Income Tax Officer, Ward-1, Bhimavaram V. Vijaya Kiran Biotech, Bhimavaram

MA 4/VIZ/2019

• Counselvise Citation: [2022] 104 COUNSELVISE.COM (IT) 3148 (ITAT-VISAKHAPATNAM)
• Duration Of Justice: 3 year(s) 5 month(s) 28 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 21-08-2022
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Next Hearing Date: 28-07-2022
• Assessment Year: 2011-2012
• Appeal Filed On: 24-02-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Section: 273B; 271D

Judgement Text

आयकरअपीऱीयअधिकरण, विशाखापटणमपीठ, विशाखापटणम IN THE INCOME TAX APPELLATE TRIBUNAL, VISAKHAPATNAM BENCH, VISAKHAPATNAM श्रीद ु व्ि ू रुआरएऱरेड्डी, न्याययकसदस्यएिंश्रीएसबाऱाक ृ ष्णन, ऱेखासदस्यकेसमक्ष BEFORE SHRI DUVVURU RL REDDY, HON’BLE JUDICIAL MEMBER & SHRI S BALAKRISHNAN, HON’BLE ACCOUNTANT MEMBER MA No.4/Viz/2019 (In आयकरअऩीऱसं./ I.T.A. No.102/Viz/2018) (ननधधारणवषा/ Assessment Year :2011-12) The Income Tax Officer, Ward-1, Bhimavaram. Vs. Sri Vijaya Kiran Biotech, Bhimavaram. PAN: AAXFS 9979 H (अऩीऱधथी/ Appellant) (प्रत्यथी/ Respondent) अऩीऱधथीकीओरसे/ Assessee by : Sri GVN Hari, Advocate प्रत्यधथीकीओरसे/ Revenue by : Sri ON Hari Prasadarao, Sr. AR स ु नवधईकीतधरीख/ Date of Hearing : 29/07/2022 घोषणधकीतधरीख/Date of Pronouncement : 04/08/2022 O R D E R PER S. BALAKRISHNAN, Accountant Member : This Miscellaneous Application is filed by the Revenue U/s. 254(2) of the Act seeking rectification of the order passed by the ITAT, Visakhapatnam in ITA No.102/Viz/2018, dated 5/9/2018 for the AY 2011-12. 2 2. Before us, at the outset, the Ld. DR submitted that the core issue involved in the main appeal ITA No.102/Viz/2018 relates to the penalty levied U/s. 271D of the Act and the Tribunal vide its order dated 5/9/2018 deleted the penalty and allowed the appeal of the assessee based on the arguments of the assessee. The Ld. DR further submitted that while allowing the assessee’s appeal the Tribunal observed that the assessee had accepted the cash loans directly paid into the bank account from two creditors of Rs.5 lakhs each in order to clear the cheque issued to M/s. Rallis India Ltd for Rs. 22,94,453/- and thus there was business exigency. The Ld. DR further submitted that since the payment made to M/s. Rallis India Ltd was through the assessee’s bank account ING Vysya Bank which is having Over Draft facility and the assessee had sufficient sources at that point of time for making payment to M/s. Rallies India Ltd. Therefore, it is the submission of the Ld. DR that the assessee had not brought these facts to the notice of the Hon’ble Bench and misrepresented the facts by stating that there was shortage of funds and due to business exigencies, the loans were accepted by way of cash credits. Therefore, the Ld. DR vehemently argued that to this extent the finding of the Hon’ble Tribunal is a mistake apparent on record and contrary to the facts available on record and hence 3 Ld. DR pleaded that the order of the Tribunal may be rectified / modified to this extent and pass appropriate orders as the Tribunal deemed fit. Per contra, the Ld. Authorized Representative heavily relied on the order of the Tribunal and supported the decision of the ITAT. 3. We have heard both the sides and carefully gone through the order of the Tribunal dated 5/9/2018. It is an undisputed fact that the main issue involved in the appeal ITA No.102/Viz/2018 is the leviability of the penalty U/s. 271D of the Income Tax Act, 1961 [“the Act”]. On this issue after considering the arguments as well as the submissions of both the parties [Ld. AR & Ld. DR] the Tribunal granted relief to the assessee and allowed the appeal. Relevant portion of the Tribunal’s order dated 5/9/2018 is extracted herein below for reference: “6.2. ............In the instant case, the assessee had accepted the loans