M/s JBR Technologies Pvt. Ltd., Ludhiana V. ACIT, C-7, Ludhiana

ITA 1368/CHANDI/2018

• Counselvise Citation: [2019] 116 COUNSELVISE.COM (IT) 1964 (ITAT-CHANDIGARH)
• Duration Of Justice: 10 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 05-09-2019
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: A
• Assessment Year: 2013-2014
• Appeal Filed On: 05-11-2018
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: CHANDRA KANTA
• Keywords: Additional evidence; Set aside
• Section: 68; 271(1)(c)

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL, CHANDIGARH BENCH A CHANDIGARH !, ' # , $ % & ' ( , )* # BEFORE: SMT. DIVA SINGH, JM & SMT.ANNAPURNA GUPTA, AM ./ ITA NO. 1368/CHD/2018 ASSESSMENT YEAR : 2013-14 M/S JBR TECHNOLOGIES P.LTD., 2680, MOTI NAGAR, LUDHIANA. VS THE ACIT, CIRCLE 7, LUDHIANA. PAN /TAN NO: AABCJ8941R APPELLANT RESPONDENT ! ASSESSEE BY : NONE ' ! REVENUE BY : SMT. CHANDRAKANTA, SR. DR # $ % DATE OF HEARING : 22.08.2019 &'() % D ATE OF PRONOUNCEMENT : 05.09.2019 )-/ ORDER PER DIVA SINGH THE PRESENT APPEAL HAS BEEN FILED BY THE ASSESSEE WHEREIN THE CORRECTNESS OF THE ORDER DATED 13.08.20 18 OF CIT(A)-3, LUDHIANA PERTAINING TO 2013-14 ASSESSMENT YEAR IS ASSAILED ON VARIOUS GROUNDS. 2. AT THE TIME OF HEARING, NO ONE WAS PRESENT ON BE HALF OF THE ASSESSEE AND A PASS OVER WAS GIVEN. IN THE NEX T ROUND ALSO, THE ASSESSEE REMAINED UNREPRESENTED. HOWEVER , CONSIDERING THE MATERIAL AVAILABLE ON RECORD, IN TH E LIGHT OF GROUND NO. 4 RAISED BY THE ASSESSEE IN THE PRESENT APPEAL, IT WAS DEEMED APPROPRIATE TO PROCEED WITH THE PRESENT APPEAL ITA 1368/CHD/2018 A.Y. 2013-14 PAGE 2 OF 5 EX-PARTE QUA THE ASSESSEE APPELLANT ON MERITS AFTER HEARING THE LD. SR.DR. THE SAID GROUND IS REPRODUCED HEREU NDER FOR READY REFERENCE : 4. THAT THE LEARNED COMMISSIONER OF INCOME-TAX (APPEAL S) IS NOT JUSTIFIED IN CONFIRMING PENALTY U/S 27L(L)(C ) OF THE INCOME TAX ACT, 1961 BY REJECTING THE REQUEST OF ADDITIONAL EVIDENCE UNDER RULE 46 A OF T HE INCOME TAX RULES, 1962 AND WITHOUT VERIFYING THE DOCUMENTARY EVIDENCES. ALSO THE APPELLANT HAD EXPLAINED THE IDENTITY, CREDITWORTHINESS OF SMT. KU LWANT KAUR IN THE WRITTEN SUBMISSIONS MADE BEFORE THE LEARNED COMMISSIONER OF INCOME-TAX (APPEALS) BUT THE SAID FACTS ARE NOT PROPERLY INVESTIGATED BY THE LD. COMMISSIONER OF INCOME-TAX (APPEALS). 3. THE RELEVANT FACTS OF THE CASE ARE THAT THE ASSE SSEE COMPANY STATED TO BE ENGAGED IN THE BUSINESS OF TRE ATMENT OF INDUSTRIAL EFFLUENT PRODUCED FROM ELECTROPLATING IN DUSTRIES, ZINC PLATING INDUSTRIES ETC. RETURNED AN INCOME OF RS. 34,38,620/-. THE SAID RETURN WAS SELECTED FOR SCRU TINY. IN THE SCRUTINY PROCEEDINGS CONSIDERING THE INCREASE I N SHARE APPLICATION PENDING ALLOTMENT AS PER THE BALANCE SH EET AVAILABLE, THE ASSESSEE WAS REQUIRED TO EXPLAIN THE SAME. AS PER PAGE 2 OF THE ASSESSMENT ORDER, THE ASSESSEE HA S STATED THROUGH ITS REPRESENTATIVE THAT THE SHARE APPLICATI ON MONEY WAS STANDING AS SUNDRY CREDITORS IN THE NAME OF DIR ECTOR KULWANT KAUR IN ASSESSMENT YEAR 2012-13. THE ASSESS EE WAS REQUIRED TO JUSTIFY THE CLAIM. IN THE ABSENCE OF A NY PROOF OF IDENTITY, IT WAS HELD THAT THE GENUINENESS AND CRED IT WORTHINESS OF THE PERSON COULD NOT BE ESTABLISHED L EADING TO THE ADDITION OF THE SAID AMOUNT. ITA 1368/CHD/2018 A.Y. 2013-14 PAGE 3 OF 5 3.1 THE RELEVANT EXTRACT FROM THE ASSESSMENT ORDER IS REPRODUCED HEREUNDER FOR THE SAKE OF COMPLETENESS: THUS, SINCE THE IDENTITY, GENUINENESS, CREDITWORTH INESS OF THE SUBSCRIBER HAS NOT BEEN PROVED NOR HAS THERE BEEN ANY ATTEMPT AT A LL BY THE ASSESSEE TO PROVE THE SAME, THE ENTIRE SHARE APPLICATION MONEY IN THE NAME OF MRS KULWANT KAUR IS TREATED AS CASH CREDIT U/S 68 OF THE INCOME TAN ACT. 1961. 