The ITO, Ward-7(1), Ahmedabad V. M/s. Murlidhar Ice-Cream & Sweet Parlour, Ahmedabad

ITA 531/AHD/2012

• Counselvise Citation: 53120514 RSA 2012
• Duration Of Justice: 3 year(s) 5 month(s) 20 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 20-08-2015
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Next Hearing Date: 23-07-2015
• Assessment Year: 2008-2009
• Appeal Filed On: 01-03-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Unexplained cash credit; Additional evidence; Bonafide mistake
• Section: 40A(3); 68

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH, AHMEDABAD .. , ( .) , BEFORE SHRI G.D. AGARWAL,VICE PRESIDENT (AZ) AND SHRI KUL BHARAT, JUDICIAL MEMBER ./ I.T.A. NO.531/AHD/2012 ( / ASSESSMENT YEAR : 2008-09) THE ITO WARD-7(1) AHMEDABAD / VS. M/S.MURLIDHAR ICE-CREAM & SWEET PARLOUR 23, SAMARPAN TOWER BOPAL, AHMEDABAD-380 058 % & ./ ./ PAN/GIR NO. : AAMFM 7921 F ( %( / APPELLANT ) .. ( )*%( / RESPONDENT ) AND CO NO.89/AHD/2012 A.Y. 2008-09 (IN ITA NO.531/AHD/2012 AY 2008-09) M/S.MURLIDHAR ICE-CREAM & VS. ITO, WARD-7(1) SWEET PARLOUR, AHMEDABAD AHMEDABAD (CROSS OBJECTOR) .. (RESPONDE NT) REVENUE B Y : SHRI NARENDRA SINGH, SR.DR ASSESSEE BY : SHRI S.N. DIVATIA, AR +, - .& / DATE OF HEARING 23/07/2015 /012 - .& / DATE OF PRONOUNCEMENT 20/08/2015 / O R D E R PER SHRI KUL BHARAT, JUDICIAL MEMBER : THIS APPEAL AND CROSS-OBJECTION BY THE REVENUE AND THE ASSESSEE RESPECTIVELY AGAINST THE ORDER OF THE LD.COMMISSION ER OF INCOME ITA NO.531/AHD/2012-BY REVENUE AND CO NO.89/AHD/2012-BY ASSESSEE ITO VS. M/S.MURLIDHAR ICE-CREAM & SWEET PARLOUR ASST.YEAR 2008-09 - 2 - TAX(APPEALS)-XIV, AHMEDABAD [CIT(A) IN SHORT] DATED 30/12/2011 PERTAINING TO ASSESSMENT YEAR (AY) 2008-09. THE APP EAL AND THE CROSS OBJECTION ARE TAKEN UP TOGETHER AND ARE BEING DISPO SED OF BY THIS CONSOLIDATED ORDER FOR THE SAKE OF CONVENIENCE. 2. FIRST, WE TAKE UP THE APPEAL FILED BY THE REVENU E, I.E. ITA NO.531/AHD/2012 FOR AY 2008-09. THE REVENUE HAS RAI SED THE FOLLOWING GROUNDS OF APPEAL:- 1. THE LD.COMMISSIONER OF INCOME TAX (APPEALS) IS NOT JUSTIFIED IN FACTS AND IN LAW IN RESTRICTING THE ADDITION TO THE EXTENT OF RS.3,30,150/- OUT OF THE TOTAL ADDITION OF RS.24,75 ,200/- MADE BY THE ASSESSING OFFICER U/S.68 OF THE I.T.ACT. 2. THE LD.COMMISSIONER OF INCOME TAX (APPEALS) IS NOT JUSTIFIED IN FACTS AND IN LAW IN ADMITTING ADDITIONAL EVIDENCES IN VIOLATION OF RULE-46A OF THE I.T.RULES, AND IN RESTRICTING, ON THE BASIS OF SUCH ADDITIONAL EVIDENCES, THE DISALLOWANCE OF INTEREST ON BANK LOAN TO RS.65,090/-, OUT OF TOTAL DISALLOWANCE OF RS.1,95,4 70/- MADE BY THE ASSESSING OFFICER. 3. ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LD. COMMISSIONER OF INCOME TAX (A) OUGHT TO HAVE UPHELD THE ORDER OF TH E ASSESSING OFFICER. 4. IT IS, THEREFORE, PRAYED THAT THE ORDER OF THE LD.C OMMISSIONER OF INCOME TAX (A) MAY BE SET-ASIDE AND THAT OF THE ASS ESSING OFFICER BE RESTORED. 2.1. BRIEFLY STATED FACTS ARE THAT THE CASE OF THE ASSESSEE WAS PICKED UP FOR SCRUTINY ASSESSMENT AND THE ASSESSMENT U/S.143( 3) OF THE INCOME TAX ACT,1961 (HEREINAFTER REFERRED TO AS THE ACT) WAS FRAMED VIDE ORDER DATED 09/12/2010. WHILE FRAMING THE ASSESSMENT, TH E AO MADE ADDITION ITA NO.531/AHD/2012-BY REVENUE AND CO NO.89/AHD/2012-BY ASSESSEE ITO VS. M/S.MURLIDHAR ICE-CREAM & SWEET PARLOUR ASST.YEAR 2008-09 - 3 - OF RS.24,82,150/- BY INVOKING THE PROVISIONS OF SEC TION 68 OF THE ACT AS UNEXPLAINED CREDIT. THE AO ALSO MADE DISALLOWANCE OF BANK LOAN INTEREST OF RS.1,95,470/- AND THE ADDITION OF RS.5, 000/- MADE ON ACCOUNT OF EXCESS PAYMENT MADE TO THE RELATED PARTY BY INVO KING THE PROVISIONS OF SECTION 40A(3) OF THE ACT. AGAINST THE SAID ASS ESSMENT ORDER, THE ASSESSEE PREFERRED AN APPEAL BEFORE THE LD.CIT(A), WHO AFTER CONSIDERING THE SUBMISSIONS PARTLY ALLOWED THE APPEAL. WHILE P ARTLY ALLOWING THE APPEAL, THE LD.CIT(A) RESTRICTED THE ADDITION TO TH E EXTENT OF RS.3,30,150/- OUT OF RS.24,82,150/- MADE ON ACCOUNT OF DEPOSITS I N THE BANK AND RESTRICTED THE DISALLOWANCE TO RS.65,090/- OUT OF D ISALLOWANCE OF RS.1,95,470/- IN RESPECT OF THE INTEREST EXPENDITUR E CLAIMED BY THE ASSESSEE. AGAINST THE ORDER OF THE LD.CIT(A), NOW T HE REVENUE IS IN APPEAL AND THE ASSESSEE IS IN CROSS-OBJECTION BEFO RE US. 3. FIRST GROUND OF REVENUES APPEAL IS AGAINST THE DELETION OF ADDITION OUT OF RS.24,75,2000/- AND RESTRICTING THE SAME TO THE EXTENT OF RS.3,30,150/-. THE LD.SR.DR SUBMITTED THAT THE LD .CIT(A) WAS NOT JUSTIFIED IN DELETING THE ADDITION AND SUBMITTED TH AT THERE IS NO DISPUTE WITH FACT THAT THE ACCOUNT WAS NOT DISCLOSED BY THE ASSESSEE IN ITS REGULAR BOOK OF ACCOUNTS. IT IS ONLY ON THE BASIS OF THE AI R INFORMATION RECEIVED BY THE AO AND THE ACCOUNTS CAME TO THE KNOWLEDGE OF THE REVENUE AUTHORITIES. ITA NO.531/AHD/2012-BY REVENUE AND CO NO.89/AHD/2012-BY ASSESSEE ITO VS. M/S.MURLIDHAR ICE-CREAM & SWEET PARLOUR ASST.YEAR 2008-09 - 4 - 3.1. ON THE CONTRARY, LD.COUNSEL FOR THE ASSESSEE R EITERATED THE SUBMISSIONS AS WERE MADE BEFORE THE LD.CIT(A) AND S UBMITTED THAT THE OMISSION TO INCLUDE THE BANK ACCOUNT IN