M/s Eminence (India) Ltd., Bhind V. A.C.I.T., Circle-2, Gwalior

ITA 18/AGR/2012

• Counselvise Citation: 1820314 RSA 2012
• Duration Of Justice: 2 year(s) 5 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 27-06-2014
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 19-06-2014
• Assessment Year: 2008-2009
• Appeal Filed On: 12-01-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S D SHARMA
• Assessee Lawyers: RAJENDRA SHARMA
• Keywords: Unexplained cash credit; Opportunity of being heard
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AGRA BENCH, AGRA BEFORE SHRI BHAVNESH SAINI, JUDICIAL MEMBER AND SHRI PRAMOD KUMAR, ACCOUNTANT MEMBER ITA NO.18/AGRA/2012 ASSESSMENT YEAR: 2008-09 M/S. EMINENCE (INDIA) LIMITED, VS. ASSTT. COMMISSI ONER OF INCOME TAX, K-16, GHIRONGI INDUSTRIAL AREA, CIRCLE-2, GWALIOR (M.P.) MALANAPUR, BHIND (M.P.) (PAN AABFE 4961 H) ITA NO.40/AGRA/2012 ASSESSMENT YEAR: 2008-09 ASSTT. COMMISSIONER OF INCOME TAX, VS. M/S. EMINENC E (INDIA) LIMITED CIRCLE-2, GWALIOR (M.P.). K-16, GHIRONGI INDUSTR IAL AREA, MALANAPUR, BHIND (M.P.) (PAN AABFE 4961 H) (APPELLANTS) (RESPONDENTS) ASSESSEE BY : SHRI RAJENDRA SHARM A, ADVOCATE. REVENUE BY : SHRI S.D. SHARMA, JR. D.R. DATE OF HEARING : 19.06.2014 DATE OF PRONOUNCEMENT : 27.06.2014 ORDER PER PRAMOD KUMAR, ACCOUNTANT MEMBER: THESE CROSS APPEALS ARE DIRECTED AGAINST THE ORDER DATED 11.11.2011 PASSED BY THE LD. CIT(A), GWALIOR IN THE MATTER OF ASSESSM ENT UNDER SECTION 143(3) OF THE INCOME TAX ACT, 1961, FOR THE ASSESSMENT YEAR 2008- 09. ITA NOS.18 & 40/AGRA/2012 A.Y. 2008-09 2 2. THE GRIEVANCE RAISED BY THE ASSESSEE AS ALSO BY THE A.O. ARE AS FOLLOWS:- BY THE ASSESSEE :- 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE, THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) WAS NOT JUSTIF IED IN RETAINING AND CONFIRMING AN ADDITIONS OF RS.19,708,700/- ON A CCOUNT OF SHARE APPLICATION MONEY. THE ADDITION AS RETAINED ABOVE BY THE LEARNED CIT(A) MAY KINDLY BE DELETED. 2. ON THE FACTS & IN THE CIRCUMSTANCES OF THE CASE, THE LEARNED COMMISSIONER OF INCOME TAX (APPEAL) WAS NOT JUSTIFI ED IN UPHOLDING DISALLOWANCE OF 10% EXPENSES AMOUNTING TO RS.2,68,8 30/- OUT OF ADHOC ALLOWANCES OF RS.5,00,000/- MADE BY THE AO OU T OF FREIGHT, CARRIAGE INWARD, LABOUR, LOADING AND UNLOADING CHAR GES, OFFICE & MANDI EXPENSES. THE DISALLOWANCE AS UPHELD BY THE LEARNED CIT(A) MAY KINDLY BE DELETED. 3. THE APPELLANT CRAVES LEAVE TO ADD, ALTER, AMEND, MODIFY, DELETE OR SUBSTITUTE ANY GROUND OF APPEAL AT THE TIME OR B EFORE HEARING OF APPEAL. BY THE REVENUE:- WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES OF T HE CASE THE LD. CIT(A) WAS JUSTIFIED IN DELETING THE ADDITION O F RS.46,00,000/- MADE ON ACCOUNT OF UNEXPLAINED CREDIT IN THE FORM O F SHARE APPLICATION MONEY. 