ACIT, Jaipur V. GIRDHARI LAL BARGOTI, Jaipur

ITA 757/JPR/2012

• Counselvise Citation: 75723114 RSA 2012
• Duration Of Justice: 2 year(s) 7 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 10-04-2015
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Assessment Year: 2009-2010
• Appeal Filed On: 10-09-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: PURUSHOTTAM KASHYAP
• Keywords: Unexplained investment; Business income; Retrospective amendment; Competent authority
• Section: 143(3); 69

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHES, JAIPUR JH VKJ-IH-RKSYKUH] U;KF;D LNL; ,OA JH VH-VKJ-EHUK] YS[KK LNL; DS LE{K BEFORE: SHRI R.P. TOLANI, JM & SHRI T.R. MEENA, AM VK;DJ VIHY LA- @ ITA NO. 757/JP/2012 FU/KZKJ.K O'K Z @ ASSESSMENT YEAR : 2009-10 ASSISTANT COMMISSIONER OF INCOME TAX, CIRCLE-4, JAIPUR. CUKE VS. GIRDHARI LAL BARGOTI, JAIPUR. LFKK;H YS[KK LA-@THVKBZVKJ L A-@ PAN/GIR NO.: ACGPB 5276 K VIHYKFKHZ @ APPELLANT IZR;FKHZ @ RESPONDENT JKTLO DH VKSJ LS @ REVENUE BY : SHRI PURUSHOTTAM KASHYAP (ADDL. CIT) FU/KZKFJRH DH VKSJ LS @ ASSESSEE BY : SHRI P.C. PARWAL (C.A.) LQUOKBZ DH RKJH[ K@ DATE OF HEARING : 12/02/2015 ?KKS'K .KK DH RKJH[ K @ DATE OF PRONOUNCEMENT : 10/04/2015 VKNS'K @ ORDER PER: T.R. MEENA, A.M. THIS IS AN APPEAL FILED BY THE REVENUE AGAINST THE ORDER DATED 05/06/2012 PASSED BY THE LEARNED CIT(A)-II, JAIPUR FOR A.Y. 2009-10. THE EFFECTIVE GROUNDS OF APPEAL ARE AS UNDER:- ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW THE LD. CIT(APPEALS) HAS ERRED IN:- (I) DELETING THE ADDITION OF RS. 51,66,768/- MADE B Y THE A.O. U/S 69 ON THE GROUND THAT ASSESSEE HAD NO ITA 757/JP/2012_ ACIT VS. GIRDHARI LAL BARGOTI 2 STOCK WHEN SALE WAS MADE ON 17.04.2008 WITHOUT APPRECIATING THE FACTS AND CIRCUMSTANCES OF THE CAS E. (II) DELETING ADDITION OF RS. 9,21,058/- MADE BY TH E A.O. U/S 40(A)(IA) ON ACCOUNT OF NON DEDUCTION OF TAX AT SOURCE ON INTEREST PAID TO NON BANKING FINANCIAL COMPANIES. (III) DELETING ADDITION OF RS. 15,07,235/- MADE BY THE A.O. ON ACCOUNT OF UNEXPLAINED INVESTMENT BY HOLDING THAT ASSESSEE SOLD MORE QUANTITY THAN THE PURCHASES QUANTITY. 2. GROUNDS NO. (I) AND (III) OF THE REVENUES APPEA L ARE AGAINST DELETING THE ADDITION OF RS. 51,66,768/- MADE BY TH E ASSESSING OFFICER U/S 69 OF THE INCOME TAX ACT, 1961 (HEREINAFTER REFE RRED AS THE ACT) AND RS. 15,07,235/- MADE BY HIM ON ACCOUNT OF UNEXP LAINED INVESTMENT BY THE LD. CIT(A). THE LD. ASSESSING OFFICER OBSERVE D THAT THE ASSESSEE IS A CONTRACTOR OF RAJASTHAN STATE ELECTRICITY BOAR D (IN SHORT THE RSEB). THE ASSESSEE IS AN INDIVIDUAL AND PROPRIETOR OF HIND CONSTRUCTION. THE ASSESSEE FILED ITS ORIGINAL RETURN OF INCOME DECLAR ING TOTAL INCOME OF RS. 30,64,625/- ON 29.09.2009. HIS CASE WAS SCRUTINIZED U/S 143(3) OF THE ACT. M/S HIND CONSTRUCTION IS A REGISTERED CONTRACT OR OF RSEB AND ENGAGED IN THE WORK OF INSTALLATION OF UNDERGROUND C ABLE FOR JAIPUR VVNL, AJMER VVNL AND JODHPUR VVNL. THE ASSESSING OF FICER OBSERVED THAT ON VERIFICATION OF THE TRADING AND P&L ACCOUNT , THERE WAS NO OPENING STOCK BUT ON EXAMINATION OF SALE BOOK OF TH E ASSESSEE, IT WAS ITA 757/JP/2012_ ACIT VS. GIRDHARI LAL BARGOTI 3 SEEN THAT A SALE OF RS. 51,66,768/- OF 101.813 KM O F CABLE WAS MADE ON 17/04/2008, WHILE ASSESSEE HAD NO STOCK OF ITS OWN . FURTHER THE PURCHASES MADE BY THE ASSESSEE WERE ONLY ON 18/04/20 08 OF 50.404 KM AND ON 19/04/2008 OF 50.265 KM FROM M/S GALAXY C ONCAB (I) PVT. LTD. THE ASSESSING OFFICER GAVE REASONABLE OPPORTUNI TY OF BEING HEARD ON THIS ISSUE, WHICH WAS REPLIED BY THE ASSESSEE. AF TER CONSIDERING THE ASSESSEES REPLY, THE LD ASSESSING OFFICER HELD THA T THE WORK ORDER WAS ALLOTTED TO THE ASSESSEE BY RSEB THAT MEANS SALE OF THE MATERIAL SUPPLIED TO THE DISCOMS HAS BEGUN IN OTHER WORDS SAL E OF THE ASSESSEE HAS TAKEN PLACE FOR THE MATERIAL TO BE SUPPLIED BY HIM. THEREFORE, THE PLEA OF THE ASSESSEE IS NOT TENABLE TO HIM. HE FURT HER OBSERVED THAT WHEN THERE WAS NO MATERIAL AVAILABLE