QUESTION IN THE BOOK OF ACCOUNTS WAS UNINTENTIONAL MISTAKE ON THE PART OF THE ACCOUN TANT. HE SUBMITTED THAT THE AO FAILED TO APPRECIATE THE FACT THAT THER E WAS NO REASON TO CONCEAL THE ACCOUNT, WHICH IS OVER-DRAFT ACCOUNT, B ECAUSE THE SOURCE OF CREDIT IN THIS ACCOUNT WILL BE THE TRANSFER FROM BA NK. HE FURTHER SUBMITTED THAT THE AO FAILED TO APPRECIATE THE CASH DEPOSITS MADE IN THIS ACCOUNT WERE NOT UNEXPLAINED BUT RE-DEPOSITS OUT OF THE PREVIOUS WITHDRAWALS. HE FURTHER SUBMITTED THAT RECORDING THE TRANSACTIONS IN THE BOOKS HAS NOTHING TO DO WITH THE CORRELATING THE WI THDRAWALS WITH THE REDEPOSIT BECAUSE ONCE THE ACCOUNT IS NOT RECORDED IN THE BOOKS THE CORRESPONDING REDEPOSIT WILL AUTOMATICALLY REMAIN U NRECORDED IN THE BOOKS. HE FURTHER SUBMITTED THAT THE AO HAS MADE A DDITION U/S.68 AS UNEXPLAINED CASH CREDIT BUT WHEN THE TRANSACTIONS H AVE NOT BEEN RECORDED IN THE BOOKS THERE COULD NOT BE ADDITION U/S.68 WHE REIN IT IS A PRECONDITION THAT THE CREDIT SHOULD APPEAR IN THE B OOKS OF A/C MAINTAINED BY THE ASSESSEE. 4. WE HAVE HEARD THE RIVAL SUBMISSIONS, PERUSED THE MATERIAL AVAILABLE ON RECORD AND GONE THROUGH THE ORDERS OF THE AUTHORITIES BELOW. THE LD.CIT(A) HAS GIVEN A FINDING ON FACT THAT THE CASH WITHDRAWN FROM THE BANK ACCOUNT WAS USED FOR THE PURPOSE OF REDEP OSITING IN THE SAME IN ITA NO.531/AHD/2012-BY REVENUE AND CO NO.89/AHD/2012-BY ASSESSEE ITO VS. M/S.MURLIDHAR ICE-CREAM & SWEET PARLOUR ASST.YEAR 2008-09 - 5 - THE BANK ACCOUNT. FURTHER, THE LD.CIT(A) IN PARA-3 .3 HAS GIVEN A FINDING ON FACT AS UNDER:- 3.3. DECISION : I HAVE CAREFULLY PERUSED THE ASSESSMENT ORDER AND T HE SUBMISSIONS GIVEN BY THE APPELLANT. THE APPELLANT HAS SUBMITTE D THAT THE BANK ACCOUNT IN WHICH THE CASH HAS BEEN DEPOSITED WAS ON OD FACILITY AND THE CASH DEPOSITS WERE MADE OUT OF THE WITHDRAWALS MADE EARLIER FROM THE SAME ACCOUNT. THE BANK ACCOUNT WAS OMITTED TO BE INCLUDED IN THE BOOKS OF ACCOUNT AND ONLY THE ACCOUNT WITH STATE BA NK OF SAURASHTRA WAS SHOWN IN THE BOOKS OF ACCOUNT. A PERUSAL OF THE BANK ACCOUNT SHOW THAT THE BANK AC COUNT HAS BEEN OPENED BY THE APPELLANT ON 25/10/2007 AND THE APPEL LANT HAS INITIALLY WITHDRAWN CASH FROM THE ACCOUNT AND SUBSEQUENTLY ST ARTED DEPOSITING THE CASH N THE ACCOUNT AGAIN. THE A.O. HAS NOT CO NSIDERED THE FACT OF WITHDRAWAL OF CASH FROM THE SAME ACCOUNT AND HAS ME RELY MADE THE ADDITION ON THE BASIS OF ENTRIES OF DEPOSIT OF CASH . THE CLAIM OF THE APPELLANT THAT THE CASH HAS BEEN DEPOSITED OUT OF T HE EARLIER WITHDRAWAL IS PRIMA FACIE ACCEPTABLE AS A.O. HAS