M/s. G.M. Exports, Ahmedabad V. The ACIT.,(OSD)Circle-10, Ahmedabad

MA 155/AHD/2012

• Counselvise Citation: [2012] 123 COUNSELVISE.COM (IT) 9594 (ITAT-AHMEDABAD)
• Duration Of Justice: 4 month(s) 7 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 14-12-2012
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Assessment Year: 2003-2004
• Appeal Filed On: 06-08-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: D K SINGH SRAR
• Assessee Lawyers: B P POPAT
• Section: 69C

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD BENCH C AHMEDABAD BEFORE SHRI A.K.GARODIA, ACCOUNTANT MEMBER AND SHRI KUL BHARAT, JUDICIAL MEMBER (MISC. APPLICATION) NO.155/AHD/2012 (A/O ITA NO. 2037/AHD/2009) / // / ASSESSMENT YEAR :2003-04 G.M. EXPORTS 2, SATYAM SHOPPING CENTER, 3 RD FLOOR, GULBAI TEKRA, AHMEDABAD [ PAN NO.AACFG 5838N ] V/S . ASSTT. COMMISSIONER OF INCOME-TAX (OSD), CIRCLE-10, AHMEDABAD (ORIGINAL APPELLANT) (ORIGINAL RESPONDENT) (APPELLANT) .. (RESPONDENT) /BY APPELLANT SHRI B.P. POPAT, AR /BY RESPONDENT SHRI D.K. SINGH, SR-AR ! /DATE OF HEARING 07-12-2-12 '# ! /DATE OF PRONOUNCEMENT 14 -12-2012 $ $ $ $/ // / O R D E R PER KUL BHARAT, JUDICIAL MEMBER:- THIS MISCELLANEOUS APPLICATION (MA) IS FILED BY TH E ASSESSEE AND THE ONLY GRIEVANCE OF THE ASSESSEE IN THIS CASE IS THAT GROUND NO.3 AND 4 WERE OMITTED TO BE DISPOSED OF IN THE IMPUGNED TRIBUNAL ORDER AND HENCE, IT SHOULD BE DISPOSED OF. REGARDING THESE GROUNDS, IT WAS SU BMITTED THAT AS PER GROUND NO.3. THE GRIEVANCE TO THE ASSESSEE IS THIS THAT IN THE LIGHT OF THE NOTING ON THE SEIZED PAPER, THE ADDITION MADE BY TH E ASSESSING OFFICER OF MA NO.155/AHD/2012 (A/O ITA NO.2037/AHD/2009) G.M. EXPORTS V. ACIT (OSD) CIR-10 ABD PAGE 2 RS.11,11,145/- ON THE GROUND OF INTEREST PAYABLE AS NOTED IN THE SEIZED PAPER IS NOT JUSTIFIED. HE ALSO SUBMITTED THAT COPY OF TH E SEIZED PAPER IS AVAILABLE AT PAGE-11 OF THE PAPER BOOK FILED IN THE COURSE OF HE ARING OF THE APPEAL. REGARDING GROUND NO.4, IT WAS SUBMITTED THAT THIS G ROUND IS AN ALTERNATIVE CLAIM IF THE ASSESSEE FAILS IN RESPECT TO GROUND NO .3 AND IF THE ASSESSEE SUCCEEDS IN GROUND NO.3, THIS GROUND NO.4 DOES NOT SURVIVE. REGARDING GROUND NO.4, IT WAS SUBMITTED THAT ON THE SAME SEIZ ED PAPER, THERE ARE NOTINGS IN RESPECT OF INTEREST RECEIVABLE OF RS.8,6 5,935/- AND INTEREST PAYABLE OF RS.11,74,145/-. HE SUBMITTED THAT ADDITION IS AL READY MADE AND CONFIRMED IN RESPECT OF INTEREST RECEIVABLE OF RS.8,65,935/- AND IF THE ADDITION IS TO BE MADE FOR INTEREST PAYABLE ALSO THEN THE DECISION SH OULD BE CONFINED ONLY FOR NET AMOUNT OF THESE TWO FIGURES. 