SHEETAL RESTAURANT & BAR, MUMBAI V. ITO WD 19(1)(2), MUMBAI

ITA 7511/MUM/2012

• Counselvise Citation: [2018] 126 COUNSELVISE.COM (IT) 0474 (ITAT-MUMBAI)
• Duration Of Justice: 5 year(s) 1 month(s) 12 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 31-01-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: E
• Next Hearing Date: 16-03-2017
• Assessment Year: 2008-2009
• Appeal Filed On: 19-12-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: V JUSTIN
• Keywords: Notional interest

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL E BENCH, MUMBAI BEFORE SHRI SAKTIJIT DEY, JUDICIAL MEMBER AND SHRI G. MANJUNATHA, ACCOUNTANT MEMBER ITA NO. 7511/MUM./2012 ( ASSESSMENT YEAR : 20 08 09 ) M/S. SHEETAL RESTAURANT & BAR 648, RAJASTHAN BUILDING KHAR PALI ROAD, KHAR (WEST) MUMBAI 400 052 AAPFS7251L . APPELLANT V/S INCOME TAX OFFICER WARD 19(1)(2), MUMBAI . RESPONDENT ASSESSEE BY : NONE REVENUE BY : SHRI V. JUSTIN DATE OF HEARING 25 .0 1.2018 DATE OF ORDER 31.01.2018 O R D E R PER SAKTIJIT DEY, J.M. THIS IS AN APPEAL BY THE ASSESSEE AGAINST ORDER DATED 3 RD SEPTEMBER 2012, PASSED BY THE LEARNED COMMISSIONER (APPEALS) 30, MUMBAI, CONFIRMING PENALTY IMPOSED OF ` 2,00,587 UNDER SECTION 271(1)(C) OF THE INCOME TAX ACT, 1961 (FOR SHORT THE ACT ). 2 . BRIEF FACTS ARE, THE ASSESSEE A PARTNERSHIP FIRM FILED ITS RETURN OF INCOME FOR THE IMPUGNED ASSESSMENT YEAR ON 30 TH SEPTEMBER 2008, 2 M/S. SHEETAL RESTAURANT & BAR DECLARING TOTAL INCOME OF ` 1,49,270. DURING THE ASSESSMENT PROCEEDINGS, THE ASSESSING OFFICER WHILE EXAMINING THE FINANCIAL STATEMENTS OF THE ASSESSEE FOUND THAT, THOUGH, THE ASSESSEE HAS TAKEN SECURED AND UNSECURED LOAN OF ` 88,99,582 AND CLAIMED INTEREST PAYMENT ON SUCH LOAN, HOWEVER, IT HAS SHOWN LOANS AND ADVANCES OF ` 1,00,58,022 TO PRIVATE PARTIES WITHOUT CHARGING ANY INTEREST. HE, THEREFORE, CALLED UPON THE ASSESSEE TO EXPLAIN WHY DEDUCTION CLAIMED ON ACCOUNT OF INTEREST EXPENDITURE SHOULD NOT BE DISALLOWED. THE ASSESSING OFFICER OBSE RVED THAT THE ASSESSEE HAS CLAIMED INTEREST PAYMENT OF ` 5,74,382 ON TOTAL LOAN TAKEN OF ` 88,99,582 FROM BANK AND OTHERS. HE WAS OF THE VIEW THAT THE BANK AND OTHER PARTIES MUST HAVE CHARGED INTEREST AT THE AVERAGE RATE OF 6.454%. BY APPLYING THE SAME RAT E TO INTEREST FREE LOANS AND ADVANCES GIVEN BY THE ASSESSEE TO PRIVATE PARTIES, THE ASSESSING OFFICER WORKED OUT THE INTEREST AT ` 6,49,148 AND ADDED BACK TO THE INCOME OF THE ASSESSEE. ON THE BASIS OF ADDITION SO MADE, THE ASSESSING OFFICER INITIATED PROCEEDINGS FOR IMPOSITION OF PENALTY UNDER SECTION 271(1)(C) OF THE ACT AND ULTIMATELY PASSED AN ORDER IMPOSING PENALTY OF ` 2,00,587 ALLEGING CONCEALMENT OF INCOME. 3 . THOUGH, THE ASSESSEE CHALLENGED THE ORDER PASSED IMPOSING PENALTY BEFORE THE FIRST APPELLATE AUTHORITY, HOWEVER, THE LEARNED 3 M/S. SHEETAL RESTAURANT & BAR COMMISSIONER (APPEALS) CONFIRMED THE PENALTY IMPOSED BY THE ASSESSING OFFICER. 4 . WHEN THE APPEAL WAS CALLED FOR HEARING NO ONE WAS PRESENT FOR THE ASSES SEE. ON A PERUSAL OF RECORD, IT IS NOTICED THAT ON EARLIER OCCASIONS ALSO, NONE APPEARED ON BEHALF OF THE ASSESSEE. IN VIEW OF THE ABOVE, WE PROCEED TO DISPOSE OFF THE APPEAL EX PARTE QUA THE ASSESSEE AFTER HEARING THE LEARNED DEPARTMENTAL REPRESENTATIVE. 5 . HEARD THE LEARNED DEPARTMENTAL REPRESENTATIVE AND PERUSED MATERIAL ON RECORD. AS COULD BE SEEN FROM THE FACTS ON RECORD, THE ASSESSING OFFICER ADDED ` 6,49,148 ON NOTIONAL BASIS TAKING NOT E OF THE FACT THAT THE ASSESSEE WHILE CLAIMING DEDUCTION OF INTERES T EXPENDITURE ON LOAN TAKEN H AS ADVANCE D LOAN TO PRIVATE PARTIES WITHOUT CHARGING INTEREST. NO MATERIAL HAS BEEN BROUGHT ON RECORD BY THE ASSESSING OFFICER TO DEMONSTRATE THAT THE ASSESSEE HAS ACTUALLY RECEIVED INTEREST ON THE INTEREST FREE LOAN ADVANCED T O PRIVATE PARTIES. THEREFORE, WHEN THE ADDITION OF INTEREST INCOME WAS MADE ON NOTIONAL BASIS WITHOUT ESTABLISHING THE FACT THAT THE ASSESSEE HAS ACTUALLY RECEIVED ANY INTEREST INCOME ON THE INTEREST FREE LOAN ADVANCED , IT CANNOT BE SAID THAT THE ASSESSEE HAS CONCEALED THE INTEREST INCOME. THEREFORE, IN OUR VIEW, ON THE BASIS OF ADDITION MADE ON ACCOUNT OF NOTIONAL INTEREST, 4 M/S. SHEETAL RESTAURANT & BAR PENALTY UNDER SECTION 271(1)(C) OF THE ACT CANNOT BE IMPOSED. ACCORDINGLY, WE DELETE THE PENALTY IMPOSED OF ` 2,00,587. 6 . IN THE RESULT , ASSESSEES APPEAL IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 31.01.2018 SD/ - G. MANJUNATHA ACCOUNTANT MEMBER SD/ - SAKTIJIT DEY JUDICIAL MEMBER MUMBAI, DATED: 31.01.2018 COPY OF THE ORDER FORWARDED TO : ( 1 ) THE ASSESSEE; ( 2 ) THE REVENUE; ( 3 ) THE CIT(A); ( 4 ) THE CIT, MUMBAI CITY CONCERNED; ( 5 ) THE DR, ITAT, MUMBAI; ( 6 ) GUARD FILE . TRUE COPY BY ORDER PRADEEP J. CHOWDHURY SR. PRIVATE SECRETARY (ASSTT. REGISTRAR /SR.P.S ) ITAT, MUMBAI