Shri Sanjay Bhanwarlal Hundia, Ahmedabad V. The Income Tax Officer, Ward-4(4), Ahmedabad

MA 184/AHD/2017

• Counselvise Citation: [2018] 124 COUNSELVISE.COM (IT) 6680 (ITAT-AHMEDABAD)
• Duration Of Justice: 11 month(s) 15 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 06-06-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2009-2010
• Appeal Filed On: 21-06-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: SAURABH SINGH
• Keywords: Notional interest

Judgement Text

, ,L ,L,L ,L- -- -,E ,E,E ,E- -- -LH LHLH LH IN THE INCOME TAX APPELLATE TRIBUNAL SMC BENCH, AHMEDABAD BEFORE SHRI RAJPAL YADAV, JUDICIAL MEMBER MISC. APPLICATION NO. 184/AHD/2017 (IN ITA NO. 01/AHD/2014) / ASSESSMENT YEAR: 2009-10 SANJAY BHANWARLAL HUNDIA, 10-B, SUMATINAGAR SOCIETY, NR. SINDHI HIGH SCHOOL, USMANPURA, AHMEDABAD 13 VS. INCOME TAX OFFICER, WARD 4(4), AHMEDABAD. ./ ./ PAN/GIR NO. : AASPH 6788 G / (APPELLANT) / (RESPONDENT) REVENUE BY : MS. ASTHA MANIAR, A.R. ASSESSEE BY : SHRI SAURABH SINGH, SR.D.R. !' / DATE OF HEARING : 01/06/2018 #$%& !' /DATE OF PRONOUNCEMENT : 06/06/2018 ORDER THE PRESENT MISCELLANEOUS APPLICATION IS DIRECTED A T THE INSTANCE OF THE ASSESSEE POINTING OUT APPARENT ERRORS IN THE ORDER OF THE TRIBUNAL DATED 06/02/2017 PASSED IN ITA NO. 01/AHD/2014. 2. IT IS PLEADED IN THE APPLICATION THAT HONBLE IT AT HAS CONFINED ITS FINDING QUA ALLEGED GROUND NO.3 RAISED BEFORE THE CIT(A) WHERE AS, NO SUCH GROUND HAS BEEN RAISED BY THE ASSESSEE IN THE MEMORANDUM OF APPEAL FILED BEFORE THE TRIBUNAL. THE GROUND RAISED BY THE ASSESSEE MA NO.184/AHD/2017(IN ITA NO.01/AHD/2014) SANJAY BHANWARLAL HUNDIA VS. ITO A.Y. 2009-10 - 2 REMAINS TO BE ADJUDICATED. LD. DR ON THE OTHER HAND COULD NOT CONTROVERT THIS SUBMISSION OF THE LEARNED COUNSEL F OR THE ASSESSEE. 3. I HAVE DULY CONSIDERED THE RIVAL CONTENTIONS AND GONE THROUGH THE RECORD CAREFULLY. THE ORDER PASSED BY THE TRIBUNAL IS VERY BRIEF, IT READS AS UNDER: DATE OF HEARING : 09/12/2016 DATE OF PRONOUNCEMENT IN COURT : 06/02/2017 VKNSK@ VKNSK@ VKNSK@ VKNSK@ ORDER THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF THE LEARNED COMMISSIONER OF INCOME-TAX (APPEALS)-III, AHMEDABAD DATED 13.11.2013 FOR ASSESSMENT YEAR 2009-10. 2. THE GROUNDS RAISED ARE AS UNDER:- 1. IN HIS ORDER DATED 22.122011, THE LD. AO HAS ERR ED IN LAW BY MAKING A DISALLOWANCE OF RS.13,16,910/- OUT OF INTE REST EXPENSES U/S 36[1][III] WITHOUT IDENTIFYING THE FACTS OF THE CASE AND REAL NATURE OF TRANSACTIONS INVOLVED. THE CIT(A) HAS ERR ED IN LAW BY CONFIRMING THE SAME. 2. ANY OTHER GROUND OF APPEAL SHALL BE SUBMITTED AT THE TIME OF HEARING. 3. THE LD. COUNSEL FOR THE ASSESSEE CONTENDS THAT THE ASSESSEE HAS RAISED GROUND NO.3 AS UNDER, WHICH HAS NOT BEEN DECIDED BY ID. CIT(A):- ADDITION HAS DIRECTLY BEEN ADDED TO TOTAL INCOME AN D LOSSES HAS NOT BEEN DEDUCTED THEREFROM AS SHOWN IN S.T.I. AS C/F THEREFORE, THE ISSUE MAY BE SET ASIDE AND RESTORED BACK TO DECIDE THE SAME AFRESH. BESIDES, THE MERITS OF THE ASSESSEE'S CASE APROPOS MAIN GROUND ALSO HAVE NOT BEEN CONSIDERED. 4. THE LD. DR, ON THE OTHER HAND, VEHEMENTLY CONTENDS THAT:- (I) THERE APPEARS TO BE SOME MISCHIEF IN THE PAPERS FIL ED BEFORE THE ITAT INASMUCH AS THE GROUND NO.3 HAS BEEN WRITTEN B Y THE ASSESSEE IN HANDWRITING, WHEREAS THE OTHER GROUNDS ARE TYPED GROUNDS. THEREFORE, IT IS TO BE ASCERTAINED WHETHER THE GROUND NO.3 IS THERE IN THE PAPERS FILED BEFORE THE LD.CIT (A). IF IT IS FOUND THAT THIS GROUND WAS NOT RAISED, THEN THE ASS ESSEE IS LIABLE MA NO.184/AHD/2017(IN ITA NO.01/AHD/2014) SANJAY BHANWARLAL HUNDIA VS. ITO A.Y. 2009-10 - 3 FOR PROCEEDINGS TO MISLEAD THE ITAT AND FILE A WRON G MEMORANDUM OF APPEAL; (II) THE ASSESSEE HAS NOT RAISED ANY GROUND BEFORE THE ITAT THAT THE GROUND NO.3 WAS NOT DECIDED BY LD.CIT(A); (III) THE ASSESSING OFFICER HAS CONSIDERED ALL THE REPLIES OF THE ASSESSEE WHICH ARE COMMENTED UPON BY THE LD. CIT(A) ; THEREFORE, THE ASSESSEE'S APPEAL TO BE DISMISSED. 5. THE LD. COUNSEL FOR THE ASSESSEE, ON THE OTHER HAND, CONTENDS THAT THE ISSUE MAY BE GET VERIFIED FROM THE AUTHORITIES BELO W. 6. I HAVE HEARD THE RIVAL CONTENTIONS, PERUSED THE MATERIAL AVAILABLE ON RECORD AND GONE THROUGH THE ORDERS OF THE AUTHORITI ES BELOW. THERE IS SOME WEIGHT IN THE OBJECTIONS OF THE LD. DR. HOWEVER, IN ORDER TO EXPLORE THE TRUTH ABOUT RAISING GROUND NO.3, IT WILL BE DESIRABLE THA T THE VERIFICATION FILED BY THE ASSESSEE SHOULD BE VERIFIED. CONSEQUENTLY, THIS APP EAL IS SET ASIDE AND RESTORED BACK TO THE FILE OF THE LD. CIT(A) TO VERIFY WHETHE R THE GROUND NO.3 WAS IN FACT RAISED BEFORE HIM. IF IT IS SO, THE LD. CIT(A) MAY DECIDE THE SAME. IF IT IS FOUND THAT THE ASSESSEE HAD NOT RAISED THIS GROUND BEFORE THE LD. CIT(A) AND HAS INCORPORATED THE GROUND IN FORM NO.35 BY HANDWRITIN G TO MISLEAD THE ITAT, THEN A SERIOUS VIEW' IS TO BE TAKEN. IN THAT CASE, THE LD. CIT(A) MAY DECIDE THE ISSUE ABOUT FILING THE PROCEEDINGS AGAINST THE ASSE SSEE FOR MAKING A WRONG VERIFICATION AS PER THE PROVISIONS OF LAW AND OTHER SUITABLE ACTION WHICH THE FACTS OF THE SITUATION MAY CALL FOR. THEREFORE, THE APPEAL IS ACCORDINGLY SET ASIDE FOR THIS LIMITED PURPOSE. 