THE ITO, Ward 4(2), Indore V. THE R.M. VINO ESTATE DEVELOPERS P. LTD., Indore

ITA 143/IND/2015

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 5830 (ITAT-INDORE)
• Duration Of Justice: 1 year(s) 5 month(s) 14 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 17-08-2016
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 17-08-2016
• Assessment Year: 2011-2012
• Appeal Filed On: 04-03-2015
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: MOHD JAVED
• Keywords: Bogus Share capital; Additional evidence
• Section: 133(6); 68

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, INDORE BENCH, INDORE BEFORE SHRI D.T. GARASIA, JUDICIAL MEMBER AND SHRI O.P. MEENA, ACCOUNTANT MEMBER ITO, WARD 4(2), INDORE. VS. M/S.R.M. VINO ESTATE DEVELOPERS PRIVATE LIMITED, BG-11, SCH. NO. 74C, VIJAY NAGAR, INDORE. PAN NO. AAECR6872Q APPELLANT RESPONDENT APPELLANT BY SHRI MOHD. JAVED, SR. DR RESPONDENT BY NONE. DATE OF HEARING 17.08.2016 DATE OF PRONOUNCEMENT 17.08.2016 O R D E R PER O.P. MEENA, ACCOUTANT MEMEBR. THIS APPEAL IS FILED BY THE REVENUE AGAINST THE ORD ER OF LD. COMMISSIONER OF INCOME-TAX (APPEALS)-I, INDORE [HEREINAFTER REFERRED TO AS THE CIT(A)] DATED 28.10.2014 AND PER TAINS TO ASSESSMENT YEAR 2011-12 AS AGAINST APPEAL DECIDED I N ASSESSMENT ORDER DATED 28.03.2014 OF ITO WARD 3(1), INDORE [HEREINAFTER REFERRED TO AS THE AO]. I.T.A. NO.143/IND/2015 ASSESSMENT YEAR: 2011-12 ITO VS. M/S. R.M. VINO ESTATE DEVELOPERS, I.T.A.NO. 2143/IND/2015 A.Y. 2011-12 PAGE 2 OF 5 2. THE REVENUE HAS TAKEN THE FOLLOWING GROUNDS OF APPEAL :- ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) ERRED IN - 1) ACCEPTING THE THREE COMPANIES, NAMELY, M/S. CONVENIENT HOUSING (P) LTD, M/S. NARMADA AIR PRODUCTS (P) LIMITED, M/S. MEWAR EQUIPMENTS (P) LIMITED, AS GENUINE ENTITIES WHEREAS THE SAME ARE ENTRY PROVIDER COMPANIES. 2) ACCEPTING ADDITIONAL EVIDENCES IN VIOLATION OF RULE 46A DESPITE THE FACT THAT SUFFICIENT OPPORTUNITIES WERE PROVIDED TO THE ASSESSEE DURING THE COURSE OF ASSESSMENT PROCEEDINGS TO PRODUCE SUCH EVIDENCES. 3) KNOCKING DOWN THE ADDITIONS MADE BY THE AO ON ACCOUNT OF UNEXPLAINED SHARE APPLICATION MONEY RECEIVED WITHOUT APPRECIATING THAT THE ASSESSEE FAILED TO ESTABLISH THE IDENTITY, CREDITWORTHINESS AND GENUINENESS DURING THE ASSESSMENT STAGE. ITO VS. M/S. R.M. VINO ESTATE DEVELOPERS, I.T.A.NO. 2143/IND/2015 A.Y. 2011-12 PAGE 3 OF 5 3. BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE RECEI VED SHARE CAPITAL OF RS. 3 CRORES FROM TEN COMPANIES. THE AO ISSUED NOTICES U/S 133(6) OF THE INCOME-TAX ACT, 19 61, TO ALL THE TEN COMPANIES. OUT OF TEN COMPANIES, THE AO WAS SATISFIED WITH THE REPLY