Bimal Kumar Agarwal., Kolkata V. I.T.O. Wd - 32(1),Kol., Kolkata

ITA 1841/KOL/2012

• Counselvise Citation: [2014] 140 COUNSELVISE.COM (IT) 83010 (ITAT-KOLKATA)
• Duration Of Justice: 1 year(s) 7 month(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 01-08-2014
• Appeal Filed By: Assessee
• Bench Allotted: A
• Assessment Year: 2009-2010
• Appeal Filed On: 12-12-2012
• Court: TRIBUNAL
• Department Lawyers: A S MONDAL ACIT
• Assessee Lawyers: MANISH TIWARI
• Keywords: Additional evidence; Reasonable cause; Deemed dividend

Judgement Text

, A , IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH: KOL KATA () BEFORE , . . . . ! ! ! ! /AND ' #!' ' #!' ' #!' ' #!' , ) [BEFORE SHRI P. K. BANSAL, AM & SHRI MAHAVIR SINGH, JM] !$ / I.T.A NO.1841/KOL/2012 #% &'/ ASSESSMENT YEAR: 2009-10 BIMAL KUMAR AGARWAL VS. INCOME-TAX OFFICER, WD-3 2(1), KOLKATA (PAN:ACLPA2250P) ()* /APPELLANT ) (+,)*/ RESPONDENT ) DATE OF HEARING: 23.07.2014 DATE OF PRONOUNCEMENT: 01.08.2014 FOR THE APPELLANT: SHRI MANISH TIWARI, ADVOCATE FOR THE RESPONDENT: SHRI A. S. MONDAL, ACIT, SR. DR / ORDER PER SHRI MAHAVIR SINGH, JM : THIS APPEAL BY ASSESSEE IS ARISING OUT OF ORDER OF CIT(A)-XIX, KOLKATA IN APPEAL NO. 200/CIT(A)-XIX/ITO,WD-32(1)/KOL/11-12 DATED 11.10.2 012. ASSESSMENT WAS FRAMED BY ITO, WARD-32(1), KOLKATA U/S.143(3) OF THE INCOME-TAX AC T, 1961 (HEREINAFTER REFERRED TO AS THE ACT) FOR ASSESSMENT YEARS 2009-10 VIDE HIS ORDER D ATED 14.12.2011. 2. THE ONLY ISSUE IN THIS APPEAL OF ASSESSEE IS AGA INST THE ORDER OF CIT(A) CONFIRMING THE ADDITION OF RS.8.50 LACS BEING DEEMED DIVIDEND U/S. 2(22)(E) OF THE ACT. FOR THIS, ASSESSEE HAS RAISED FOLLOWING THREE GROUNDS: 1. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF T HE CASE, LD. CIT(A) HAS ACTED ARBITRARILY IN IGNORING BALANCE SHEET OF M/S. SAARA NG SHAREES PVT. LTD. ON THE GROUND THAT THE SAME IS NOT ADMISSIBLE BEING ADDITIONAL EVIDENC E. 2. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF T HE CASE, LD. CIT(A IS WRONG AND UNJUSTIFIED IN CONFIRMING THE ACTION OF ASSESSING O FFICER WHO TREATED LOAN RECEIVED FROM M/S. SAARANG SHAREES PVT. LTD. AS DEEMED DIVIDEND W ITHOUT CONSIDERING THAT DEEMED DIVIDEND CANNOT EXTENT BEYOND RESERVE AND SURPLUS O F THE COMPANY PROVIDING LOAN. 3. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF TH E CASE, LD. CIT(A) IS WRONG IN CONFIRMING ADDITION OF RS.8,50,000/- U/S. 2(22(E) O F INCOME TAX ACT, 1961. 