Shiva Automobiles (Auto Division), Aligarh V. I.TO., Ward-2, Aligarh

ITA 79/AGR/2011

• Counselvise Citation: [2011] 134 COUNSELVISE.COM (IT) 7037 (ITAT-AGRA)
• Duration Of Justice: 1 month(s) 18 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 26-04-2011
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Next Hearing Date: 26-04-2011
• Assessment Year: 2001-2002
• Appeal Filed On: 09-03-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Section: 143(3); 263

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, AGRA (SMC) BENCH, AGRA BEFORE SHRI H.S. SIDHU, JUDICIAL MEMBER ITA NO.79/AGR./2011 ASSTT. YEAR : 2001-02 SHIVA AUTOMOBILES (AUTO DIVISION), VS. INCOME TAX OFFICER, G.T. ROAD, WARD-2, ALIGARH. ALIGARH. (PAN: AADFS 4944 G) (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI RAJIV KUMAR, C.A. RESPONDENT BY : SHRI VINOD KUMAR, JR. D.R. ORDER THE ASSESSEE HAS FILED THE PRESENT APPEAL AGAINST THE ORDER DATED 24.01.2011 PASSED BY THE LD. CIT(A), GHAZIABAD ON THE FOLLOWIN G GROUNDS :- 1. ON THE FACTS AND IN LAW AND CIRCUMSTANCES OF TH E CASE, THE ORDER OF LEARNED COMMISSIONER OF INCOME TAX (APPEAL S) IS BAD. 2. THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) ERRED IN HOLDING THAT DISALLOWANCE OF ` 2,09,615/- IS TO BE MADE U/S 36(1)(III) ON THE GROUND OF INVESTMENT IN SHARES BY BOOK ENTRY , BEING NON GENUINE AND ALTERNATIVES, BEING NON BUSINESS TRANSA CTIONS. 3. THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) OUGHT TO HAVE ALLOWED THE CLAIM OF THE ASSESSEE THAT INTERES T OF ` 2,09,615/- PAID FOR INVESTMENT IN SHARES IS DEDUCTIBLE U/S 57( III) OF THE IT ACT 1961. 2 4. THAT THE APPELLATE CRAVES LEAVE, TO ADD, TO AMEN D, TO ALTER AND/OR TO WITHDRAW ANY OF THE ABOVE GROUNDS OF APPE AL BEFORE OR AT T4HE TIME OF HEARING OF APPEAL. 2. AT THE TIME OF HEARING, RAJEEV KUMAR, CHARTERED ACCOUNTANT, ALIGARH, LD. AUTHORISED REPRESENTATIVE OF THE ASSESSEE APPEARED AND STATED THAT THE ASSESSEE HAS FILED APPEAL UNDER SECTION 260-A OF THE INCOME TAX ACT, 1961 (THE ACT HEREINAFTER) BEFORE THE HONBLE ALLAHABAD HIGH COUR T AGAINST THE ORDER DATED 13.04.2010 PASSED BY THE I.T.A.T. AGRA BENCH, AGRA AS WELL AS ORDER OF THE TRIBUNAL DATED 11.12.2008 AND 21.10.2010 PASSED BY THE LD. ACCOUNTANT MEMBER OF THE TRIBUNAL IN ITA NO.110/AGR/2006 IN THE CASE OF SHIVA AUTOMOBILES (AUTO DIVISION) VS. INCOME TAX OFFICER, WARD 1A, ALIGARH FOR ASSESSMENT YEAR 2001- 02. HE FURTHER STATED THAT THE ASSESSEE HAS CHALLE NGED THE ORDER UNDER SECTION 263 OF THE ACT PASSED BY THE LD. CIT, ALIGARH, BUT THE SAME HAS BEEN DECIDED AGAINST THE ASSESSEE BY THE I.T.A.T. AGRA BENCH. THE ASSES SING OFFICER COMPLETED THE ASSESSMENT IN DISPUTE AGAINST THE ASSESSEE IN COMPL IANCE OF THE ORDER OF THE LD. CIT PASSED UNDER SECTION 263 OF THE ACT. AGGRIEVED BY THE SAME, THE ASSESSEE FILED APPEAL BEFORE THE LD. FIRST APPELLATE AUTHORITY WHO , VIDE THE IMPUGNED ORDER DATED 24.01.2011 HAS ALSO DISMISSED THE APPEAL FILED BY T HE ASSESSEE, AGAINST WHICH, THE PRESENT APPEAL HAS BEEN FILED BY THE ASSESSEE. 