ARPAN LEASING CO. LTD, MUMBAI V. ITO 2(1)(1), MUMBAI

ITA 1554/MUM/2017

• Counselvise Citation: [2018] 119 COUNSELVISE.COM (IT) 0674 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 8 month(s) 9 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 16-11-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2011-2012
• Appeal Filed On: 07-03-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Additional evidence
• Section: 147; 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH A , MUMBAI BEFORE SHRI C.N. PRASAD, HON'BLE JUDICIAL MEMBER AND SHRI RAJESH KUMAR , HON'BLE ACCOUNTANT MEMBER ITA NO. 1554 /MUM/201 7 (A.Y: 2011 - 12) M/S. ARPAN LEASING CO. LTD. C/O D.C. BOTHRA & CO, (CA) 297, TARDEO ROAD, WILE MANSION, 1 ST FLOOR, OPP BANK OF INDIA, NANA CHOWK, MUMBAI 400 007 PAN: AAACA 9645 G V. INCOME TAX OFFICER 2(1)(1) ROOM NO. 561, 5 TH FLOOR, AAYAKAR BHAVAN, M.K. ROAD, MUMBAI - 400 020 (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI RAJKUMAR SINGH DEPARTMENT BY : SHRI ANOOP HIWASE DATE OF HEARING : 23.08.2018 DATE OF PRONOUNCEMENT : 16 .11 .2018 O R D E R PER C. N. PRASAD (JM) 1. THIS APPEAL IS FILED BY THE ASSESSEE AGAINST THE ORDER OF THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) 3, MUMBAI [HEREINAFTER IN SHORT LD.CIT(A)] DATED 23.01.2017 F OR THE ASSESSMENT YEAR 2011 - 12. 2. ASSESSEE HAS RAISED THE FOLLOWING GROUNDS I N ITS APPEAL : - 1. THAT ON FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW THE ID. C.I.T. (APPEALS) HAS ERRED IN REJECTING THE APPLICATION AND ADDITIONAL EV IDENCES FURNISHED UNDER RULE 46A OF THE INCOME TAX RULES, 1962 ERRONEOUSLY STATING THAT THERE WAS NO REASON OR SUFFICIENT CAUSE WHICH PREVENTED THE APPELLANT FROM PRODUCING THE SUCH EVIDENCES BEFORE THE ID. ASSESSING OFFICER. THE ACTION OF ID. C.I.T. (APPEALS) 2 ITA NO.1554/MUM/2017 (A.Y: 2011 - 12) M/S. ARPAN LEASING CO. LTD. IN REFUSING TO ADMIT THE APPLICATION MADE AND ADDITIONAL EVIDENCES ADDUCED FOR WRONG REASONS BEING OPPOSED TO FACTS OF THE CASE AND LAW INCLUDING JUDICIAL PRONOUNCEMENT THEREFORE SAME MAY KINDLY BE SET ASIDE. 2. THAT ON FACTS AND CIRCUMSTANCES OF THE CASE AND IN THE INTEREST OF PRINCIPLE OF NATURAL JU STICE APPELLANT PRAYS THAT ASSESSMENT ORDER PASSED U/S 144 R.W.S. 147 MAY BE SET ASIDE AND RESTORED TO THE FILE OF ID. ASSESSING OFFICER TO MAKE THE DE NOVO ASSESSMENT FOR ASCERTAINING THE CORRECT AND REAL TAX LIABILITY UNDER THE PROVISIONS OF I.T. ACT, 19 61 AS NO REVENUE GENERATING ACTIVITIES HAS TAKEN PLACE IN THE CASE OF APPELLANT SINCE LONG BACK HENCE NO ITR WAS FILED FROM A.Y. 2007 - 08 ONWARDS. 3. THAT THE ASSESSMENT OF ENTIRE RECEIPTS OF RS. 54,74,000/ - IN BANK ACCOUNT AS UNDISCLOSED INCOME CHARGEABLE TO TAX BY ID. A.O. AND CONFIRMED BY ID. C.I.T. (APPEALS) IS WRONG ON FACTS AND BAD IN LAW SINCE SUCH RECEIPTS ACTUALLY REPRESENTS THE REFUND/ REPAYMENT OF OLD RECEIVABLES AND OR ON CURRENT ACCOUNT THUS CAPITAL IN NATURE THEREFORE SAME MAY KINDLY BE DELETED . 