M/s. Triveni Ship Breakers, Bhavnagar v. The Income tax Officer,Ward-2(2(,, Bhavnagar

ITA 877/AHD/2008 | 1995-1996
Pronouncement Date: 18-08-2010 | Result: Allowed

Appeal Details

RSA Number 87720514 RSA 2008
Assessee PAN AABFT1588R
Bench Ahmedabad
Appeal Number ITA 877/AHD/2008
Duration Of Justice 2 year(s) 5 month(s) 8 day(s)
Appellant M/s. Triveni Ship Breakers, Bhavnagar
Respondent The Income tax Officer,Ward-2(2(,, Bhavnagar
Appeal Type Income Tax Appeal
Pronouncement Date 18-08-2010
Appeal Filed By Assessee
Order Result Allowed
Bench Allotted C
Tribunal Order Date 18-08-2010
Date Of Final Hearing 06-08-2010
Next Hearing Date 06-08-2010
Assessment Year 1995-1996
Appeal Filed On 10-03-2008
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL IN THE INCOME TAX APPELLATE TRIBUNAL IN THE INCOME TAX APPELLATE TRIBUNAL IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD BENCH AHMEDABAD BENCH AHMEDABAD BENCH AHMEDABAD BENCH C CC C BEFORE BEFORE BEFORE BEFORE SHRI SHRI SHRI SHRI T.K.SHARMA T.K.SHARMA T.K.SHARMA T.K.SHARMA JUDICIAL MEMBER JUDICIAL MEMBER JUDICIAL MEMBER JUDICIAL MEMBER AND AND AND AND SHRI N.S. SAINI ACCOUNTANT MEMBER SHRI N.S. SAINI ACCOUNTANT MEMBER SHRI N.S. SAINI ACCOUNTANT MEMBER SHRI N.S. SAINI ACCOUNTANT MEMBER DATE OF HEARING:10-8-2010 DRAFTED ON: 10-8-2010 ITA NO. 877 / AHD/ 2008 ASSESSMENT YEARS :1995-96 TRIVENI SHIP BREAKERS F-28 RUVAPARI ROAD BHAVNAGAR. VS. THE INCOME TAX OFFICER WARD 2(2) INCOME TAX OFFICE BHAVNAGAR. PAN/GIR NO. : AABFT 1588 R (A PPELLANT ) .. ( RESPONDENT ) APPELLANT BY : SHRI M. K. PATEL. RESPONDENT BY: SHRI K. M. MAHESH SR. D.R. O R D E R O R D E R O R D E R O R D E R PER N.S.SAINI ACCOUNTANT MEMBER :- THESE ARE TWO APPEALS FILED BY THE ASSESSEE AGAIN ST ORDER OF LEARNED COMMISSIONER OF INCOME TAX (APPEALS)-XX AH MEDABAD DATED 26-11-2007. 2. THE ASSESSEE HAS RAISED FOLLOWING GROUNDS OF APP EAL. THAT THE LEARNED COMMISSIONER OF INCOME TAX (APPEA LS) HAS GRIEVOUSLY ERRED IN LAW AND ON FACTS IN CONFIRMING THE ADDITION OF `.2 00 000/- MADE UNDER SECTION 68 OF THE ACT IN R ESPECT OF MEHTA CORPORATION. THAT THE LEARNED COMMISSIONER OF INCOME TAX (APPEA LS) HAS GRIEVOUSLY ERRED IN LAW AND ON FACTS IN CONFIRMING THE ADDITION OF `.9 175/- IN RESPECT OF INTEREST PAID TO PASHAV SAL ES CORPORATION. 3. AS THE FACTS AND ISSUE INVOLVED IN BOTH THE GROU NDS OF APPEAL OF THE ASSESSEE ARE COMMON THEY ARE BEING DISPOSED OFF TOGETHER AS UNDER. - 2 - 4. