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Income Tax Appellate Tribunal, PUNE BENCH “B”, PUNE
Before: SHRI R.S. SYAL & SHRI PARTHA SARATHI CHAUDHURY
आदेश / ORDER
PER R.S.SYAL, VP : This appeal by the assessee is directed against the order dated 10.02.2016 passed by the Pr. CIT-2, Aurangabad u/s.263 of the Income-tax Act, 1961 (hereinafter also called `the Act’) in relation to the assessment year 2011-12.
2 ITA No.530/PUN/2016 Smt. Usha P. Kulkarni
Briefly stated, the facts of the case are that, the assessee, an
individual, is a proprietor of M/s. Sharda Earth Movers. She is
engaged in the business as Civil Contractor along with hiring of
equipments for construction activity. Assessment in this case was
completed u/s.143(3) of the Act on 03-01-2014 determining total
income at Rs.14,90,355/- as against the returned income of
Rs.8,51,000/-. In exercise of power u/s.263, the ld. Pr. CIT noticed
that the AO, while finalizing the assessment, failed to examine the
purpose for which certain interest free loans were advanced to
sister concerns. It was further observed that the assessee had
borrowed certain loans from banks. In this hue of the matter, he
opined that the advancing of interest free loans by the assessee to
sister concerns caused prejudice to the interest of the Revenue and
rendered the assessment order erroneous. The assessee is
aggrieved by such a decision.
We have heard both the sides and gone through the relevant
material on record. It is observed that the ld. Pr. CIT exercised
similar power u/s.263 in respect of A.Yrs. 2003-04, 2004-05 and
2006-07. The assessee challenged such orders before the Tribunal.
Vide order dated 31-10-2017, the Tribunal in ITA Nos.849 to
851/PUN/2015 has allowed the appeals filed by the assessee. It
3 ITA No.530/PUN/2016 Smt. Usha P. Kulkarni
can be seen from the order passed by the Tribunal, a copy of which
has been placed on record, that the assessment order was revised, inter alia, on a similar ground that the assessee advanced interest
free loans while she had borrowed interest bearing funds. The
Tribunal apart from others noticed on page 8 of its order that
“…..In the present case, before us Revenue has not placed any
material on record to demonstrate as to how the order passed by
the AO was not in accordance with law or the view adopted by the
AO was impermissible in law. In the present facts, we are
therefore of the view that the ld. Pr. CIT was not justified in
invoking the revisionary powers u/s.263 of the Act more so as the
provisions of section do not visualize the case of substitution of
judgment of the ld. CIT for that of AO who passed the order unless
the view adopted by the AO was not in accordance with law and
for which we also draw support from the decisions cited herein
above.”
It is apparent from the order passed by the Tribunal that the
factor considered by the ld. Pr. CIT calling for invocation of the
provisions of section 263 of the Act for the instant year is a similar
to the one considered by him for the preceding years, which view
has been set aside by the Tribunal. No material has been placed on
4 ITA No.530/PUN/2016 Smt. Usha P. Kulkarni
record to demonstrate that the said order of Tribunal has been reversed or modified in any manner. Respectfully following the precedent, we set-aside the impugned order.
In the result, the appeal is allowed.
Order pronounced in the Open Court on 23rd January, 2019.
Sd/- Sd/- (PARTHA SARATHI CHAUDHURY) (R.S.SYAL) JUDICIAL MEMBER VICE PRESIDENT पुणे Pune; �दनांक Dated : 23rd January, 2019 सतीश आदेश क� क� क� �ितिलिप क� �ितिलिप �ितिलिप अ�ेिषत �ितिलिप अ�ेिषत अ�ेिषत/Copy of the Order is forwarded to: अ�ेिषत आदेश आदेश आदेश 1. अपीलाथ� / The Appellant; 2. ��यथ� / The Respondent; 3. The Pr.CIT -2, Aurangabad िवभागीय �ितिनिध, आयकर अपीलीय 4. अिधकरण, पुणे “बी” / DR ‘B’, ITAT, Pune; 5. गाड� फाईल / Guard file. // True copy // आदेशानुसार आदेशानुसार/ BY ORDER, आदेशानुसार आदेशानुसार // True Copy // Senior Private Secretary आयकर अपीलीय अिधकरण ,पुणे / ITAT, Pune
ITA No.530/PUN/2016 Smt. Usha P. Kulkarni
Date 1. Draft dictated on 22-01-2019 Sr.PS 2. Draft placed before author 22-01-2019 Sr.PS 3. Draft proposed & placed before the JM second member 4. Draft discussed/approved by Second JM Member. 5. Approved Draft comes to the Sr.PS/PS Sr.PS 6. Kept for pronouncement on Sr.PS 7. Date of uploading order Sr.PS 8. File sent to the Bench Clerk Sr.PS 9. Date on which file goes to the Head Clerk 10. Date on which file goes to the A.R. 11. Date of dispatch of Order.
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