NOT POINTED O UT ANY OTHER FACT WHICH INDICATES THE UTILIZATION OF CASH IN SOME OTH ER MANNER. THEREFORE, THE CLAIM OF THE APPELLANT REGARDING AVA ILABILITY OF CASH OUT OF EARLIER WITHDRAWALS WILL HAVE TO B ACCEPTED. TH E ONLY UTILIZATION OF THE CASH WITHDRAWAL BY THE APPELLANT COULD HAVE BEE N FOR THE PURPOSE OF FURNISHING THE ICE CREAM PARLOUR FOR WHICH THE OD F ACILITY WAS TAKEN BY THE APPELLANT. THIS ASPECT WILL BE DISCUSSED LA TER ON. FOLLOWING IS THE POSITION OF AVAILABILITY OF CASH WITHDRAWN FROM THE BANK ACCOUNT BY THE APPELLANT ON VARIOUS DATES. CASH ACCOUNT DATE PART- ICULARS CH. NO. OPENING RECEIVED PAYMENT CLOSING 18.11.2007 CASH 274576 200000 200000 ITA NO.531/AHD/2012-BY REVENUE AND CO NO.89/AHD/2012-BY ASSESSEE ITO VS. M/S.MURLIDHAR ICE-CREAM & SWEET PARLOUR ASST.YEAR 2008-09 - 6 - 20.11.2007 CASH 274577 200000 200000 400000 23.11.2007 CASH 274578 400000 200000 600000 25.11.2007 CASH 274579 600000 200000 800000 27.11.2007 CASH 274580 800000 1 50000 950000 10.12.2007 CASH 274582 950000 200000 1150000 15.12.2007 CASH 11 50000 3150 11 46850 20.12.2007 CASH 274583 1146850 200000 1346850 22.12.2007 CASH 274584 1 346850 100000 1446850 05.01 .2008 CASH 274585 1446850 200000 1 646850 08.01.2008 CASH 274586 1 646850 125000 1771850 12.01.2008 CASH 274587 1771850 50000 1821850 15.01.2008 CASH 1821850 3800 1818050 16.01.2008 CASH 274588 1818050 200000 2018050 17.01.2008 CASH 274590 2018050 27000 2045050 19.01.2008 CASH 2045050 10200 2034850 12.02.2008 CASH 2034850 500000 1534850 19.02.2008 CASH 1534850 30000 1504850 25.02.2008 CASH 1504850 200000 1304850 25.02.2008 CASH 1304850 50000 1254850 ITA NO.531/AHD/2012-BY REVENUE AND CO NO.89/AHD/2012-BY ASSESSEE ITO VS. M/S.MURLIDHAR ICE-CREAM & SWEET PARLOUR ASST.YEAR 2008-09 - 7 - 28.02.2008 CASH 1254850 40000 1214850 01.03.2008 CASH 274592 1214850 100000 1314850 07.03.2008 CASH 1314850 200000 1114850 07.03.2008 CASH 1114850 100000 1014850 11 .03.2008 CASH 1014850 1000000 14850 15.03.2008 CASH 14850 200000 -185150 18.03.2008 CASH -185150 145000 -330150 20.03.2008 CASH 274593 -330150 200000 -130150 28.03.2008 CASH 274594 -130150 200000 69850 28.03.2008 CASH 274595 69850 200000 - 269850 TOTAL 2752000 2482150 IT IS SEEN FROM THE ABOVE CHART THAT THE APPELLANT HAS WITHDRAWN RS.27,52,000/- FROM THE BANK ACCOUNT ON VARIOUS DATES AND HAS DEPOSITED RS.24,82,150/-. IT IS HOWEVER NOTED THAT ON 15/03/2008, THE APPELLANT DEPOSITED M ORE THAN WHAT IT HAD WITHDRAWN AND THERE WAS A NEGATIVE CASH ON THAT DAY. THE APPE LLANT AGAIN DEPOSITED