/201 4 (IN ITA NO. 459 /LKW/201 4 ) ASSESSMENT YEAR:200 8 09 DCIT, - 6, KANPUR M/S DINESH OILS LTD., 3/44, VISHNUPURI, KANPUR 208001. PAN:AAACD4990K (RESPONDENT) (OBJECTOR) ASSESSEE BY SHRI ASHISH JAISWAL, ADVOCATE DEPARTMENT BY SHRI AMIT NIGAM, SR. DR DATE OF HEARING 13/08/2015 DATE OF PRONOUNCEMENT 1 1 /09/2015 O R D E R PER A. K. GARODIA, A.M. THIS APPEAL IS FILED BY THE REVENUE AND THE C.O. IS FILED BY THE ASSESSEE AND THESE ARE DIRECTED AGAINST THE ORDER OF LEARNED CIT (A) II KANPUR DATED 24.02.2014 FOR A.Y. 2008 09. 2. THE REVENUE HAS RAISED FIVE GROUNDS BUT THE EFFECTIVE GRIEVANCES ARE TWO. FIRST GRIEVANCE IS ABOUT RELIEF ALLOWED BY LEARNED CIT (A) BY HOLDING 2 THAT LOSS OF RS. 22,36,156/ - INCURRED BY THE ASSESSEE IN SHARE DEALING IS TO BE SET OFF AGAINST INCOME FROM BROKERAGE AND COMMISSION. THE SECOND GRIEVANCE IS ABOUT RESTRICTING THE AD HOC DISALLOWANCE OF RS. 200 ,000/ - EACH MADE BY THE AO OUT OF REPAIRS & MAINTENANCE & POWER & FUEL EXPENSES TO RS. 50,000/ - EACH. 3. LEARNED DR OF THE REVENUE SUPPORTED THE ASSESSMENT ORDER AND LEARNED AR OF THE ASSESSEE SUPPORTED THE ORDER OF LEARNED CIT (A). HE ALSO PLACED RELIANCE ON THE JUDGMENT OF HONBLE ALLAHABAD HIGH COURT RENDERED IN THE CASE OF NARAIN PROPERTIES LTD. AS REPORTED IN 254 CTR 185 AND ON A JUDGMENT OF HONBLE GUJARAT HIGH COURT RENDERED IN THE CASE OF CIT VS. PARANJAY MERCANTILE LTD. AS REPORTED IN 361 ITR 462. 4. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND GONE THROUGH THE ORDERS OF THE LOWER AUTHORITIES AND THE JUDGMENTS CITED BY THE LEARNED AR OF THE ASSESSEE. WE FIND THAT THE DECISION OF LEARNED CIT (A) IN PARA 8 PAGE 16 OF HIS ORDER IS THIS THAT AS PER TH E EXCEPTION IN EXPLANATION TO SECTION 73, IF MORE THAN 50% OF THE GROSS TOTAL INCOME OF THE ASSESSEE CONSISTS OF INCOME CHARGEABLE UNDER FOUR HEADS EXCLUDING INCOME FROM BUSINESS, THEN THE PROVISIONS OF EXPLANATION TO SECTION 73 ARE NOT APPLICABLE. THERE I S NO INFIRMITY IN THE ORDER OF CIT (A) ON THIS ASPECT BECAUSE THE SAME IS IN LINE WITH THE JUDGMENT OF HONBLE ALLAHABAD HIGH COURT RENDERED IN THE CASE OF NARAIN PROPERTIES LTD. (SUPRA). THEREAFTER, HE HAS GIVEN A FINDING OF FACT THAT INCOME FROM BROKERAG E AND COMMISSION IN THE PRESENT CASE IS INCOME FROM OTHER SOURCES AND IT IS MORE THAN LOSS INCURRED IN SHARE DEALING. UNDER THESE FACTS, HE HELD THAT THE PROVISIONS OF EXPLANATION TO SECTION 73 ARE NOT APPLICABLE IN THE PRESENT CASE. LEARNED DR OF THE REVE NUE COULD NOT CONTROVERT THESE FINDINGS OF LEARNED CIT (A) AND THEREFORE, WE HOLD THAT THERE IS NO INFIRMITY IN THE ORDER OF CIT (A) ON THIS ISSUE. 3 5. ON THE SECOND ISSUE, WE FIND THAT AS AGAINST THE ESTIMATION OF THE A.O. THAT EXPENSES OF RS. 2 LACS UNDE R EACH OF THESE TWO HEADS ARE NOT VERIFIABLE BECAUSE RS. 5 LACS AND RS. 12 LACS ARE INCURRED IN CASH, THE ESTIMATE OF THE LEARNED CIT (A) IS THIS THAT DISALLOWANCE OF RS. 50,000/ - UNDER EACH HEAD IS REASONABLE. IN OUR CONSIDERED OPINION, IN THE FACTS OF TH E PRESENT CASE, THE ESTIMATION OF THE AO IS EXCESSIVE AND THAT OF CIT (A) IS REASONABLE AND HENCE, ON THIS ISSUE ALSO, WE FIND NO REASON TO INTERFERE IN THE ORDER OF CIT (A). 6. IN THE RESULT, THE APPEAL OF THE REVENUE IS DISMISSED. 7. REGARDING THE C.O. O F THE ASSESSEE, WE FIND THAT IN THE C.O., THE ASSESSEE HAS SIMPLY SUPPORTED THE ORDER OF CIT (A) IN RESPECT OF VARIOUS RELIEFS ALLOWED BY HIM AND HENCE, THE C.O. IS NOT MAINTAINABLE. WE DISMISS THE SAME BECAUSE WE HAVE ALREADY CONFIRMED THE ORDER OF CIT (A ) BY DISMISSING THE APPEAL OF THE REVENUE. 8. IN THE RESULT, THE CO OF THE ASSESSEE IS DISMISSED. 9. IN THE COMBINED RESULT, THE APPEAL OF THE REVENUE IS DISMISSED AND CO OF THE ASSESSEE IS ALSO DISMISSED. (ORDER WAS PRONOUNCED IN THE OPEN COURT ON THE D ATE MENTIONED ON THE CAPTION PAGE) SD/. SD/. (SUNIL KUMAR YADAV) ( A. K. GARODIA ) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 1 1 /09/2015 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