WITH THE ASSESSEE WHEREFROM HE SUPPLIED THE GOODS ON 17/04/2008 FOR RS. 51,66,768/ - OF 101.813 KM OF CABLE. THUS, HE TREATED THE PURCHASE IN TRANSACTION DATED 17/04/2008 AT RS. 51,66,768/- THROUGH UNDISCLOSED SOURCE AND M ADE THE ADDITION OF THE SAME. FURTHER HE ALSO VERIFIED THE TOTAL SALES DURING THE YEAR WAS 610.715 KMS, HOWEVER, THE PURCHASES WERE SHOWN OF 56 2.810 KMS CABLE. THERE WERE DIFFERENCE IN SALE AND PURCHASE BY 47.905 KMS. THE ASSESSING OFFICER GAVE FURTHER REASONABLE OPPORTUNI TY OF BEING HEARD ON THIS ISSUE, WHICH WAS AVAILED BY THE ASSESSEE BUT IT HAS BEEN HELD THAT ITA 757/JP/2012_ ACIT VS. GIRDHARI LAL BARGOTI 4 NO DOCUMENTARY EVIDENCE OF EXPLANATION SUBMITTED BY THE ASSESSEE WAS FILED. HE CALCULATED THE AVERAGE RATE OF PURCHASE O F CABLE PER KM @ RS. 31,463.03/- AND ACCORDINGLY, TOTAL VALUE OF DIFFERE NCE IN CABLE AT RS. 15,07,235/- WAS TREATED AS INCOME FROM UNDISCLOSED S OURCE. HOWEVER, NO SEPARATE ADDITION WAS MADE AS ALREADY ON ACCOUNT OF OPENING ACCOUNT, THE LD ASSESSING OFFICER MADE THE ADDITION OF RS. 51,66,268/-. 3. BEING AGGRIEVED BY THE ORDER OF THE ASSESSING OF FICER, THE ASSESSEE CARRIED THE MATTER BEFORE THE LEARNED CIT( A), WHO HAD ALLOWED THE APPEAL BY OBSERVING AS UNDER:- 3.1 I HAVE CONSIDERED THE SUBMISSIONS OF THE APPEL LANT. THE APPELLANT HAS BEEN FOLLOWING STANDARD PROCEDURE FOR SUPPLY OF MATERIAL TO THE VARIOUS ELECTRICAL COMPANIES AND HE WAS ENGAGED IN THE WORK OF INSTALLATION OF UNDERGROUND C ABLES FOR JAIPUR VIDYUT VITRAN NIGAM LIMITED, AJMER VIDYU T VITRAN NIGAM LIMITED & JODHPUR VIDYUT VITRAN NIGAM LIMITED . IT WAS QUITE EVIDENT THAT THE APPELLANT DID NOT KEEP AN Y STOCK OF MATERIAL ON HIS OWN AND MATERIAL WAS DIRECTLY SUPP LIED BY THE SUPPLIER NAMELY M/S GALAXY CONCAB INDIA PVT. LTD. AT THE SITE AND THE BILLS WERE RAISED BY THE APPELLA NT. THE PROCEDURE ADOPTED BY THE ASSESSEE WAS THAT AFTER CON TRACT WAS AWARDED TO HIM, HE DIRECTED THE CONTRACTOR TO ARR ANGE THE GOODS AS HE WAS NOT A MANUFACTURER. THE ELECTRIC AL COMPANIES SUCH AS JAIPUR VIDYUT VITRAN NIGAM LIMITE D THEN ITA 757/JP/2012_ ACIT VS. GIRDHARI LAL BARGOTI 5 INSPECTED THE GOODS AT THE FACTORY SITE OF THE SUPP LIER. AFTER INSPECTION, THE GOODS WERE SENT FOR TESTING AT THE LABORATORY OF THE ELECTRICAL COMPANIES. AFTER THE S AMPLE WAS APPROVED AND COMMUNICATED TO THE ASSESSEE, HE RAISED THE BILL. HOWEVER, GOODS WERE DIRECTLY SUPPLI ED BY THE CONTRACTOR/SUPPLIER AT THE SITE OF ELECTRICAL C OMPANIES. THE ASSESSEE RAISED A CHALLAN FOR THE ACTUAL QUANTIT Y OF GOODS SUPPLIED BY HIS SUPPLIER DIRECTLY TO THE ELEC TRICAL COMPANIES. ON THIS CHALLAN, ENDORSEMENT WAS MADE BY THE STORES IN CHARGE OF THE ELECTRICAL COMPANIES CERTIF YING THE RECEIPT OF MATERIAL. UNDER THESE CIRCUMSTANCES, THE APPELLANT NEVER KEPT ANY STOCK OF GOODS AT HIS PREM ISES AND GOODS WERE DIRECTLY SUPPLIED BY THE SUPPLIER AT THE SITE OF ELECTRICAL COMPANIES. THE DISPUTE IN THE PRESENT CASE WAS WHETHER THE ASSESSEE HAD UNDISCLOSED STOCK FROM WHICH IT SUPPLIED THE GOODS ON 17.04.2008 AND THEREA FTER THE SAME WAS REPLENISHED BY THE PURCHASES MADE ON 18.04.2008 AND 19.04.2008 OR THE GOODS WERE DIRECTLY SUPPLIED BY THE SUPPLIER OF THE ASSESSEE. FROM THE VARIOUS DOCUMENTS SUBMITTED BY THE APPELLANT AND THE PROCED URE OF SUPPLY OF GOODS BEING FOLLOWED, IT IS NOTICED THA T ON 17.04.2008, ONLY SALE BILL WAS RAISED AND THE ACTUAL GOODS WERE SUPPLIED ON 18.04.2008 AND 19.04.2008 BY MAKING PURCHASES FROM M/S GALAXY CONCAB INDIA PRIVATE LIMI TED. THE MATERIAL WAS TESTED IN THE LABORATORY OF JAIPUR V IDYUT VITRAN NIGAM LIMITED 17.04.2008. SINCE THE MATERIAL WAS ITA 757/JP/2012_ ACIT VS. GIRDHARI LAL BARGOTI 6 APPROVED, THE APPELLANT RAISED THE BILL DATED 17.04 .2008 ON THE ELECTRICAL COMPANY FOR CABLE QUANTITY OF 101.81 3 KM. THE SUPPLIER NAMELY GALAXY CONCAB INDIA PVT. LTD. SU PPLIED THE MATERIAL ON 18.04.2008 AND 19.04.2008. THE CHALL AN OF GOODS SUPPLIED TO JVVNL FURNISHED BY THE APPELLANT CLEARLY MENTIONED THAT THE BUYER