ACIT Non Corporate Circle 15, CHENNAI V. Nanda Nisha, CHENNAI

ITA 1229/CHNY/2019

• Counselvise Citation: [2019] 116 COUNSELVISE.COM (IT) 5471 (ITAT-CHENNAI)
• Duration Of Justice: 3 month(s) 26 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 21-08-2019
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2014-2015
• Appeal Filed On: 25-04-2019
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Keywords: Maximum Marginal Rate; Additional evidence; Set aside
• Section: 143(3); 68

Judgement Text

, , IN THE INCOME-TAX APPELLATE TRIBUNAL A BENCH, CHE NNAI . , , BEFORE SHRI DUVVURU RL REDDY, JUDICIAL MEMBER & SHRI S. JAYARAMAN, ACCOUNTANT MEMBER ! ./ I.T.A.NO.1229/CHNY/2019 '# $' / ASSESSMENT YEAR :2014-15 M/S. NANDA NISHA, 14A, MASILAMANI STREET, T NAGAR, CHENNAI 600 017. [PAN: ADAPN 2530M] VS. THE ASST. COMMISSIONER OF INCOME TAX, NON-CORPORATE CIRCLE-15, CHENNAI. ( /APPELLANT ) ( / RESPONDENT ) ! %& ' ( / APPELLANT BY : NONE )*%& ' ( / RESPONDENT BY : SHRI A.R.V. SREENIVASAN, JCIT + ' ,- / DATE OF HEARING : 08.07.2019 ./$# ' ,- /DATE OF PRONOUNCEMENT : 21.08.2019 / O R D E R PER DUVVURU RL REDDY, JUDICIAL MEMBER : THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAIN ST THE ORDER OF THE LD. COMMISSIONER OF INCOME TAX (APPEALS)-15, CHENNA I DATED 30.01.2019 RELEVANT TO THE ASSESSMENT YEAR 2014-15. THE GROUN DS RAISED BY THE ASSESSEE ARE REPRODUCED AS UNDER: 1. THE ORDER OF THE LD. CIT(A) IS CONTRARY TO THE LAW AND FACTS OF THE CASE. 2. THE LD. CIT(A) ERRED IN DELETING THE ADDITION U/ S 41(1) OF THE ACT AMOUNTING TO RS. 12.51 LAKHS WHEN IN FACT NO SUBSTA NTIAL PROOF THEREOF HAD BEEN GIVEN BY THE ASSESSEE. I.T.A. NO. I.T.A. NO. I.T.A. NO. I.T.A. NO.1229 1229 1229 1229/ // /CHNY CHNY CHNY CHNY/ // /20 2020 201 11 19 99 9 2 3. THE LD. CIT(A) ERRED IN DELETING THE ADDITION U/ S 68 OF THE ACT TO THE TUNE OF RS. 54 LAKHS BY CONSIDERING NEW EVIDENCES WHICH WERE PRODUCED BY THE ASSESSEE DURING THE APPELLATE PROCEEDINGS, BUT WERE NEVER PLACED BEFORE THE AC. 3.1. THE LD. CIT(A) ERRED IN ADMITTING ADDITIONAL E VIDENCE WITHOUT GIVING OPPORTUNITY TO THE AC UNDER RULE 46A OF THE RULES. 4. FOR THESE AND OTHER GROUNDS THAT MAY BE ADDUCED AT THE TIME OF HEARING, IT IS PRAYED THAT THE ORDER OF THE LD. CIT(A) BE SE T ASIDE AND THAT OF THE ASSESSING OFFICER BE RESTORED. 2. BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE I S AN INDIVIDUAL AND FILED RETURN OF INCOME ELECTRONICALLY FOR THE ASSESSMENT YEAR 2014-15 ON 26.02.2015 DECLARING INCOME OF RS. 21,50,380/-. SU BSEQUENTLY, THE CASE WAS SELECTED FOR SCRUTINY AND ACCORDINGLY NOTICE U/ S. 143(2) OF THE INCOME TAX ACT, 1961 (IN SHORT THE ACT) WAS ISSUED ON 31 .08.2015 AND THE SAME WAS SERVED ON 05.09.2015. THE SCRUTINY ASSESSMENT WAS COMPLETED U/S. 143(3) OF THE ACT ON 29.12.2016 DETERMINING THE TOT AL INCOME OF RS. 91,17,330/- AFTER MAKING THE FOLLOWING ADDITIONS: 1) BALANCE SUNDRY CREDITORS TREATED AS INCOME U/S. 41(1) OF THE ACT OF RS. 15,66,950/-. 2) UNEXPLAINED UNSECURED LOAN TREATED AS INCOME U/S . 68 OF THE ACT OF RS. 54,00,000/-. 3. THE AO TREATED THE ABOVE TWO ADDITIONS AS UNEXPL AINED CREDIT U/S. 68 OF THE ACT AND CHARGED MAXIMUM MARGINAL RATE OF TAX OF 30% AS PER THE PROVISIONS OF S. 115BBE OF THE ACT. I.T.A. NO. I.T.A. NO. I.T.A. NO. I.T.A. NO.1229 1229 1229 1229/ // /CHNY CHNY CHNY CHNY/ // /20 2020 201 11 19 99 9 3 4. AGGRIEVED, THE ASSESSEE PREFERRED AN APPEAL BEF ORE LD. CIT(A). AFTER CONSIDERING THE SUBMISSIONS OF THE ASSESSEE, THE LD . CIT(A) ALLOWED THE GROUND RAISED BY THE ASSESSEE AND DIRECTED THE AO T O DELETE THE ADDITION OF RS. 54,00,000/-. SO FAR AS RS. 15,66,950/- U/S. 41 (1) OF THE ACT IS CONCERNED, THE LD. CIT(A) RESTRICTED THE AFORESAID AMOUNT TO RS. 3,07,535/- AND PARTLY ALLOWED THE GROUNDS RAISED BY THE ASSESS EE. ON BEING AGGRIEVED, THE ASSESSEE PREFERRED AN APPEAL BEFORE THIS TRIBUN AL. 5. THE MAIN CONTENTION OF THE REVENUE IS THAT THE L D. CIT(A) ERRED IN ADMITTING THE ADDITIONAL EVIDENCE WITHOUT GIVING AN Y OPPORTUNITY TO THE AO U/R. 46A OF THE INCOME TAX RULES, 1962. 6. WE HAVE HEARD BOTH THE SIDES, PERUSED THE MATER IALS AVAILABLE ON RECORD AND GONE THROUGH THE ORDERS OF AUTHORITIES B ELOW. UPON PERUSAL OF THE ORDER OF LD. CIT(A), THE LD. AR HAS FILED SOME DOCUMENTS BEFORE THE LD. CIT(A) AND IN THIS ORDER, THE LD. CIT(A) HAS MENTIO NED ABOUT THE SAID DOCUMENTS IN PARA 4.2.1, WHICH READS AS FOLLOWS:: 1. IMC (JYOIHI EDUCATIONAL SOCIETY) TO NAVTEK (PRO PRIETOR: NISHA NANDAKUMAR) OF RS. RS.37,00,000 CONFIRMATION FROM IMC REGARDING THE RS.37,00,000 UN SECURED LOAN. ENCLOSING THE IMC FILED FINANCIAL STATEMENT WITH AU DITOR SIGN. ENCLOSING THE LEDGER COPY OF IMC AND NAVTEK DULY SI GNED BY SECRETARY AND PROPRIETOR. THE EXTRACT OF SUBSEQUENT CHANGES ARE: FINANCIAL YEAR IN THE BOOKS OF IMC IN THE BOOKS OF NAVTEK I.T.A. NO. I.T.A. NO. I.T.A. NO. I.T.A. NO.1229 1229 1229 1229/ // /CHNY CHNY CHNY CHNY/ // /20 2020 201 11 19 99 9 4 14-15 RS. 37,34,041 DR RS. 37,34,041 CR 15-16 RS. 40,34,041 DR RS. 40,86,316 CR 16-17 RS. 40,86,316 DR RS. 40,86,316 CR 17-18 RS. 21,72,873 DR RS. 21,72,873 CR 2. NISHA NANDAKUMAR TO NAVTEK (PROPRIETOR: NISHA N ANDAKUMAR OF RS. 15,60,000 CONFIRMATION FROM NISHA NANDAKUMAR REGARDING THE RS . 