which were directly paid in the bank account on 28.02.2011 and the cheque issued to M/s Rallis India Ltd. was cleared on 04.03.2011 for an amount of Rs.22,94,453/-. The AO/JCIT has not given any finding with regard to the availability of sufficient balances in the bank account to meet the cheques issued to Rallis India Ltd., during the intervening period from 28.02.2011 to 04.03.2011. The above observation establishes that the assessee had accepted the 4 loans, otherwise than by account payee cheque to meet the dues payable to Rallis India Ltd. on 28.02.2011 due to business exigencies. Therefore, there is no reason to suspect the business exigency and pressing need of the assessee as explained by the assessee during the course of assessment proceedings. Therefore, we are of the considered opinion that the assessee had accepted the loan on 28.02.2011 due to business exigencies. The AO has neither doubted the genuineness of the transaction nor disputed the source of the creditors. Therefore, we hold that there is sufficient and reasonable case for accepting the loans of Rs.10,00,000/- otherwise than by crossed cheque. Hence we hold that the assessee’s case is covered u/s 273B for not imposing penalty u/s 271D of the Act. Accordingly, the order of the lower authorities is set aside and the appeal of the assessee is allowed.” 4. From the above, it is clearly apparent that before allowing the appeal in favour of the assessee the Tribunal observed that the “ AO/JCIT has not given any finding with regard to the availability of sufficient balances in the bank account to meet the cheques issued to Rallis India Ltd., during the intervening period from 28.02.2011 to 04.03.2011”. 5. Now, before the Tribunal, by way of this Miscellaneous Application, the Ld. DR submitted that while making payment to M/s. Rallis India Ltd., the assessee was having sufficient over draft facility to the account with ING Vysya Bank through which the payment of Rs. 22.94 lakhs was made and this fact was suppressed by the assessee and stated before the Tribunal that due to business exigencies, the assessee accepted the loans from the creditors. This argument was made by the Ld. DR for the first time before the Bench at the time of hearing of this Miscellaneous 5 Application and we made it clear that such argument was never before the Tribunal while hearing of the appeal ITA No.102/Viz/2018 and therefore this argument cannot be taken into record. 6. Therefore, we are of the considered opinion that the Tribunal had given its decision based on the material available on record as well as based on the arguments of the both the parties at the time of hearing of the appeal ITA No.102/Viz/2018 and passed the order. Hence, in our considered view there is no mistake apparent in the order of the Tribunal which needs rectification and accordingly we dismiss the Miscellaneous Application raised by the Revenue. 7. In the result, Miscellaneous Application filed by the Revenue is dismissed. Pronounced in the open Court on the 22 nd August, 2022. Sd/- Sd/- (द ु व्ि ू रुआर.एऱरेड्डी) (एसबाऱाक ृ ष्णन) (DUVVURU RL REDDY) (S.BALAKRISHNAN) न्याययकसदस्य/JUDICIAL MEMBER ऱेखासदस्य/ACCOUNTANT MEMBER Dated : 22.08.2022 OKK - SPS 6 आदेशकीप्रतिलिपिअग्रेपिि/Copy of the order forwarded to:- 1. ननधधाररती/ The Assessee– Sri Vijaya Kiran Biotech, D.No.16-4-23, P.P. road, Opp. Kesineni Travels, Bhimavaram, Andhra Pradesh. 2. रधजस्व/The Revenue –Income Tax Officer, Ward-1, Aayakar Bhavan, JP Road, Bhimavaram-534202. 3. The Principal Commissioner of Income Tax-1, Rajamahendravaram. 4. आयकरआय ु क्त (अऩीऱ)/ The Commissioner of Income Tax (Appeals)-12, Hyderabad. 5. ववभधगीयप्रनतननधध, आयकरअऩीऱीयअधधकरण, ववशधखधऩटणम/ DR,ITAT, Visakhapatnam 6. गधर्ाफ़धईऱ / Guard file आदेशधन ु सधर / BY ORDER Sr. Private Secretary ITAT, Visakhapatnam