3. AT THE OUTSET , LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT ON IDENTICAL ISSUE THE TRIBUNAL FOR THE IMMEDIATELY PRECEDING ASSESSMENT YEAR I.E. A.Y. 2010 - 11 RESTORED THE ISSUE TO THE FILE OF THE ASSESSING OFFICER TO CONSIDER THE ADDITIONAL EVIDENCE S FILED BY THE ASSESSEE AND TO DECIDE THE ISSUE AFRESH. LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT THIS YEAR ALSO THE LD.CIT(A) DID NOT ADMIT THE ADDITIONAL EVIDENCES. ISSUE BEING IDENTICAL EVEN ON MERITS THE APPEAL BE RESTORED FOLLOWING THE ORDER OF THE TRIBUNAL FOR EARLIER YEARS. 4. THE LD. DR HAS NO SERIOUS OBJECTION IN RESTORING THE MATTER TO THE FILE OF THE ASSESSING OFFICER. 5. WE HAVE HEARD THE SUBMISSIONS, PERUSED THE ORDERS OF THE AUTHORITIES BELOW AND THE ORDER OF THE TRIBUNAL. IN ITA.NO. 1553 / MUM/20 1 7 DATED 20.09.2017 FOR A.Y. 2010 - 11, THE COORDINATE BENCH CONSIDERED THE IDENTICAL ISSUE AND RESTORED THE MATTER TO THE FILE OF 3 ITA NO.1554/MUM/2017 (A.Y: 2011 - 12) M/S. ARPAN LEASING CO. LTD. THE ASSESSING OFFICER WITH A DIRECTION TO CONSIDER THE ADDITIONAL EVIDENCES FILED BY THE ASSESSEE AND TO DECIDE THE ISSUE AFRESH OBSERVING AS UNDER: 6. I FOUND THAT AS ASSESSEE COMPANY WAS EARLIER ENGAGED IN LEASE FINANCING BUSINESS HAS BECOME ALMOST DORMANT COMPANY SINCE 01/04/2007 NOT HAVING ANY REVENUE GENERATING ACTIVITY AND ITS NBFC LICENSE WAS ALSO CANCELLED BY RBI IT WAS N OT HAVING ANY MAN POWER AND EMPLOYEES ON ITS OWN PAYROLL. SINCE THERE WAS NO REVENUE GENERATING BUSINESS ACTIVITY IN THE CASE OF ASSESSEE COMPANY SINCE 01/04/2007 AND IT WAS NOT HAVING ANY EMPLOYEE ON ITS PAYROLL THE BOOKS OF ACCOUNT WERE NOT WRITTEN SINCE THEN NOR AUDIT WAS DONE HENCE INCOME TAX RETURN FOR ANY ASSESSMENT YEAR SINCE 2008 - 09 COULD NOT BE FILED. ASSESSEE COMPANY WAS ALMOST A DORMANT COMPANY HAVING NO BUSINESS ACTIVITY AFTER THE ABOVE STATED PERIOD. FOR THE AFORESAID BONAFIDE REASONS THE NOTIC ES ISSUED BY THE LD. AO HAS REMAINED NON - COMPILED WHICH HAS LEAD IN PASSING OF THE EX - PARTE BEST JUDGMENT ASSESSMENT ORDER U/S. 144 AND ADDITION OF RS.21,94,618/ - , BEING AGGREGATE DEPOSIT IN BANK ACCOUNTS OF ASSESSEE COMPANY IN THE ABOVE ASSESSMENT YEAR, A S INCOME OF THE ASSESSEE COMPANY. 7. FROM THE RECORD, I FOUND THAT THE ASSESSEE ALSO FILED APPLICATION UNDER RULE 46A. HOWEVER, THE CIT(A) REJECTED THE ADDITIONAL EVIDENCE. AS PER MY CONSIDERED VIEW, THE ADDITIONAL EVIDENCE SO FILED BEFORE CIT(A) GOES TO T HE ROOT OF THE ISSUE. KEEPING IN VIEW THE EXPARTE ORDER PASSED BY AO AND IN THE SUBSTANTIAL INTEREST OF JUSTICE, I RESTORE THE MATTER BACK TO THE FILE OF THE AO WITH A DIRECTION TO CONSIDER THE ADDITIONAL EVIDENCE SO FILED AND FOR DECIDING THE ISSUE AFRESH . 6. FOLLOWING THE SAID ORDER, WE RESTORE THIS APPEAL TO THE FILE OF THE ASSESSING OFFICER WITH A DIRECTION TO CONSIDER THE ADDITIONAL EVIDENCE S AND DECIDE THE ISSUE IN ACCORDANCE WITH LAW AFTER PROVIDING ADEQUATE OPPORTUNITY O F BEING HEARD TO THE ASSESSEE. 7. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED IN THE OPEN COURT ON THE 16 TH NOVEMBER , 2018 SD/ - SD/ - ( R AJESH KUMAR) ) (C.N. PRASAD) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI / DATED 16 / 11 / 2018 GIRIDHAR , SR. PS 4 ITA NO.1554/MUM/2017 (A.Y: 2011 - 12) M/S. ARPAN LEASING CO. LTD. COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT. 3. THE CIT(A), MUMBAI. 4. CIT 5. DR, ITAT, MUMBAI 6. GUARD FILE. //TRUE COPY// BY ORDER (ASSTT. REGISTRAR) ITAT, MUM