TRIMURTY BUILDCON P LTD, Jaipur V. DCIT, Jaipur

MA 34/JPR/2018

• Counselvise Citation: [2018] 124 COUNSELVISE.COM (IT) 6799 (ITAT-JAIPUR)
• Duration Of Justice: 3 month(s) 6 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 04-06-2018
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: B
• Assessment Year: 2012-2013
• Appeal Filed On: 26-02-2018
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: POONAM RAI DCIT DR DHK

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHES , JAIPUR JH FOT; IKY JKO ] U;KF;D LNL; ,O JH HKKXPUN] YS[KK LNL; DS LE{K BEFORE: SHRI VIJAY PAL RAO, JM & SHRI BHAGCHAND, AM MISC. APPLICATION NO. 33 & 34/JP/2018 (ARISING OUT OF VK;DJ VIHY LA-@ ITA NO. 293/JP/2016 & 313/JP/2017) FU/KZKJ.K O'K Z@ ASSESSMENT YEAR : 2011-12 & 2012-13 M/S. TRIMURTY BUILDCON PVT. LTD 601, GEETA ENCLAVE, VINOBHA MARG, C-SCHEME, JAIPUR CUKE VS. THE ACIT CENTRAL CIRCLE-3 JAIPUR LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN/GIR NO .: AABCT 7285 Q VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT FU/KZKFJRH DH VKSJ LS@ ASSESSEE BY: SHRI ROHAN SOGANI, CA & SHRI RAJEEV SOGANI, CA JKTLO DH VKSJ LS@ REVENUE BY:SMT. POONAM RAI, DCIT- DR LQUOKBZ DH RKJH[K@ DATE OF HEARING : 11/05/2018 ?KKS'K .KK DH RKJH[K@ DATE OF PRONOUNCEMENT : 04 /06/2018 VKNS'K@ ORDER PER BHAGCHAND, AM BOTH THESE MISCELLANEOUS APPLICATIONS HAVE BEEN F ILED BY THE ASSESSEE SEEKING RECTIFICATION IN THE ORDER PASSED IN ITA NO S.293/JP/2016 AND 313/JP/2017 DATED 29-08-2017. IN THE RESPECTIVE MISCELLANEOUS APPLICATIONS, THE ASSESSEE HAS REQUESTED TO RECTIFY THE MISTAKE U/S 254(2) OF THE ACT WITH FOLLOWING PRAYER. M.A. NO. 33/JP/2018 (A/O ITA NO.292/JP/2016 A.Y . 2011-12 ) 3. THAT WITH DUE RESPECT, CERTAIN ERRORS HAVE C REPT IN THE SAID ORDER OF HON'BLE ITAT WHICH ARE MISTAKE APPARENT FROM THE RECORDS AS DETAILED IN THE PARAGRAPH BELOW. MA NO. 33/JP/2018 M/S. TRIMURTY BUILDCON (P) LTD. V S ACIT, CENTRAL CIRCLE-3, JAIPUR . 2 4 THAT DURING THE COURSE OF HEARING, BEFORE THE HO N'BLE ITAT IT WAS CONTENDED THAT M/S. TRIMURTY LANDCON INDIA PVT. LTD (TLIPL) WAS NOT RELATED PARTY IN ACCORDANCE WITH SECTION 40A(2) (B) OF I.T. ACT, 1961. THE SUBMISSION IN THIS REGARD IS APPEARING AT PAGE 5 OF GIST OF SUBMISSION, PLACED BEFORE HON'BLE ITAT, JAIPUR BENC H AT THE TIME OF HEARING. 5. THAT IT WAS FURTHER CONTENDED THAT SINCE TLIPL WAS NOT A RELATED PARTY, RIGORS OF SECTION 40A(2)(A) WOULD NO T APPLY TO INTEREST PAID BY ASSESSEE COMPANY TO TLIPL. 