M/s P. G. Holiday Inn Private Limited, Colva V. Income Tax Officer - 8(2)(4), Mumbai

ITA 280/PAN/2019

• Counselvise Citation: [2021] 109 COUNSELVISE.COM (IT) 3789 (ITAT-PANAJI)
• Duration Of Justice: 1 year(s) 4 month(s) 8 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 09-03-2021
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2007-2008
• Appeal Filed On: 31-10-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: DINESH CHAURASIA
• Section: 142(1); 143(2); 13; 68; 144; 11

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL , PANAJI (AT E - COURT, PUNE) BEFORE SHRI INTURI RAMA RAO, ACCOUNTANT MEMBER AND SHRI S.S. VISWANETHRA RAVI, J UDICIAL MEMBER . / ITA NO. 280/PAN/2019 / ASSESSMENT YEAR : 20 07 - 08 M/S. P.G. HOLIDAY INN PRIVATE LIMITED, C/O HOTEL SILVER SANDS, COLVA BEACH, SALCETE, GOA 403708 PAN : AACCP4461D ....... / APPELLANT / V/S. INCOME TAX OFFICER - 8(2)(4), MUMBAI / RESPONDENT ASSESSEE BY : SHRI PRAMOD Y. VAIDYA REVENUE BY : SHRI DINESH CHAURASIA / DATE OF HEARING : 0 5 - 03 - 2021 / DATE OF PRONOUNCEMENT : 09 - 03 - 2021 / ORDER PER S.S. VISWANETHRA RAVI, JM : THIS APPEAL BY THE ASSESSEE AGAINST THE ORDER DATED 13 - 08 - 2019 PASSED BY THE COMMISSIONER OF INCOME TAX (APPEALS) - 2, PANAJI [CIT(A)] FOR ASSESSMENT YEAR 2007 - 08. 2. THE ASSESSEE RAISED THREE GROUNDS OF APPEAL AMONGST WHICH THE ONLY ISSUE EMANATES IS AS TO WHETHER THE CIT(A) JUSTIFIED IN CONFIRMING THE ADDITION OF RS.1,33,75,752/ - ON ACCOUNT OF UNSECURED LOANS IN T HE FACTS THE CIRCUMSTANCES OF THE CASE. 2 ITA NO . 280/PAN/2019, A.Y. 2007 - 08 3. THE BRIEF FACTS RELATING TO CASE ARE THAT THE ASSESSEE IS A PRIVATE LIMITED COMPANY AND IS INTO HOTEL BUSINESS. THE ASSESSEE CONDUCTS ITS BUSINESS IN THE NAME AND STYLE OF M/S. P.G. HOLIDAY INN PRIVATE LIMITED AT COLVA BEACH, SALCETE TALUKA, SOUTH GOA DISTRICT, GOA. THE ASSESSEE FILED ITS RETURN OF INCOME DECLARING A TOTAL INCOME OF RS.19,20,040/ - ON 27 - 11 - 2007. UNDER SCRUTINY, THE NOTICES WERE ISSUED U/S. 143(2) AND 142(1) OF THE ACT , BUT ACCORDING TO AO THE RE WAS NO RESPONSE. ACCORDINGLY, TH E ASSESSEE WAS SET EX - PARTE AND THE AO PROCEEDED TO COMPLETE THE ASSESSMENT TO HIS BEST JUDGMENT U/S. 144 OF THE ACT INTER ALIA MAKING ADDITION U/S. 68 OF THE ACT AND ESTIMATING THE PROFIT AT 10% DETERMINING THE TOTAL IN COME OF THE ASSESSEE AT RS.3,49,61,101/ - VIDE ITS ORDER DATED 30 - 11 - 2009 U/S. 144(1) OF THE ACT. 4. THE ASSESSEE CHALLENGED THE ORDER OF AO BEFORE THE CIT(A). IT WAS SUBMITTED THE SHARE CAPITAL OF RS.42,50,000/ - AND SHARE PREMIUM OF RS.1,57,50,000/ - WE RE CONTRIBUTED IN EARLIER ASSESSMENT YEARS AND ADDITION MADE U/S. 68 OF THE ACT IN THE YEAR UNDER CONSIDERATION IS BAD UNDER LAW. THE CIT(A) CONSIDERING THE SAME DELETED THE ADDITION MADE ON ACCOUNT OF SHARE CAPITAL AND SHARE PREMIUM, BUT, HOWEVER CONFIRM ED THE ADDITION OF RS.1,33,75,752/ - ON ACCOUNT OF OTHER LOANS BY HOLDING NO DETAILS WERE FILED BEFORE THE AO AS WELL AS IN THE FIRST APPELLATE PROCEEDINGS. AS AGGRIEVED BY SUCH ADDITION, THE ASSESSEE IS BEFORE US RAISING SOLITARY ISSUE IN THIS REGARD. 