RS.1,45,000/- ON 18/03/2008 WHICH FURTHER INCREASED THE NEGATIVE BALANCE OF CASH. THEREFORE, THE TOTAL CASH DEPOSITED IN THE BANK ACC OUNT IN EXCESS OF WHAT WAS WITHDRAWN BY THE APPELLANT COMES TO RS.3,30,150/- T OR WHICH THE APPELLANT HAS NO SOURCE TO EXPLAIN. THE APPELLANT IN THE APPELLATE P ROCEEDINGS HAS TAKEN CONTRADICTORY PLEA FOR DEPOSIT OF THIS CASH. IN EARLIER SUBMISSIO N, IT HAS BEEN MENTIONED BY APPELLANT THAT CASH OF RS.3,50,000/- WAS DEPOSITED BY ONE OF THE PARTNER SHRI ASHOK PATEL FROM HIS PERSONAL SOURCE. SUBSEQUENTLY HE STA TED THAT APPELLANT HAS TAKEN LOAN FROM FOUR DIFFERENT PARTIES IN THE FOLLOWING MANNER . (I) PATEL PRAHLADBHAI MADHAVDAS (RS.2,00,000) (II) PATEL JAYANTIBHAI TRIBHOVANDAS (RS.25,000) (III) PATEL VIKRAMBHAI DHULABHAI (RS.75,000) AND (IV) PATEL NAVINBHAI SOMNATHBHAI (RS.50,000). ITA NO.531/AHD/2012-BY REVENUE AND CO NO.89/AHD/2012-BY ASSESSEE ITO VS. M/S.MURLIDHAR ICE-CREAM & SWEET PARLOUR ASST.YEAR 2008-09 - 8 - THE APPELLANT HAS ALSO SUBMITTED THE CONFIRMATION O F THESE FOUR PARTIES REGARDING THE DEPOSIT. THE CLAIM OF THE APPELLANT IS NOT ACCE PTABLE AS THESE EVIDENCES WERE NOT SUBMITTED BEFORE THE A. O. AND NEITHER THESE WE RE FILED IN THE EARLIER STAGES OF HEARING. THE EVIDENCES ARE NOT CONTEMPORARY IN NATU RE AS THERE IS NO EVIDENCE OF LOAN FROM BANK. THE APPELLANT HAS TRIED TO CREATE A N EVIDENCE BY SHOWING CASH LOAN FROM DIFFERENT PERSONS WHICH CANNOT BE ACCEPTE D AT THIS STAGE AS THIS IS AN AFTERTHOUGHT AND CREATION OF FALSE EVIDENCE. IT IS ALSO WORTHNOTING THAT THIS CLAIM IS AGAINST THE EARLIER CLAIM OF RECEIVING CASH FROM ONE OF THE PARTNERS. IN VIEW OF THESE FACTS, THE CLAIM OF THE APPELLANT REGARDING D EPOSIT OF CASH OF RS.3,30,150/- IS NOT ACCEPTED AND IS CONSIDERED AS UNEXPLAINED CA SH DEPOSITED IN BANK ACCOUNT. THE APPELLANT WAS ALSO ASKED TO EXPLAIN THE SOURCE OF EXPENDITURE IN FURNISHING THE ICE CREAM PARLOUR: IT HAS BEEN SUBMITTED BY HI M THAT HE HAS SHOWN FURNITURE OF RS.1,59,830/- IN THE BOOKS OF ACCOUNTS. THE AMOU NT OF FURNITURE SHOWN BY THE APPELLANT IS INADEQUATE AS IT IS NOT POSSIBLE TO FU RNISH ANY SHOP WITH THIS SMALL AMOUNT. IT WOULD THEREFORE BE REASONABLE TO ESTIMAT E THAT A FURTHER EXPENDITURE OF RS.2,50,000/- MUST HAVE BEEN MADE BY HIM IN FURNISH ING THE SHOP. THE APPELLANT HAS SUBMITTED THAT THE EXCESS AMOUNT OF CASH WITHDR AWN WAS USED BY HIM FOR THIS PURPOSE. THE CLAIM OF THE APPELLANT IS EXAMINED AND IT IS SEEN THAT THE APPELLANT HAS WITHDRAWN AN AMOUNT OF RS.27,52,000/- AND HAS D EPOSITED CASH OF RS.24,82,150/- WHICH SHOWS