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIALS AVAILABLE ON RECORD. IN THE INSTANT CASE THE LEARNE D ASSESSING OFFICER OBSERVED THAT THE ASSESSEE HAS TAKEN LOAN OF `.2 00 000/- FROM M/S. MEHTA CORPORATION. FURTHER THE ASSESSEE HAS CLAIME D INTEREST EXPENDITURE OF `.9 175/- IN RESPECT OF LOAN FROM M/ S. PARSHVA SALES CORPORATION. ACCORDING TO THE LEARNED ASSESSING OFF ICER DURING THE COURSE OF THE SEARCH PROCEEDINGS IN THE CASE OF SHR I AJAY V. MEHTA ITP CERTAIN INCRIMINATING DOCUMENTS WERE FOUND FROM WHI CH IT WAS REVEALED THAT AMONGST OTHERS M/S. MEHTA CORPORATION AND M/S. PARSHVA SALES CORPORATION WERE BENAMI CONCERNS WHICH WERE U SED FOR GIVING BOGUS LOANS BY TAKING MONEY IN CASH. THE LEARNED A SSESSING OFFICER THEREFORE ADDED `.2 00 000 TO THE INCOME OF THE AS SESSEE AND DISALLOWED INTEREST AMOUNT OF `.9 175/- 4. ON APPEAL LEARNED COMMISSIONER OF INCOME TAX (A PPEALS) CONFIRMED THE ACTION OF THE LEARNED ASSESSING OFFIC ER. 5. BEFORE US THE LEARNED AUTHORISED REPRESENTATIVE OF THE ASSESSEE FILED COPY OF THE BANK STATEMENT OF THE AS SESSE OF UNION BANK OF INDIA ACCOUNT NO.30064 AND POINTED OUT THER EFROM THAT THOUGH THE ASSESSEE RECEIVED CHEQUE OF `.2 00 000/- FROM M /S. MEHTA CORPORATION BUT PRIOR TO THAT ON 23-11-1994 THE AS SESSEE HAD ADVANCED `.2 00 000/- BY CHEQUE TO SAID M/S. MEHTA CORPORATION. THUS THE AMOUNT WHICH THE ASSESSEE RECEIVED FROM M/S. ME HTA CORPORATION WAS NOT A NEW LOAN BUT WAS REPAYMENT OF ADVANCE GIV EN BY IT EARLIER TO THAT CONCERN. 6. WE FIND THAT THIS FACT WAS NOT CLARIFIED BY THE ASSESSEE BEFORE THE LOWER AUTHORITIES AND THE LOWER AUTHORITIES HAV E NOT EXAMINED THE FACT FROM THIS ANGLE. FURTHER COPY OF THE ASSESSE ES BALANCE SHEET OF THE RELEVANT YEAR WAS NOT FILED BEFORE US BY EITHER OF THE PARTIES. IN THE ABOVE CIRCUMSTANCES IN OUR CONSIDERED OPINION THE FACT NOW POINTED OUT REQUIRES TO BE VERIFIED FROM THE ASSESS MENT RECORDS. IN OUR CONSIDERED OPINION IF THE ASSESSEE HAS NOT ACC EPTED ANY NEW LOAN - 3 - FROM M/S. MEHTA CORPORATION BUT HAS MERELY RECEIVED BACK THE MONEY WHICH WAS EARLIER ADVANCED BY IT THEN NO ADDITION F OR SUCH REPAYMENT RECEIVED CAN BE MADE UNDER SECTION 68 OF THE ACT. 7 FURTHER IN RESPECT OF `.9 175/- PAID TO M/S. PARS VA SALES CORPORATION THE LEARNED AUTHORISED REPRESENTATIVE O F THE ASSESSEE SUBMITTED THAT THE LOAN IN QUESTION WAS ACCEPTED AS GENUINE BY THE DEPARTMENT AND NO ADDITION FOR THE SAME WAS MADE. T HUS INTEREST ON SUCH GENUINE LOAN CANNOT BE TREATED AS BOGUS BY THE DEPARTMENT WITHOUT POINTING OUT ANY MATERIAL TO SHOW THAT NO I NTEREST WAS ACTUALLY PAID BY THE ASSESSEE OR THE ASSESSEE HAS RECEIVED B ACK CASH IN RESPECT OF CHEQUE OF INTEREST. 