M/s. Orisons Macro Management Pvt. Ltd., Bhubaneswar V. ITO, Ward- 1(2), Bhubaneswar

ITA 124/CTK/2020

• Counselvise Citation: [2020] 110 COUNSELVISE.COM (IT) 7115 (ITAT-CUTTACK)
• Duration Of Justice: 5 month(s) 25 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 07-09-2020
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2014-2015
• Appeal Filed On: 13-03-2020
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: J K LENKA
• Assessee Lawyers: M K PATRA
• Keywords: Unexplained cash credit; TDS; Set aside
• Section: 40(a)(ia); 68

Judgement Text

P A G E 1 | 4 IN THE INCOME TAX APPELLATE TRIBUNAL, CUTTACK BENCH, CUTTACK BEFORE SHRI CHANDRA MOHAN GARG , JUDICIAL MEMBER AND LAXMI PRASAD SAHU, ACCOUNTANT MEMBER ITA NO . 124 /CTK/20 20 ASSESSMENT YEAR : 2014 - 15 M/S. ORISONS MACRO MANAGEMENT PVT LTD., PLOT NO. MIG - 19, STAGE - II, LAXMISAGAR, BHUBANESWAR. VS. ITO, WARD 1(2), BHUBANESWAR. PAN/GIR NO. AABCO 7553 J (APPELLANT ) .. ( RESPONDENT ) ASSESSEE BY : SHRI M.K.PATRA, AR REVENUE BY : SHRI J.K.LENKA , DR DATE OF HEARING : 24 / 0 8 / 20 20 DATE OF PRONOUNCEMENT : 07 / 0 9 /20 20 O R D E R PER C.M.GARG,JM THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST THE ORDER OF THE CIT(A),1, BHUBANESWAR DATED 15.1.2018 FOR THE ASSESSMENT YEAR 2014 - 15 . 2. THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS OF APPEAL: 1. THE ADDITION OF RS. 49,69,519/ - MADE ON ACCOUNT OF SUPPRESSION OF GROSS RECEIPTS DUE TO DIFFERENTIATION OF FIGURE AS REFLECTED IN STATEMENT OF PROFIT & LOSS ACCOUNT AND STATEMENT AS PER 26AS IS INCORRECT AND ARBITRARY AS THE ABOVE DIFFERENCES ARISES DUE TO REIMBURSEMENT OF EXPENSES MADE BY THE PARTY FOR WHICH TDS HAS BEEN MADE. 2. THE DISALLOWANCE OF COMMISSION PAID AMOUNTING TO RS. 12,60,225/ - U/S 40(A)(IA) OF THE INCOME TAX ACT IS INCORRECT AND BAD ITA NO.124/CTK/2020 ASSESSMENT YEAR : 2014 - 15 P A G E 2 | 4 IN LAW AS THE ABOVE AMOUNT OF COMMISSION HAS BEEN PAID BY THE APPELLANT COMPANY AFTER DEDUCTION OF TAX AS PER SEC. 194H OF THE IT. ACT. 3. THE ADDITION MADE ON ACCOUNT OF UNEXPLAINED CASH CREDIT U/S. 68 AMOUNT ING TO RS. 49,16,000/ - ON ACCOUNT OF CREDIT TO THE HDFC BANK A/C. IS INCORRECT AND BAD IN LAW AS THE ABOVE AMOUNT HAS BEEN CREDITED IN THE NORMAL COURSE OF BUSINESS OPERATION FOR WHICH THE DETAILS ARE AVAILABLE WITH THE APPELLANT COMPANY. 3. THE APPEAL IS TIME BARRED BY 729 DAYS. THE ASSESSEE HAS FILED CONDONATION PETITION DATED 13.3.2020 SUPPORTED BY AFFIDAVIT, INTER ALIA, EXPLAINING THAT ALTHOUGH THE LD CIT(A) HAS PASSED ORDER ON 15.1.2018 BUT THE ORDER WAS OBTAINED BY THE ASSESSEE AFTER DO WNLOADING DATA FROM THE INCOME TAX PORTAL ON 14.2.2020 AND, THE, THE ASSESSEE COULD FILE THE APPEAL BEFORE THE TRIBUNAL CAUSING DELAY OF 729 DAYS, WHICH IS NOT INTENTIONAL. 4. REITERATING THE SUBMISSIONS MADE IN THE PETITION, LD COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE DELAY IN FILING THE APPEAL WAS NOT INTENTIONAL AND DELIBERATE, HENCE, THE APPEAL BE ADMITTED FOR ADJUDICATION. LD D.R. OPPOSED FOR CONDONING THE DELAY. 