Shri Bhagwanbhai D.Lakhtaria, Baroda V. The Income tax Officer,Ward-3(1), Baroda

ITA 852/AHD/2009

• Counselvise Citation: [2012] 140 COUNSELVISE.COM (IT) 60361 (ITAT-AHMEDABAD)
• Duration Of Justice: 3 year(s) 1 month(s) 28 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 15-05-2012
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: D
• Next Hearing Date: 12-04-2012
• Assessment Year: 2005-2006
• Appeal Filed On: 18-03-2009
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: D P GEETA
• Assessee Lawyers: M J SHAH
• Keywords: Depreciation; Opportunity of being heard; Additional evidence
• Section: 234B

Judgement Text

, , , , D, IN THE INCOME TAX APPELLATE TRIBUNAL AT AHMEDABAD, D BENCH . .. . . .. . , !' !' !' !', , , , #$ #$ #$ #$ %& %& %& %& , , , , &' ( & &' ( & &' ( & &' ( & ' ' ' ' BEFORE S/SHRI G.C. GUPTA, VICE-PRESIDENT AND TEJ RAM MEENA, ACCOUNTANT MEMBER) ITA NO.852/AHD/2009 [ASSTT.YEAR : 2005-2006] SHRI BHAGWANBHAI D. LAKHTARIA C-8, MANGALTIRTH SOCIETY NR.RANDAL TEMPLE NEW SAMA ROAD, BARODA. PAN : AAEPL 2740 A /VS. ITO, WARD-3(1) BARODA. ( (( (*+ *+ *+ *+ / APPELLANT) ( (( (,-*+ ,-*+ ,-*+ ,-*+ / RESPONDENT) .% / 0 &/ ASSESSEE BY : SHRI M.J. SHAH ( / 0 &/ REVENUE BY : MS. D.P. GEETA, CIT-DR 2 / %3'/ DATE OF HEARING : 12 TH APRIL, 2012 456 / %3'/ DATE OF PRONOUNCEMENT : 15-05-2012 &7 / O R D E R PER G.C. GUPTA, VICE-PRESIDENT: THIS APPEAL BY THE ASSESSEE FOR THE ASSESSMENT YEAR 2005-2006 IS DIREC TED AGAINST THE ORDER OF THE LD CIT(A)-II, BARODA. 2. THE GROUND NO.1 OF THE ASSESSEES APPEAL IS AS U NDER: 1. THE CIT(A) ERRED IN LAW AND ON FACTS BY CONFIRM ING THE ADDITION MADE OF RS.4,22,955/- ON THE PRETEXT OF SE C.194C BEING ITA NO.852/AHD/2009 -2- APPLICABLE IN RESPECT OF THE PAYMENTS MADE AND HENC E THE ADDITION MAY KINDLY BE DELETED. 3. THE LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED T HAT REGARDING ISSUE IN THE GROUND NO.1 OF THE APPEAL, THE ASSESSE E HAS FILED EVIDENCE BEFORE THE CIT(A) TO PROVE THAT THE PAYMENT OF RS.4 ,22,955/- WAS MADE FOR SUPPLY OF MATERIAL LIKE MATTI , SAND, CUTTINGS OF BRICKS, QUARRY DUST ETC. WHICH WERE USED BY THE ASSESSEE AS CONSTR UCTION MATERIAL FOR ITS BUSINESS. HE SUBMITTED THAT ADDITIONAL EVIDENC E IN THE FORM OF AFFIDAVITS BY THREE PAYEE PARTIES HAVE BEEN FILED B EFORE THE TRIBUNAL. HE SUBMITTED THAT THE EVIDENCE FILED GOES TO ROOT O F THE MATTER AND IN THE INTEREST OF JUSTICE, THE SAME SHOULD BE CONSIDE RED BEFORE DECIDING THE ISSUE. THE LEARNED DR HAS RELIED ON THE ORDERS OF THE AO AND THE CIT(A). 4. WE HAVE CONSIDERED RIVAL SUBMISSIONS AND HAVE PE RUSED THE ORDERS OF THE AO AND THE CIT(A). WE FIND THAT IN T HE FACTS OF THE CASE, IT SHALL BE IN THE INTEREST OF JUSTICE TO CON SIDER THE ADDITIONAL EVIDENCE FILED BY THE ASSESSEE BEFORE THE CIT(A) AN D THE TRIBUNAL. ACCORDINGLY, THE ISSUE IS RESTORED TO THE FILE OF T HE AO TO DECIDE THE ISSUE IN GROUND NO.1 OF THE ASSESSEES APPEAL DE NOVO , AFTER CONSIDERING EVIDENCE, WHICH MAY BE FILED BY THE ASS ESSEE IN SUPPORT OF ITS CASE AND AFTER ALLOWING ADEQUATE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. WE DIRECT ACCORDINGLY. 5. GROUND NO.2 OF THE ASSESSEES APPEAL READS AS UN DER: 1. THE CIT(A) FURTHER ERRED IN CONFIRMING AN ADDIT ION OF RS.6071/- BEING 1/10 TH OF THE OVERALL EXPENSES OF RS.60,719/- INCURRED FOR TELEPHONE AND POSTAGE, PETROL EXPENSES AND DEPRECIATION ON VEHICLES AND MOBILE ON THE PRESUMPT ION OF THERE BEING PERSONAL USE. ITA NO.852/AHD/2009 -3- 6. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE O RDERS OF BOTH THE AUTHORITIES BELOW. WE FIND THAT THE CIT(A) HAS RESTRICTED DISALLOWANCE FOR PERSONAL USER OF THE VEHICLE AND T ELEPHONE TO 1/10 TH OF THE EXPENSES CLAIMED, WHICH COULD NOT BE SAID TO BE EXCESSIVE. IN THIS VIEW OF THE MATTER, WE HOLD THAT NO INTERFEREN CE IS CALLED FOR IN THE ORDER OF THE CIT(A) ON THIS ISSUE AND THE GROUND NO .2 OF THE ASSESSEES APPEAL IS DISMISSED. 7. THE GROUND NO.3 OF THE ASSESSEES APPEAL READS A S UNDER: 3. THE CIT(A) ERRED IN LEVYING INTEREST UNDER SEC TION 234A, 234B AND 234C ON GROSS DEMAND RAISED BY THE ITO DISREGARDING EFFECT OF DELETION MADE IN THE FIRST A PPEAL. 8. WE HAVE HEARD BOTH THE PARTIES ON THIS ISSUE. T HE ISSUE OF CHARGING OF INTEREST BEING CONSEQUENTIAL IN NATURE, WE DIRECT ACCORDINGLY. 9. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS PAR TLY ALLOWED FOR STATISTICAL PURPOSE ORDER PRONOUNCED IN OPEN COURT ON THE DATE MENTIONE D HEREINABOVE. SD/- SD/- ( %& %& %& %& / TEJ RAM MEENA) &' &' &' &' ( ( ( ( /ACCOUNTANT MEMBER ( . .. . . .. . /G.C. GUPTA) !' !' !' !' /VICE-PRESIDENT C OPY OF THE ORDER FORWARDED TO: 1) : APPELLANT 2) : RESPONDENT 3) : CIT(A) 4) : CIT CONCERNED 5) : DR, ITAT. BY ORDER DR/AR, ITAT, AHMEDABAD