3. WE HAVE HEARD RIVAL SUBMISSIONS AND GONE THROUGH FACTS AND CIRCUMSTANCES OF THE CASE. WE FIND THAT THE AO DURING THE COURSE OF ASSESSMENT PROCEEDINGS NOTICED FROM THE BALANCE SHEET OF THE ASSESSEE THAT THE ASSESSEE HAS RECEIVE D UNSECURED LOAN FROM SARRANG SHARES PVT. LTD. TO THE TUNE OF RS.8.50 LACS AND ASSESSEE IS A DIRECTOR IN THE SAID COMPANY. THEREFORE, THE AO INVOKED THE PROVISION OF SECTION 2(22)(E) OF THE ACT. ACCORDINGLY, HE MADE ADDITION. AGGRIEVED, ASSESSEE PREFERRED APPEAL BEFORE CIT(A). THE CIT(A) ALSO CONFIRMED THE ACTION OF THE AO BY OBSERVING AS UNDER: ON CAREFUL CONSIDERATION OF A/R SUBMISSION, I DO N OT ANY MERIT IN HAVING REASONABLE CAUSE FOR NOT FURNISHNG FULL DETAILS BEFORE THE A. O. DURING THE ASSESSMENT PROCEEDINGS. THE DETAILS WERE WITHIN THE REACH OF THE ASSESSEE A ND IT WAS HIS PERSONAL DETAILS FOR WHICH IT IS DIFFCULT TO PRESUME THAT HE WILL BE AWARE OF SUCH FACT ONLY ON INFORMATION FROM OUTSIDE PARTY INCLUDING THAT OF THE A.O. IN VIWE SU CH FACT, I DO NOT FIND MERIT IN ASSESSEES EXPLANATION FOR EXISTENCE OF REASONABLE CAUSE. 2 ITA NO.1841/K/2012 BIMAL KUMAR AGARWAL, AY 2009-10 IT IS WELL SETTLED THAT THE ADDITION U/S.2(22)(E) I S RESTRICTED ONLY UPTO THE ACCUMULATED PROFIT. HOWEVER, IN THIS CASE THE A/RS SUBSEQUENT EXPLANATION THAT THE ACCUMULATED PROFIT WAS ONLY OF RS.1,53,857/- IS UNVERIFIED CLAIM AND S ELF SERVING IN NATURE. MOREOVER, SUCH EXPLANATION THROUGH ADDITIONAL EVIDENCE IS NOT ADMI SSIBLE IN VIEW OF AFORESAID DISCUSSION.THEREFORE, ON MERIT THE ADDITION MADE BY THE AO OF RS. 8,50,000/- IS CONFIRMED.. NOW BEFORE US, LD. COUNSEL FOR THE ASSESSEE FAIRLY CONCEDED THAT THE PROVISIONS OF SECTION 2(22)(E) OF THE ACT ARE APPLICABLE IN THE PRESENT C ASE BUT ONLY LIMITED TO THE ACCUMULATED PROFIT. THIS CLAIM WAS MADE BY ASSESSEE BEFORE CIT(A) ALSO BUT HE ONLY BRUSHED ASIDE THE CLAIM FOR THE REASON THAT SUCH EXPLANATION THOUGH ADDITIONAL EVIDENCE IS NOT ADMISSIBLE. WE ARE OF THE VIEW THAT LET THE AO VERIFY THIS CLAIM OF THE ASSES SEE AND DECIDE THE SAME ACCORDINGLY. IN TERM OF THE ABOVE, THIS APPEAL OF ASSESSEE IS RESTORED T O THE FILE OF AO. THE APPEAL OF ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. 4. IN THE RESULT, THE APPEAL OF ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. 5. ORDER PRONOUNCED IN OPEN COURT ON 01.08.2014. SD/- SD/- , . . . . , ' #!' ' #!' ' #!' ' #!' , (P. K. BANSAL) (MAHAVIR SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED : 1 ST AUGUST, 2014 -. #/0 #1 JD.(SR.P.S.) 2 +##3 43&5- COPY OF THE ORDER FORWARDED TO: 1 . )* / APPELLANT SHRI BIMAL KUMAR AGARWAL, 48A, PARK STR EET, SURUCHI, KOLKATA-700 016 2 +,)* / RESPONDENT ITO, WARD-32(1), KOLKATA. 3 . # ( )/ THE CIT(A), KOLKATA 4. 5. # / CIT KOLKATA 3:#; +# / DR, KOLKATA BENCHES, KOLKATA ,3 +#/ TRUE COPY,