Hem Kiran Diesels, Kolhapur V. Dy. CIT, Kolhapur

ITA 891/PUN/2010

• Counselvise Citation: [2011] 140 COUNSELVISE.COM (IT) 56637 (ITAT-PUNE)
• Duration Of Justice: 1 year(s) 6 month(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-12-2011
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 26-12-2011
• Assessment Year: 2006-2007
• Appeal Filed On: 11-06-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: NEERA MALHOTRA
• Assessee Lawyers: C H NANIWADEKAR
• Keywords: Commercial expediency

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH B, PUNE BEFORE SHRI SHAILENDRA KUMAR YADAV, JUDICIAL MEMBER AND SHRI D. KARUNAKARA RAO, ACCOUNTANT MEMBER I.T.A. NO. 891/PN/2010 : A.Y. 2006-07 HEM KIRAN DIESELS 1227E RAJARAM ROAD, KOLHAPUR 416 008 PAN AABFH 6497 B APPELLANT VS. DY. CIT CIR. 2, KOLHAPUR RESPONDENT APPELLANT BY: SHRI C.H. NANIWADEKAR RESPONDENT BY: SMT. NEERA MALHOTRA DATE OF HEARING: 26-12-2011 DATE OF PRONOUNCEMENT: 30-12-2011 ORDER PER SHAILENDRA KUMAR YADAV, JM THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE ORDERS OF THE CIT-(A) KOLHAPUR DATED 19-3-2010 FOR A.Y. 2006-07 CONFIRMING THE DISALLOWANCE OF INTEREST U/S 36(1)(III) OF THE ACT MADE BY THE ASSESSING OFFICER . 2. AT THE OUTSET OF HEARING, THE LEARNED COUNSEL FO R THE ASSESSEE POINTED OUT THAT SIMILAR ISSUE CAME FOR CONSIDERATION BEFORE CO-ORDINATE BENCH OF THIS TRIB UNAL IN THE ASSESSEES OWN CASE FOR A.Y. 2003-04 AND 2004-0 5 IN ITA NO. 155 AND 156/PN/2008 WHEREIN THE ISSUE HAS B EEN REMITTED BACK TO THE FILE OF THE ASSESSING OFFICER FOR A FRESH DECISION IN THE LIGHT OF JURISDICTIONAL HIGH COURT IN THE CASE OF CIT VS RELIANCE UTILITIES AND POWER LTD. (INCOME -TAX 2 ITA NO.891/PN/2010 HEM KIRAN DIESELS A.Y. 2006-07 APPEAL NO. 1398 OF 2008). THE RELEVANT OBSERVATIONS OF THE TRIBUNAL IS REPRODUCED AS UNDER: WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE FAC TS OF THE CASE AS WELL AS RECORDS AVAILABLE BEFORE US. WE HAVE ALSO GONE THROUGH THE ABOVE REFERRED JUDGMENTS RELIED UPON BY BOTH THE PARTIES. WE HAVE ALSO CONSIDERED THE COUNSELS SUBMISSIONS THAT THE MATTE R MUST GO TO THE FILE OF THE AO FOR EXAMINING THE ISS UE AFRESH IN THE LIGHT OF JURISDICTIONAL HIGH COURT IN THE CASE OF RELIANCE UTILITIES AND POWER LTD. (SUPRA) A ND S.A BUILDERS (388 ITR 1). WE FIND THAT THERE IS NO FINDING OF FACT BY THE REVENUE AUTHORITIES ON THE I SSUE OF AVAILABILITY OF SUFFICIENT NON-INTEREST OWN FUND S AS WELL AS THE COMMERCIAL EXPEDIENCY OF GIVING THE ADVANCES TO SISTER CONCERN. FROM THE ASSESSEES SID E ALSO, THERE WAS NO OCCASION TO ESTABLISH OR DEMONSTRATE THE ABOVE AS THE JUDGMENTS IN QUESTION ARE SUBSEQUENT IN TIME. IN THESE CIRCUMSTANCES, IT IS IN THE FITNESS OF THINGS THAT BOTH THE APPEALS MUST BE SET ASIDE TO THE FILE OF THE AO FOR A FRESH DECISIO N IN THE LIGHT OF ABOVE JURISDICTIONAL HIGH COURT AS WEL L AS HONBLE APEX COURT. THE AO SHALL GRANT AN OPPORTUNI TY OF BEING HEARD TO THE ASSESSEE. FACTS BEING SIMILAR, SO FOLLOWING THE SAME, WE REST ORE THIS ISSUE TO THE FILE OF THE ASSESSING OFFICER WITH A D IRECTION TO DECIDE THE SAME AFRESH IN THE LIGHT OF ABOVE JURISD ICTIONAL HIGH COURT AS WELL AS HONBLE APEX COURT AFTER PROV IDING ADEQUATE OPPORTUNITY OF HEARING TO THE ASSESSEE. 3. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED FOR STATISTICAL PURPOSES. DECISION PRONOUNCED IN THE OPEN COURT ON 30-12-2011 . SD/- SD/- D. KARUNAKARA RAO SHAILENDRA KUMAR YADAV ACCOUNTANT MEMBER JUDICIAL MEMBER PUNE DATED THE 30 TH DECEMBER 2011 ANKAM 3 ITA NO.891/PN/2010 HEM KIRAN DIESELS A.Y. 2006-07 COPY OF THE ORDER IS FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT-(A) KOLHAPUR 4. THE CIT KOLHAPUR 5. THE D.R, ITAT PUNE BENCH, PUNE 6. GUARD FILE BY ORDER SR. PRIVATE SECRETARY INCOME TAX APPELLATE TRIBUNAL