M/s. K. Chimanlal & Co., (R.F.), Ahmedabad V. The Jt.CIT, Range-2, Ahmedabad

MA 292/AHD/2017

• Counselvise Citation: [2018] 124 COUNSELVISE.COM (IT) 6527 (ITAT-AHMEDABAD)
• Duration Of Justice: 5 month(s) 18 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 11-05-2018
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: 2011-2012
• Appeal Filed On: 23-11-2017
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Assessee Lawyers: S N DIVETIA
• Keywords: Corroborative evidences

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD SMC BENCH BEFORE: SHR I MAHAVIR PRASAD , JUDICIAL MEMBER AND SHRI AMARJIT SINGH, ACCOUNTANT MEMBER K. CHIMANLAL & CO. (R.F.), G - 15 NEW MADHUPURA MARKET, SHAHIBAUG, AHMEDABAD PAN: AAIFK7742H (APPELLANT) VS THE JCIT, RANGE - 2, AHMEDABAD (RESPONDENT) REVE NUE BY : S H RI MUDIT NAGPAL , SR. D . R. ASSESSEE BY: S H RI S.N. DIVETIA , A.R. DATE OF HEARING : 20 - 04 - 2 018 DATE OF PRONOUNCEMENT : 11 - 05 - 2 018 / ORDER P ER : AMARJIT SINGH, ACCOUNTANT MEMBER : - THE ASSESSEE HAS FILED MISCELLANEOUS APPLICATION IN ITA NO. 1281/AHD/2015 AS UNDER: - 1. THE APPLICANT ABOVE NAMED SUBMITS THIS MISC. APPLICATION U/S. 254(2) OF THE IT ACT 1961 (FOR SHORT 'THE ACT') FOR RESTORATION OF THE ORDER OF THE INCOME TAX APPELLATE TRIBUNAL, AHMEDABAD BENCH - SMC, AHMEDABAD, WHEREBY THE APPEAL OF THE APPLICANT HAS BEEN DISMISSED. 2. THE APPLICANT SUBMITS THAT BEING AGGRIEVED AND DISSATISFIED WITH THE ORDER PASSED U/S.250 OF THE ACT ON 10.02.2 015 BY CIT(A) - 10, AHMEDABAD, HE HAD PREFERRED AN APPEAL BEFORE THE APPELLATE TRIBUNAL WHEREIN THE APPLICANT HAD CHALLENGED THE DISALLOWANCE/ADDITION OF INTEREST EXPENSES OF RS.4,73,604/ - . M.A. NO. 292 /AHD/2017 (IN I T A NO . 1281 / A HD/20 15) A SSESSMENT YEAR 2011 - 12 M.A. NO. 292/AHD/2017(IN I.T.A NO. 1281 / AHD/2015 ) A.Y. 2011 - 12 PAGE NO K. CHIMANLAL & CO. VS. JCIT 2 3. THE AFORESAID APPEAL HAS BEEN DISMISSED ON THE GROUND THAT THE A PPLICANT HAD FAILED TO SUBSTANTIATE WITH SUPPORTING EVIDENCE WHY IT HAD NOT CHARGED INTEREST ON THE ADVANCES GIVEN WITHOUT INTEREST, THOUGH IT HAD PAID INTEREST ON ITS BORROWING. 