ITA NO.3993/Del/2013
IN THE INCOME TAX APPELLATE TRIBUNAL
DELHI BENCH "H", NEW DELHI
BEFORE SHRI N.K. SAINI, ACCOUNTANT MEMBER
AND
SHRI H.S. SIDHU, JUDICIAL MEMBER
I.T.A. No. 3993/DEL/2013
A.Y. : 2009-10
M/S VINCO METALS PVT. LTD., ASSTT. COMMISSIONER OF
A-78, GROUND FLOOR, VS. INCOME TAX,
JHILMIL IND. AREA, CENTRAL CIRCLE-16,
SHAHDARA, NEW DELHI 55
DELHI 110 095
(PAN: AAACV4363J)
(APPELLANT) (RESPONDENT)
Assessee by : Sh. K.P. Garg, CA
Department by : SH. J.P. Chandrekar, Sr. DR
Date of Hearing : 17-06-2015
Date of Order : 24-06-2015
ORDER
PER H.S. SIDHU : JM
This appeal by the Assessee is directed against the Order of
the Ld. Commissioner of Income Tax (Appeals)-XXXII, New Delhi
dated 31.5.2013 pertaining to assessment year 2009-10.
2. The assessee has raised the following grounds:-
"1. The appellant denies his liability to tax as determined
and computed by the AO and the manner in which the
demand of Rs. 40,943/- has been so determined and
upheld by the Ld. CIT(A).
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2. The Ld. CIT(A) has erred in law and on facts in sustaining
the following additions which are impugned in this
appeal:
- Rs. 1,32,508/- being 5% of average
investment u/s. 14A applying Rule 8D to
"business / trade investments" made by the
company in the course of its business as
NBFC, the income of which is duly accounted
for and assessed to tax."
3. The brief facts of the case are that the assessee company was
engaged in the business of copper trading and had shown income
under the head business, income from house property and capital
gain. The return of income in this case was filed on 17.9.2009
showing total income of Rs. 7,10,996/-. Subsequently, the notices
u/s. 142(1) and 143(2) of the Act alongwith questionnaire were
issued by the AO. The assessment was completed by the AO u/s.
143(3) vide his order dated 21.10.2011 at an income of Rs.
8,34,500/- by making the following additions :-
(a) Disallowance u/s. 14A Rs. 1,32,508/-
(b) Income from House Property Rs. 16,800/-
(c) Income from LTCG (Loss) (-) Rs. 59,859/-
4. Aggrieved with the aforesaid assessment order dated
21.10.2011, the assessee appealed before the Ld. CIT(A), who vide
impugned order dated 31.5.2013 has dismissed appeal of the
assessee.
5. Against the order of the Ld. CIT(A) dated 31.5.2013 assessee
now appealed before the Tribunal.
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6. Ld. Counsel of the assessee stated that the AO has wrongly
determined the demand of Rs. 40,943/- without any prescribed
manner and similarly, the Ld. First Appellate Authority has not
adjudicated and decided this ground raised by the assessee before
him. He further stated that AO has made the addition of
Rs.1,32,508/- being 5% average investment u/s. 14A by applying
the rule 8D to the business made by the Company in the course of
its business as NBFC. The income of which is duly accounted for
and assessed to tax. He further stated that for the assessment year
2008-09 assessee has given similar explanation in the assessment
year in dispute, but the Revenue Authority has not made any
addition. He requested that the impugned order may be cancelled
and appeal filed by the assessee may be allowed.
6.1 On the contrary, Ld. DR relied upon the order of the
authorities below and stated that the AO has rightly determined and
computed the tax liability as well as rightly made the addition in
dispute on the basis of the material available on record, therefore,
the appeal filed by the assessee may be dismissed.
7. We have heard both the parties and perused the records
especially the orders of the revenue authorities; contentions raised
by the assessee in the grounds of appeal filed by the assessee. We
are of the considered view that as argued by the Ld. Counsel of the
assessee that assessee has denied the liability to tax and
determined and computed by the AO and the manner in which the
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demand of Rs. 40,943/- has been so determined. We find that the
Ld. CIT(A) has not adjudicated this ground raised by the assessee
and we also find that the AO has not commented in the assessment
order on the determination of the demand of Rs. 40,943/-, therefore,
the issue involved in ground no. 1 requires detailed examination at
the level of the AO. Accordingly, in the interest of justice, we set
aside the issue in dispute to the file of the AO to decide the same
afresh under the law, after giving adequate opportunity of being
heard.
8. With regard to ground no. 2 regarding sustaining the addition
of Rs. 1,32,508/- being 5% of average investment u/s. 14A applying
the Rule 8D to the business/trade investment made by the Company
in the course of its business as NBFC, the income of which is duly
accounted for and assessed to tax is concerned, we find that on the
basis of similar explanation, no addition was made in earlier years
upto 2008-09, all of which have been scrutiny examination cases
since AY 2001-02. Therefore, in our considered opinion, the issue
in dispute involved in ground no. 2 needs to be adjudicated afresh,
under the law. Accordingly, we remit the issue in dispute to the file
of the AO to consider the same afresh, after giving adequate
opportunity of being heard.
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9. In the result, the Appeal filed by the Assessee stands allowed
for statistical purposes.
Order pronounced in the Open Court on 24/06/2015.
Sd/- Sd/-
[N.K. SAINI] [H.S. SIDHU]
ACCOUNTANT MEMBER JUDICIAL MEMBER
Date 24/6/2015
"SRBHATNAGAR"
Copy forwarded to: -
1. Appellant -
2. Respondent -
3. CIT
4. CIT (A)
5. DR, ITAT
TRUE COPY
By Order,
Assistant Registrar,
ITAT, Delhi Benches
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