M/s. Apex Therm Packaging Pvt.Ltd., Surat V. The Income tax Officer,Ward-1(1), Surat

MA 36/AHD/2013

• Counselvise Citation: [2013] 124 COUNSELVISE.COM (IT) 0156 (ITAT-AHMEDABAD)
• Duration Of Justice: 1 month(s) 13 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 19-04-2013
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: A
• Assessment Year: 2006-2007
• Appeal Filed On: 07-03-2013
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Section: 234B; 68

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH AHMEDABAD (BEFORE SHRI G. C. GUPTA, VP AND SHRI A. MOHAN ALAN KAMONY, AM) MA NO.36/AHD/2013 [IN ITA NO.253/AHD/2010 & C. O. NO.33/AHD/2010 FOR A. Y.: 2006-07) APEX THERM PACKAGING PVT. LTD., 5006, TRADE HOUSE, RING ROAD, SURAT P. A. NO. AAECA 0982 C VS THE INCOME TAX OFFICER, WARD 1 (1), ROOM NO.111, AAYAKAR BHAVAN, MAJURA GATE, SURAT (APPLICANT ) (RESPONDENT) APPLICANT BY SHRI R. K. MALPANI, AR RESPONDENT BY SHRI RAHUL KUMAR, SR. DR DATE OF HEARING: 05-04-2013 DATE OF PRONOUNCEMENT: 19-04-2013 ORDER PER A. MOHAN ALANKAMONY : THIS MISC. APPLICATION IS FILED BY THE ASSESSEE POINTING OUT THE FOLLOWING MISTAKES IN THE ORDER OF THE TRIBUNAL IN ITA NO.253/AHD/2010 AND C.O. NO.33/AHD/ 2010 DATED 15- 02-2013, FOR THE ASSESSMENT YEAR 2006-07:- 1). THE DECISION CITED BY THE ASSESSEE IN THE CASE CIT VS RANCHHOD JIVABHAI NAKHAVA IN APPEAL NO.50 OF 2011, GUJARAT WAS LOST SIGHT OF AND THE RATIO CONTAINED THEREIN H AS NOT BEEN FOLLOWED. 2) WITH RESPECT TO LOAN RECEIVED FROM R. L. AGARWAL & SONS OF RS.12,50,000/- PAGE 58 TO 65 AND 174 TO 177 [QUESTI ON NOS. 17 TO 21] OF THE PAPER BOOK WAS NOT TAKEN INTO CONS IDERATION WHICH HAVE ESTABLISHED THAT THE LOAN RECEIVED WAS G ENUINE. MA NO.36/AHD/2013 (AY 2006-07) (IN ITA NO.253/AHD/2010 & C. O. NO.33/2010) APEX THERM PACKAGING VS ITO, W-1 (1), SURAT 2 3). THE FOLLOWING GROUNDS RAISED IN THE C. O. BY TH E ASSESSEE REMAINS TO BE ADJUDICATED:- (A) THAT THE HONBLE CIT(A) HAS ERRED IN UPHOLDING ADDITION OF RS.2 LACS IN RESPECT OF UNSECURED LOAN RECEIVED BY THE APPELLANT COMPANY FROM SHRI OM PRAKASH SHARMA U/S 68 OF THE ACT. (B) THE HONBLE CIT(A) HAS ERRED IN SUSTAINING DISALLOWANCE OF INTEREST EXPENDITURE OF RS.11,770/- ON ABOVE LOAN. (C) THE HONBLE CIT(A) HAS ERRED IN SUSTAINING THE ADDITION WITH RESPECT TO INTEREST CHARGED U/S 234B OF THE AC T. (D) THE APPELLANT CRAVES LEAVE TO ADD, ALTER, DELET E OR MODIFY ANY GROUNDS OF APPEAL. 2. ON PERUSING THE ORDER OF THE TRIBUNAL IT IS PER TINENT TO MENTION THAT IN PARA 8 OF THE ORDER THE OBSERVATION S OF THE LEARNED AO IN HIS REMAND REPORT DATED 09-11-2009 HAS BEEN S UMMARIZED AND RELIED UPON BASED ON WHICH THE BENCH ARRIVED AT A C ONCLUSION IN PARA 9 PAGE NO.10 OF THE ORDER THAT THE CASE LAWS RELI ED ON BY THE ASSESSEE DO NOT COME TO HIS RESCUE. THEREFORE, THE BENCH HAS CONSIDERED THE ONLY CASE LAW CITED BY THE ASSESSEE SUPRA AND HENCE, THERE IS NO MISTAKE APPARENT ON RECORD IN TH E ORDER OF THE TRIBUNAL ON THIS REGARD. FURTHER, FOR ANY SUBMISSION BEFORE THE REVENUE THE TEST LAID DOWN BY THE HONBLE SUPREME C OURT IN THE DECISION OF THE CASE SUMATI DAYAL VS CIT, 214 ITR 8 01 WITH RESPECT TO THEORY OF PREPONDERANCE OF PROBABILITY CANNOT BE LOST SIGHT