3 3. THE LD. AUTHORIZED REPRESENTATIVE OF THE ASSESSE E STATED THAT THE ISSUE IN DISPUTE IS PENDING BEFORE THE HONBLE JURISDICTIONA L HIGH COURT AND REQUESTED THAT THE MATTER MAY BE SENT BACK TO THE ASSESSING OFFICE R TO DECIDE THE ISSUE IN DISPUTE AFTER THE DECISION OF HONBLE ALLAHABAD HIGH COURT WHICH IS PENDING TILL DATE. HE HAS ALSO FILED A WRITTEN APPLICATION DATED 26.04.20 11 REQUESTING FOR SETTING ASIDE THE MATTER IN DISPUTE TO THE ASSESSING OFFICER TO D ECIDE THE SAME AFTER THE DECISION ON THE ISSUE IN DISPUTE BY THE HONBLE ALLAHABAD HI GH COURT. 4. THE LD. DEPARTMENTAL REPRESENTATIVE HAS NOT RAIS ED ANY OBJECTION ON THE REQUEST MADE BY THE LD. COUNSEL FOR THE ASSESSEE. HE AGREED WITH THE SAME. FOR THE SAKE OF CONVENIENCE, THE CONTENTS OF THE APPLIC ATION FILED BY THE LD. AUTHORIZED REPRESENTATIVE OF THE ASSESSEE DATED 26.04.2011 ARE REPRODUCED AS UNDER :- BEFORE THE HONBLE I.T.A.T., AGRA BENCH, AGRA IT APPEAL NO.79/AGRA/2011 A.Y. 2001-02 U/S 143(3) M/S SHIVA AUTOMOBILES (A.D.) - APPELLANT VS. I.T.O., WARD-2, ALIGARH MAY IT PLEASE YOUR HONOUR, IN THIS CASE THE ASSESSEE/APPELLANT HAS PREFERRED A N APPEAL BEFORE HONBLE ALLAHABAD HIGH COURT AGAINST THE ORD ER OF THE 4 HONBLE ITAT ON THE ISSUE OF ORDER U/S 263. THE AP PEAL NUMBER IS 101 OF 2010. IT IS MOST RESPECTFULLY REQUESTED THAT THE CASE MAY PLEASE BE SET ASIDE/REMANDED TO THE LEARNED A.O. TO DECIDE THE SA ME ON RECEIPT OF ORDERS OF HONBLE ALLAHABAD HIGH COURT IN ACCORDANC E WITH THE ORDERS/DIRECTIONS OF THE COURT. THE APPELLANT SHALL ALWAYS BE GRATEFUL FOR THIS. SUBMITTED, SD/- AUTHORISED PERSON FOR APPELLANT 26.04.2011 5. KEEPING IN VIEW OF THE WRITTEN REQUEST MADE BY T HE LD. AUTHORIZED REPRESENTATIVE OF THE ASSESSEE AND AGREED BY THE LD . DEPARTMENTAL REPRESENTATIVE, I AM OF THE CONSIDERED OPINION THAT THERE WOULD NOT B E ANY PURPOSE TO KEEP THE MATTER PENDING BEFORE THE TRIBUNAL WHEN BOTH THE PA RTIES HAVE AGREED FOR SETTING ASIDE THE ISSUE IN DISPUTE AND TO DECIDE THE SAME B Y THE ASSESSING OFFICER IN VIEW OF THE ORDER/DIRECTIONS GIVEN BY THE HONBLE JURISD ICTIONAL HIGH COURT IN THE APPEAL FILED BY THE ASSESSEE. 6. KEEPING IN VIEW OF THE FACTS AND CIRCUMSTANCES O F THE PRESENT CASE, I AM OF THE CONSIDERED OPINION THAT THE REQUESTS OF BOTH TH E PARTIES ARE ACCEPTABLE. THEREFORE, IN THE INTEREST OF JUSTICE, I SET ASIDE THE ISSUE IN DISPUTE TO THE ASSESSING OFFICER TO DECIDE THE SAME IN ACCORDANCE WITH THE O RDER/DIRECTIONS ISSUED BY THE 5 HONBLE ALLAHABAD HIGH COURT IN THE APPEAL FILED BY THE ASSESSEE I.E. INCOME TAX APPEAL NO.101 OF 2010 UNDER SECTION 260-A OF THE IN COME TAX ACT, 1961 IN THE CASE OF M/S. SHIVA AUTOMOBILES (AUTO DIVISION), G.T . ROAD, ALIGARH THROUGH ITS PARTNER SHALABH MITTAL VS. CIT, ALIGARH AND OTHERS. 7. IN THE RESULT, APPEAL FILED BY THE ASSESSEE IS A LLOWED FOR STATISTICAL PURPOSES. (ORDER PRONOUNCED IN THE OPEN COURT ON 26.04.2011) SD/- (H.S. SIDHU) JUDICIAL MEMBER DATED: 26 TH APRIL, 2011 PBN/* COPY OF THE ORDER FORWARDED TO: 1. APPELLANT 2. RESPONDENT BY ORDER 3. CIT CONCERNED 4. CIT (APPEALS) CONCERNED 5. DR, ITAT, AGRA BENCH, AGRA 6. GUARD FILE ASSISTANT REGISTRAR INCOME-TAX APPELLATE TRI BUNAL, AGRA TRUE COPY