4. THE APPLICANT SUBMITS WITH GREATEST RESPECT THAT THE HON. TRIBUNAL HAS FA ILED TO CONSIDER THE CONTENTIONS RAISED BY ITS AR DURING THE COURSE OF APPELLATE PROCEEDINGS. IT WAS CONTENDED BY AR THAT OUT OF THE INTEREST FREE ADVANCES GIVEN TO 5 PARTIES AS LISTED IN PARA - 5 OF THE ORDER OF ASSESSMENT, THE ADVANCES TO SHRI BHAVESH G SH AH HUF AND SHRI AMIT G SHAH HUF WERE GIVEN OUT OF BUSINESS EXPEDIENCY IN AS MUCH AS BOTH THE PARTIES HAD ALLOWED THE OFFICE THEIR PREMISES ADMEASURING ABOUT 3600 SQF. AT A NOMINAL RENT OF RS.16.66 PER SQF. AS AGAINST THE PREVAILING RATE OF RS.40/ - PER SQF. THE ATTENTION OF THE HON. TRIBUNAL WAS DRAWN TO PARA - 4 OF THE REPLY DATED 31.10.2013 PLACED IN THE PAPER BOOK. EVEN THE ATTENTION WAS ALSO DRAWN TO THE ANNEXURE - LLL TO THE TAX AUDIT REPOT GIVING PARTICULARS RELATING TO THE PAYMENTS COVERED U/S.40A(2)(B) W HICH INCLUDE AT SI. NO.5 FT 6 THE AFORESAID TWO PARTIES (SEE PAGE - 12 OF PAPER BOOK). THE APPLICANT HAD ALSO FILED THE LEDGER ACCOUNT OF BOTH THESE PARTIES AT PAGE - 28 - 29 OF THE PAPER BOOK. SECONDLY, IT WAS ALSO CONTENDED THAT THERE WAS AN OPENING DEBIT BALA NCE IN THE ACCOUNT OF AFORESAID BOTH THE PARTIES WHICH MEANS THAT NO FRESH ADVANCE WAS GIVEN DURING THE YEAR UNDER APPEAL. THEREFORE, RESPECTFULLY FOLLOWING THE DECISION IN CASE OF SRIDEV ENTERPRISE (192 ITR 165) (KAR), THE INTEREST COULD NOT BE DISALLOWED TO THE EXTENT OF THE OPENING BALANCE. 5. THE APPLICANT SUBMITS THAT NONE OF THE AFORESAID CONTENTIONS HAVE BEEN CONSIDERED WHILE DISPOSING OFF THIS APPEAL. UNDER THE ABOVE FACTS AND CIRCUMSTANCES, THE APPLICANT SUBMITS THAT THE ORDER PASSED BY THE HON'BL E TRIBUNAL MAY BE RECALLED AND THE APPEAL SHOULD BE FIXED FOR FRESH HEARING FOR DISPOSAL ON MERITS AFTER CONSIDERING THE AFORESAID CONTENTIONS, OTHERWISE IT WOULD CAUSE GREAT INJUSTICE AND HARDSHIP TO THE APPLICANT WITHOUT ANY CAUSE ATTRIBUTABLE TO IT. 6. THE APPLICANT STATES THAT THE ORDER OF THE TRIBUNAL DATED 11.10.2017 WAS RECEIVED BY THE APPLICANT ON 16.11.2017 SO THAT THE PRESENT APPLICATION IS WITHIN 6 MONTHS OF THE DATE OF RECEIPT OF THE ORDER. 7. NEEDLESS TO SAY FOR THIS ACT OF KINDNESS, THE APPL ICANT AS IN DUTY BOUND SHALL FOREVER PRAY AND REMAIN GRATEFUL. 2 WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE MATERIAL ON RECORD CAREFULLY. IN THIS MISC. APPLICATION , THE ASSESSEE HAS REITERATED THE SUBMISSION WHICH WAS FURNISHED BEFORE THE ASSES SING OFFICER AND LD. CIT(A) AND DURING THE COURSE OF APPELLATE PROCE EDINGS BEFORE THE COORDINATE BENCH . WE HAVE NOTICED THAT THE COORDINATE BENCH A FTER CONSIDERING THE MATERIAL ON RECORD VIDE ITA 1281/AHD/2015 DATED 11/10/2017 HAS DECIDED AS UNDER: - 6 . WE HAVE HEARD