OF THESE GOODS WAS M/S HIND CONSTRUCTION I.E. ASSESSEE AND THE CONSIGNEE WAS JVV NL. FURTHER, THE ASSESSEE HAD FILED CHALLAN FOR SUPPLYI NG THESE GOODS WHEREIN ON THE BACK SIDE OF IT, COMPLETE DETAI LS OF THE GOODS RECEIVED BY JVVNL DULY CERTIFIED BY THE J VVNL ENGINEER AND OTHER OFFICIAL WERE MENTIONED. IT ALSO PROVED THAT ON 17.04.2008, ONLY THE BILL WAS RAISED. THE ACT UAL GOODS WERE SUPPLIED ON 18.04.2008 AND 19.04.2008 AFT ER MAKING PURCHASES FROM M/S GALAXY CONCAB INDIA PRIVA TE LIMITED. THE A.O. HAD ALSO NOT DISPUTED THE CHALLAN AND BILLS OF THE SUPPLIERS. CONSIDERING ALL THESE FACTS , I FIND THAT THE A.O. HAD NOT BROUGHT ANY EVIDENCE ON RECORD TO SUPPORT HIS ALLEGATION THAT THE GOODS HAD BEEN ACTU ALLY SUPPLIED ON 17.04.2008. ON THE CONTRARY, THE ASSESS EE HAS PROVED THAT THE GOODS HAD ACTUALLY BEEN SUPPLIED ON 18.04.2008 AND 19.04.2008 AGAINST THE SALE BILL RAI SED ON 17.04.2008. THEREFORE, THE ALLEGATION OF THE A.O. TH AT THE GOODS WERE SUPPLIED OUT OF UNDISCLOSED STOCDK REMAIN S UNSUBSTANTIATED. UNDER THESE CIRCUMSTANCES, THE ADD ITION MADE BY THE A.O. HAS NO LEGS TO STAND AND CANNOT BE SUSTAINED. I, THEREFORE, DIRECT THE A.O. TO DELETE THE ITA 757/JP/2012_ ACIT VS. GIRDHARI LAL BARGOTI 7 ADDITION OF RS. 51,66,768/-. THESE GROUNDS OF APPEAL ARE ALLOWED. THE LD. CIT(A) FOR ADDITION OF RS. 15,07,235/- HAS DE CIDED AS UNDER:- 4.1 I HAVE CONSIDERED THE SUBMISSIONS OF THE APPE LLANT. THE A.O. NOTICED THAT THE ASSESSEE HAD SOLD 610.715 KM OF CABLES TO JAIPUR VIDYUT VITRAN NIGAM LTD. BUT IN TH E BOOKS OF ACCOUNT, THE PURCHASES OF CABLES WERE DECLARED AT 562.810 KMS. THE ASSESSEE HOWEVER EXPLAINED THAT THER E WAS LESSER SUPPLY OF THE MATERIAL THAN THE INVOICED QUANTITY FOR WHICH DEDUCTION WAS MADE BY JVVNL. IT HAPPENED MANY A TIMES THAT WHEN CABLE LINES WERE BEING DISMAN TLED AND THE OLD CABLE WAS FOUND TO BE IN ORDER AND REUS ABLE, THEN THE OLD CABLES WERE AGAIN REUSED ALONGWITH THE N EW CABLES. HOWEVER, THE ASSESSEE HAS RAISED THE BILL ON THE BASIS OF ACTUAL QUANTITY OF GOODS BEING SUPPLIED BY THE SUPPLIER. AFTER INSPECTION, IF THE OFFICIALS OF JVV NL FOUND OUT THAT OLD CABLE LINES WERE AGAIN REINSTALLED THEN THE Y MADE THE NECESSARY DEDUCTIONS FROM THE BILLS. THE A.O. HA D WORKED OUT THE AMOUNT OF UNDISCLOSED INVESTMENT BY HOLDING THAT THE ASSESSEE HAD FAILED TO PROVE THAT THE DEDUCTIONS MADE BY JVVNL WERE IN RESPECT OF THE SHOR T SUPPLY OF THE MATERIAL OF 47.905 KM. ON THE OTHER H AND, THE COUNSEL OF THE APPELLANT HAS ARGUED THAT THE VA RIATION WAS ON ACCOUNT OF LESSER SUPPLY OF THE MATERIAL AND PARTLY THE USE OF THE OLD/DISMANTLED CABLES FOR WHICH THE J VVNL HAD MADE THE DEDUCTIONS UNDER THE HEAD RMD ITA 757/JP/2012_ ACIT VS. GIRDHARI LAL BARGOTI 8 DEDUCTIONS. IN SUPPORT OF THIS, THE PAYMENT ADVICE ISSUED BY JVVNL SHOWING THE RMD DEDUCTION WERE FILED BY THE ASSESSEE. THE DETAILS OF DEDUCTIONS BY JVVNL WERE PROVIDED TO THE A.O. VIDE LETTERS DATED 05.09.2011 AND 28.11.2011. ON GOING THROUGH THE DETAILS OF DEDUCTI ONS MADE BY JVVNL, IT IS SEEN THAT THE TOTAL DEDUCTIONS MADE WERE OF RS. 18,05,766/- WHEREAS THE ADDITION MADE BY THE A.O. IN RESPECT OF COST OF THE MATERIAL LESSER SUPP LIED WAS OF RS. 15,07,235/-. EVEN OTHERWISE, THERE WAS NO DISP UTE AS TO THE FACT THAT THE ASSESSEE HAD ALREADY INCLUD ED THE ENTIRE SALE PROCEEDS OF THE LESSER MATERIAL SUPPLIE D BY HIM IN THE SALE PROCEEDS. THUS WHEN ENTIRE SALE PROCEEDS WERE DECLARED IN SALES, THERE WAS NO REASON TO MAKE FURTH ER ADDITION FOR INVESTMENT WHICH WAS OTHERWISE ALSO VER IFIABLE FROM THE DEDUCTIONS MADE BY JVVNL IN RESPECT OF THE SALE BILLS RAISED. UNDER THESE CIRCUMSTANCES, THE ADDITI ON MADE BY THE A.O. HAS NO LEGS TO STAND AND CANNOT BE SUST AINED. I, THEREFORE, DIRECT THE A.O. TO DELETE THE ADDITIO N OF RS. 15,07,235/-. THIS GROUND OF APPEAL IS ALLOWED. 