Mohammed Azhar, Kolkata V. ACIT, CIR-33, KOLKATA, Kolkata

ITA 611/KOL/2016

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 9505 (ITAT-KOLKATA)
• Duration Of Justice: 10 month(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 10-02-2017
• Appeal Filed By: Assessee
• Bench Allotted: SMC
• Next Hearing Date: 08-12-2016
• Assessment Year: 2008-2009
• Appeal Filed On: 06-04-2016
• Court: TRIBUNAL
• Department Lawyers: MD GHYAS UDDIN JCIT LD
• Assessee Lawyers: S P CHOUDHURY LD
• Section: 234B; 10B

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL,D BENCH,KOLK ATA BEFORE : SHRI PARTHA SARATHI CHAUDHURY, JUDICIAL ME MBER AND SHRI DR. ARJUN LAL SAINI, ACCOUNTANT MEMBER ITA NO. 611/KOL/2016 A.Y 2008-09 ITA NO. 590/KOL/2016 A.Y 2011-12 MOHAMMED AZHAR VS. ACIT,CIR-33,KOLKATA PAN: ACSPA8912D [APPELLANT] [RESPONDENT] ITA NO. 282/KOL/2015 A.Y 2009-10 MOHAMMED AZHAR VS. I.T.O WARD 33(3), K OLKATA PAN: ACSPA8912D [APPELLANT] [RESPONDENT] APPELLANT BY : SHRI S.P. CHOUDHURY, AD VOCATE, LD.AR RESPONDENT BY : MD. GHYAS UDDIN, JCIT , LD.DR DATE OF HEARING : 10-02-2017 DATE OF PRONOUNCEMENT : 10-02-2017 ORDER PER SHRI PARTHA SARATHI CHAUDHURY, JM: THESE APPEALS PREFERRED BY THE ASSESSEE EMANATE FRO M THE SEPARATE ORDERS OF THE LD. COMMISSIONER OF INCOME T AX (APPEALS) IN SHORT [ LD. CIT(A)], 9, KOLKATA DATED 31-12-2015 , 22-01-2015 & 17-12-2015 ON THE FOLLOWING RESPECTIVE GROUNDS:- GROUNDS OF APPEAL PREFERRED FOR THE A.Y 2008-09 (BY THE ASSESSEE 1. FOR THAT ON THE FACTS OF THE CASE, THE ORDER PA SSED BY THE LD. C.I.T(A) IS COMPLETELY ARBITRARY, UNJUSTIFI ED AND ILLEGAL. 2. FOR THAT ON THE FACTS OF THE CASE, THE LD. C.I. T.(A) WAS WRONG IN NOT CONSIDERING THE FACT THAT THE REASON RECORDED U/S S. 148(2) OUGHT TO HAVE BEEN INTIMATED TO THE ASSESSEE IN ABSENCE OF SUCH INTIMATION, THE ASSESSMENT IS LIABLE TO BE QUASHED . ITA NOS.611/K/16, 282/K/15 & 590/K/16 MOHA MMED AZHAR 2 3. FOR THAT ON THE FACTS OF THE CASE, THE LD. C.I. T.(A) WAS WRONG IN DITTOING THE ORDER OF THE A.O. AND NOT CONSIDERING THE FACT THAT THE ENTIRE CLAIM OF INTER EST RS.787,743/- SHOULD NOT HAVE DISALLOWED AT LEAST RS.1,50,000/-BEING LIMIT OUGHT TO HAVE BEEN ALLOWED U/S S. 24(B) OF THE IT. ACT, THE ACTION IS THEREFORE, ARBITRARY, UNWARRANTED, PERVERSE AND ILLEGAL. 4. FOR THAT THE INTEREST U/S. 234B CHARGED MECHANI CALLY IS WRONG & ILLEGAL. 5. FOR THAT THE APPELLANT RESERVES THE RIGHT TO AD DUCE ANY FURTHER GROUND OR GROUNDS, IF NECESSARY, AT OR BEFO RE THE HEARING OF THE APPEAL. GROUNDS OF APPEAL PREFERRED FOR THE A.Y 2009-10 (BY THE ASSESSEE 1. FOR THAT ON THE FACTS OF THE CASE, THE LD. C.LT .