3.2. AGGRIEVED BY THIS, ASSESSEE CAME IN APPEAL B EFORE THE FIRST APPELLATE AUTHORITY. 3.3. A PERUSAL OF THE ORDER SHOWS THAT ON BEHALF OF THE ASSESSEE, IT WAS PLEADED THAT SINCE SMT. KULWANT KA UR EXPIRED IN JUNE, 2012, CONSEQUENTLY, THE RELEVANT D ETAILS COULD NOT BE PLACED BEFORE THE TAX AUTHORITIES. AC CORDINGLY, PERMISSION TO FILE FRESH EVIDENCE WAS SOUGHT. THE CIT(A) ACCEDING TO THE AOS OBJECTIONS THAT SUFFICIENT OP PORTUNITY HAD BEEN PROVIDED AT THE ASSESSMENT STAGE DID NOT A DMIT THE EVIDENCES. THESE FACTS ARE FOUND DISCUSSED AT PAGES 8-9 OF THE IMPUGNED ORDER. ON A READING FROM THE SAME, IT IS SEEN THAT NO DOUBT SUFFICIENT OPPORTUNITY HAD BEEN GRANT ED TO THE ASSESSEE AT THE ASSESSMENT STAGE AND ALSO IN THE PE NALTY PROCEEDINGS BEFORE THE AO, THE FACT REMAINS THAT TH E EVIDENCE PERTAINED TO THE LADY WHO HAD EXPIRED BEFO RE THE ASSESSMENT STAGE AND HENCE, THE PLEA THAT IT TOOK T IME FOR THE ASSESSEE TO OBTAIN THE RECORDS CANNOT BE OUT RI GHTLY DISCARDED. ACCORDINGLY, IN THE INTERESTS OF SUBSTA NTIAL JUSTICE, IT IS DEEMED APPROPRIATE TO SET ASIDE THE IMPUGNED ITA 1368/CHD/2018 A.Y. 2013-14 PAGE 4 OF 5 ORDER BACK TO THE FILE OF THE CIT(A) WITH THE DIREC TION TO ADMIT THE FRESH EVIDENCE AND CONFRONT THESE TO THE AO. IN CASE THE EVIDENCES ARE FOUND TO BE NOT SUFFICIENT A ND COMPLETE, THIS FACT MAY BE COMMUNICATED TO THE ASSE SSEE AND AFTER HEARING THE ASSESSEE AND CONFRONTING THE ASSE SSEE WITH THE OBJECTION, IF ANY OF THE AO ON MERITS, THE CIT( A) SHALL PASS A SPEAKING ORDER IN ACCORDANCE WITH LAW. 3.4 THE CONCLUSION SO DRAWN IS IN THE LIGHT OF THE WELL SETTLED LEGAL POSITION NAMELY THAT SIMPLY BECAUSE T HE ADDITION HAS BEEN MADE OR HAS BEEN SUSTAINED OR FOR THAT MATTER HAS BEEN ACCEPTED, THIS FACT BY ITSELF CANNO T LEAD TO THE CONCLUSION THAT PENALTY IS LEVIABLE. THE STATU TE DOES NOT VISUALIZE LEVY OF PENALTY U/S 271(1)(C) OF THE ACT AS AUTOMATIC. THE EXPLANATION OFFERED IN THE PENALTY PROCEEDINGS HAS TO BE CONSIDERED SEPARATELY IN THE LIGHT OF THE PENAL PROVISIONS ON THE STATUTE. WHILE SO HOLD ING, IT IS NECESSARY TO TAKE NOTE OF THE FACT THAT THE ASSESSE E FOR UNSTATED REASONS APPEARS TO HAVE WILLFULLY WASTED T HE OPPORTUNITY OF REPRESENTING ITSELF BEFORE THE AO AT THE PENALTY STAGE AND THUS, IT IS HOPED THAT THE OPPORT UNITY SO PROVIDED BY WAY OF A REMAND IS NOT ABUSED AND IS UT ILIZED BY MAKING FULL AND PROPER REPRESENTATION. SAID ORDER WAS PRONOUNCED IN THE OPEN COURT AT THE TIME OF HEARING ITSELF. ITA 1368/CHD/2018 A.Y. 2013-14 PAGE 5 OF 5 4. IN THE RESULT, APPEAL OF THE ASSESSEE IS PARTLY ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 05.09. 2019. SD/- SD/- ( $ % & ' ( ) ( ! ) (ANNAPURNA GUPTA) (DIVA SINGH) )* #/ ACCOUNTANT MEMBER ' #/ JUDICIAL MEMBER POONAM '+ ,- .- / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT 3. # / / CIT 4. # / ( )/ THE CIT(A) 5. -01 2 , % 2 , 34516 / DR, ITAT, CHANDIGARH 6. 15 7$ / GUARD FILE '+ # / BY ORDER, 8 ' / ASSISTANT REGISTRAR