4. NOW THE REVENUE IS IN APPEAL BEFORE US. THE LEARNE D D.R. VEHEMENTLY SUPPORTED THE ORDER OF THE ASSESSING OFF ICER. 5. AT THE OUTSET, THE LEARNED A.R. FOR THE ASSESSEE REITERATED THE ARGUMENTS MADE BEFORE THE LD CIT(A) AND SUBMITTED AS UNDER:- ITA 757/JP/2012_ ACIT VS. GIRDHARI LAL BARGOTI 9 1. TO UNDERSTAND THE ISSUE RAISED BY THE AO, IT IS NECE SSARY TO KNOW THE PROCESS BY WHICH GOODS ARE SUPPLIED TO THE ELECTRICITY COMPANIES. THE SAME IS AS UNDER:- (A) THE SUCCESSFUL BIDDER IN THE TENDER IS AWARDED TH E CONTRACT TO SUPPLY THE MATERIAL. FOR THIS THE SUPPL Y AGREEMENT IS ENTERED INTO. IN PURSUANCE TO THE SAID AGREEMENT THE ASSESSEE IS TO SUPPLY THE GOODS. (B) IF THE ITEMS ARE NOT MANUFACTURED BY THE SUCCES SFUL BIDDER IT IS SPECIFIED THAT THE SAME IS TO BE ARRAN GED BY THE CONTRACTOR. SINCE THE ASSESSEE IS NOT A MANUFACTURES OF THE CABLE THE SAME WAS PROCURED/ARRANGED BY THE ASSESSEE FROM GALAXY CONCAB INDIA PRIVATE LIMITED. (C) THE GOODS SO ARRANGED IS INSPECTED AT THE FACTOR Y SITE OF THE ASSESSEES SUPPLIER. AFTER INSPECTION, A SAMPLE OF THE MATERIAL IS TAKEN FOR TESTING AND MATERIAL IS SENT FOR TESTING AT THE LABORATORY OF T HE ELECTRICITY COMPANIES. (D) AFTER THE SAMPLE IS PASSED BY THE TESTING LABOR ATORY OF THE ELECTRICITY COMPANIES AND COMMUNICATED TO THE ASSESSEE, THE BILL IS RAISED BY THE ASSESSEE OF THE QUANTITY COMMUNICATED BY THE SUPPLIER OF THE ASSESSEE. (E) AGAINST THE SAID BILL THE SUPPLIER OF THE ASSES SEE SUPPLIES THE MATERIAL DIRECTLY AT THE SITE OF THE ITA 757/JP/2012_ ACIT VS. GIRDHARI LAL BARGOTI 10 ELECTRICITY COMPANIES. AFTER THE ENTIRE QUANTITY AS PER THE BILL IS SUPPLIED, THE ASSESSEE RAISES A CHA LLAN OF THE ACTUAL QUANTITY OF GOODS SUPPLIED BY ITS SUPPLIER DIRECTLY TO THE SITE OF THE ELECTRICITY COMPANIES. (F) ON THIS CHALLAN ENDORSEMENT IS MADE BY THE STOR E INCHARGE OF THE ELECTRICITY COMPANIES CERTIFYING TH E RECEIPT OF THE MATERIAL WITH THE NECESSARY DETAILS O F THE TRUCK NO. AND THE BILL NUMBER THROUGH WHICH THE SUPPLIER OF THE ASSESSEE SUPPLIED THE MATERIAL. (G) THEREAFTER BILL IS PASSED FOR MAKING NECESSARY PAYMENT. 2. IN THE PRESENT CASE, THE ASSESSEE PROCURED THE M ATERIAL TO BE SUPPLIED TO THE ELECTRICITY COMPANY FROM GALAXY CONCAB INDIA PRIVATE LIMITED. THIS MATERIAL WAS INSPECTED ON 11-04- 2008, A SAMPLE WAS TAKEN AND IT WAS TESTED IN THE LABORATORY ON 17-04-2008 . ONCE THE MATERIAL WAS PASSED, THE SAME WAS COMMUNICATED TO THE ASSESSEE AND ACCORDINGLY ASSESSEE RAISED THE BILL DATED 17-04-20 08 ON THE ELECTRICITY COMPANY FOR THE CABLE QUANTITY OF 101.8 13 KM INFORMED BY HIS SUPPLIER . 3. THEREAFTER THE SUPPLIER DISPATCHED THE MATERIAL D IRECTLY TO THE SITE OF THE ELECTRICITY COMPANY THROUGH FOUR DE LIVERY CHALLAN NO. 17 & 18 DATED 18-04-2008 AND 19 & 20 DA TED 19-04-2008. THE DELIVERY CHALLAN CONTAIN THE DETAILS OF THE TRUCK NO. AND THE ACTUAL QUANTITY SUPPLIED. THE SUPP LIED ITA 757/JP/2012_ ACIT VS. GIRDHARI LAL BARGOTI 11 QUANTITY IS 100.669 KM AS AGAINST THE INVOICED QUAN TITY OF 101.813 KM. AFTER THE ENTIRE QUANTITY WAS SUPPLIED A SSESSEE ISSUED A DELIVERY CHALLAN NO.18 DATED 30-04-2008. O N THE BACK OF THIS CHALLAN THE STORE KEEPER HAS CERTIFIED THE RECEIPT OF THE MATERIAL INDICATING THE COMPLETE DET AIL OF THE MATERIAL WHICH WAS SUPPLIED BY THE SUPPLIER ON ACCOUN T OF THE ASSESSEE. 4. FROM THESE DETAILS IT IS EVIDENT THAT ASSESSEE H AS NO UNDISCLOSED STOCK ON 17-04-2008. THE ASSESSEE HAS RA ISED THE BILL ON 17-04-2008 IN RESPECT OF THE SAME MATER IAL WHICH WAS SUPPLIED DIRECTLY BY ITS SUPPLIER GALAXY CONCAB INDIA PRIVATE LIMITED AT THE SITE OF THE ELECTRICITY COMP ANY. THEREFORE QUESTION OF HAVING SUPPLIED THE MATERIAL O UT OF THE ALLEGED UNDISCLOSED STOCK DO NOT ARISE. IN VIEW OF THE ABOVE, THE ORDER OF THE CIT(A) BE UPHE LD BY DISMISSING THE GROUND OF THE DEPARTMENT. THE LD. A.R. FURTHER SUBMITTED AS UNDER:- 1. THE ISSUE WHICH ARISE FOR CONSIDERATION IN THIS GROUN D IS WHETHER THE DIFFERENCE IN THE QUANTITY MENTIONED IN THE BILLS RAISED BY THE ASSESSEE AND THE QUANTITY PROCURED BY THE ASSESSEE IS UNDISCLOSED INVESTMENT OF THE ASSESSEE OR SUCH VARIATION IS ON ACCOUNT OF LESSER