(A) IS WRONG IN DISMISSING THE APPEAL, THUS SUSTAIN THE DISALLOWANCE OF INTEREST RS.17,16,534/- CLAIMED U/S 24(B) OF THE IT. ACT, 1961. 2. FOR THAT WITHOUT PREJUDICE TO GROUND NO. 1 THE INTEREST OF RS.150,000/- IS TO BE ALLOWED U/S. 24(B) OF THE IT. ACT. 3. FOR THAT THE EVIDENCES COLLECTED AND PRODUCED M AY BE CONSIDERED IN DECIDING THE APPEAL. 4. FOR THAT THE RENTAL INCOME SHOWN ON CASH BASIS RS.265,310/- BUT ESTIMATED AT RS.300,000/- WHICH IS WRONG, UNJUSTIFIED AND ILLEGAL. 5. FOR THAT THE APPELLANT RESERVES THE RIGHT TO AD DUCE ANY FURTHER GROUND OR GROUNDS, IF NECESSARY, AT OR BEFO RE THE HEARING OF THE APPEAL. GROUNDS OF APPEAL PREFERRED FOR THE A.Y 2011-12 (BY THE ASSESSEE 1. FOR THAT ON THE FACTS OF THE CASE, THE ORDER PA SSED BY THE LD. C.I.T.(A) IS COMPLETELY ARBITRARY, PERVERSE AND ILLEGAL. 2. FOR THAT ON THE FACTS OF THE CASE, THE LD. C.IT .(A) WAS WRONG IN SUSTAINING THE DISALLOWANCE OF INTEREST RS.19,47,628/ - PAID TO HDFC BANK U/ S. 24(B) OF TH E IT. ACT, 1961, BUT IT WAS WHOLLY DISALLOWED, THE AC TION IS THEREFORE, ARBITRARY, UNWARRANTED, PERVERSE AND ILLEGAL. 3. FOR THAT THERE BEING NO PENALTY APPEAL FILED BY THE APPELLANT, THEREFORE, THE LD. CIT(A) CONCLUSION IN ITA NOS.611/K/16, 282/K/15 & 590/K/16 MOHA MMED AZHAR 3 CONFIRMING THE PENALTY APPEAL IS WRONG, PERVERSE AN D ILLEGAL. 4. FOR THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE RENTAL INCOME ESTIMATED LEVY THE A.O. AT RS.144,000 /- AGAINST RS. 14,400/- IS WRONG AND WITHOUT ANY POSIT IVE EVIDENCE, THEREFORE, THE ENTIRE ADDITION SHOULD BE DELETED. 5. FOR THAT THE INTEREST U/S. 234B & 234C CHARGED MECHANICALLY IS WRONG & ILLEGAL. 6. FOR THAT THE APPELLANT RESERVES THE RIGHT TO AD DUCE ANY FURTHER GROUND OR GROUNDS, IF NECESSARY, AT OR BEFO RE THE HEARING OF THE APPEAL. 3. NOW WE TAKE UP THE APPEAL ITA NO. 282/KOL/2015 FOR THE AY 2009-10 ( BY THE ASSESSEE). 4. GROUND NOS. 1 TO 3 ARE SIMILAR IN NATURE AND SHA LL BE DEALT WITH COLLECTIVELY HEREIN. THESE GROUNDS RELATE TO C ONTENTION OF THE ASSESSEE AGAINST THE DISALLOWANCE OF CLAIM OF INTER EST OF RS. 17,16,534/-, WHICH WAS CLAIMED U/S. 24(B) OF THE AC T. 5. THE FACTS OF THE CASE ARE THAT THE AO FOUND THA T THE ASSESSEE HAD CLAIMED INTEREST OF RS. 17,16,534/- ON ACCOUNT OF HOUSE BUILDING LOAN U/S. 24(B) OF THE ACT DURING TH E ASSESSMENT PROCEEDINGS THE AO ASKED THE ASSESSEE TO FURNISH TH E DOCUMENTS/DETAILS I.E DATE OF ACQUISITION/COMPLETIO N OF HOUSE PROPERTY ALONG WITH SUPPORTING REGISTRATION DEED/CE