Late Prabhakar P. Joshi, Pune V. ACIT, Cir.-2(4), Pune

ITA 488/PUN/2009

• Counselvise Citation: [2012] 119 COUNSELVISE.COM (IT) 9759 (ITAT-PUNE)
• Duration Of Justice: 3 year(s) 3 month(s) 16 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 10-08-2012
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 06-08-2012
• Assessment Year: 1991-1992
• Appeal Filed On: 24-04-2009
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: Y K BHASKAR
• Assessee Lawyers: ARUN SATHE
• Keywords: Capital asset

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH B , PUNE BEFORE SHRI SHAILENDRA KUMAR YADAV JUDICIAL MEMBER AND SHRI R.K. PANDA ACCOUNTANT MEMBER ITA NO. 487, 488 AND 489 /PN/2009 (ASSESSMENT YEAR 1989-90, 1991-92 & 1992-93) SHRIRAM P JOSHI, (LEGAL HEIR OF LATE PRABHAKAR P JO SHI), 364, NARAYAN PETH, LAXMI ROAD, OPP : GOKHALE HALL, PUNE 411 030. .. APPELLANT PAN NO.AGNPJ 7630A VS. ACIT, CIRCLE-2(4), PUNE. .. RESPONDENT ASSESSEE BY : SRI ARUN SATHE DEPARTMENT BY : SRI Y.K. BHASKAR DATE OF HEARING : 06-08-2012 DATE OF PRONOUNCEMENT : 10-08-2012 ORDER PER R.K. PANDA, AM : THE ABOVE THREE APPEALS FILED BY THE ASSESSEE ARE D IRECTED AGAINST THE SEPARATE ORDERS DATED 28-03-2000 OF THE CIT(A)-I, P UNE RELATING TO ASSESSMENT YEARS 1989-90, 1991-92 AND 1992-93 RESPECTIVELY. SINCE IDENTICAL GROUNDS HAVE BEEN TAKEN BY THE ASSESSEE IN ALL THE 3 APPEALS, TH EREFORE, THESE WERE HEARD TOGETHER AND ARE BEING DISPOSED OF BY THIS COMMON O RDER. 2. THIS IS THE SECOND ROUND OF LITIGATION BEFORE TH E TRIBUNAL. EARLIER THE ABOVE THREE APPEALS FILED BY THE ASSESSEE WERE DISMISSED BY THE TRIBUNAL SINCE THEY WERE TIME BARRED BY MORE THAN EIGHT YEARS AND TRIBUNAL D ID NOT CONDONE THE DELAY. THE ASSESSEE APPROACHED THE HONBLE HIGH COURT WHO VIDE ORDER DATED 17-08-2011 CONDONED THE DELAY AND RESTORED THE MATTER TO THE T RIBUNAL TO DECIDE THE APPEALS ON MERIT AND IN ACCORDANCE WITH LAW. 2 3. WE FIRST TAKE UP ITA NO. 487/PN/2009 RELATING TO ASSESSMENT YEAR 1989- 90. THE GROUNDS RAISED BY THE ASSESSEE ARE AS UNDE R : 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE THE LOWER AUTHORITIES ERRED IN NOT ALLOWING INTEREST PAYABLE TO M/S. AJMERA HOUSIN G CORPORATION ON LOAN OF RS. 25 LAKHS AS DEDUCTIBLE EXPENDITURE WHILE ARRIVING AT T HE NET TAXABLE INCOME UNDER THE HEAD INTEREST INCOME. 2. WITHOUT PREJUDICE TO ABOVE IN VIEW OF THE ORDER PASSED BY THE HONBLE INCOME TAX APPELLATE TRIBUNAL, PUNE IN ASSESSEES OWN CASE FOR THE ASSESSMENT ORDER 1995-96 TO 1999-2000 THE INTEREST PAYABLE TO M/S. AJMERA HO USING CORPORATION BE ALLOWED AS EXPENDITURE WHILE ARRIVING AT THE NET INCOME AS THE NEXUS BETWEEN LOAN TAKEN FROM M/S. AJMERA HOUSING CORPORATION AND INTEREST RECEIVED FR OM BANK DEPOSIT HAVING BEEN PROVED. 3. IN VIEW OF THE LEGAL POSITION THE LOWER AUTHORIT IES ERRED IN APPLYING PROVISIONS OF SECTIONS 139(8) AND 217. 4. AFTER HEARING BOTH THE SIDES WE FIND THE AO FOLL OWING HIS ORDER FOR A.Y. 1988-89 DISALLOWED THE INTEREST PAYABLE TO M/S. AJM ERA HOUSING CORPORATION ON LOAN OF RS. 25 LAKHS AS DEDUCTIBLE EXPENDITURE WHIL E ARRIVING AT THE NET TAXABLE INCOME UNDER THE HEAD INTEREST INCOME. 