2. IT WAS SUBMITTED BY LD. SR-DR OF THE REVENUE THA T THERE IS NO MISTAKE IN THE TRIBUNAL ORDER AND THIS GROUND WAS ALREADY D ECIDED AS PER THE IMPUGNED TRIBUNAL ORDER. HE DRAWN OUR ATTENTION IN PARA-8 AT PAGE-8 OF THE TRIBUNAL ORDER, WHERE ALTHOUGH THE GROUND NO MENTIO NED IS GROUND NO.2 BUT THE AMOUNT WAS MENTIONED AT RS.11,11,145/- AND THER EAFTER IN PARA-10 OF THE TRIBUNAL ORDER, IT WAS DECIDED THAT LD. COMMISSIONE R OF INCOME-TAX-(APPEALS) (CIT(A) FOR SHORT) HAS DEALT THIS GROUND IN DETAI L AND REBUTTED THE SUBMISSION OF THE ASSESSEE AND THEREFORE, THERE IS NO INFIRMIT Y IN THE ORDER PASSED BY LD. CIT(A). 3. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIALS AVAILABLE ON RECORD. FIRST WE HAVE TO DECIDE THIS A SPECT AS TO WHETHER THESE GROUNDS NO. 3 & 4 WERE DECIDED BY THE TRIBUNAL OR N OT. WE FIND THAT IN PARA-8 OF THE TRIBUNAL ORDER, REFERENCE IS MADE TO GROUND NO.2 RAISED BY THE ASSESSEE. GROUND NO.2 RAISED BY THE ASSESSEE IS REP RODUCED BY THE TRIBUNAL ON PAGE-1 OF THE IMPUGNED TRIBUNAL ORDER AND THERE THE AMOUNT IS MENTIONED AT RS.8,65,935/-. IN PARA-8 OF IMPUGNED TRIBUNAL OR DER, ALTHOUGH REFERENCE IS MA NO.155/AHD/2012 (A/O ITA NO.2037/AHD/2009) G.M. EXPORTS V. ACIT (OSD) CIR-10 ABD PAGE 3 MADE TO GROUND NO.2 REGARDING INTEREST INCOME BUT T HE AMOUNT MENTIONED IS RS.11,11,145/- AND THIS GROUND WAS DECIDED BY THE T RIBUNAL AS PER PARA-10 OF THE IMPUGNED TRIBUNAL ORDER AND HENCE, IT IS SEEN T HAT GROUNDS NO. 3 & 4 WERE NOT DECIDED BY THE TRIBUNAL. SINCE THE AMOUNT MENTIONED IN PARA-8 OF THE IMPUGNED TRIBUNAL ORDER IS INCORRECT, WE RECTIF Y THE SAME ALSO AND IT SHOULD BE READ AS RS.8,65,935/- INSTEAD OF RS.11,11 ,145/-. 4. NOW, WE FIND THAT GROUNDS NO. 3 & 4 WERE NOT DEC IDED BY THE IMPUGNED TRIBUNAL ORDER, HENCE, THIS IS MISTAKE APPARENT FRO M THE RECORD AND WE RECTIFY THE SAME BY DECIDING THESE TWO GROUNDS OF THE ASSES SEE. 5. AS PER GROUND NO.3, THIS GRIEVANCE OF THE ASSESS EE IS THIS THAT AS PER THE SEIZED PAPER, WHICH IS AVAILABLE AT PAGE-11 OF THE PAPER BOOK, ADDITION MADE BY ASSESSING OFFICER OF RS.11,11,145/- IN RESP ECT OF INTEREST PAYABLE AS NOTED IN THE SEIZED PAPER IS NOT JUSTIFIED. WHEN WE EXAMINE THE SEIZED