The ACIT,Vapi Circle, Vapi V. Smt. Bhanumati D.Patel, Vapi

ITA 1434/AHD/2011

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 85539 (ITAT-AHMEDABAD)
• Duration Of Justice: 3 year(s) 7 month(s) 21 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 09-01-2015
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: C
• Next Hearing Date: 11-12-2014
• Assessment Year: 2007-2008
• Appeal Filed On: 19-05-2011
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: MK SINGH
• Assessee Lawyers: MEHUL K PATEL
• Keywords: Additional evidence; Deemed dividend

Judgement Text

, , , , C, IN THE INCOME TAX APPELLATE TRIBUNAL AT AHMEDABAD, C BENCH . .. . . .. . , !' !' !' !', , , , #$ %&'( #$ %&'( #$ %&'( #$ %&'(, , , , )* + ) ' )* + ) ' )* + ) ' )* + ) ' BEFORE S/SHRI G.C. GUPTA, VICE-PRESIDENT AND ANIL CHATURVEDI, ACCOUNTANT MEMBER) ITA NO.1434/AHD/2011 [ASSTT.YEAR : 2007-2008] ACIT, VAPI CIRCLE VAPI. /VS. SMT. BHANUMATI D. PATEL L/H. OF LATE SHRI DINKAR V. PATEL RESIDENT PLOT NO.197 SAURABH SOCIETY, GUNJAN, VAPI. ( (( ( -. -. -. -. / APPELLANT) ( (( ( /0-. /0-. /0-. /0-. / RESPONDENT) + 1 2 ) / REVENUE BY : SHRI M.K. SINGH, SR.DR 4& 1 2 ) / ASSESSEE BY : SHRI MEHUL K. PATEL 5 1 &(* / DATE OF HEARING : 11 TH DECEMBER, 2014 678 1 &(* / DATE OF PRONOUNCEMENT : 09-01-2015 )9 / O R D E R PER G.C. GUPTA, VICE-PRESIDENT: THIS APPEAL BY THE REVENUE FOR THE ASSTT.YEAR 2007-08 IS DIRECTED AGAINST THE ORDER OF THE CIT(A). 2. ONLY GROUND OF THE APPEAL OF THE REVENUE IS AS U NDER: 1. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD.CIT(A) HAS ERRED IN DELETING THE DEEMED DIVIDEND U/S.2(22)(E) OF THE ACT CHARGED IN VIEW OF INTEREST BEARING LOAN OF RS.31,63,365/- ITA NO.1434/AHD/2011 -2- GIVEN BY THE COMPANY IN WHICH THE ASSESSEE IS DIREC TOR AND HOLDING THE VOTING POWER OF MORE THAN 10%. 3. THE LEARNED DR SUBMITTED THAT THE ASSESSEE HAS N OT FILED ANY EVIDENCE WHATSOEVER BEFORE THE AO TO SUBSTANTIATE I TS CLAIM THAT THE TRANSACTION ENTERED INTO BETWEEN M/S.DHIRAJ INTERME DIATES P. LTD. TO M/S.BRIGHTON PIGMENT PVT. LTD. WAS A TRADING ADVANC E AND NOT LOAN ADVANCE. HE SUBMITTED THAT THE CIT(A) HAS ACCEPTED SOME DOCUMENTS AS ADDITIONAL EVIDENCE WITHOUT EVENING ASKING FOR A RE MAND REPORT FROM THE AO. THE LEARNED COUNSEL FOR THE ASSESSEE HAS OPPOS ED THE SUBMISSIONS OF THE LEARNED DR. HE FAIRLY SUBMITTED THAT COPY OF E XTRACT FROM THE SALE LEDGER OF M/S.BRIGHTON PIGMENT PVT. LTD. FOR THE SU BSEQUENT FINANCIAL YEAR 2007-08 AND COPY OF CERTIFICATE FROM M/S.BRIGHTEN P IGNMENTS PVT. LTD. DTD. 13.8.2010 WERE FILED FOR THE FIRST TIME BEFORE THE CIT(A). HE HAS RELIED ON THE ORDER OF THE CIT(A). 4. WE HAVE CONSIDERED RIVAL SUBMISSIONS AND PERUSED THE ORDERS OF THE AO AND THE CIT(A). WE FIND THAT CERTAIN DOCUMENTS WHICH GO TO THE ROOT OF THE ISSUE WERE NOT FILED BY THE ASSESSEE BEFORE THE AO AT THE STAGE OF THE ASSESSMENT. HOWEVER, THE SAME WAS FILED BEFORE THE CIT(A) FOR THE FIRST TIME DURING THE APPELLATE PROCEEDING. ADMITTEDLY C IT(A) HAS NOT CALLED FOR ANY REMAND REPORT FROM THE AO ON THIS ISSUE. A CCORDINGLY, IT SHALL BE IN THE INTEREST OF JUSTICE TO SET ASIDE THE ORDER O F THE AUTHORITIES BELOW TO THE FILE OF THE AO WITH DIRECTION TO DECIDE THE ISS UE DE NOVO IN THE GROUNDS OF THE APPEAL ON MERIT AFTER PROVIDING DUE OPPORTUN ITY OF HEARING TO THE ASSESSEE. THE ASSESSEE SHALL BE AT LIBERTY TO FILE ANY DOCUMENT IN SUPPORT ITA NO.1434/AHD/2011 -3- OF ITS CASE BEFORE THE AO. WE DIRECT ACCORDINGLY. 5. IN THE RESULT, APPEAL OF THE REVENUE IS ALLOWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED IN OPEN COURT ON THE DATE MENTIONE D HEREINABOVE. SD/- SD/- ( %&'( %&'( %&'( %&'( / ANIL CHATURVEDI) )* + )* + )* + )* + /ACCOUNTANT MEMBER ( . .. . . .. . /G.C. GUPTA) !' !' !' !' /VICE-PRESIDENT C OPY OF THE ORDER FORWARDED TO: 1) : APPELLANT 2) : RESPONDENT 3) : CIT(A) 4) : CIT CONCERNED 5) : DR, ITAT. BY ORDER DR/AR, ITAT, AHMEDABAD