8. AS WE HAVE ALREADY RESTORED THE ISSUE OF ADDITIO N OF `.2 00 000/- BACK TO THE FILE OF THE LEARNED ASSESSING OFFICER F OR VERIFICATION OF ASSESSMENT RECORDS IN OUR CONSIDERED OPINION IT SH ALL BE IN THE INTEREST OF JUSTICE TO ALSO RESTORE THIS ISSUE BACK TO THE F ILE OF THE LEARNED ASSESSING OFFICER FOR PROPER VERIFICATION. IN OUR CONSIDERED OPINION IF THE LOAN FROM M/S. PARSVA SALES CORPORATION WAS ACC EPTED AS GENUINE IN THE HANDS OF THE ASSESSEE THEN INTEREST CANNOT B E DISALLOWED WITHOUT BRINGING ON RECORD ANY MATERIAL TO SHOW THA T NO INTEREST WAS ACTUALLY PAID BY THE ASSESSEE TO THE SAID CONCERN O R IF SUCH INTEREST WAS PAID BY CHEQUE THEN THE MONEY WAS RECEIVED BAC K BY THE ASSESSEE IN CASH. 9. WE THEREFORE SET ASIDE THE ORDERS OF THE LOWER AUTHORITIES ON BOTH THE ABOVE ISSUES AND RESTORE THE ISSUES BACK T O THE FILE OF THE LEARNED ASSESSING OFFICER FOR ADJUDICATION AFRESH I N LIGHT OF THE DISCUSSION MADE ABOVE. NEEDLESS TO MENTION THAT TH E LEARNED ASSESSING OFFICER SHALL ALLOW REASONABLE AND PROPER OPPORTUNITY OF HEARING TO THE ASSESSEE BEFORE RE-ADJUDICATING THE ISSUES AFRESH. THUS BOTH THE GROUNDS OF APPEAL OF THE ASSESSEE ARE ALLO WED FOR STATISTICAL PURPOSES. - 4 - 10. IN THE RESULT THE APPEAL OF THE ASSESSEE IS AL LOWED FOR STATISTICAL PURPOSES. ORDER SIGNED DATED AND PRONOUNCED IN THE COURT ON THIS 18 TH DAY OF AUGUST 2010. SD/- SD/- ( T.K. SHARMA ( T.K. SHARMA ( T.K. SHARMA ( T.K. SHARMA ) )) ) ( N.S. SAINI ) ( N.S. SAINI ) ( N.S. SAINI ) ( N.S. SAINI ) JUDICIAL MEMBER JUDICIAL MEMBER JUDICIAL MEMBER JUDICIAL MEMBER ACCOUNTANT MEMBER ACCOUNTANT MEMBER ACCOUNTANT MEMBER ACCOUNTANT MEMBER AHMEDABAD: ON THIS 18 TH DAY OF AUGUST 2010 COMPILED AND COMPARED BY :PATKI COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT CONCERNED 4. THE LD. CIT(APPEALS)- 5. THE DR AHMEDABAD BENCH 6. THE GUARD FILE. BY ORDER //TRUE COPY// (DY./ASSTT.REGISTRAR) ITAT AHMEDABAD DATE INITIALS 1. DRAFT DICTATED ON 17-8-2010 ----- -------------- 2. DRAFT PLACED BEFORE AUTHORITY 17-8-2010 ------------------- 3. DRAFT PROPOSED & PLACED 17-8-2010 -- ----------------- JM BEFORE THE SECOND MEMBER 4. DRAFT DISCUSSED/APPROVED 17-8-2010 - ------------------ JM/AM BY SECOND MEMBER 5. APPROVED DRAFT COMES TO P.S 18-8-2010 -------------------- 6. KEPT FOR PRONOUNCEMENT ON 18-8-2010 -------------------- 7. FILE SENT TO THE BENCH CLERK 18-8-2010 -------------------- 8. DATE ON WHICH FILE GOES TO THE ---------------- -------------------- 9. DATE OF DISPATCH OF ORDER ---------------- ---------------------