CHATURBHAI K. THUMAR, NAVI MUMBAI V. D.C.I.T. CEN.CIR.39, MUMBAI

ITA 9/MUM/2012

• Counselvise Citation: [2012] 119 COUNSELVISE.COM (IT) 9294 (ITAT-MUMBAI)
• Duration Of Justice: 11 month(s) 9 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 12-12-2012
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: SMC
• Next Hearing Date: 06-12-2012
• Assessment Year: 2009-2010
• Appeal Filed On: 02-01-2012
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: SURINDER JIT SINGH
• Assessee Lawyers: P NARAYANAN
• Section: 14A

Judgement Text

. , IN THE INCOME TAX APPELLATE TRIBUNAL SMC , BENCH MUMBAI , BEFORE SHRI R.K.GUPTA , J M ITA NO. 09 / MUM/ 20 1 2 ( ASSESSMENT YEA R : 200 9 - 20 10 ) CHATURBHAI K. THUMAR, PATHIK, PLOT NO. 72, RING ROAD NO.3, SECTOR - 21, NERUL NAVI MUMBAI - 400 614 VS. DCIT, CEN CIR 39, MUMBAI PAN/GIR NO. : A BAPT 6557 A ( APPELLANT ) .. ( RESPONDENT ) /A SSESSEE BY : MR. P. NARAYANAN /RE VENUE BY : MR. SURINDER JIT SINGH DATE OF HEARING : 6 TH DEC ., 2012 DATE OF PRONOUNCEMENT : 12 TH DEC. ,2012 O R D E R THIS IS AN APPEAL PREFERRED BY THE ASSESSEE AGAINST THE ORDER DATED 13 - 10 - 2011 OF LEANED CIT(A) - 36 , MUMBAI RELA TING TO THE ASSESSMENT YEAR 200 9 - 10 . 2 . THE GROUND NO.2 IS AGAINST DISALLOWANCE OF PETTY BANK CHARGES ETC., WAS NOT PRESSED, THEREFORE, T HE SAME IS DISMISSED AS NOT PRESSED. ITA NO. 09 /20 1 2 2 3 . GROUNDS NO. 1 & 3 RELATE TO CONFIRMING THE ADDITION OF RS. 1,78,680/ - AND CERTAIN DISALLOWANCE UNDER SECTION 14A. 4 . DURING THE ASSESSMENT, THE ASSESSING OFFICER NOTED THAT THE ASSESSEE HAS CLAIMED INTEREST OF RS. 1, 78,680/ - ON THE LOAN TAKEN BY IT. SINCE THE ASSESSEE COULD NOT EXPLAIN THE REASONABLENESS OF THE INTEREST PAID, THEREFORE, THE SAME WAS DISALLOWED. 5 . LEARNED CIT(A) HAS ALSO CONFIRMED THE ACTION OF THE ASSESSING OFFICER. 6 . HERE BEFORE THE TRIBUNAL, LEA RNED COUNSEL OF THE ASSESSEE STATED THAT IDENTICAL ADDITION WAS MADE FOR THE ASSESSMENT YEAR 2003 - 04 AND THE TRIBUNAL WHILE DECIDING THE ISSUE IN ITA NO. 5475/M.2006 , VIDE ORDER DATED 29 - 10 - 2008 , HAS RESTORED THE ISSUE TO THE FILE OF THE ASSESSING OFFICER F OR PASSING A FRESH ORDER WITH CERTAIN DIRECTIONS. THE ATTENTION OF THE BENCH WAS DRAWN AT PARA 5 OF THE SAID ORDER OF THE TRIBUNAL. COPY OF THE AFORESAID ORDER HAS BEEN PLACED ON RECORD. ACCORDINGLY, IT WAS SUBMITTED THAT THE ASSESSING OFFICER HAS NOT PAS SED ANY ORDER FOR THE ASSESSMENT YEAR 2003 - 04, NEITHER THE DIRECTION HAS BEEN FOLLOWED FOR THE YEAR UNDER CONSIDERATION . THIS VERY FACT WAS BROUGHT TO THE KNOWLEDGE OF THE LEARNED CIT(A) ALSO, HOWEVER, THE SAME HAS NOT BEEN CONSIDERED. ATTENTION OF THE BEN CH WAS ALSO DRAWN ON A COPY OF NOTE, WHICH IS PLACED ON RECORD. ACCORDINGLY, IT WAS SUBMITTED THAT THE MATTER SHOULD BE SENT BACK TO THE FILE OF THE ASSESSING OFFICER FOR DECIDING THE ISSUE AFRESH IN VIEW OF THE DIRECTION ITA NO. 09 /20 1 2 3 OF THE TRIBUNAL GIVEN IN THE APPEL LATE ORDER FOR THE ASSESSMENT YEAR 2003 - 04. 7 . LEARNED D R HAS OBJECTED THE RESTORATION OF THE ISSUE AS THE FACTS IN RESPECT TO THE AFORESAID ORDER WAS NOT BROUGHT TO THE KNOWLEDGE OF THE ASSESSING OFFICER OR THE LEARNED CIT(A) . 8 . AFTER CONSIDERING THE S UBMISSION AND PERUSING THE MATERIAL ON RECORD, I AM OF THE VIEW THAT THIS MATTER SHOULD GO BACK TO THE FILE OF THE ASSESSING OFFICER FOR PASSING A FRESH ORDER AFTER TAKING INTO CONSIDERATION OF THE DIRECTION OF THE TRIBUNAL GIVEN IN PARA 5 OF THE ORDER WHI LE DECIDING THE ISSUE FOR ASSESSMENT YEAR 2003 - 04 AS FACTS ARE SIMILAR. I ORDER ACCORDINGLY . 9 . THE ASSESSING OFFICER HAS MADE DISALLOWANCE UNDER SECTION 14A ALSO , HOWEVER, NO SEPARATE DISALLOWANCE WAS MADE AS THE ASSESSING OFFICER HAS DISALLOWED THE ENT IRE INTEREST. SINCE THE ISSUE RELATED TO INTEREST EXPENDITURE, HAS BEEN RESTORED TO THE FILE OF THE ASSESSING OFFICER, THEREFORE, THE ISSUE IN RESPECT OF DISALLOWANCE UNDER SECTION 14A IS ALSO RESTORED TO THE FILE OF THE ASSESSING OFFICER FOR PASSING A FRE SH ORDER. THE ASSESSING OFFICER IS ALSO DIRECTED TO ALLOW AN OPPORTUNITY TO THE ASSESSEE OF BEING HEARD BEFORE PASSING A FRESH ORDER. I ORDER ACCORDINGLY. 10 . IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED IN PART FOR STATISTICAL PURPOSES . ITA NO. 09 /20 1 2 4 ORDER PRONOUNCED IN THE OPEN COURT ON THIS 12 TH DAY OF DEC. 2012. 2012 SD/ - ( ) ( R.K.GUPTA ) / JUDICIAL MEMBER MUMBAI ; DATED : 12 /12 / 2012 . /PKM , PS COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. / THE CIT(A) - X, MUMBAI. 4. / CIT 5. / DR, ITAT, MUMBAI 6. GUARD FILE. //TRUE COPY// / BY ORDER, ( DY./ASSTT. REGISTRAR) / ITAT, MUMBAI