THAT EXCESS CASH OF RS.2 ,69,850/- WAS AVAILABLE WITH THE APPELLANT. THIS CASH IS ACCORDINGLY TREATED AS SOURCE OF INVESTMENT IN FURNISHING THE SHOP. THE APPELLANT WILL NOT GET ANY CREDIT OF RS. 2,50,000/-FOR FUTURE USE. IN VIEW OF THE ABOVE DISCUSSIONS, THE ADDITION TO T HE EXTENT OF RS.3,30,150/- OUT OF THE ADDITION MADE BY THE A. O. IS CONFIRMED AND THE REST IS DELETED. THE GROUND OF APPEAL IS, THEREFORE, PARTLY ALLOWED. 4.1. THE FINDING OF THE LD.CIT(A) THAT THERE WERE T RANSACTIONS OF CASH DEPOSIT AND WITHDRAWAL. THIS FACT IS NOT CONTROVER TED BY THE REVENUE BY PLACING ANY CONTRARY MATERIAL ON RECORD. WE ARE O F THE CONSIDERED VIEW WHERE THERE ARE DEPOSIT AND WITHDRAWAL ENTRIES INTO THE BANK ACCOUNT, IT WOULD BE PRESUMED THAT THE AMOUNT WITHDRAWN WAS AVA ILABLE WITH THE ITA NO.531/AHD/2012-BY REVENUE AND CO NO.89/AHD/2012-BY ASSESSEE ITO VS. M/S.MURLIDHAR ICE-CREAM & SWEET PARLOUR ASST.YEAR 2008-09 - 9 - ASSESSEE FOR DEPOSITING THE SAME. THEREFORE, IT CANNOT BE CONCLUDED THAT THE ENTIRE DEPOSITS WERE FROM UNEXPLAINED SOUR CE. WE DO NOT SEE ANY REASON TO INTERFERE WITH THE FINDING OF THE LD. CIT(A), THE SAME IS HEREBY UPHELD. THUS, THIS GROUND OF REVENUES APPE AL IS REJECTED. 5. GROUND NO.2 IS AGAINST RESTRICTING THE DISALLOWA NCE OF INTEREST EXPENDITURE TO THE EXTENT OF RS.65,090/- OUT OF TOT AL DISALLOWANCE OF RS.1,95,470/-. IT IS ALSO SUBMITTED THAT THE ADDIT IONAL EVIDENCES WERE ADMITTED IN VIOLATION OF RULES 46A OF THE IT RULES, 1962. THE LD.SR.DR SUPPORTED THE ORDER OF THE AO AND SUBMITTED THAT TH E LD.CIT(A) WAS NOT JUSTIFIED IN DELETING THE ADDITION. 5.1. ON THE CONTRARY, LD.COUNSEL FOR THE ASSESSEE S UBMITTED THAT DURING THE YEAR UNDER APPEAL, ASSESSEE-FIRM HAD CLA IMED INTEREST EXPENDITURE OF RS.1,95,470/- WHICH WAS PAID FOR THE PURPOSE OF BUSINESS. THE LD.COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE INTEREST EXPENDITURE WAS PAID TOWARDS THE INTEREST PAID TO H DFC SECURED LOAN. THE LOAN WAS TAKEN FOR THE BUSINESS PURPOSES . FURTHER, LD.COUNSEL FOR THE ASSESSEE REITERATED THE SUBMISSI ONS AS WERE MADE BEFORE THE LD.CIT(A). ITA NO.531/AHD/2012-BY REVENUE AND CO NO.89/AHD/2012-BY ASSESSEE ITO VS. M/S.MURLIDHAR ICE-CREAM & SWEET PARLOUR ASST.YEAR 2008-09 - 10 - 6. WE HAVE HEARD THE RIVAL SUBMISSIONS, PERUSED THE MATERIAL AVAILABLE ON RECORD AND GONE THROUGH THE ORDERS OF THE AUTHORITIES BELOW. WE FIND THAT THE LD.CIT(A) HAS GIVEN FINDING ON FA CT IN PARA 4.3 OF HIS ORDER. 4. 