5. THE LD. AR, SHRI PRAMOD Y. VAIDYA REFERRED TO THREE SETS OF PAPER BOOK S AND SUBMITTED THE DETAILS CONFIRMING LOANS GIVEN BY THE TWO DIRECTORS SHRI MAHENDRA SINGH GUJARAL AND MISS ANJALI PATHAK WERE FILED 3 ITA NO . 280/PAN/2019, A.Y. 2007 - 08 BEFORE THIS TRIBUNAL AND THE SAID EVIDENCES OF CO NFIRMATION OF LOANS RELATING TO SAID TWO DIRECTORS ARE CRUCIAL AND DECISIVE TO DECIDE THE ONLY ISSUE RAISED IN THIS APPEAL. HE SUBMITS THAT THE SAID EVIDENCES COULD NOT BE PRODUCED BEFORE THE AO SINCE THE ADMINISTRATIVE OFFICE AND ENTIRE BUSINESS ACTIVITI ES OF THE ASSESSEE IS AT COLVA BEACH, GOA AND THE ASSESSEE REQUESTED THE AO AT MUMBAI VIDE LETTERS DATED 13 - 08 - 2009 AND 23 - 08 - 2009 TO TRANSFER THE CASE TO JURISDICTION ACIT, CIRCLE - 1, MARGAO, GOA. THE AO DID NOT CONSIDER THE SAID TWO LETTERS AND PROCEEDED TO COMPLETE THE ASSESSMENT U/S. 144 OF THE ACT. THE ASSESSEE COULD NOT PRODUCE THE SAID EVIDENCE BEFORE THE CIT(A) AS THE SAME WERE NOT IN PROPER FORMAT. THE ASSESSEE, NOW GATHERED EVERY DETAILS AND INFORMATION REGARDING THE ISSUE IN PROPER FOR MAT AND ARGUED THE SAID EVIDENCES GOES TO THE ROOT OF ISSUE AND PRAYED TO REMAND THE MATTER TO THE FILE OF CIT(A) FOR FRESH CONSIDERATION. 6. THE LD. DR, SHRI DINESH CHAURASIA SUBMITS THAT THE AO AND THE CIT(A) ARE GIVEN AMPLE OPPORTUNITIES TO THE ASSES SEE ON MANY OCCASIONS AND THE ASSESSEE COULD NOT FILE ANY EVIDENCES IN RESPECT OF ISSUE RAISED AND CONCEDED FOR REMAND OF MATTER TO THE FILE OF AO OF THIS TRIBUNAL THINK FIT JUST AND PROPER. 7. HEARD BOTH THE PARTIES AND PERUSED THE MATERIAL AVAILABLE O N RECORD. WE NOTE THAT THE ASSESSEE FILED ITS RETURN OF INCOME ON - LINE GIVING JURISDICTION TO ACIT, CIRCLE - 1, MARGAO, GOA AND RECEIVED FIRST NOTICE U/S. 142(1) OF THE ACT AT REGISTERED OFFICE SITUATED AT IN MUMBAI. IMMEDIATELY, THE ASSESSEE MADE PETITION TO THE CONCERNED AO TO TRANSFER THE FILE TO THE ACIT, CIRCLE - 1, MARGAO, GOA AS THE PRINCIPAL PLACE OF BUSINESS FALLS WITHIN 4 ITA NO . 280/PAN/2019, A.Y. 2007 - 08 THE JURISDICTION OF ACIT, CIRLCE - 1, MARGAO, GOA BUT HOWEVER THE AO REJECTED THE SAME . THE CIT(A) ALSO ACKNOWLEDGED THE SAME IN ITS ORDER IN PARA 3.1 OF THE IMPUGNED ORDER. THE MAIN CONTENTION OF THE LD. AR IS THAT ALL THE NECESSARY EVIDENCES REGARDING THE ASSESSMENT ARE IN THE ADMINISTRATIVE OFFICE SITUATED AT MARGAO, GOA AND NO DETAILS WERE AVAILABLE IN THE MUMBAI REGISTERED OFFICE AND THAT IS WHY THE ASSESSEE COULD NOT FILE ANY DETAILS BEFORE