OF SEVEN COMPANIES, THREE OF THEM, VI Z. M/S. NARMADA AIR PRODUCTS P.LTD., M/S. CONVENIENT HOUSIN G FINANCE P.LTD. AND M/S. MEWAR EQUIPMENT P.LTD, FURNI SHED ONLY CONFIRMATION LETTERS REGARDING SUCH SHARE CAPI TAL, BUT DID NOT FURNISH COPIES OF THEIR INCOME TAX RETURNS, BAN K STATEMENTS AND AUDIT REPORT. THEREFORE, THE AO HELD THE SHARE CAPITAL CONTRIBUTED BY THESE THREE COMPANIES OF A T OTAL OF RS. 1,05,00,000/- AS UNEXPLAINED SHARE CAPITAL AND ADDE D THE SAME IN THE HANDS OF THE ASSESSEE U/S 68 OF THE INC OME-TAX ACT, 1961. 4. THE MATTER CARRIED TO THE LD. CIT(A) AND THE LD. CI T(A) HAS DELETED THE ADDITION MADE U/S 68 OF THE INCOME- TAX ACT, 1961, BY ACCEPTING ADDITIONAL EVIDENCES SUBMITTED B EFORE HIM. 5. NOBODY APPEARED ON BEHALF OF THE ASSESSEE. 6. THE LD. SR.DEPARTMENTAL REPRESENTATIVE CONTENDED THAT THE LD. CIT(A) HAS NOT CONFRONTED THE AO WHILE ACCEPTING ITO VS. M/S. R.M. VINO ESTATE DEVELOPERS, I.T.A.NO. 2143/IND/2015 A.Y. 2011-12 PAGE 4 OF 5 THE ADDITIONAL EVIDENCES IN VIOLATION OF RULE 46A. THE LD. DEPARTMENTAL REPRESENTATIVE FURTHER SUBMITTED THAT THE AO STATED THAT THE ABOVE NAMED THREE COMPANIES DID NOT FURNISH COPIES OF THEIR INCOME TAX RETURNS, BANK STATEMENT AND AUDIT REPORT BEFORE THE AO. THE LD. CIT(A) ACCEPTED THE D OCUMENTS WHICH IS IN VIOLATION OF RULE 46A. THE LD. SR. DEPAR TMENTAL REPRESENTATIVE FURTHER CONTENDED THAT THE MATTER MA Y BE REMANDED TO THE FILE OF AO. 7. WE HAVE HEARD THE LD. SR. DEPARTMENTAL REPRESENTATI VE AND PERUSED THE MATERIAL AVAILABLE ON RECORD. WE FI ND THAT THE LD. CIT(A) HAS ACCEPTED THE ADDITIONAL EVIDENCES IN VIOLATION OF RULE 46A. THE LD. CIT(A) SHOULD HAVE CONFRONTED WIT H THE AO AND ASKED FOR THE NECESSARY REPORT AND THEN HE SHOU LD HAVE DECIDED THE MATTER. WE FIND THAT HE HAS NOT CONFRON TED WITH THE AO AND DECIDED THE MATTER ON THE BASIS OF ADDIT IONAL EVIDENCE FILED BEFORE HIM. WE, THEREFORE, IN THE IN TEREST OF JUSTICE AND FAIR PLAY SET-ASIDE THIS MATTER TO THE FILE OF LD. CIT(A), WHO SHALL DECIDE THE MATTER AFRESH AFTER CON FRONTING WITH THE AO AND ALSO AFFORDING OPPORTUNITY TO ASSESS EE AND DECIDE THE MATTER AFRESH IN ACCORDANCE WITH LAW. ITO VS. M/S. R.M. VINO ESTATE DEVELOPERS, I.T.A.NO. 2143/IND/2015 A.Y. 2011-12 PAGE 5 OF 5 8. IN THE RESULT, THE APPEAL OF THE REVENUE IS ALLOWE D FOR STATISTICAL PURPOSES. THE ORDER HAS BEEN PRONOUNCED IN OPEN COURT ON THE 17 TH AUGUST, 2016. SD/- (D.T.GARASIA) JUDICIAL MEMBER SD/- (O.P.MEENA) ACCOUNTANT MEMBER DATED : 17 TH AUGUST, 2016. CPU* COPY OF THE ORDER FORWARDED TO : THE ASSESSEE/ PCIT- INDORE/ CIT(A)-I, INDORE, AO/ D R- INDORE BENCH/ GUARD FILE BY ORDER ASSISTANT REGISTRAR OF ITAT, INDORE BENCH