3 DECISION: I HAVE CAREFULLY PERUSED THE ASSESSMENT ORDER AND T HE SUBMISSIONS GIVEN BY THE APPELLANT. THE A. O. HAS MADE THE DISALLOWANCE AS THE APPELLANT DID NOT GIVE ANY EVIDENCE FOR THE UTILISATION OF THE LOAN F OR THE BUSINESS PURPOSE. DURING THE COURSE OF APPELLATE PROCEEDINGS, THE APP ELLANT HAS FILED COPY OF THE LEDGER ACCOUNT OF THE LOAN WHICH SHOWS THAT CER TAIN WITHDRAWALS WERE MADE BY THE PARTNERS IN CASH AND CERTAIN WITHDRAWAL S WERE MADE FOR THE BUSINESS PURPOSE. 1T HAS BEEN POINTED OUT BY HIM TH AT A WITHDRAWAL OF RS.5,00,000/- WAS MADE ON 31/07/2006 BY CASH WHICH WAS UTILISED FOR MAKING THE PURCHASES. SIMILARLY, AN AMOUNT OF RS.1,03,000/ - WAS ALSO WITHDRAWN IN CASH AND UTILISED FOR PURCHASES. SIMILARLY, THERE WERE OTHER WITHDRAWALS OF SMALL AMOUNT WHICH WERE ALSO USED BY THE APPELLANT FOR THE PURPOSE OF BUSINESS. THE CLAIM OF THE APPELLANT HAS BEEN LOOKE D INTO. IT IS NOTED FROM THE DETAILS MADE AVAILABLE THAT NOT ALL THE FUNDS WHIC H WERE TAKEN OUT OF THE LOAN ACCOUNT OF THE BANK WERE UTILISED FOR THE PURPOSE OF BUSINESS. THE APPELLANT HAS GIVEN AN AMOUNT OF RS.7,01,200/- TO ITS PARTNE RS FOR WHICH THERE IS NO PURPOSE OF BUSINESS. THE OTHER AMOUNT HAS BEEN UTIL ISED FOR BUSINESS. THE APPELLANT HAS ALSO IN THE WRITTEN SUBMISSION ACCE PTED THE ABOVE FACT. ACCORDINGLY, THE DISALLOWANCE OF INTEREST SHOULD BE PROPORTIONATELY REDUCED TAKING INTO ACCOUNT THE AMOUNT NOT UTILISED FOR BUS INESS. AFTER CONSIDERING THE SAME, THE DISALLOWANCE IS RESTRICTED TO RS.65,090/- (RS.1,95,470 X 7,01,200/21,05,768). THE GROUND OF APPEAL IS ACCOR DINGLY PARTLY ALLOWED. 6.1. THE ABOVE FINDING OF THE LD.CIT(A) IS NOT CON TROVERTED BY THE REVENUE BY PLACING ANY CONTRARY MATERIAL ON RECORD. THE CONTENTION OF THE REVENUE IS THAT THE LD.CIT(A) HAS VIOLATED THE RULE 46A OF THE IT RULES. THERE IS NO SPECIFIC SUBMISSION AS WHAT W ERE THE EVIDENCES ITA NO.531/AHD/2012-BY REVENUE AND CO NO.89/AHD/2012-BY ASSESSEE ITO VS. M/S.MURLIDHAR ICE-CREAM & SWEET PARLOUR ASST.YEAR 2008-09 - 11 - WHICH WERE CONSIDERED BY THE LD.CIT(A) WITHOUT GIVI NG OPPORTUNITY TO THE AO AND/OR THE EVIDENCES WHICH WERE NOT AVAILABL E BEFORE THE AO. THEREFORE, THIS CONTENTION OF THE REVENUE IS ALSO D EVOID OF ANY MERIT. THUS, WE DO NOT SEE ANY REASON TO INTERFERE WITH TH E ORDER OF THE LD.CIT(A), SAME IS HEREBY UPHELD AND REVENUES GROU ND NO.2 IS REJECTED. 7. GROUND NOS. 3 & 4 ARE GENERAL IN NATURE WHICH RE QUIRE NO INDEPENDENT ADJUDICATION. AS A RESULT, REVENUES APPEAL FOR AY 2008- 09 IS DISMISSED. 8. NOW, WE TAKE UP THE ASSESSEES CROSS OBJECTION N O.89/AHD/2012 AY 2008-09 (ARISING OUT OF ITA NO.531/AHD/2012 FOR AY 2008-09 REVENUES APPEAL). 