BOTH THE SIDES AND PERUSED THE MATERIAL ON RECORD. WE OBSERVED THAT THE ASSESSEE HAS BORROWED INTEREST BEARING FUND OF RS. 54,16,046/ - ON WHICH IT HAS PAID INTEREST OF RS. 4,73,604/ - . ON THE OTHER HAND, THE ASSESEE HAS ADVANCED ITS OWN F UND OF RS. 60,85,740/ - WITHOUT CHARGING ANY INTEREST. WE HAVE NOTICED THAT ASSESSEE FAILED TO SUBSTANTIATE WITH SUPPORTING EVIDENCES WHY IT HAS NOT CHARGED INTEREST ON THESE LOANS. WE ALSO FIND THAT LD. CIT(A) HAS ALSO ALLOWED PART RELIEF TO THE ASSESSE OF THE INTEREST AMOUNT OF RS. 4,73,604/ - WHICH IT HAS PAID ON THE UNSECURED LOAN M.A. NO. 292/AHD/2017(IN I.T.A NO. 1281 / AHD/2015 ) A.Y. 2011 - 12 PAGE NO K. CHIMANLAL & CO. VS. JCIT 3 OF RS. 54,16,046/ - . IN VIEW OF THE FACTS AND CIRCUMSTANCES AND AFTER CONSIDERING THE DETAILED FINDINGS OF THE LD. CIT(A), WE DO NOT FIND ANY REASON TO INTERFERE IN THE FIN DINGS OF THE LD. CIT(A), THEREFORE, THE APPEAL OF THE ASSESSEE IS DISMISSED. THE ASSESSING OFFICER HAS ADDED RS. 7,30,285/ - ON ACCOUNT OF NOT CHARGING INTERES T IN THE INTEREST FREE ADVANCES . T HE LD. CIT(A) HAS RESTRICTED THE DISALLOWANCE TO RS. 4 , 73 , 60 4/ - AFTER ALLOWING THE CLAIM OF THE ASSESSEE OF PAYMENT OF INTEREST MADE BY IT ON ITS BORROWED FUNDS. IN THIS MISC. APPLICATION, THE ASSESSEE REITERATED THE SAME SUBJECTIVE SUBMISSIO N THAT TWO PARTIES HAVE PROVIDED THEIR PERMISSION ON RENT TO T H E ASSESSEE ON CONCESSIONAL RENT BECAUSE OF WHICH NO INTEREST WAS CHARGED . THE COORDINATE BENCH WAS NOT CONVINCED WITH THE SUBMISSION OF THE ASSESSEE AND A FTER CONSIDERING THE MATERIAL ON RECORD THE DECISION OF THE LD. CIT(A) WAS UPHELD. WE FIND THAT ISSUE IN THE APPEAL WAS ADJUDICATED AFTER TAKING INTO CONSIDERATION ALL THE MATERIAL ON RECORD AND THERE IS NO OBVIOUS PATENT MISTAKE WHICH CAN BE RECTIFIED U/S. 254(2) OF THE ACT. THEREFORE, WE DO NOT FIND ANY MERIT IN THE MISC. APPLICATION OF THE ASSESSEE AND THE SA ME IS DISMISSED. 4. IN THE RESULT, THE MISC. APPLICATION FILED BY ASSESSEE IS DISMISSED. ORDER PR ONOUNCED IN THE OPEN C OURT ON 11 - 05 - 201 8 SD/ - SD/ - ( MAHAVIR PRASAD ) ( AMARJIT SINGH ) JUDICIAL MEMBER ACCOUNTANT MEMBER AHMEDABAD : DATED 11 /05 /2018 / COPY OF ORDER FORWARDED TO: - 1. ASSESSEE 2. REVENUE 3. CONCERNED CIT 4. CIT (A) 5. DR, ITAT, AHMEDABAD 6. GUARD FILE. BY ORDER/ , M.A. NO. 292/AHD/2017(IN I.T.A NO. 1281 / AHD/2015 ) A.Y. 2011 - 12 PAGE NO K. CHIMANLAL & CO. VS. JCIT 4 / ,