RTIFICATE ETC., DATE AND AMOUNT OF LOAN TAKEN ALONG WITH LOAN SANCT ION ORDER, EVIDENCE/DOCUMENT WITH REGARD TO UTILIZATION OF THE SAID LOAN AND RELEVANT BANK STATEMENT WITH REGARD TO RECEIPT/REPA YMENT OF LOAN AND INTEREST THEREON, BUT THE ASSESSEE FAILED TO PR ODUCE THE SAME. AS PER PROVISION OF SECTION 24(B), DEDUCTION OF RS. 1,50,000/- IS ADMISSIBLE, IF THE HOUSE PROPERTY IS ACQUIRED OR CO MPLETED WITH CAPITAL BORROWED WITHIN 3 YEARS FROM THE END OF THE FINANCIAL YEAR IN WHICH THE CAPITAL WAS BORROWED FOR THE PURPOSE O F ACQUISITION/CONSTRUCTION OF HOUSE PROPERTY. THOUGH THE ASSESSEE CLAIMED THAT THE LOAN WAS TAKEN FROM HDFC BANK, BUT NO ITA NOS.611/K/16, 282/K/15 & 590/K/16 MOHA MMED AZHAR 4 SUPPORTING DOCUMENTS/DETAILS WERE FURNISHED. DURING THE APPELLATE PROCEEDINGS ALSO, THE LD.AR RELIED UPON THE GROUNDS OF APPEAL/ STATEMENT OF FACTS ONLY BUT NO DETAILS/DOCUMENTS WE RE FURNISHED TO SUPPORT THE CLAIM OF THE ASSESSEE. THE LD. CIT( A) IN HIS ORDER FOUND THAT SINCE THERE IS NOW NEW EVIDENCE/MATERIAL /DOCUMENT ON RECORD FOR CONSIDERATION, THEREFORE, THE LD. CIT(A) FOUND THAT THERE IS NO INFIRMITY IN THE ORDER OF THE AO AND HE CONFIRMED THE ORDER OF THE AO. 6. THAT AT THE TIME OF HEARING BEFORE US THE LD.AR FOR THE ASSESSEE HAS FILED CERTIFICATE OF PRINCIPAL & INTER EST 1 ST APRIL 08 TO 31 ST MAR09, STATEMENT OF CLAIMING OF DEDUCTION ON INTE REST PAYABLE ISSUED BY STANDARD CHARTERED BANK AND RELEV ANT DOCUMENTS SUPPORTING HIS CLAIM. BEFORE US HE PRAYED THAT THE SAID DETAILS ALONG WITH THE CERTIFICATE AS FILED MA Y BE SET ASIDE BACK TO THE FILE OF THE AO FOR HIS FRESH ADJUDICATI ON ON THE BASIS OF SAID CERTIFICATES/DETAILS BEING FILED. 7. THE LD.DR DID NOT OPPOSE TO THE STAND TAKEN BY T HE LD.AR FOR THE ASSESSEE AND AGREED ON THE ISSUE. 8. WE HAVE PERUSED THE CASE RECORDS, FACTS AND CIR CUMSTANCES OF THE CASE. WE HAVE HEARD THE RIVAL CONTENTIONS AN D ARRIVED AT OUR CONSIDERED VIEW THAT THE RELEVANT CERTIFICATES AND EVIDENCES SUPPORTING THE CASE OF THE ASSESSEE WERE NOT FILED BEFORE THE AO EVEN BEFORE THE LD. CIT(A). SINCE THEY WERE FILED A T THE HEARING STAGE BEFORE US THE PARAMETER OF JUSTICE DEMANDS TH AT THESE CERTIFICATES AND EVIDENCES SUPPORTING THE CLAIM OF ASSESSEE BEING SENT TO THE FILE OF THE AO FOR HIS FRESH ADJUDICATI ON VIS--VIS THESE CERTIFICATES/DETAILS AND TO ARRIVE AT A FINDING AS PER LAW WHILE AFFORDING REASONABLE OPPORTUNITY OF HEARING TO THE ASSESSEE. HENCE, THIS ISSUE IS SET ASIDE BACK TO THE FILE OF THE AO FOR HIS ITA NOS.611/K/16, 282/K/15 & 590/K/16 MOHA MMED AZHAR 5 FRESH ADJUDICATION. THEREFORE, GROUND NOS. 1 TO 3 R AISED BY THE ASSESSEE ARE ALLOWED FOR STATISTICAL PURPOSE. 