8.1. THE ONLY EFFECTIVE GROUND IS AGAINST CONFIRMIN G THE ADDITION TO THE EXTENT OF RS.3,30,150/- MADE U/S.68 OF THE ACT. TH E LD.COUNSEL FOR THE ASSESSEE REITERATED THE SUBMISSIONS AS WERE MADE BE FORE THE LD.CIT(A). 8.2. ON THE CONTRARY, LD.SR.DR SUPPORTED THE ORDERS OF THE AUTHORITIES BELOW. 9. WE HAVE HEARD THE RIVAL SUBMISSIONS, PERUSED THE MATERIAL AVAILABLE ON RECORD AND GONE THROUGH THE ORDERS OF THE AUTHORITIES BELOW. ITA NO.531/AHD/2012-BY REVENUE AND CO NO.89/AHD/2012-BY ASSESSEE ITO VS. M/S.MURLIDHAR ICE-CREAM & SWEET PARLOUR ASST.YEAR 2008-09 - 12 - WE FIND THAT THE LD.CIT(A) HAS GIVEN FINDING ON FAC T IN PARA-3.3 OF HIS ORDER, WHICH IS ALREADY REPRODUCED IN THE REVENUES APPEAL-SUPRA AT PARA NO.4 OF THIS ORDER. 9.1. THE ABOVE FINDING OF THE LD.CIT(A) IS NOT CONT ROVERTED BY THE ASSESSEE, THEREFORE, WE DO NOT SEE ANY REASON TO IN TERFERE WITH THE ORDER OF THE LD.CIT(A), SAME IS HEREBY UPHELD. THUS, GRO UND RAISED BY THE ASSESSEE IS REJECTED AND THE CROSS-OBJECTION OF THE ASSESSEE IS DISMISSED. 10. IN THE RESULT, THE APPEAL OF THE REVENUE AND TH E CROSS OBJECTION FILED BY THE ASSESSEE BOTH ARE DISMISSED. ORDER PRONOUNCED IN THE COURT ON THURSDAY, THE 20 TH DAY OF AUGUST, 2015 AT AHMEDABAD. SD/- SD/- ( .. ) ( ) ( . ) ( G.D. AGARWAL ) ( KUL BHARAT ) VICE PRESIDENT (AZ) JUDICIAL MEMBER AHMEDABAD; DATED 20/ 08 /2015 5...+, .+../ T.C. NAIR, SR. PS ITA NO.531/AHD/2012-BY REVENUE AND CO NO.89/AHD/2012-BY ASSESSEE ITO VS. M/S.MURLIDHAR ICE-CREAM & SWEET PARLOUR ASST.YEAR 2008-09 - 13 - !'#$%&%# / COPY OF THE ORDER FORWARDED TO : 1. %( / THE APPELLANT 2. )*%( / THE RESPONDENT. 3. 678 9 / CONCERNED CIT 4. 9 ( ) / THE CIT(A)-XIV, AHMEDABAD 5. :; )+78 , . 782 , 6 / DR, ITAT, AHMEDABAD 6. ;< =, / GUARD FILE. / BY ORDER, *: ) //TRUE COPY// / ( DY./ASSTT.REGISTRAR) , / ITAT, AHMEDABAD 1. DATE OF DICTATION .. 7.8.15/12.8.15 (DICTATION-PA D 3+ 9PAGES ATTACHED AT THE END OF THIS FILE) 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER .. 10.8.15/14.8.15 3. OTHER MEMBER... 4. DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR.P. S./P.S.. 5. DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE D ICTATING MEMBER FOR PRONOUNCEMENT 6. DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR. P.S./P.S.20.8.15 7. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK 20.8.15 8. DATE ON WHICH THE FILE GOES TO THE HEAD CLERK ... 9. THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT RE GISTRAR FOR SIGNATURE ON THE ORDER.. 10. DATE OF DESPATCH OF THE ORDER