6. THAT IN THE ABOVE FACTUAL AND LEGAL BACKGROUND, IT WAS PLEADED BEFORE THE HON'BLE ITAT THAT THE RATE OF INTEREST I .E. 17.50% AT WHICH INTEREST WAS PAID TO TLIPL SHOULD BE ACCEPTED AND N OT PART OF SUCH INTEREST EXPENSES SHOULD BE DISALLOWED. 7. THAT THE HON'BLE ITAT, AT PAGE 7 OF ITS ORDER, ACCEPTED THE PLEA OF THE ASSESSEE COMPANY THAT TLIPL WAS NOT A RELATE D PARTY. HOWEVER, THE HON'BLE ITAT WHILE PASSING THE ORDER DID NOT AD JUDICATE THE ABOVE MENTIONED LEGAL CONTENTIONS THAT IN CASE OF INTERES T PAID TO ANY UNRELATED PARTY THE SAME SHOULD BE ACCEPTED WITHOUT ANY DISALLOWANCE. 8. THAT HON'BLE ITAT WHILE PASSING THE ORDER ON AD HOC BASIS CONSIDERED A RATE OF14% TO BE REASONABLE. 9. THAT IT WAS ALSO CONTENDED BEFORE HON'BLE ITAT SINCE THE ASSESSEE COMPANY PAID INTEREST AT THE RATE OF 17.50 % P.A. TO AN UNRELATED ENTITY I.E. TLIPL INTEREST PAID TO UDAY K ANTH MISHRA, A RELATED PARTY, @ 18% SHOULD BE ALLOWED AT LEAST TO THE EXTENT OF 17.50% P.A. 10. THAT THE HON'BLE ITAT WHILE SETTING OUT SUCH I NTEREST RATE OF 14% P.A. AS REASONABLE, MISSED OUT THE FACT THAT AS PER ITS OWN FINDING, COMPARABLE INTEREST TO UNRELATED PARTY WAS 17.5% AN D THEREFORE ADOPTING THE COMPARABLE RATE AT 14% WAS MISTAKE APP ARENT FROM RECORD. 11. THUS THE HON'BLE ITAT IS HUMBLY PRAYED TO RECA LL ITS ORDER DATED 29-08-2017 FOR RECONSIDERATION AND TO PASS OR DER AFTER CONSIDERING THE FACTS AND ALSO THE SUBMISSIONS OF T HE ASSESSEE COMPANY. MA NO. 33/JP/2018 M/S. TRIMURTY BUILDCON (P) LTD. V S ACIT, CENTRAL CIRCLE-3, JAIPUR . 3 M.A. NO. 34/JP/2018 (A/O ITA NO.313/JP/2017 A.Y. 2012-13 3. THAT WITH DUE RESPECT, CERTAIN ERRORS HAVE CR EPT IN THE SAID ORDER OF HON'BLE ITAT WHICH ARE MISTAKE APPARENT FROM THE RECORDS AS DETAILED IN THE PARAGRAPH BELOW. 4 THAT IN THE IMMEDIATELY PRECEDING FINANCIAL YEAR , THE ASSESSEE COMPANY HAD MADE INTEREST PAYMENT AT THE RATE OF 17 .50% TO M/S. TRIMURTY LANDCON INDIA PVT. LTD. THE SAID COMPANY W AS NOT A RELATED PARTY OF THE ASSESSEE COMPANY. 5. THAT BY GIVING REFERENCE TO SUCH FACTUAL POSITI ON, IT WAS PLEADED BEFORE HON'BLE ITAT THAT THE RATE OF INTEREST OF 17 .50% PAID TO UNRELATED PARTY I.E. M/S. TRIMURTY LANDCON INDIA PV T. LTD. DURING THE IMMEDIATELY PRECEDING FINANCIAL YEAR SHOULD BE CONS IDERED AS A BENCHMARK FOR DECIDING THE REASONABLENESS AT WHICH THE INTEREST WAS PAID DURING THE RELEVANT PREVIOUS YEAR. 6. THAT THE HON'BLE ITAT WHILE DECIDING THE APPEAL OF THE IMMEDIATELY PRECEDING YEAR ACCEPTED THE FACT THAT M /S. TRIMURTY LANDCON INDIA PVT. LTD WAS AN UNRELATED PARTY IN TE RMS OF SECTION 40A(2)(A) OF I.T. ACT, 1961. HOWEVER, THE HON'BLE I TAT DID NOT ADJUDICATE THE MATTER THAT WHEN INTEREST RATE AT 17 .50% WAS PAID TO UNRELATED PARTY THE SAME SHOULD BE CONSIDERED AS RE ASONABLE. 