A.C.I.T. AKOLA CIR., AKOLA, Akola V. SHRI ASHOKKUMAR GOKULCHAND SANANDA, Khamgaon

MA 3/NAG/2016

• Counselvise Citation: [2016] 124 COUNSELVISE.COM (IT) 4367 (ITAT-NAGPUR)
• Duration Of Justice: 1 month(s) 29 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 29-04-2016
• Appeal Filed By: Department
• Bench Allotted: DB
• Assessment Year: 2010-2011
• Appeal Filed On: 01-03-2016
• Court: TRIBUNAL
• Department Lawyers: R MOHANKUMAR
• Section: 37(1)

Judgement Text

IN TH E INCOME TAX APPELLATE TRIBUNAL NAGPUR BENCH: NAGPUR BEFORE SHRI MUKUL K. SHRAWAT, JUDICIAL MEMBER AND SHRI SHAMIM YAHYA, ACCOUNTANT MEMBER. M.A.NO. 0 3 /NAG/2016 ( IN ITA NO. 389 /NAG/201 4 : AY : 20 10 - 11 ) THE ASSISTANT COMMISSIONER OF INCOME TAX , AKOLA C IRCLE, MURTIZAPUR RD, AKOLA VS SHRI ASHOKKUMAR G. SANANDA PROP.M/S. RANA TRADERS, KHAMGAON, PAN: - ADPPS7551L (APPLIC ANT) (RESPONDENT) APPLICANT BY SHRI R. MOHANKUMAR, D.R. RESPONDENT BY SHRI K . P . DEWANI , A.R. DATE OF HEARING : - 1 5 /04/2016 DATE OF P RONOUNCEMENT: - 29 / 0 4 /2016 O R D E R PER SHRI SHAMIN YAHYA, A.M . T H IS IS AN APPEAL BY THE REVENUE IS DIRECTED AGAINST THE ORDER OF TH IS TRIBUNAL IN ITA NO. 38 9 /NAG/201 4 FOR A SSESSMENT Y EAR 20 1 0 - 11 VIDE ORDER DT. 04 / 12 /201 5 . 2. IN TH E MISCELLANEOUS APPLIC ATION , THE REVENUE HAS SUBMITTED AS UNDER: - THIS MISCELLANEOUS APPLICATION IS MOVED FOR THE REASON THAT IN ITA NO.389/NAG/2014 IN TRIBUNAL'S ORDER DATED 04/12/2015 THOUGH THE FOLLOWING GROUND OF APPEAL HAS BEEN SPECIFICALLY MENTIONED BY THE HON'BLE TR IBUNAL IN PARA 1 OF ITS ORDER, NO DISCUSSION HAS BEEN MADE BY THE HON'BLE TRIBUNAL IN RESPECT OF THE SAME IN THE BODY OF THE ORDER WHILE THE APPEAL ITSELF HAS BEEN DISMISSED IN CONCLUSION . 'ON THE FACTS AND CIRCUMSTANCE OF THE CASE THE LD. CIT(A) ERRED IN DELETING TH E ADDITION OF RS.18,13,601/ - (U/S 40A(2)(B) OF RS.3,55,8 31/ - AND U/S 37(1)(III)/ 37(1) OF RS.14,57, 770 / - ).' THE FACTS OF THE CASE ARE NARRATED AS UNDER: THE DEPARTMENT HAS FILED SECOND APPEAL BEFORE ITAT ON THE FOLLOWING THREE GROUNDS FOR THE YEAR UNDER CONSIDERATION I . E. FOR A . Y . 2010 - 11 . 2 MA NO. 03 /NAG/201 6 (IN ITA NO. 389 /NAG/201 4 ) A.M.SIR.(MBODKHE,P.S.) 1. ON THE FACTS AND CIRCUMSTANCES OF THE CASE THE LEARNED CIT(A) ERRED IN DELETING THE ADDITION OF RS.3,00,000/ - MADE BY THE AO ULS 40A(2)(B) OF THE I. T. ACT, 1961; 2. ON THE FACTS AND CIRCUMSTANCES O F THE CASE THE LEARNED CIT(A) ERRED IN DELETING THE ADDITION OF RS.18,13,601 / - (U / S 40A(2)(B) OF RS. 3, 55,831 / - AND U/ S 37(1)(III)137(1) OF RS.14,57,770 / - ); 3. ON THE FACTS AND CIRCUMSTANCES OF THE CASE THE LEARNED CIT(A) ERRED IN DELETING THE ADDITIO N OF RS.10,40,532 / - MADE BY THE A O ULS2(22)(E) OF THE I. T. ACT, 1961. W HILE DECIDING THESE GROUNDS, THE HON ' BLE ITAT IN PARA 4 OF ITS ORDER HAS MENTIONED FIRST ISSUE OF ADDITION OF RS.3 LAKHS U/S 40A(2)(B) AND HAS STATED THAT THE I SS U E I S S QUARELY COVE RED BY THE DECISION OF THE TRIBUNAL IN ASSESSEE ' S OWN CASE FOR A . Y . 2009 - 10 AND HAS REPRODUCED THE EARLIER DECISION OF THE TRIBUNAL . BUT THE FIRST GROUND OF APPEAL REGARDING ADDITION OF RS . 