ACIT, Circle - Haldia, Purba Medinipur V. M/s. MSV Laboratories Pvt. Ltd., Purba Medinipur

ITA 1717/KOL/2009

• Counselvise Citation: [2010] 136 COUNSELVISE.COM (IT) 2599 (ITAT-KOLKATA)
• Duration Of Justice: 7 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 07-05-2010
• Appeal Filed By: Department
• Bench Allotted: A
• Assessment Year: 2006-2007
• Appeal Filed On: 07-10-2009
• Court: TRIBUNAL
• Department Lawyers: JYOTI KUMARI
• Assessee Lawyers: GAUTAM B ANERJEE
• Keywords: Share purchase agreement; Additional evidence

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL 'A BENCH : KOLKATA (BEFORE HONBLE SRI D.K.TYAGI, J.M. AND HONB LE SRI B.C.MEENA, A.M.) I.T.A. NO. 1717 /KOL/2009 ASSESSM ENT YEAR : 2006-07 ACIT, CIRCLE-HALDIA VS M/S MSV LABORATORIES (P) LTD. (PAN NO. AADCM 5533 C) (APPELLANT) (RESPONDENT) APPELLANT BY : SMT. JYOTI KUMARI. RESPONDENT BY : SRI GAUTAM B ANERJEE. O R D E R PER SHRI B.C.MEENA, A.M. THIS IS AN APPEAL FILED BY THE REVENUE AGAINST THE ORDER OF THE CIT(A)- XXXIII, KOLKATA DATED 29.06.2009 FOR THE ASSESSME NT YEAR 2006-07. 2. GROUND READS AS UNDER : ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE , THE LD. CIT(A)-XXXIII, KOLKATA HAS ERRED IN ACCEPTING ADDITIONAL EVIDENC E WITHOUT REFERRING THE ISSUE TO THE ASSESSING OFFICER IN VIOLATION OF RUL E 46A. HENCE, 2 ND APPEAL IS SUGGESTED. 3. THERE WAS A DELAY OF FIVE DAYS IN FILING THE APP EAL. AFTER HEARING BOTH THE SIDES ON THIS ISSUE WE CONDONE THE DELAY AND HEA R THE APPEAL. 4. IN THE REVENUES APPEAL THE ONLY SUBSTANTIAL G ROUND INVOLVED IS VIOLATION OF RULE 46A OF THE INCOME TAX RULES. 5. WHILE PLEADING ON BEHALF OF THE ASSESSEE, THE L EARNED A.R. SUBMITTED THAT THE A.O. MADE THE ADDITION WITHOUT ASKING FOR TH E DETAILS AND HE PLEADED THAT THE A.O. HAS STATED THAT THE ASSESSEE FAILED TO PRODUCE ITS SHARE CERTIFICATES. HE SUBMITTED THAT THE SHARES WERE RECEIVED FROM T HE SHAREHOLDERS . HENCE THE ASSESSEE COULD NOT BE ASKED TO SUBMIT THE SHARE CER TIFICATES. HE ALSO PLEADED THAT THE EVIDENCE REGARDING THE ALLOTMENT OF SHARE CERT IFICATE IS AVAILABLE ON THE RECORD. THEREFORE, THE CIT(A) HAS NOT VIOLATED RULE 46A . 6. ON THE OTHER HAND, THE LEARNED D.R. ARGUED THAT THE PAPERS SUBMITTED BY THE ASSESSEE IN THE PAPER BOOK WERE NOT FILED BEF ORE THE A.O. AND THE CIT(A) 2 HAS NOT ASKED FOR ANY REMAND REPORT IN THIS REGARD . THUS THERE IS A CLEAR VIOLATION OF RULE 46A. INCOME TAX RECORDS , BALANCE SHEET, TRADING ACCOUNT OF THE SHAREHOLDERS WERE NOT FILED BEFORE THE A.O. NOR THESE WERE SENT FOR REMAND REPORT TO THE A.O. THEREFORE, THE GROUND OF THE R EVENUES APPEAL DESERVES TO BE ALLOWED. 7. AFTER HEARING BOTH THE SIDES, WE FIND THAT THE CIT(A) HAS ADMITTED THE ADDITIONAL EVIDENCE WITHOUT PROVIDING ADEQUATE OP PORTUNITY TO THE A.O. THE A.RS PLEADING THAT THE A.O. HAS NOT ASKED THE D ETAILS OF THE SHARES IS ALSO UNJUSTIFIED. THE A.O. HAS RECORDED IN THE ORDER THAT THE ASSESSEE FAILED TO FURNISH EVIDENCE REGARDING SHARE CERTIFICATES WHICH HAVE BEEN ISSUED AND THE ASSESSEE ALSO DID NOT FURNISH EVIDENCE FOR THE PAYMENT OF SHARE ACQUISITION MONEY. THE CIT(A) HAS GRANTED RELIEF BY ACCEPTING ASSESSEES STATEMENT WHICH HAS NOT BEEN VERIFIED BY THE A.O. WHICH IS AVAILABLE AT PAGE 6 OF THE PAPER BOOK. THE DOCUMENTS RELATING TO THE SHAREHOLDERS WERE ALSO NO T FILED BEFORE THE A.O. THEY ARE ALSO NOT VERIFIED BY THE A.O. IN THE INTEREST OF JUSTICE AND EQUITY ,WE FIND THAT THERE WAS A VIOLATION OF RULE 46A. WE SET ASIDE THE ORDER OF THE CIT(A) TO DECIDE THE APPEAL DE NOVO AFTER PROVIDING OPPORTUNITY TO THE A.O. REGARDING THE ADDITIONAL EVIDENCE SUBMITTED BEFORE HIM BY TH E ASSESSEE. 8. IN THE RESULT, THE APPEAL OF THE DEPARTMENT IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 07.05.2010 SD/- SD/- (D.K.TYAGI ) (B.C.MEENA) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED : 07.05.2010 COPY FORWARDED TO :- 1) ACIT, CIR. HALDIA. 2) M/S MSV LABORATORIES PVT. LTD., VILL & PO MUG BERIA, DIST. PURBA MEDINIPUR. 3) CIT(A), KOLKATA. 4) CIT, KOLKATA. 5) D.R., ITAT, KOLKATA. BY ORDER BCD ASSISTANT REGISTRAR I.T.AT., KOLKATA. 3