5. AFTER CONSIDERING THE CONDONATION PETITION AND THE SUBMISSIONS OF THE PA RTIES, WE ARE SATISFIED THAT THE DELAY WAS CAUSED DUE TO THE FACT THAT THE FIRST APPELLATE ORDER ALTHOUGH WAS PASSED ON 15.1.2018 BUT SAME COULD NOT BE DELIVERED TO THE ASSESSEE. THE ABOVE ORDER OF THE LD CIT(A) WAS OBTAINED BY THE ASSESSEE AFTER DOWNLOADI NG FROM THE INCOME TAX PORTAL ON ITA NO.124/CTK/2020 ASSESSMENT YEAR : 2014 - 15 P A G E 3 | 4 14.2.2020 AND THEN THE APPEAL WAS FILED. THEREFORE, WE CONDONE THE DELAY IN FILING THE APPEAL AND ADMIT THE SAME FOR ADJUDICATION. 6. LD A.R. OF THE ASSESSEE SUBMITTED THAT THE LD CIT(A) HAS PASSED EXPARTE ORDER WITHOUT G IVING REASONABLE OPPORTUNITY TO THE ASSESSEE. . HE ALSO SUBMITTED THAT DURING THE ASSESSMENT PROCEEDINGS, THE ASSESSEE WAS IN JUDICIAL CUSTODY AND, THEREFORE, ASSESSMENT WAS PASSED EXPARTE U/S.144 OF THE ACT. HENCE, IT WAS HIS PRAYER THAT THE MATTER BE RESTORED TO THE FILE OF THE AO FOR FRESH ADJUDICATION LD D.R. DID NOT HAVE ANY OBJECTION IN RESTORING THE MATTER. 7. AFTER CONSIDERING THE SUBMISSIONS OF BOTH THE PARTIES, WE FIND THAT THE CIT(A) HAS PASSED EXPARTE ORDER FOLLOWING THE DECISION OF ITAT , DELHI IN THE CASE OF MULTIPLAN INDIA LTD., 38 ITD 320 ON THE GROUND THAT THE ASSESSEE HAS FAILED TO APPEAR BEFORE HIM ON THE DATE FIXED FOR HEARING. WE ALSO OBSERVE THAT THE ASSESSING OFFICER HAS PASSED ASSESSMENT ORDER U/S.144 OF THE ACT IN THE ABSENCE OF THE ASSESSEE AND THE CONTENTION OF THE LD A.R. IS THAT THE ASSESSE WAS IN JUDICIAL CUSTODY DURING ASSESSMENT PROCEEDINGS. HENCE, C ONSIDERING THE PRINCIPLE OF NATURAL , WE CONSIDER IT JUSTIFIABLE TO GIVE ONE MORE OPPORTUNITY TO TH E ASSESSEE TO PRESENT ITS CASE BEFORE THE ASSESSING OFFICER. THEREFORE, WE SET ASIDE THE ORDERS OF LOWER AUTHORITIES AND RESTORE THE ISSUE BACK TO THE FILE OF THE ASSESSING OFFICER TO ITA NO.124/CTK/2020 ASSESSMENT YEAR : 2014 - 15 P A G E 4 | 4 MAKE THE A SSESSMENT DENOVO AFTER PROVIDING ADEQUATE OPPORTUNITY THE ASSESSEE. THE ASSESSEE IS DIRECTED TO CO - OPERATE WITH THE ASSESSING OFFICER BY COMPLYING THE REQUIRES DETAILS AS CALLED FOR TO COMPLETE THE ASSESSMENT. CONSEQUENTLY, THE APPEAL IS RESTORED TO THE FILE OF THE ASSESSING OFFICER. 8 . IN THE RESULT, APPEAL FILED BY THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOS ES. ORDER PRONOUNCED ON 07 / 0 9 /20 20 . SD/ - SD/ - (LAXMI PRASAD SAHU) ( CHANDRA MOHAN GARG) ACCOUNTANT MEMBER JUDICIAL MEMBER CUTTACK; DATED 07 / 9 /20 20 B.K.PARIDA, SPS COPY OF THE ORDER FORWARDED TO : BY ORDER SR . PVT. S ECRETARY ITAT, CUTTACK 1. THE APPELLANT : M/S. ORISONS MACRO MANAGEMENT PVT LTD., PLOT NO. MIG - 19, STAGE - II, LAXMISAGAR, BHUBANESWAR 2. THE RESPONDENT. ITO, WARD 1(2), BHUBANESWAR 3. THE CIT(A) - 1 , BHUBANESWAR 4. PR.CIT - 1 , BHUBANESWAR 5. DR, ITAT, CUTTACK 6. GUARD FILE. //TRUE COPY//