SUPPLY OF THE QUA NTITY THAN THE INVOICED QUANTITY OR USE OF OLD MATERIAL OF CAB LE LINES DISMANTLED FOR WHICH RMD DEDUCTION WAS MADE BY THE JVVNL. ITA 757/JP/2012_ ACIT VS. GIRDHARI LAL BARGOTI 12 2. THE PROCESS OF RAISING OF THE BILLS BY THE ASSESS EE IS THAT INITIALLY AFTER INSPECTION AND TESTING OF MATERIAL, THE BILL IS RAISED BY THE ASSESSEE ON THE BASIS OF THE QUANTITY OF GOODS INFORMED BY THE SUPPLIER OF THE ASSESSEE. THEREAFTER THE SUPPLIER OF THE ASSESSEE SUPPLIES THE GOODS AND IT IS ACTUALLY MEASURED AT THE SITE OF THE ELECTRICITY COMPANIES. ACCORDINGLY THE SUPPLIER RAISES THE BILL ON THE ASS ESSEE OF THE ACTUAL QUANTITY OF THE GOODS SUPPLIED WHEREAS AS SESSEE HAS INVOICED THE GOODS TO THE ELECTRICITY COMPANIES ON THE BASIS OF THE QUANTITY INFORMED BY THE SUPPLIER. IT IS FOR THIS REASON THAT THE ELECTRICITY COMPANIES MADE DEDUCTIO N FROM THE INVOICE RAISED BY THE ASSESSEE ON ACCOUNT OF RM D PENALTY/DUTY. FURTHER IN SOME CASES THE OLD CABLE DISMANTLED IS ALSO USED BY THE ASSESSEE FOR WHICH AL SO ELECTRICITY COMPANY MADE DEDUCTION UNDER THE HEAD R MD PENALTY. THE DETAILS OF THE DEDUCTIONS MADE BY THE J AIPUR VVNL ARE AS UNDER:- BILL DETAILS PAYMENT ADVICE FROM JVVNL BILL NO. & (DATE) TOTAL BILL AMOUNT SECURITY DEDUCTION 35% AS PER AGREEMENT VAT TOTAL RECEIVABL E TDS & WCT RMD PENALTY /DUTY OTHERS WCT OF THE PREVIOUS YEAR 1 (17.4.2008) 5166268 1808194 206651 3564725 402827 363668 3 (4.5.2008) 2567937 898778 102717 1771877 1048251 180764 7 (17.5.2008) 2545305 890857 101812 1756260 92485 179172 9 (30.7.2008) 2561188 896416 102448 1767220 93062 180330 11 (4.8.2008) 2594576 908102 103784 1790258 94275 182640 ITA 757/JP/2012_ ACIT VS. GIRDHARI LAL BARGOTI 13 10 (4.8.2008) 1270381 444633 50815 876563 46160 89426 15/16 (17.11.2008) 5084167 1779458 203367 3508075 184736 357889 19 (21.1.2009) 2536679 887838 101467 1750309 92171 271877 129754 TOTAL 1805766 COPY OF ALL THE ABOVE BILLS IS AT. FROM THE ABOVE T ABLE IT CAN BE NOTED THAT THE JVVNL HAS MADE THE DEDUCTIONS FOR LESSER SUPPLY OF THE MATERIAL/USE OF DISMANTLED CABLES VIS A VIS THE INVOICED QUANTITY IN THE NAME OF RMD PENALTY. THE DEDUCTIONS MADE ARE ALMOST EQUAL TO THE VALUE OF TH E ADDITION OF SHORT PURCHASES MADE BY AO. THEREFORE, I T IS INCORRECT ON THE PART OF THE AO TO ALLEGE THAT ASSE SSEE HAS SUPPLIED MORE QUANTITY THAN WHAT HAS BEEN PURCHASED / PROCURED BY IT. IN VIEW OF THE ABOVE, THE ORDER OF THE CIT(A) BE UPHELD BY DISMISSING THE GROUND OF THE DEPARTMENT . 6. WE HAVE HEARD THE RIVAL CONTENTIONS OF BOTH THE PARTIES AND PERUSED THE MATERIAL ON RECORD. THE LD. AR FOR THE A SSESSEE HAS EXPLAINED THE PROCESS OF SUPPLY THE GOODS THROUGH C ONTRACT TO VVNL. THE ASSESSEE FIRST AWARDED THE CONTRACT BY THE VVNL. THEREAFTER HE SUPPLIED THE GOODS WHICH IS TESTED IN THE LABORATORY BY THE ENGINEERS, THEREAFTER APPROVED BY IT. IN THE PRESENT CASE, THE ASSESSEE PROCURED THE MATERIAL TO BE SUPPLIED TO THE ELECTRICITY COMP ANY FROM M/S GALAXY ITA 757/JP/2012_ ACIT VS. GIRDHARI LAL BARGOTI 14 CONCAB (I) PVT. LTD.. THE MATERIAL WAS INSPECTED ON 1 1/4/2008, WHICH WAS TESTED IN THE LABORATORY ON 17/4/2008. ONCE THE MATERIAL WAS PASSED BY THE COMPETENT AUTHORITY, THE ASSESSEE WAS COMMUNICATED, ACCORDINGLY HE RAISED THE BILL ON ELECTRICITY COMPA NY FOR SUPPLY OF CABLE. THE SUPPLIER DIRECTLY SENT THE CABLE TO THE ELECTRIC ITY COMPANY THROUGH CHALLANS WITH ALL BILLS AT VEHICLE, ACTUAL QUANTITY. AFTER THE ENTIRE QUANTITY WAS SUPPLIED, THEREAFTER, ISSUED A DELIVERY CHALLAN, WHICH WAS CERTIFIED BY THE STOCK KEEPER OF THE ELECTRICITY COMPANY. THE LD. DR HAS NOT CONTROVERTED THE FINDING GIVEN BY THE LD CIT(A), THE REFORE, WE UPHOLD THE ORDER OF THE LD. CIT(A). 