7. IN THE RESULT, ASSESSEE'S APPEAL IS ALLOWE D FOR STATISTICAL PURPOSES. SD/- R. P. TOLANI (JUDICAL MEMBER) AHMEDABAD; DATED 06/02/2017 4. A PERUSAL OF THE ABOVE ORDER WOULD INDICATE THAT ASSESSEE HAS RAISED ONLY TWO GROUNDS OF APPEAL OUT OF WHICH GROU ND NO.2 IS GENERAL GROUND, WHICH DOES NOT CALL FOR RECORDING OF ANY FI NDING. IN GROUND NO.1, ASSESSEE HAS PLEADED THAT CIT(A) ERRED IN CON FIRMING THE DISALLOWANCE OF NOTIONAL INTEREST EXPENDITURE OF RS .13,16,910/-. IT APPEARS THAT SOME GROUND ALLEGED TO HAVE BEEN INCOR PORATED IN FORM MA NO.184/AHD/2017(IN ITA NO.01/AHD/2014) SANJAY BHANWARLAL HUNDIA VS. ITO A.Y. 2009-10 - 4 NO. 35(5) BEFORE THE CIT(A). LD. DR NOT POINT OUT W HETHER SUCH GROUND WAS ACTUALLY RAISED BEFORE THE CIT(A) OR NOT. TO MY MIND THE FINDING OF THE TRIBUNAL OUGHT TO BE CONFINED WITH THE PLEA RAI SED BY AN APPELLANT IN ITS APPEAL, IF SOME ERROR IS CREPT IN BEFORE THE LE ARNED FIRST APPELLATE AUTHORITY THEN IT WAS FOR THE REVENUE TO TAKE UP TH E ISSUE BEFORE THE CIT(A) AND IF AGGRIEVED THEN SHOULD HAVE FILED CROS S OBJECTION WITHIN THE TIME LIMIT AVAILABLE UNDER SUB-SECTION 4 OF SEC TION 253. AN APPARENT ERROR HAS CREPT IN THE FINDING OF TRIBUNAL, WHEREBY IT FAILS TO ADJUDICATE THE GROUND OF APPEAL RAISED BY THE ASSESSEE AND ENT ERTAINED AN ISSUE, WHICH WAS NEITHER A SUBJECT MATTER OF ASSESSEES AP PEAL NOR BASED ON ANY PLEADING OF THE REVENUE. THEREFORE, I DEEMED IT APP ROPRIATE TO RECALL THE ORDER OF THE TRIBUNAL AND RESTORE THE APPEAL TO ITS ORIGINAL NUMBER. REGISTRY IS DIRECTED TO LIST THE APPEAL FOR HEARING ON 24/08/2018. BOTH PARTIES ARE INFORMED IN THE OPEN COURT, THEREF ORE, NO NOTICE BE ISSUED. 5. IN THE RESULT, MA OF THE ASSESSEE IS ALLOWED. ORDER PRONOUNCED IN THE COURT ON 6 TH JUNE 2018 AT AHMEDABAD. SD/- (RAJPAL YADAV) JUDICIAL MEMBER AHMEDABAD; DATED, 06/06/2018 PRITI YADAV, SR.PS MA NO.184/AHD/2017(IN ITA NO.01/AHD/2014) SANJAY BHANWARLAL HUNDIA VS. ITO A.Y. 2009-10 - 5 !' # $%& '!&$ / COPY OF THE ORDER FORWARDED TO : 1. ' ( / THE APPELLANT 2. )* ( / THE RESPONDENT. 3. +,-! .! / CONCERNED CIT 4. .! (' ) / THE CIT(A) 5. 123 )!,- , ' ' ',-& , / DR, ITAT, AHMEDABAD. 6. 34 5 / GUARD FILE. !' ( ) / BY ORDER, */) +, (DY./ASSTT.REGISTRAR) , / ITAT, AHMEDABAD TRUE COPY 1. DATE OF DICTATION- 01/06/2018 (DICTATION-PAD 2 PAGES ATTACHED AT THE END OF THIS FILE) 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER 05/06/2018 3. OTHER MEMBER .. 4. DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR.P. S./P.S.- 5. DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE D ICTATING MEMBER FOR PRONOUNCEMENT . 6. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK.. 7. DATE ON WHICH THE FILE GOES TO THE HEAD CLERK . 8. THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT RE GISTRAR FOR SIGNATURE ON THE ORDER.. 9. DATE OF DESPATCH OF THE ORDER