9. GROUND NO. 4 IS NOT PRESSED BY THE LD.AR FOR THE ASSESSEE AT THE TIME OF HEARING BEFORE US. HENCE, THE SAME IS D ISMISSED. 10. GROUND NO.5 IS GENERAL IN NATURE AND NEEDS NO A DJUDICATION. 11. THIS APPEAL OF ASSESSEE IN ITA NO. 282/KOL/2015 FOR THE AY 2009-10 IS ALLOWED FOR STATISTICAL PURPOSE. ITA NO.611/KOL/2016 FOR THE AY 2008-09 (BY THE ASSE SSEE) 12. GROUND NO. 3 RELATES TO THE SAME ISSUE AS DISCU SSED IN GROUND NOS. 1 TO 3 IN ITA NO. 282/KOL/2015 FOR THE AY 2009-10(BY THE ASSESSEE). THEREFORE, THE SAME DECISION HAS ALS O BEEN TAKEN FOR THIS GROUND ALSO. THEREFORE, THE GROUND NO. 3 O F THE ASSESSEES APPEAL IS ALLOWED FOR STATISTICAL PURPOSE. 13. GROUND NO. 2 IS NOT PRESSED BY THE LD.AR FOR TH E ASSESSEE BEFORE US AT THE TIME OF HEARING. HENCE, IT IS DISM ISSED. 14. GROUND NOS. 1 & 5 ARE GENERAL IN NATURE. HENCE, NO ADJUDICATION IS REQUIRED. 15. GROUND NO. 4 IS CONSEQUENTIAL IN NATURE. HENCE, NO ADJUDICATION IS REQUIRED. 16. THIS APPEAL OF ASSESSEE IN ITA NO. 611/KOL/2016 FOR THE AY 2008-09 IS ALLOWED FOR STATISTICAL PURPOSE. ITA NOS.611/K/16, 282/K/15 & 590/K/16 MOHA MMED AZHAR 6 17. NOW, WE TAKE UP THE APPEAL IN ITA NO. 590/KOL/1 6 FOR THE AY 2011-12 ( BY THE ASSESSEE) 18. GROUND NO. 2 IS THE SAME AS DISCUSSED IN ITA NO . 282/KOL/2015 FOR THE AY 2009-10(BY THE ASSESSEE). T HEREFORE, THE SAME DECISION HAS ALSO BEEN TAKEN FOR THIS GROUND A LSO. THEREFORE, THE GROUND NO. 2 OF THE ASSESSEES APPEAL IS ALLOWE D FOR STATISTICAL PURPOSE. 19. GROUND NOS. 3 & 4 ARE NOT PRESSED BY THE LD. AR FOR THE ASSESSEE. THEREFORE, THE SAME ARE DISMISSED. 20. GROUND NOS. 1 & 6 ARE GENERAL IN NATURE. THEREF ORE, NEEDS NO ADJUDICATION. 21. GROUND NO. 5 IS CONSEQUENTIAL IN NATURE. HENCE, NO ADJUDICATION IS REQUIRED. 22. THIS APPEAL OF ASSESSEE IN ITA NO. 590/KOL/2016 FOR THE AY 2011-12 IS ALLOWED FOR STATISTICAL PURPOSE. 23. IN THE RESULT, ALL THE APPEALS OF THE ASSESSEE ARE ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 10-02-2017 SD/- SD/- DR. ARJUN LAL SAINI PARTHA SARATHI CHAUDHURY ACCOUNTANT MEMBER JUDICIAL MEMBER DATED 10-02-2017 ITA NOS.611/K/16, 282/K/15 & 590/K/16 MOHA MMED AZHAR 7 COPY OF THE ORDER FORWARDED TO: 1. APPELLANT/ASSESSEE: MOHAMMED AZHAR 1 CORPORATION PL ACE, KOLKATA-87. 2 RESPONDENT/DEPARTMENT : THE ACIT, CIR-33/KOL & I.T .O WARD 33(3), 10B MIDDLETON ROW, KOLKATA-71. 3. CIT, 4. CIT(A), 5. DR, KOLKATA BENCHES, KOLKATA **PP/SPS [ TRUE COPY ] BY ORDER, ASSTT REGISTRAR