5. IN APPEAL THE LEARNED CIT(A) FOLLOWING HIS ORDER FOR A.Y. 1988-89 UPHELD THE ACTION OF THE AO IN HOLDING THAT THE AMOUNTS RE CEIVED FROM M/S. AJMERA HOUSING CORPORATION WAS TOWARDS CONSIDERATION FOR T HE TRANSFER OF A CAPITAL ASSET AND NOT AS LOAN. IT IS THE SUBMISSION OF THE LEAR NED COUNSEL FOR THE ASSESSEE THAT IN VIEW OF THE ORDER OF THE TRIBUNAL IN ASSESSEES OWN CASE FOR A.Y. 1995-96 TO 1999- 2000 VIDE ITA NO. 306/PN/2004 TO 310/PN/2004 ORDER DATED 24-10-2007 THE DEDUCTION FOR INTEREST PAYABLE IN RESPECT OF RS. 25 LAKHS OBTAINED FROM M/S. AJMERA HOUSING CORPORATION SHOULD BE ALLOWED TREATI NG THE SAME AS LOAN. WE FIND THE TRIBUNAL IN ASSESSEES OWN CASE FOR A.Y. 1988-8 9 HAD RESTORED THE ISSUE TO THE FILE OF THE CIT(A) FOR DECIDING THE ISSUE RELATING TO ALLOWABILITY OF INTEREST AFRESH AND IN ACCORDANCE WITH LAW. ALTHOUGH THE ABOVE ORD ER WAS AVAILABLE AT THE TIME OF HEARING OF THE APPEAL FOR A.Y. 1995-96 TO 1999-2000 WE FIND THE SAME WAS NOT BROUGHT TO THE NOTICE OF THE BENCH EITHER BY THE LE ARNED COUNSEL FOR THE ASSESSEE OR 3 BY THE LEARNED DR. SINCE THE AO AND THE CIT(A) HAV E FOLLOWED THE ORDER FOR A.Y. 1988-89 WHILE DISALLOWING THE CLAIM OF INTEREST PAY ABLE TO M/S. AJMERA HOUSING CORPORATION ON THE AMOUNT OF RS. 25 LAKHS AS DEDUCT IBLE EXPENDITURE WHILE ARRIVING AT THE NET TAXABLE INCOME AND SINCE THE TRIBUNAL HA S RESTORED THE ISSUE TO THE FILE OF THE LEARNED CIT(A) WHICH IS STILL PENDING TILL TODA Y AS STATED BY THE LEARNED COUNSEL FOR THE ASSESSEE, THEREFORE, RESPECTFULLY FOLLOWING THE ORDER OF THE TRIBUNAL FOR A.Y. 1988-89 WE DEEM IT PROPER TO RESTORE THE ISSUE TO T HE FILE OF THE LEARNED CIT(A) FOR DECIDING THE ISSUE AFRESH IN THE LIGHT OF THE DIREC TION OF THE TRIBUNAL FOR A.Y. 1988- 89 AND IN ACCORDANCE WITH LAW. WE HOLD AND DIRECT ACCORDINGLY. THE GROUNDS RAISED BY THE ASSESSEE ARE ACCORDINGLY ALLOWED FOR STATISTICAL PURPOSES. ITA NOS. 488/PN/2009 AND 489/PN/2009 (A.YS. 1991-92 AND 1992-93) : 6. AFTER HEARING BOTH THE SIDES WE FIND THE GROUNDS RAISED BY THE ASSESSEE IN THE ABOVE TWO APPEALS ARE IDENTICAL TO THE GROUNDS RAIS ED BY THE ASSESSEE IN ITA NO. 487/PN/2009. WE HAVE ALREADY DECIDED THE ISSUE AND THE MATTER HAS BEEN RESTORED TO THE FILE OF THE CIT(A) FOR ADJUDICATION IN THE L IGHT OF THE DIRECTION OF THE TRIBUNAL FOR A.Y. 1988-89. FOLLOWING THE SAME RATI O, WE RESTORE THE ISSUE TO THE FILE OF THE LEARNED CIT(A) FOR ADJUDICATION OF THE ISSUE AFRESH AND IN ACCORDANCE WITH LAW. WE HOLD AND DIRECT ACCORDINGLY. THE GROU NDS RAISED BY THE ASSESSEE ARE ACCORDINGLY ALLOWED FOR STATISTICAL PURPOSES. 7. IN THE RESULT, ALL THE THREE APPEALS FILED BY TH E ASSESSEE ARE ALLOWED FOR STATISTICAL PURPOSES. PRONOUNCED IN THE OPEN COURT ON THIS THE 10 TH DAY OF AUGUST 2012 SD/- SD/- (SHAILENDRA KUMAR YADAV) (R.K. PANDA) JUDICIAL MEMBER ACCOUNTANT MEMBER PUNE DATED: THE 10 TH AUGUST 2012 SATISH 4 COPY OF THE ORDER FORWARDED TO : 1. ASSESSEE 2. DEPARTMENT 3. CIT(A)-I, PUNE 4. THE D.R, B PUNE BENCH 5. GUARD FILE BY ORDER // TRUE COPY // SENIOR PRIVATE SECRETARY ITAT, PUNE BENCHES, PUNE