OF. MA NO.36/AHD/2013 (AY 2006-07) (IN ITA NO.253/AHD/2010 & C. O. NO.33/2010) APEX THERM PACKAGING VS ITO, W-1 (1), SURAT 3 3. WITH RESPECT TO THE LOAN RECEIVED FROM SHRI RAT ANLAL AGARWAL OF R. L. AGARWAL & SONS, HUF, IT IS SUBMITT ED BY THE ASSESSEE THAT THE OBSERVATIONS IN THE REMAND REPORT WERE FACTUALLY INCORRECT WHICH WAS ESTABLISHED FROM THE PAPER BOOK PAGE NO.58 TO 65 AND 122 TO 177. THE BENCH WHILE RENDERING ITS D ECISION HAD RELIED ON THE OBSERVATIONS OF THE LEARNED AO IN HIS REMAND REPORT THAT SRI RATANLAL AGARWAL OF R. L. AGARWAL & SONS, HUF THOUG H APPEARED BEFORE THE LEARNED AO, COULD NOT EXPLAIN THE DETAIL S FURNISHED IN THE INCOME TAX RETURN AND ALSO HAD NOT MAINTAINED THE B OOKS OF ACCOUNTS. FURTHER, IT WAS OBSERVED BY THE LEARNED AO THAT CAS H WAS DEPOSITED ON THE SAME DAY THOUGH LOAN WAS EXTENDED TO THE ASS ESSEE BY CHEQUE. HOWEVER, IT IS CONTENDED BY THE LEARNED AR THAT PAGE 58 TO 65 AND 174 TO 177 OF THE PAPER BOOK WERE NOT CONSID ERED. THE LEARNED AR FURTHER ARGUED THAT QUESTION NO.17 TO 21 WHICH WAS RELIED UPON BY THE ASSESSEE WAS ALSO NOT CONSIDERED IN ARR IVING AT THE DECISION WHICH IS PLACED IN PAGE NO.177 TO 178 OF T HE PAPER BOOK. ON PERUSING THE PAPER BOOK WE FIND THAT THESE STATEMEN TS WERE RECORDED IN HINDI AND THE ASSESSEE HAS NOT PROVIDED THE ENGL ISH TRANSLATION OF THE SAME AND BY OVERSIGHT THE BENCH HAS NOT CONSIDE RED THE SAME. THEREFORE, IN THE INTEREST OF JUSTICE, WE RECALL TH E ORDER OF THE TRIBUNAL FOR CONSIDERING THIS ISSUE AFRESH. THUS GROUND NO.2 OF THE MISC. PETITION CITED HEREIN ABOVE IS ALLOWED IN FAVOUR OF THE ASSESSEE. 4. WITH RESPECT TO THE CROSS OBJECTION RAISED BY T HE ASSESSEE, ON EXAMINING THE ORDER OF THE TRIBUNAL WE DO AGREE THAT THE CROSS OBJECTION RAISED BY THE ASSESSEE WAS NOT ADJUDICATED AND TO THAT EXTENT WE HEREBY RECALL THE ORDER. MA NO.36/AHD/2013 (AY 2006-07) (IN ITA NO.253/AHD/2010 & C. O. NO.33/2010) APEX THERM PACKAGING VS ITO, W-1 (1), SURAT 4 5. SINCE WE HAVE RECALLED THE ISSUES WITH RE SPECT TO GROUND NO.2 AND 3 MENTIONED SUPRA, WE HEREBY DIRECT THE REGISTR Y TO POST THE CASE FOR HEARING IN DUE COURSE WITH RESPECT TO THE GROUNDS RECALLED AND INTIMATE BOTH THE PARTIES. 5. IN THE RESULT, THE MISC. APPLICATION OF THE ASS ESSEE IS PARTLY ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 19-04-2013 SD/- SD/- (G. C. GUPTA) VICE PRESIDENT (A. MOHAN ALANKAMONY) ACCOUNTANT MEMBER LAKSHMIKANT LAKSHMIKANT LAKSHMIKANT LAKSHMIKANTA AA A DEKA/ DEKA/ DEKA/ DEKA/- -- - COPY OF THE ORDER FORWARDED TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT CONCERNED 4. THE CIT(A) CONCERNED 5. THE DR, ITAT, AHMEDABAD 6. GUARD FILE BY ORDER ASST. REGISTRAR, ITAT, AHMEDABAD 1. DATE OF DICTATION: DIRECT ON COMPUTER 08-04-2 013/18-04-13 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE T HE DICTATING MEMBER: 19-04-13 OTHER MEMBER: 3. DATE ON WHICH APPROVED DRAFT COMES TO THE SR. P. S./P.S.: 4. DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE TH E DICTATING MEMBER FOR PRONOUNCEMENT: 5. DATE ON WHICH THE FAIR ORDER COMES BACK TO THE S R. P.S./P.S.: 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 REGISTRAR FOR SIGNATURE ON THE ORDER: 9. DATE OF DESPATCH OF THE ORDER: