ITO-5(1), Indore V. Shri R G Prajapati, Indore

ITA 723/Ind/2019

• Counselvise Citation: [2021] 109 COUNSELVISE.COM (IT) 4038 (ITAT-INDORE)
• Duration Of Justice: 1 year(s) 6 month(s) 22 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 11-01-2021
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: SMC
• Assessment Year: 2011-2012
• Appeal Filed On: 20-06-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: S S DESH
• Keywords: TDS
• Section: 40(a)(ia)

Judgement Text

SMC I.T.A. NO.723 OF 2019 SHRI SUNIL RAJCHANDANI 1 , , IN THE INCOME TAX APPELLATE TRIBUNAL INDORE SMC BENCH, INDORE BEFORE SHRI KUL BHARAT, JUDICIAL MEMBER ITA NO.723/IND/2019 A.Y. 2011-12 ITO-5(3), INDORE / VS. SHRI SUNIL RAJCHANDANI RH-211, SANJANA PARK, BICHOLI MARDANA, INDORE (REVENUE) (RESPONDENT ) P.A. N. ABKPR9979C REVENUE BY SHRI ASHISH PORWAL, SR. DR RESPONDENT BY SHRI S.S. DESHPANDE, CA DATE OF HEARING: 12.11.2020 DATE OF PRONOUNCEMENT: 11 .01.2021 / O R D E R THIS APPEAL BY THE REVENUE IS DIRECTED AGAINST THE ORDER OF LD. COMMISSIONER OF INCOME TAX (APPEALS)-II, INDORE DAT ED 01.03.2019. 2. FIRST GROUND IS WITH REGARD TO ADDITION OF RS.5, 19,793/- U/S 40(A)(IA) OF THE ACT. FACTS, IN BRIEF AS NOTED BY T HE AO ARE THAT THE ASSESSEE HAD TAKEN LOAN OF RS.43,91,524/- FROM NBFC . DURING THE YEAR THE ASSESSEE HAD PAID INTEREST TO CITI FINANCE AT RS.5,09,919/- SMC I.T.A. NO.723 OF 2019 SHRI SUNIL RAJCHANDANI 2 AND MAGMA FINANCES AT RS.9487/- BUT THE ASSESSEE DI D NOT MADE TDS ON THE SAME. THEREFORE, THE AO ADDED RS.5,19,79 3/- TO THE ASSESSEES INCOME. 3. BEING AGGRIEVED, THE ASSESSEE FILED AN APPEAL B EFORE THE LD. CIT(A) WHO DELETED THE ADDITION AGAINST WHICH THE REVENUE IS IN APPEAL BEFORE THIS TRIBUNAL. 4. BEFORE ME, THE LD. SR. DR RELIED UPON THE ORDER OF THE AO. ON THE OTHER HAND, LD. COUNSEL FOR THE ASSESSEE RELIED UPO N THE ORDER OF THE LD. CIT(A). 5. I HAVE HEARD RIVAL SUBMISSIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD AND GONE THROUGH THE ORDERS OF AUTHORITIES BELOW. I FIND THAT THE LD. CIT(A) RECORDED THAT THE TDS HAD BEEN DEDUCTED BY THE PAYEE COMPANIES THEREFORE, THE DEDUCTION OF TAX ON THE SAME AMOUNT WOULD BE RESULT OF DOUBLE TAXATION. THIS VIE W IS SUPPORTED BY THE DECISION OF HON'BLE SUPREME COURT IN CASE OF HI NDUSTAN COCA COLA BEVERAGE P. LTD. VS. CIT(2007) 293 ITR 226(HON 'BLE SUPREME COURT). BEFORE ME THE REVENUE COULD NOT CONTROVERT THE FINDING RECORDED BY THE LD. CIT(A) BY BRINGING ANY CONTRARY MATERIAL ON RECORD. THEREFORE, THE ORDER OF LD. CIT(A) ON GROUN D NO.1 IS CONFIRMED. ACCORDINGLY, GROUND NO.1 IS DISMISSED. 6. GROUND NO. 2 IS WITH REGARD TO ADDITION OF RS.39 ,365/- ON ACCOUNT OF SHORT TERM CAPITAL GAIN. BEFORE ME, THE LD. SR. DR RELIED UPON THE ORDER SMC I.T.A. NO.723 OF 2019 SHRI SUNIL RAJCHANDANI 3 OF THE AO. ON THE OTHER HAND, LD. COUNSEL FOR THE A SSESSEE RELIED UPON THE ORDER OF THE LD. CIT(A). 7. ON CONSIDERATION OF MATERIAL AVAILABLE ON RECORD AND RIVAL SUBMISSION, I FIND THAT THE LD. CIT(A) HAD CATEGORI CALLY NOTED THAT THE ASSESSEE HAD OFFERED THE SAID AMOUNT IN THE P & L A CCOUNT AS INCOME BUT THE AO HAD AGAIN ADDED THE SAID AMOUNT WHICH IS TECHNICALLY WRONG. THUS, I DO NOT FIND ANY REASON TO INTERFERE WITH THE ORDER OF THE LD. CIT(A). SAME IS CONFIRMED. ACCORDINGLY, GROUND NO.2 OF THE APPEAL OF THE REVENUE IS ALSO DISMISSED. 8. IN RESULT, THE APPEAL FILED BY THE REVENUE IS DI SMISSED. ORDER WAS PRONOUNCED IN THE OPEN COURT ON 11.01. 2021. SD/- (KUL BHARAT) JUDICIAL MEMBER INDORE; DATED : 11 /01/2021 VYAS COPY TO: ASSESSEE/AO/PR. CIT/ CIT (A)/ITAT (DR)/GUA RD FILE. BY ORDER ASSISTANT REGISTRAR, INDORE