3 LAKHS U/S 40A(2)(B) ON ACCOUNT OF SALARY TO FATHER AND SON IS NOT COVERED BY THE EARLIER DECISION WHICH IS REPRODUCED AT PARA 4 OF THE ORDE R. THE EARLIER DECISION OF THE TRI BUNAL W HIC H HAS BEEN REPRODU CED IS RELATED TO ADDITION U/S 40A(2)(B) ON ACCOUNT OF PAY M ENT OF INTEREST AT HIGHER RATE TO RELATIVES OF THE ASSESSEE . T HEREFORE, THE DECISION QUOTED BY THE HON ' BLE TRIBUNAL MAY COVER GROUND NO . 2 OF THE APPEAL REGARDING ADDITION OF RS.3,55,8311 - U/S 40 (A) (2 ) (B) ON ACCOUNT OF PAYMENT OF INTEREST AT HIGHER RATE TO RELATIVES; BUT STILL THE ADDITION OF RS . 14,57,770/ - U/S 37( 1)(III)/37(1) ON ACCOUNT OF PAYMENT OF INTEREST AT HIG HER RATE TO PERSONS OTHER THAN RELATIVES REMAINS UNDECIDED. IN VIEW OF THE DISCUSSION IN FOREGOING PARAS , IT IS RESPECTFULLY BROUGHT TO THE NOTICE OF THE HON'BLE TRIBUNAL THAT THERE IS NO DISCUSSION O N GROUND NO . 1 OF THE APPEAL REGARDING ADDITION OF ACCOUNT OF SALARY TO FATHER AND SON OF THE ASSESSEE IN THE BODY OF THE ORDER . ALSO, THE PORTION OF THE GROUND NO. 2 REGARDING ADDITION OF RS.14,57,770/ - U/S 37(1)(III)/37(1) OF THE LT . ACT IS NOT DISC USS ED IN THE BODY OF THE ORDER IN ITA NO.389/NAG/2014 DATED 04/12/2015. THIS BEING A MISTAKE APPARENT FROM RECORD, MISCELLANEOUS APPLICATION IS FILED FOR A . Y . 201O - 11. IT IS THEREFORE PRAYED TO THE HON'BLE BENCH , ITAT NAGPUR TO DECIDE BOTH THE ABOVE ISSUES A FRESH AND AMEND ORDER IN ITA NO.389/NAG/2014 DATED 04/12/2015 TO THAT EFFECT. 3. UPON HEARING BOTH THE COUNSEL AND PERUSING THE RECORDS , WE FIND THAT THE ISSUE PERTAINING TO DISALLOWANCE WITH REGARD TO SALARY PAID PARTNERS U/ S.40A ( 2)(B) HAS NOT BEEN C ONSIDERED IN THE DISCUSSION , WHICH IS ONLY WITH RESPECT TO INTEREST DISALLOWANCE. FURTHERMORE THE ISSUE HAS BEEN CONSIDERED TO BE COVERED ON THE BASIS OF THE TRIBUNAL DECISION IN ASSESSEE OWN CASE WHICH WAS WITH RESPECT TO INTEREST PAID TO THE RELATIVES. 3 MA NO. 03 /NAG/201 6 (IN ITA NO. 389 /NAG/201 4 ) A.M.SIR.(MBODKHE,P.S.) H ENCE THE REVENUE PLEA THAT INTEREST PAID TO OTHERS HAVE BEEN MISTAKENLY CONSIDERED TO BE COVERED BY THE ABOVE DECISION IS ALSO CORRECT. ACCORDINGLY, WE RECALL OUR AFORESAID ORDER FOR CONSIDERING THE FOLLOWING: - 1. ISSUE OF DISALLOWANCE OF SALARY PAID TO PARTN ERS U/S.40A(2)(B). 2. ISSUE OF DISALLOWANCE OF INTEREST PAID THE PERSONS OTHER THAN RELATIVES. 4. ACCORDINGLY, THE AFORESAID TRIBUNAL ORDER IS RECALLED FOR CONSIDERING THE ABOVE ISSUE WHICH HAVE REMAINED UN ADJUDICATED. 5. IN THE RESULT, THIS MISCELLANEOUS APPLICA TION IS ALLOWED AS ABOVE. REGISTRY IS DIRECTED TO FIX THE CASE FOR HEARING IN NORMAL COURSE. ORDER PRONOUNC ED IN THE OPEN COURT ON THIS 29 TH DAY OF APRIL , 2016. SD/ - SD/ - (MUKUL K. SHRAWAT) ( SHAMIM YAHYA) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: - 29 / 04 /2016. MANGESH BODKHE/P.S. COPY FORWARDED TO : 1. APPLICANT 2. RESPONDENT 3. C.I.T., CONCERNE D 4. CIT (APPEALS) - I, NAGPUR. 5. D.R., ITAT, NAGPUR. 6. GUARD FILE TRUE COPY BY ORDER ASSISTANT REGISTRAR, INCOME TAX APPELLATE TRIBUNAL, NAGPUR BENCH, NAGPUR