7. THAT THE ASSESSEE COMPANY HAS ALSO FILED A MISC . APPLICATION UNDER SECTION 254(2) FOR THE IMMEDIATELY PRECEDING YEAR I.E. A.Y. 2011-12 WITH REGARD TO THE INTEREST RATE CONSIDERED , BY THE HON'BLE BENCH TO BE REASONABLE WHILE PASSING THE ORDER DATE D 29-08-2017 IN ITA NO.293/JP/2016. 8. THUS THE HON'BLE ITAT IS HUMBLY PRAYED TO RECAL L ITS ORDER DATED 29-08-2017FOR CONSIDERATION AND TO PASS ORDER AFTER CONSIDERING THE FACTS AND ALSO THE SUBMISSION OF THE ASSESSEE C OMPANY. 2.1 ON THE OTHER HAND, THE LD. DR OPPOSED THE MISC . APPLICATIONS FILED BY THE LD.AR OF THE ASSESSEE AND SUBMITTED THAT THE LD.AR OF THE ASSESSEE BY THESE MISC. APPLICATIONS WANTS TO THE GET THE ITAT ORDER REVIEW ED. 2.2 AFTER HEARING BOTH THE SIDES AND PERUSING THE M ATERIALS AVAILABLE ON RECORD, THE BENCH NOTED THAT THE ITAT, JAIPUR BENCH WHILE ADJUD ICATING UPON THE APPEALS OF THE ASSESSEE HAD PASSED THE ORDER DATED 29-08-2017 JUD ICIOUSLY. HOWEVER, THE ASSESSEE MA NO. 33/JP/2018 M/S. TRIMURTY BUILDCON (P) LTD. V S ACIT, CENTRAL CIRCLE-3, JAIPUR . 4 HAS FILED THE MISC. APPLICATIONS RAISING THE GROUN DS (SUPRA). THE BENCH HAS TAKEN CARE OF THE GROUNDS RAISED IN THE MISC. APPLICATIONS BU T IT DID NOT FIND ANY INFIRMITY IN THE ORDER OF ITAT WHICH REQUIRES RECTIFICATION. IN THIS VIEW OF THE MATTER, WE FIND NO MERIT IN THE MISC. APPLICATIONS OF THE ASSESSEE, BY DISMI SSING THE GROUNDS RAISED THEREIN. THUS BOTH THE MISC. APPLICATIONS OF THE ASSESSEE AR E DISMISSED. 3.0 IN THE RESULT, THE MISCELLANEOUS APPLICATIONS F ILED BY THE ASSESSEE ARE DISMISSED. SD/- SD/- FOT; IKY JKO HKKXPUN (VIJAY PAL RAO) ( BHAGCHAND) U;KF;D LNL; / JUDICIAL MEMBER YS[KK LNL;@ ACCOUNTANT MEMBER TK;IQJ@ JAIPUR FNUKAD@ DATED:- 04 /06/ 2018 *MISHRA VKNS'K DH IZFRFYFI VXZSF'KR@ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ@ THE APPELLANT- M/S. TRIMURTY BUILDCON (P) LTD., JA IPUR 2. IZR;FKHZ@ THE RESPONDENT- THE ACIT, CENTRAL CIRCLE-3, JAIPUR , 3. VK;DJ VK;QDRVIHY@ CIT(A). 4. VK;DJ VK;QDR@ CIT, 5. FOHKKXH; IZFRFUF/K] VK;DJ VIHYH; VF/KDJ.K] T;IQJ@ DR, ITAT, JAIPUR 6. XKMZ QKBZY@ GUARD FILE (MA NO. 33 & 34/JP/2018) VKNS'KKUQLKJ@ BY ORDER, LGK;D IATHDKJ@ ASSISTANT. REGISTRAR