7. THE GROUND NO. (II) OF THE REVENUES APPEAL IS AG AINST DELETING THE ADDITION OF RS. 9,21,058/- MADE BY THE ASSESSING OF FICER U/S 40(A)(IA) OF THE ACT. THE LD ASSESSING OFFICER OBSERVED THAT THE ASSESSEE HAD MADE PAYMENT OF INTEREST OF RS. 9,21,058.12 TO NON- BANKING FINANCE COMPANY (IN SHORT NBFC) WITHOUT DEDUCTING TDS. THE LD. ASSESSING OFFICER GAVE REASONABLE OPPORTUNITY OF BEING ON THI S ISSUE. IT IS SUBMITTED BEFORE THE ASSESSING OFFICER THAT THE PAY MENT TO THESE NBFC WERE IN THE NATURE OF PAYMENT TO BANK AND THESE WERE HAVING NO DEDUCTION CERTIFICATE. HOWEVER, NO SUCH CERTIFICATE HAS BEEN SUBMITTED BY THE ASSESSEE AS PER SECTION 194A TDS IS LIABLE TO BE DEDUCTION ON ITA 757/JP/2012_ ACIT VS. GIRDHARI LAL BARGOTI 15 PAYMENT OF INTEREST EXCEPT THE CASES WHERE THE PAYM ENTS HAVE BEEN MADE TO THE BANK OR FINANCIAL INSTITUTIONS. THESE PA YMENTS ARE NEITHER FALLING IN THE CATEGORY OF BANK OR FINANCIAL INSTIT UTION THROUGH PROVISIONS OF SECTION 40(A)(IA) OF THE ACT IS SQUARELY APPLICA BLE AS NO TDS HAS BEEN DEDUCTED ON IT. THEREFORE, THE LD ASSESSING OFF ICER MADE ADDITION OF RS. 9,21,058/- U/S 40(A)(IA) OF THE ACT. 8. BEING AGGRIEVED BY THE ORDER OF THE ASSESSING OF FICER, THE ASSESSEE CARRIED THE MATTER BEFORE THE LD. CIT(A), WH O HAD ALLOWED THE APPEAL BY OBSERVING THAT SECTION 40(A)(IA) OF THE A CT IS FICTION OF LAW, WHICH REQUIRED TO BE CONSTRUED STRICTLY. THE LANGUAGE OF SECTION 40(A)(IA) OF THE ACT PROVIDES FOR NON DEDUCTIBILITY OF CERTAIN AMOUNTS WHICH IS PAYABLE ON WHICH TAX IS DEDUCTIBLE AND SUCH TAX HAS NOT BEEN DEDUCTED. THEREFORE, THE NON DEDUCTIBILITY WOULD ARIS E ONLY WHEN TAX IS NOT DEDUCTED ON AN AMOUNT WHICH IS PAYABLE. IF AN AM OUNT HAS BEEN ACTUALLY PAID WITHOUT DEDUCTION OF TAX AT SOURCE, SE CTION 40(A)(IA) WOULD NOT APPLY ON SUCH PAYMENT. IN CHAPTER XVII B, THE L IABILITY OF DEDUCTION OF TAX AT SOURCE ARISES BOTH AT THE TIME OF PAYMENT OR AT THE TIME OF CREDIT WHICHEVER IS EARLIER U/S 40(A)(IA), THE EXPEN SES ARE NOT ALLOWABLE ONLY WHEN TAX IS NOT DEDUCTED ON THE PAYMENT OUTSTAN DING AT THE YEAR END. THIS VIEW FINDS SUPPORT FROM THE RECENT DECISION OF ITAT ITA 757/JP/2012_ ACIT VS. GIRDHARI LAL BARGOTI 16 VISHAKHAPATNAM SPECIAL BENCH IN CASE OF M/S MERILYN SHIPPING & TRANSPORT VS. ACIT (136 ITD 23). IN SECTION 40(A)(IA) WORD PAYABLE USED IS TO BE ASSIGNED STRICT INTERPRETATION IN VIE W OF THE OBJECT OF THE LEGISLATION, WHICH WAS INTENDED FROM THE REPLACEMENT OF WORDS IN THE PROPOSED AND ENACTED PROVISION FROM THE WORK AMOUNT CREDITED OR PAID TO PAYABLE, THIS VIEW IS ALSO SUPPORTED BY THE DECISION OF JURISDICTIONAL ITAT, JAIPUR BENCH IN THE CASE OF JVV NL VS DCIT ITA NO. 132/JP?2009 DATED 30/04/2009 AND ACIT VS. SETHI CONS TRUCTION COMPANY ITA NO. 697/JP/2009. IN THE PRESENT CASE AL SO, NO AMOUNTS REMAINED PAYABLE TO THESE NBFCS AT THE END OF THE Y EAR AS EVERY MONTH INSTALLMENT WAS PAID IN ADVANCE WHICH INCLUDED PAYMENT OF INTEREST. THEREFORE, SECTION 40(A)(IA) WAS NOT APPLI CABLE IN VIEW OF THE DECISION OF SPECIAL BENCH AS WELL AS ITAT JAIPUR BEN CH REPORTED SUPRA. THEREFORE, HE DELETED THE ADDITION MADE BY THE ASSES SING OFFICER. 9. NOW THE REVENUE IS IN APPEAL BEFORE US. THE LD DR SUPPORTED THE ORDER OF THE ASSESSING OFFICER. 10. AT THE OUTSET, THE LD AR FOR THE ASSESSEE HAS S UBMITTED AS UNDER:- ITA 757/JP/2012_ ACIT VS. GIRDHARI LAL BARGOTI 17 1. THE LEGISLATIVE INTENT FOR INTRODUCING SECTION 40 (A)(IA) IS EXPLAINED IN CBDT CIRCULAR NO.5/2005 DT. 15.07.2005 REPORTED AT 269 ITR 101 (STATUTE). IN THE PRESENT C ASE THERE IS NO DISPUTE AS TO THE FACT THAT INTEREST HA S ACTUALLY BEEN PAID TO ABOVE FINANCE COMPANIES AND AS ON 31.03.2009 NO AMOUNT OF INTEREST WAS PAYABLE. THE SPECIAL BENCH OF ITAT IN CASE OF MERILYN SHIPPING & TRANSPORT VS. ACIT 16 ITR (TRIB) 1 (PB 62-63) HAS HELD THAT SECTION 40(A)(IA) CANNOT BE INVOKED IN RESPECT OF AMOUNTS ACTUALLY PAID WITHIN THE PREVIOUS YEARS WITHO UT DEDUCTION OF TAX AT SOURCE. AFTER THIS DECISION THE GUJARAT HIGH COURT IN CASE OF CIT VS. SIKANDAR KHAN N. TUNVAR 357 ITR 312 AND CALCUTTA HIGH COURT IN CASE OF CIT VS. CRESCENT EXPORT SYNDICATE 94 DTR 81 HELD THAT SECTIO N 40(A)(IA) WOULD COVER NOT ONLY TO THE AMOUNTS WHICH ARE PAYABLE AS ON 31 ST MARCH OF THE PARTICULAR YEAR BUT ALSO WHICH ARE