Vayu Energy TamilNadu Private Limited, CHENNAI V. ACIT Corporate Circle 3(4), CHENNAI

ITA 2614/CHNY/2018

• Counselvise Citation: [2019] 118 COUNSELVISE.COM (IT) 2737 (ITAT-CHENNAI)
• Duration Of Justice: 5 month(s) 9 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 21-02-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2008-2009
• Appeal Filed On: 11-09-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: M SUBASHRI
• Keywords: Unexplained cash credit; Opportunity of being heard; Accommodation entries
• Section: 143(3); 148

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL , B BENCH, CHENNAI . , . , BEFORE SHRI A.MOHAN ALANKAMONY, ACCOUNTANT MEMBER AND SHRI DUVVURU RL REDDY, JUDICIAL MEMBER ./ I.T.A.NO.2614/CHNY/2018 / ASSESSMENT YEAR: 2008-09) M/S. VAYU ENERGY (TAMILNADU) PVT. LTD., C/O. C.S.P JAIN & CO., 60, N.S.C. BOSE ROAD, FIRST FLOOR, SOWCARPET, CHENNAI 600001. VS THE ACIT, CORPORATE CIRCLE 3(4), CHENNAI. PAN: AACCV6310R ( /APPELLANT) ( /RESPONDENT) / APPELLANT BY : SHRI SUNILKUMAR JAIN, FCA / RESPONDENT BY : MS. M. SUBASHRI, JCIT /DATE OF HEARING : 21.02.2019 /DATE OF PRONOUNCEMENT : 21.02.2019 / O R D E R PER A. MOHAN ALANKAMONY, AM:- THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER PASSED BY THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS)-11, CHENNAI, DATED 26.07.2018 IN ITA NO.200/14-15 FOR THE ASSESSMENT YEAR 2008-09 PASSED U/S.250(6) R.W.S143(3) & 147 OF THE ACT. 2 ITA NO.2614/CHNY/2018 2. THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS IN ITS APPEAL:- 1. THE NOTICE ISSUED U/S 148 IS BAD IN LAW FOR THE REASON THAT THE PRIOR APPROVAL OF THE JOINT COMMISSIONER/ COMMISSIONER WAS NOT RECEIVED. 2. THE ORDER PASSED U/S 143(3) R.W.S 147 IS BAD IN LAW FOR THE REASON THAT IN THE REASONS FOR REOPENING AN AMOUNT OF RS.1,05,000/- WAS DEEMED TO HAVE ESCAPED ASSESSMENT WHEREAS IN THE ASSESSMENT RS 65,00,000/- WAS THE ADDITION MADE. 3. THE LEARNED ASSESSING OFFICER HAS IGNORED THE EVIDENCE PRODUCED BEFORE HIM WITH REGARD TO THE SHARE APPLICATION MONEY RECEIVED WHILE COMPLETING THE ASSESSMENT. 4. THE LD. A.O HAS ERRED IN ADDING TO THE TOTAL INCOME RS. 65,00,000/- RECEIVED AS SHARE APPLICATION MONEY AS CASH CREDITS U/S 68. WITHOUT PREJUDICE TO THE ABOVE, 5. THE ORDER PASSED U/S 143(3) R.W.S 147 IS BAD IN LAW AS NO RETURN U/S 148 WAS FILED. EVEN OTHER WISE NO NOTICE U/S 143(2) WAS ISSUED FOR THE A.Y 2008- 09. 6. THE LD CIT (A) HAD PASSED THE ORDERS WITHOUT GIVING AN OPPORTUNITY OF BEING HEARD HENCE AN OPPORTUNITY OF BEING HEARD BY THE CIT(A) MAY BE GIVEN. FOR THIS AND OTHER REASONS THAT MAY BE ADDUCED AT THE TIME OF HEARING, IT IS PRAYED THAT THE ADDITIONS MADE MAY BE DIRECTED TO BE DELETED. 