15,60,000 LOAN. ENCLOSING THE LEDGER COPY DULY SIGNED BY NISHA NAND AKUMAR. IN FINANCIAL YEAR 14-15 THE FUND OF RS. .15,60,000 WAS TAKEN TO CAPITAL ACCOUNT THE LEDGER COPY OF SAME IS ATTAC HED. 3. ELEKTRONIK LAB (PROPRIETOR: NANDAKUMAR KRISHNAN) TO NAVTEK OF RS. 1,40,00 CONFIRMATION FROM ELEKTRONIK LAB (NANDAKUMAR KRISHN AN) REGARDING THE RS. 1,40,000 LOAN. ENCLOSING THE LEDGER COPY OF ELEKTRONIK LAB AND NAV TEK DULY SIGNED BY PROPRIETOR, ENCLOSING THE ELELCTRONIK LAB FILED FINANCIAL STATE MENT WITH AUDITOR SIGN. IN SUBSEQUENT YEAR THE AMOUNT IS TRANSFERRED TO CAP ITAL ACCOUNT. 4. AUTOMATIC POWER INC. ENCLOSING THE LEDGER COPY IN NAVTEK BOOKS DULY SIGN ED BY PROPRIETOR (NISHA NANDAKUMAR) 7. ON THIS ASPECT, THE LD. DR SUBMITS THAT THE ABOV E SAID DOCUMENTS ARE NOT PLACED BEFORE THE AO AND THE LD. CIT(A) FAILED TO ASK FOR REMAND REPORT FROM THE AO THEREFORE, THE AO HAS NO OPPORTUNITY TO LOOK INTO THE ABOVE SAID DOCUMENTS AND THE AR DID NOT FILE ANY PROOF TO ESTA BLISH THAT THE ABOVE SAID DOCUMENTS WERE PLACED BEFORE THE AO. CONSIDERING T HE ABOVE SAID FACTS AND CIRCUMSTANCES OF THIS CASE, WE FIND FORCE IN TH E ARGUMENTS OF THE LD. DEPARTMENTAL REPRESENTATIVE THAT THE AO HAD NO OPPO RTUNITY LOOK INTO THE I.T.A. NO. I.T.A. NO. I.T.A. NO. I.T.A. NO.1229 1229 1229 1229/ // /CHNY CHNY CHNY CHNY/ // /20 2020 201 11 19 99 9 5 DOCUMENTS WHICH WERE FILED BEFORE LD. CIT(A). THER EFORE, WE ARE OF THE FIRM OPINION THAT THE ORDERS OF THE LD. CIT(A) LIABLE TO BE SET ASIDE AND THE MATTER REMITTED BACK TO THE AO WITH A DIRECTION TO EXAMINE THIS ISSUE AFRESH. THE ASSESSEE IS DIRECTED TO FILE ALL THE ABOVE SAID DOC UMENTS BEFORE THE AO AND AO IS ALSO DIRECTED TO DISPOSE OF THIS APPEAL AFTER GIVING OPPORTUNITY TO BEING HEARD. 8. IN THE RESULT, THE APPEAL FILED BY THE ASSESSE E IS ALLOWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED ON THE 21 ST AUGUST, 2019 AT CHENNAI. SD/- SD/- (S JAYARAMAN) ACCOUNTANT MEMBER (DUVVURU RL REDDY) JUDICIAL MEMBER CHENNAI, DATED, THE 21.08.2019 EDN, SR. PS 0 ' ),1 2! 32$, /COPY TO: 1. ! %& / APPELLANT, 2. )*%& / RESPONDENT, 3. 4, ( ! ) /CIT(A), 4. 4, /CIT, 5. 256 ),7 /DR & 6. 6' 8+ /GF.