PAPER, WE FIND THAT THERE IS NOTING OF RS.865,935.38 IN RE SPECT OF INTEREST RECEIVABLE AND THERE IS FURTHER NOTHING OF RS.11,14,645/- IN R ESPECT OF INTEREST PAYABLE. IN OUR CONSIDERED OPINION, THE ADDITION OF RS.11,14,64 5/- IN RESPECT OF INTEREST PAYABLE ON THE BASIS OF THE SEIZED PAPER IS NOT JUS TIFIED BECAUSE AS PER THIS NOTING, THERE IS NO INDICATION REGARDING PAYMENT OF INTEREST OUT OF UNACCOUNTED SOURCES AND HENCE SECTION 69C OF THE INCOME-TAX ACT , 1961 CANNOT BE INVOKED. SINCE, THIS NOTING OF INTEREST PAYABLE HAS NOT BEEN CLAIMED IN THE RETURN OF INCOME AS DEDUCTION, NO ADDITION CAN BE M ADE BY DISALLOWANCE OF ANY CLAIM OF THE ASSESSEE FOR DEDUCTION. HENCE, THI S ADDITION IS NOT SUSTAINABLE IN THE FACTS OF THE PRESENT CASE AS PER OUR ABOVE DISCUSSION. HENCE, GROUND NO.3 IS ALLOWED. 6. REGARDING GROUND NO.4, WE FIND THAT THIS IS ALTE RNATIVE CLAIM IN CASE THE ASSESSEE FAILS IN GROUND NO.3 AND SINCE ASSESSEE HA S SUCCEEDED IN GROUND NO.3, GROUND NO.4 DOES NOT SURVIVE AND REJECTED ACC ORDINGLY. MA NO.155/AHD/2012 (A/O ITA NO.2037/AHD/2009) G.M. EXPORTS V. ACIT (OSD) CIR-10 ABD PAGE 4 7. THE END RESULT OF THE APPEAL AS PER TRIBUNAL ORD ER DATED 11-05-2012 WAS THIS THAT ASSESSEES APPEAL IS PARTLY ALLOWED A ND EVEN NOW, THIS CONCLUSION DOES NOT CHANGE AND THE ASSESSEES APPEA L REMAINS PARTLY ALLOWED ALTHOUGH ONE MORE GROUND OF ASSESSEE STANDS ALLOWED I.E. GROUND NO.3 AS PER THIS ORDER. 8. IN THE RESULT, MA OF ASSESSEE STANDS ALLOWED IN THE TERMS INDICATED ABOVE. ORDER PRONOUNCED IN OPEN COURT ON THE DATE MENTIONE D HEREINABOVE AT CAPTION PAGE. SD/- SD/- (A.K.GARODIA) (KUL BHA RAT) (ACCOUNTANT MEMBER) (JUDICIAL MEMBER) *DKP %&'- 14/12/12012 -./ 0 $ $ $ $ 1 1 1 1 / COPY OF ORDER FORWARDED TO:- 1. / APPELLANT 2. / RESPONDENT 3. &/& 4 / CONCERNED CIT 4. 4- / CIT (A) 5. 67 , , -./ / DR, ITAT, AHMEDABAD 6. 7: ;< / GUARD FILE. BY ORDER/ $ , /TRUE COPY/ =/- &> , -./ 0 STRENGTHEN PREPARATION & DELIVERY O F ORDERS IN THE ITAT 1) DATE OF TAKING DICTATION 12/12 2) DIRECT DICTATION BY MEMBER STRAIGHT ON COMPUTER/LAPTOP/DRAGON DICTATE NO 3) DATE OF TYPING & DRAFT ORDER PLACE BEFORE MEMBER 12/12 4) DATE OF CORRECTION 13/12 5) DATE OF FURTHER CORRECTION - - 6) DATE OF INITIAL SIGN BY MEMBERS 13/12 7) ORDER UPLOADED ON 14/12 8) ORIGINAL DICTATION PAD-PART HAS BEEN ENCLOSED IN THE FILE YES 9) FINAL ORDER AND 2 ND COPY SEND TO BENCH CLERK ON 14/12