3. THE BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE IS A PRIVATE LIMITED COMPANY ENGAGED IN THE BUSINESS OF PRODUCING POWER AND WIND ENERGY, FILED ITS RETURN OF INCOME FOR THE ASSESSMENT YEAR 2008-09 ON 29.09.2008 ADMITTING TOTAL INCOME OF 3 ITA NO.2614/CHNY/2018 RS.34,790/-. INITIALLY THE RETURN WAS PROCESSED U/S.143(1) OF THE ACT. SUBSEQUENTLY THE CASE WAS REOPENED U/S.147 OF THE ACT BY ISSUE OF NOTICE U/S.148 OF THE ACT ON 22.03.2013 BASED ON THE REPORT RECEIVED FROM THE INCOME TAX INVESTIGATION UNIT. FINALLY ASSESSMENT ORDER WAS PASSED U/S.143(3) R.W.S. 147 OF THE ACT ON 26.03.2014 WHEREIN THE LD.AO MADE ADDITION OF RS.65,00,000/ TOWARDS UNEXPLAINED CASH CREDIT U/S.68 OF THE ACT BEING THE ACCOMMODATION ENTRIES RECEIVED FROM VARIOUS COMPANIES. ON APPEAL THE LD.CIT(A) PASSED AN EX-PARTE ORDER CONFIRMING THE ORDER OF THE LD.AO BECAUSE THE ASSESSEE COULD NOT PRODUCE CONFIRMATION STATEMENT FROM THE COMPANIES WHO HAD ISSUED THE CHEQUES TO THE ASSESSEE. 4. AT THE OUTSET THE LD.AR SUBMITTED BEFORE US THAT THE LD.CIT(A) HAD PASSED AN EX-PARTE ORDER WITHOUT GRANTING ASSESSEE PROPER OPPORTUNITY OF BEING HEARD AS HE COULD NOT BE PRESENT BEFORE THE BENCH ON THE DATE OF HEARING DUE TO CERTAIN UNAVOIDABLE CIRCUMSTANCES. IT WAS THEREFORE PLEADED THAT ONE MORE OPPORTUNITY MAY BE PROVIDED TO THE ASSESSEE SO THAT THE ASSESSEE WOULD BE ABLE TO PROVE THE GENUINENESS OF THE TRANSACTION. THE LD.DR 4 ITA NO.2614/CHNY/2018 STRONGLY OPPOSED TO THE SUBMISSION OF THE LD.AR AND SUBMITTED THAT SEVERAL OPPORTUNITIES WERE PROVIDED TO THE ASSESSEE AND THE ASSESSEE HAD SOUGHT ADJOURNMENT ON EARLIER TWO OCCASIONS. FURTHER ON THE SUBSEQUENT DATE OF HEARING ALSO NONE APPEARED ON BEHALF OF THE ASSESSEE. HENCE THE LD.DR PLEADED FOR CONFIRMING THE ORDERS OF THE LD.REVENUE AUTHORITIES. 5. AFTER HEARING BOTH SIDES, WE DO NOT FIND ANY MERIT IN THE ARGUMENTS ADVANCED BY THE LD.AR. FROM THE ORDER OF THE LD.CIT(A) IT IS EVIDENT THAT HE HAD PROVIDED SEVERAL OPPORTUNITIES TO THE ASSESSEE OF BEING HEARD BUT BOTH THE LD.AR AS WELL AS THE ASSESSEE HAD MISERABLY FAILED TO APPEAR BEFORE THE LD.CIT(A) AT THE TIME OF HEARING. HOWEVER, CONSIDERING THE SUBMISSION OF THE LD.AR IN THE INTEREST OF JUSTICE, WE HEREBY REMIT THE MATTER BACK TO THE FILE OF LD.CIT(A) FOR DE-NOVA CONSIDERATION. WE ALSO DIRECT THE ASSESSEE AND HIS COUNSEL TO CO-OPERATE BEFORE THE LD.REVENUE AUTHORITIES PROMPTLY IN ORDER TO EXPEDITE THEIR PROCEEDINGS, FAILING WHICH THEY SHALL BE AT LIBERTY TO PASS APPROPRIATE ORDER IN ACCORDANCE WITH MERIT AND LAW BASED ON THE MATERIALS ON RECORD. 5 ITA NO.2614/CHNY/2018 6. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON THE 21 ST FEBRUARY, 2019 AT CHENNAI. SD/- SD/- ( ) (DUVVURU R.L REDDY) /JUDICIAL MEMBER ( . ) (A. MOHAN ALANKAMONY) / ACCOUNTANT MEMBER /CHENNAI, /DATED 21 ST FEBRUARY, 2019 RSR /COPY TO: 1. /APPELLANT 2. /RESPONDENT 3. ( )/CIT(A) 4. /CIT 5. /DR 6. /GF