THE AO AT MUMBAI. WE NOTE THAT AS DISCUSSED ABOVE THE AO AT MUMBAI PROCEEDED TO COMPLETE THE ASSESSMENT U/S. 144 OF THE ACT. AMONGST THE ADDITIONS MADE BY THE AO THE ASSESSEE MADE CONTENTION S BEFORE THE CIT(A) REGARDING THE ADDITIONS MADE ON ACCOUNT OF SHARE CAPITAL AND SHARE PREMIUM AND CONSIDERING THE SAME , THE CIT(A) DELETED THE SAME VIDE PARA 3.3 OF THE IMPUGNED ORDER. REGARDING THE OTHER ADDITION MADE ON ACCOUNT OF OTHER LOANS WERE CONF IRMED DUE TO THE FACT THAT THERE WERE NO DETAILS FILED BY THE ASSESSEE BEFORE THE AO NOR IN THE FIRST APPELLATE PROCEEDINGS. THE ASSESSEE FILED EVIDENCES IN THE FORM OF CONFIRMATIONS LOANS, COPY OF INCOME TAX RETURNS OF TWO DIRECTORS BY WAY OF PAPER BOOK BEFORE US AND ON EXAMINATION OF THE SAME, WE NOTE THAT THE SAID EVIDENCES ARE CRUCIAL AND NECESSARY TO DECIDE THE ISSUE INVOLVED IN THE PRESENT APPEAL AND ALSO GOES TO THE ROOT OF ASSESSEE AS RIGHTLY CONTENDED BY THE LD. AR. IN THIS REGARD AN AFFIDAVIT OF GENERAL MANAGER OF ASSESSEE FILED BEFORE US STATING THE LOAN CONFIRMATIONS OF TWO DIRECTORS SHRI MAHENDRA SINGH GUJARAL AND MISS ANJALI PATHAK RECEIVED INITIALLY AND WERE NOT IN PRESCRIBED FORMAT AND DID NOT CONTAIN REQUISITE DETAILS. THE SAID DETAILS CO ULD NOT BE FILE D BEFORE THE CIT(A) IN TIME AS IT WERE NOT IN PROPER FORMAT. FURTHER, HE STATED THE ERROR/LAPSE IN NON - SUBMISSIONS OF THE CONFIRMATION LOANS IN TIME BEFORE THE CIT(A) IS UNINTENTIONAL AND IS DUE TO GENUINE REASON OF RECEIVING THE SAME LATE. WE FIND THAT THE ADDITION MADE ON 5 ITA NO . 280/PAN/2019, A.Y. 2007 - 08 ACCOUNT OF OTHER LOANS REQUIRES VERIFICATION OF DETAILS BUT HOWEVER NO DETAILS WERE FILED BEFORE THE AO AND CIT(A) AS IT IS EVIDENT FROM THE ASSESSMENT ORDER AS WELL AS IMPUGNED ORDER. WE NOTE THAT THE DETAILS FILED BEF ORE THIS TRIBUNAL BY WAY OF PAPER BOOK ARE NECESSARY FOR THE FAIR ADJUDICATION OF THE ISSUE INVOLVED AND IN THE INTEREST OF JUSTICE TAKING INTO CONSIDERATION THE FACTS AND CIRCUMSTANCES OF THE CASE AS RIGHTLY CONCEDED BY THE LD. DR, WE DEEM IT PROPER TO RE MAND THE MATTER TO THE FILE OF CIT(A) FOR ITS FRESH ADJUDICATION. THE ASSESSEE IS LIBERTY TO FILE EVIDENCES, IF ANY, IN SUPPORT OF ITS CLAIM. ACCORDINGLY, THE GROUNDS RAISED BY THE ASSESSEE ARE ALLOWED FOR STATISTICAL PURPOSE. 8. IN THE RESULT, THE APPE AL OF ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED IN THE OPEN COURT ON 09 TH MARCH, 2021. SD/ - SD/ - ( INTURI RAMA RAO ) ( S.S. VISWANETHRA RAVI ) ACCOUNTANT MEMBER JUDICIAL MEMBER / PUNE; / DATED : 09 TH MARCH, 2021. RK / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT. 2. / THE RESPONDENT. 3. THE CIT(A) - 2, PANAJI 4. THE PR. CIT - 10, MUMBAI 5. , , , / DR, ITAT, PANAJI. 6. / GUARD FILE. // // TRUE COPY// / BY ORDER, / PRIVATE SECRETARY, , / ITAT, PUNE