3. WHEN THE APPEAL WAS TAKEN UP FOR REHEARING ON 19 .06.2014, THE LD COUNSEL FOR THE ASSESSEE FAIRLY ADMITTED THAT HE IS NOT IN A POSITION TO PRODUCE ANY RECORD OR MATERIAL IN SUPPORT OF THE RELIEF HAVING BEEN GRANT ED BY THE LD. CIT(A). HE HOWEVER, PRAYED THAT THE MATTER MAY BE RESTORED TO THE FILE OF LD. CIT(A) FOR FRESH EXAMINATION AND TO ENABLE THE ASSESSEE TO GET ONE M ORE OPPORTUNITY FOR PRODUCING ITA NOS.18 & 40/AGRA/2012 A.Y. 2008-09 3 THE MATERIAL NECESSARY FOR DISPOSING OF THE FACTUAL ISSUE INVOLVE IN THE APPEAL. IT WAS ALSO POINTED OUT THAT THE BUSINESS OF THE ASSES SEE IS NO LONGER IN EXISTENCE AND, THEREFORE, THE ASSESSEE WILL NEED TIME TO FIND OUT AND PRODUCE THE MATERIAL REQUIRED TO SUBSTANTIATE THE GROUNDS OF APPEAL BY THE ASSESS EE AS ALSO TO JUSTIFY THE RELIEF GRANTED A BY THE LD. CIT(A). 4. THE LD. D.R. FAIRLY DOES NOT OBJECT TO THIS COUR SE OF ACTION. HE, HOWEVER, SUBMITS THAT EVEN THE RELIEF GRANTED BY THE LD. CIT (A) SHOULD BE AS MUCH SUBJECT OF REVIEW BY THE LD. CIT(A) AS MUCH TO THE POINT ON WH ICH THE ASSESSEE HAS ASSAILED THE LD. CIT(A)S ORDER. HE FAIRLY SUBMITTED THAT H E HAS NOT OBJECTED TO BOTH THE APPEALS BEING REMITTED TO THE FILE OF LD. CIT(A) 5. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE MATERIAL ON RECORD. IN VIEW OF THE INABILITY OF THE ASSESSEE TO PRODUCE TH E MATERIAL AND EVIDENCES IN SUPPORT OF HIS GRIEVANCE RAISED BEFORE US AS ALSO I N SUPPORT OF RELIEF HAVING BEEN GRANTED BY THE LD. CIT(A) AND IN VIEW OF THE FACT T HAT THE LD. D.R. DOES NOT OPPOSE THE MATTER BEING REMITTED TO THE FILE OF LD. CIT(A) , WE CONSIDER IT FIT AND PROPER TO REMAND THE MATTER TO THE FILE OF LD. CIT(A) FOR FRE SH ADJUDICATION INTER ALIA IN THE LIGHT OF OUR ABOVE OBSERVATION, ON THE BASIS OF MAT ERIAL AS THE PARTIES MAY PRODUCE IN ACCORDANCE WITH LAW AND BY WAY OF A SPEAKING ORD ER. WHILE DOING SO, THE LD. ITA NOS.18 & 40/AGRA/2012 A.Y. 2008-09 4 CIT(A) SHALL GIVE YET ANOTHER OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. WE DIRECT SO. 6. IN THE RESULT, CROSS APPEALS ARE ALLOWED FOR STA TISTICAL PURPOSES IN THE TERMS INDICATED ABOVE. (ORDER PRONOUNCED IN THE OPEN COURT ON 27.06.2014) SD/- SD/- (BHAVNESH SAINI) (PRAMOD KUMAR) JUDICIAL MEMBER ACCOU NTANT MEMBER DATE: 27 TH JUNE, 2014 PBN/* COPY OF THE ORDER FORWARDED TO:- 1. APPELLANT 2. RESPONDENT 3. CIT (APPEALS) CONCERNED 4. CIT CONCERNED 5. D.R., ITAT, AGRA BENCH, AGRA 6. GUARD FILE. BY ORDER SR. PRIVATE SECRETARY INCOME TAX APPELLATE TRIBUNAL, AGRA TRUE COPY