PAYABLE AT ANY TIME DURING THE YEAR. HOWEVE R, THE ALLAHABAD HIGH COURT IN CASE OF CIT VS. VECTOR SHIPPING SERVICES (P) LTD. 94 DTR 101/357 ITR 642 HE LD THAT IT IS ONLY THE AMOUNT WHICH IS PAYABLE AND NOT THAT WHICH HAS BEEN ALREADY PAID BY THE END OF THE YEAR T HAT CAN BE DISALLOWED U/S 40(A)(IA). AGAINST THE SAID DE CISION OF ALLAHABAD HIGH COURT, THE DEPARTMENT FILED A SPE CIAL LEAVE PETITION (SLP) IN THE SUPREME COURT WHICH WAS DISMISSED BY THE SUPREME COURT VIDE ITS ORDER DT.02.07.2014. THUS, THERE ARE TWO VIEWS ON THIS ISSUE , ITA 757/JP/2012_ ACIT VS. GIRDHARI LAL BARGOTI 18 ONE IN FAVOUR OF THE ASSESSEE AND OTHER AGAINST THE ASSESSEE. CONSIDERING THESE VIEWS, THE VARIOUS BENCH ES OF HONBLE ITAT, AFTER CONSIDERING THE VARIOUS AMENDMEN T MADE TO SECTION 40(A)(IA) FROM TIME TO TIME TO REMO VE THE UNDUE HARDSHIP AND CONSIDERING THE DECISION OF SUPR EME COURT IN CASE OF CIT VS. VEGETABLE PRODUCTS LTD. 88 ITR 192 WHERE IT IS HELD THAT WHEN TWO VIEWS ARE POSSIBL E ON AN ISSUE, THE VIEW IN FAVOUR OF THE ASSESSEE HAS TO BE PREFERRED DELETED THE DISALLOWANCE. HE ALSO RELIED O N THE FOLLOWING CASE LAWS: (I) DCIT VS. ANANDA MARAKALA (2014) 150 ITD 323 (BANG.) (TRIB.) (II) ITO VS. M/S THEEKATHIR PRESS (CHENNAI)(TRIB.) ITA NO. 2076(MDS)2012 DT. 18.09.2013 THE ISSUE OF APPLICABILITY OF TDS ON AMOUNT PAYABLE AS ON 31ST MARCH ONLY IS ALSO COVERED BY THE DECISION OF THE HONBLE ITAT JAIPUR BENCH IN CASE OF JVVNL V. DCIT 12 3 TTJ 888 WHEREIN IT WAS HELD THAT SECTION 40(A)(IA) AP PLIES ONLY WHEN THE AMOUNT IS PAYABLE AND NOT WHERE THE EXPENDITURE IS PAID. THEREFORE WHERE THE ASSESSEE HA S MADE ACTUAL PAYMENT, THE PROVISIONS OF SECTION 40(A )(IA) IS NOT APPLICABLE. 2. IT MAY ALSO BE POINTED OUT THAT SECOND PROVISO T O SECTION 40(A)(IA) INSERTED BY FA, 2012 W.E.F. 01.04.2013 HAS PROVIDED THAT WHERE AN ASSESSEE FAILS TO DEDUCT TAX ON THE SUM PAID TO THE RESIDENT BUT SUCH RESIDENT PAYEE HA S ITA 757/JP/2012_ ACIT VS. GIRDHARI LAL BARGOTI 19 FURNISHED THE RETURN, TAKEN INTO ACCOUNT SUCH SUM F OR COMPUTING INCOME AND HAS PAID THE TAX DUE ON THE IN COME DECLARED BY HIM THEN IT WILL BE DEEMED THAT ASSESSEE HAS DEDUCTED AND PAID THE TAX ON SUCH SUM ON THE DATE O F FURNISHING OF RETURN BY THE RESIDENT PAYEE. ALL THE FINANCE COMPANIES TO WHICH ASSESSEE HAVE PAID INTEREST ARE LARGE COMPANIES AND ASSESSED TO TAX. THEREFORE, THE PRESUMPTION IS THAT THESE COMPANIES HAVE INCLUDED T HE INTEREST PAID BY THE ASSESSEE TO THEM IN THEIR INCO ME AND PAID TAX THEREON. THE DELHI HIGH COURT IN CASE OF CI T VS. TRANS BHARAT AVIATION PVT. LTD. 320 ITR 671 HAS HELD THAT SINCE DEDUCTEE IS A GOVERNMENT UNDERTAKING, THE TAX ES MAY BE PRESUMED TO HAVE BEEN PAID LASTLY BY THE DUE DATE OF FILING OF THE RETURN OF INCOME AND, THEREFORE, T HE LIABILITY OF THE ASSESSEE TO PAY INTEREST ON THE AMOUNT WHICH WAS TO BE DEDUCTED AS TDS ENDS WITH THE DUE DATE OF FILING O F THE RETURN BY THE DEDUCTEE. THEREFORE, CONSIDERING THE A BOVE AMENDMENT WHICH IS INTRODUCED TO REMOVE UNINTENDED HARDSHIP, THE DEPARTMENT MAY BE DIRECTED TO VERIFY THIS FACT AND WHERE FINANCE COMPANIES HAS PAID TAX ON SUCH INTEREST, NO DISALLOWANCE U/S 40(A)(IA) BE MADE IN T HE HANDS OF THE ASSESSEE. IT IS A SETTLED LAW THAT SECO ND PROVISO TO SECTION 40(A)(IA) INSERTED W.E.F. 01.04.2 013 HAS RETROSPECTIVE EFFECT AS HELD IN BANGALORE BENCH IN CASE OF SH. G. SHANKAR VS. ACIT IN ITA NO.1832/BANG/2013 DT. 10.10.2014, AGRA BENCH IN CASE OF RAJEEV KUMAR AGAR WAL ITA 757/JP/2012_ ACIT VS. GIRDHARI LAL BARGOTI 20 VS. ACIT (2014) 34 ITR(TRIB.)479, DELHI BENCH IN CASE OF ITO VS. DR. JAIDEEP KUMAR SHARMA (2014) 34 ITR(TRIB.)565, BANGALORE BENCH IN CASE OF DCIT VS. AN ANDA MARAKALA (2014) 150 ITD 323 AS THE AMENDMENT WAS MADE TO REMOVE THE UNDUE HARDSHIP. 