M/s Brigade Enterprises Ltd., Bangalore V. Joint Commissioner of Income Tax, (OSD), Circle-1(1)(2), Bangalore

MA 54/BANG/2018

• Counselvise Citation: [2018] 118 COUNSELVISE.COM (IT) 8936 (ITAT-BANGALORE)
• Duration Of Justice: 9 month(s) 23 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 19-12-2018
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: 2011-2012
• Appeal Filed On: 26-02-2018
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Assessee Lawyers: PADAMCHAND KHINCHA

Judgement Text

MP.54/BANG/2018 PAGE - 1 IN THE INCOME TAX APPELLATE TRIBUNAL BENGALURU BENCH 'A', BENGALURU BEFORE SHRI. A. K. GARODIA, ACCOUNTANT MEMBER AND SHRI. LALIET KUMAR, JUDICIAL MEMBER MISCELLANEOUS PETITION NO.54/BANG/2018 (IN I.T.A NO.883/BANG/2016 (ASSESSMENT YEAR : 2011-12) BRIGADE ENTERPRISES LTD, 29 TH & 30 TH FLOORS, WTC, BRIGADE GATEWAY CAMPUS, 26/1, RAJKUMAR ROAD, MALLESWARAM, BENGALURU 560 055 .. APPELLANT PAN : AAACB7459F V. JOINT COMMISSIONER OF INCOME-TAX (OSD), CIRCLE -1(1)(2), BENGALURU .. RESPONDENT ASSESSEE BY : SHRI. PADAM CHAND KHINCHA, CA REVENUE BY : SHRI. VIKRAM K. SURYAVAMSHI, ADDL. CI T HEARD ON : 07.12.2018 PRONOUNCED ON : 19.12.2018 O R D E R PER LALIET KUMAR, JUDICIAL MEMBER : THE PRESENT MISCELLANEOUS PETITION IS FILED BY THE ASSESSEE SEEKING RECTIFICATION OF THE MISTAKE IN THE ORDER O F THE TRIBUNAL IN ITA NO.883/BANG/2016, DT.09.08.2017, FOR THE ASSESS MENT YEAR 2011-12. MP.54/BANG/2018 PAGE - 2 02. IT WAS POINTED OUT BY THE LD. AR THAT THE TRIBU NAL WHILE DECIDING GROUND NOS.7 & 8 HAS NOT FOLLOWED THE EARL IER ORDER PASSED BY THE TRIBUNAL FOR A. Y. 2009-10 AND HAD REMANDED THE MATTER TO THE FILE OF THE CIT (A) FOR VERIFYING AND ESTABLISH ING THE BUSINESS EXPEDIENCY IN RESPECT OF ADVANCING THE LOAN BY THE ASSESSEE. THE ASSESSEE HAS SUBMITTED THAT IT WAS HAVING INTEREST- FREE FUNDS AVAILABLE AND THE FUNDS WERE NOT UTILISED BY THE AS SESSEE FROM THE ADVANCES TAKEN FROM THE BANKS AND THE ASSESSEE HAD UTILISED THE SHARE CAPITAL RESERVES IN SURPLUS FUNDS AVAILABLE W ITH IT AS SHOWN IN THE STATEMENT OF AFFAIRS OF THE ASSESSEE FOR THE PU RPOSES OF GIVING LOAN TO THE SISTER CONCERN. 03. PER CONTRA, IT WAS SUBMITTED BY THE LD. DR THAT ASSESSEE IS NOT PREJUDICED BY THE ORDER PASSED BY THE TRIBUNAL IN T HE APPEAL OF THE REVENUE AND FURTHER IT WAS SUBMITTED THAT THE ORDER PASSED BY THE COORDINATE BENCH IN THE CASE OF THE ASSESSEE FOR AY 2009-10 WAS ON THE FACTS OF THAT YEAR AND WILL NOT HAVE A BINDING PRECEDENCE FOR THE YEAR UNDER CONSIDERATION AS EACH YEAR IS REQUIRED T O BE DECIDED BASED ON THE FACTS PERTAINING TO THE RELEVANT YEAR. 04. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE RECORD. IN OUR VIEW THERE IS NO ERROR AS POINTED OUT BY THE ASSESSEE TO SHOW THAT THE FINDING RECORDED BY THE TRIBUNAL IN PARA 1 0 WAS CONTRARY TO FACTS OR LAW. WE ARE IN AGREEMENT WITH THE SUBMISS ION MADE BY THE LD. DR THAT EACH YEAR HAS TO BE DECIDED ON THE BASI S OF THE FACTS PERTAINING TO THAT YEAR AND THE ORDER FOR THE EARLI ER YEAR COULD NOT BE TREATED AS A PRECEDENCE IN RESPECT OF AVAILABILITY OF FINANCIAL AND MP.54/BANG/2018 PAGE - 3 UTILISATION OF FUNDS BY THE ASSESSEE. IN THE LIGHT OF THE ABOVE, WE HAVE NO HESITATION, BUT TO DISMISS THE MP FILED BY THE ASSESSEE. 05. WE MAY LIKE TO POINT OUT THAT IF THE ASSESSEE I N THE REMAND PROCEEDING IS ABLE TO DEMONSTRATE BEFORE THE CIT ( A) THAT THE ASSESSEE HAD UTILISED ITS OWN FUNDS AS MENTIONED IN PARA 10, THEN THE ASSESSEE WOULD BE ENTITLED TO THE BENEFIT UNDER THE RELEVANT PROVISIONS OF LAW. 06. IN THE RESULT, MP FILED BY THE ASSESSEE IS DISM ISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 19 TH DAY OF DECEMBER, 2018. SD/- SD/- (A. K. GARODIA) (LALIET KUMAR) ACCOUNTANT MEMBER JUDICIAL MEMBER BENGALURU DATED : 12.2018 MCN* COPY TO: 1. THE ASSESSEE 2. THE ASSESSING OFFICER 3. THE COMMISSIONER OF INCOME-TAX 4. COMMISSIONER OF INCOME-TAX(A) 5. DR 6. GF, ITAT, BANGALORE BY ORDER ASSISTANT REGISTRAR, INCOME TAX APPELLATE TRIBUNAL, BANGALORE.