3. IT MAY ALSO BE POINTED OUT THAT AN AMENDMENT H AS BEEN MADE BY FA, 2014 W.E.F. 01.04.2015 IN SECTION 40(A)( IA) WHEREBY IT IS PROVIDED THAT 30% OF ANY SUM PAYABLE T O A RESIDENT SHALL BE DISALLOWED IF TAX IS NOT DEDUCTED AT SOURCE UNDER CH. XVIIB AS AGAINST THE 100% PRESENTLY MADE. THE PURPOSE OF THIS AMENDMENT WAS EXPLAINED IN THE MEMORANDUM AS UNDER:- T HE DISALLOWANCE OF WHOLE OF THE AMOUNT OF EXPENDITU RE RESULTS INTO UNDUE HARDSHIP AND THEREFORE IN ORDER TO REDUCE THE HARDSHIP, IT IS PROPOSED THAT IN CASE OF NON-DEDUCTION OR NON-PAYME NT OF TDS ON PAYMENTS MADE TO RESIDENTS AS SPECIFIED IN SECTION 40(A)(IA) OF THE ACT, THE DISALLOWANCE SHALL BE RESTRICTED TO 30% OF THE AMOUNT OF EXPENDITURE CLAIMED. THE FINANCE MINISTER WHILE INTRODUCING THE AMENDMENT IN PARA 207 OF THE BUDGET SPEECH HAS STATED AS UNDER:- 207. CURRENTLY, WHERE AN ASSESSEE FAILS TO DEDUCT AND PAY TAX ON SPECIFIED PAYMENTS TO RESIDENTS, 100 PERCENT OF SUC H PAYMENTS ARE NOT ALLOWED AS DEDUCTION WHILE COMPUTING HIS INCOME . THIS HAS CAUSED UNDUE HARDSHIP TO TAXPAYERS, PARTICULARLY WHERE THE RATE OF TAX IS ONLY 1 TO 10%. HENCE , I PROPOSE TO PROVIDE THAT INSTEAD OF 100 PERCENT, ONLY 30% OF SUCH PAYMENTS WILL BE DISALLOWED. FROM THE ABOVE IT CAN BE NOTED THAT THE AMENDMENT MADE BY FA (NO.2) ACT, 2014 W.E.F. 01.04.2015 IS TO REMOV E UNINTENDED AND UNDUE HARDSHIP AND THEREFORE THIS AMENDMENT SHOULD BE GIVE RETROSPECTIVE EFFECT AS PE R THE ITA 757/JP/2012_ ACIT VS. GIRDHARI LAL BARGOTI 21 VARIOUS DECISIONS STATED ABOVE. IT IS ALSO SUBMITTE D THAT THE SUPREME COURT IN CASE OF CIT VS. VATIKA TOWNSHIP PVT. LTD. 109 DTR 33 HAS HELD THAT LEGISLATIONS WHICH MODIFY AC CRUED RIGHTS OR WHICH IMPOSE OBLIGATIONS OR IMPOSE NEW DUTI ES OR ATTACH A NEW DISABILITY HAVE TO BE TREATED AS PROSPE CTIVE UNLESS THE LEGISLATIVE INTENT IS CLEARLY TO GIVE TH E ENACTMENT A RETROSPECTIVE EFFECT. HOWEVER, IF LEGISLATION CONF ERS A BENEFIT ON SOME PERSONS BUT WITHOUT INFLICTING A CORRESPONDING DETRIMENT ON SOME OTHER PERSON OR ON THE PUBLIC GENERALLY AND WHERE TO CONFER SUCH BENEFIT AP PEARS TO HAVE BEEN THE LEGISLATORS OBJECT, THEN THE PRESU MPTION WOULD BE THAT SUCH LEGISLATION, GIVING IT A PURPOSIV E CONSTRUCTION, WOULD WARRANT IT TO BE GIVEN A RETROSPE CTIVE EFFECT . THEREFORE EVEN IN A CASE IT IS HELD THAT THE DISALLOWANCE U/S 40(A)(IA) IS WARRANTED, SAME SHOULD BE RESTRICTED TO ONLY 30% OF THE AMOUNT OF INTEREST PA ID. IN VIEW OF ABOVE, THE ORDER OF THE CIT(A) BE UPHELD BY DISMISSING THE GROUND OF THE DEPARTMENT. 11. WE HAVE HEARD THE RIVAL CONTENTIONS OF BOTH THE PARTIES AND PERUSED THE MATERIAL AVAILABLE ON THE RECORD. ON I SSUE OF AMOUNT ALREADY PAID DURING THE YEAR OR AMOUNT SHOWN PAYABLE AS ON 31 ST MARCH OF EVERY YEAR, THE VARIOUS COURTS HAVE DIFFERENT V IEWS I.E. IN FAVOUR OF THE ASSESSEE AND AGAINST THE ASSESSEE. THE HON'BLE S UPREME COURT IN THE CASE OF CIT VS. VEGETABLE PRODUCTS LTD. (SUPRA) HAS HELD THAT WHEN ITA 757/JP/2012_ ACIT VS. GIRDHARI LAL BARGOTI 22 THERE ARE TO VIEWS ON AN ISSUE, THE VIEW IN FAVOUR O F THE ASSESSEE HAS TO BE PREFERRED. THEREFORE, WE CONFIRM THE ORDER OF T HE LD. CIT(A). FURTHER THE RECIPIENT ARE NBFC, THEREFORE, NOT POSS IBLE TO NOT BE ASSESSED TO TAX, THESE PAYMENTS WERE RELATED FOR A.Y . 2009-10 AND RETURN FOR A.Y. 2009-10 ALREADY MIGHT HAVE BEEN FIL ED BY THESE NBFC BY INCLUDING THESE INTERESTS RECEIPTS AS THEIR INCOME . THEREFORE, WE DO NOT FIND ANY REASON TO INTERFERE IN THE ORDER OF THE LD . CIT(A). 12. IN THE RESULT, THE REVENUES APPEAL IS DISMISSE D. ORDER PRONOUNCED IN THE OPEN COURT ON 10/04/2015. SD/- SD/- VKJ-IH-RKSYKUH VH-VKJ-EHUK (R.P.TOLANI) (T.R. MEENA) U;KF;D LNL;@ JUDICIAL MEMBER YS[KK LNL;@ ACCOUNTANT MEMBER TK;IQJ @ JAIPUR FNUKAD @ DATED 10 TH APRIL, 2015 *RANJAN VKNS'K DH IZFRFYFI VXZSFKR @ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ @ THE APPELLANT- THE ACIT, CIRCLE-4, JAIPUR. 2. IZR;FKHZ @ THE RESPONDENT- SHRI GIRDHARI LAL BARGOTI, JAIPUR. 3. VK;DJ VK;QDR @ CIT 4. VK;DJ VK;QDR @ VK;DJ VK;QDRVIHY @ THE CIT(A) 5. FOHKKXH; IZFRFUF/K] VK;DJ VIHYH; VF/KDJ.K] T;IQJ @ DR, ITAT, JAIPUR 6. XKMZ QKBZY @ GUARD FILE (ITA NO. 757/JP/2012). VKNS'KKUQLKJ @ BY ORDER, LGK;D IATHDKJ @ ASST. REGISTRAR