Shikhar Films Pvt. Ltd., New Delhi V. ACIT, Circle- 23(1), New Delhi

ITA 3439/DEL/2019

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 4425 (ITAT-DELHI)
• Duration Of Justice: 22 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 14-05-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: G
• Assessment Year: 2015-2016
• Appeal Filed On: 22-04-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: NAINA SOIN KAPIL
• Keywords: Unexplained cash credit; Additional evidence; Set aside
• Section: 68; 69; 15; 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH: G NEW DELHI BEFORE SHRI G.D. AGARWAL, VICE PRESIDENT & SHRI K.NARASIMHA CHARY, JUDICIAL MEMBER ITA NO. 3439 /DEL/ 2019 ASSESSMENT YEAR: 2015-16 SHIKHAR FILMS PRIVATE LIMITED, A-81, F/F, NDSE PART-II, NEW DELHI-110049 PAN: AAUCS3860K VS ACIT, CIRCLE 23 (1), NEW DELHI. ASSESSEE BY: SHRI AJAY WADHWA, ADVOCATE REVENUE BY: MS NAINASOIN KAPIL, SR. DR ORDER PER K. NARASIMHA CHARY, JM AGGRIEVED BY THE ORDER DATED 23/1/2019 IN APPEAL NO 10402/17- 18 PASSED BY THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS)-8, NEW DELHI (LD. CIT(A)) ASSESSEE PREFERRED THIS AP PEAL. 2. ASSESSEE FILED THE RETURN OF INCOME ON 30/9/2015 BY DISCLOSING A LOSS OF RS. 18,09,59,342/-AND THE ASSESSMENT UNDER SECTION 143(3) OF THE ACT WAS COMPLETE BY ORDER DATED 27/12/2017 BY MAKIN G ADDITION OF RUPEES RS.19,05,00,000/-UNDER SECTION 15 BBE OF THE ACT AND A SUM OF RS. 3,75,000/-BY DISALLOWING THE EXPENSES ON ACCOUN T OF PROMOTIONAL DATE OF HEARING 03.05.2019 DATE OF PRONOUNCEMENT 14.05.2019 2 SONG. APPEAL PREFERRED TO THE LD. CIT(A) WAS DISMIS SED BY WAY OF IMPUGNED ORDER. 3. IT IS THE ARGUMENT OF THE LD. AR THAT THE LD. CI T(A) ERRED IN UPHOLDING THE ADDITION OF RS. 19,05,00,000/-ON ACCO UNT OF UNEXPLAINED CASH CREDIT UNDER SECTION 68 OF THE ACT IN RESPECT OF UNSECURED LOAN OF RS. 16,55,00,000/-AND RS. 2,50,00,000/-RECEIVED BY THE ASSESSEE FROM M/S LIMELIGHT GOODS PRIVATE LIMITED AND M/S UNICONV ANIJYA PRIVATE LIMITED RESPECTIVELY DESPITE THE FACT THAT THE ASSE SSEE HAD DISCHARGED ITS ONUS UNDER SECTION 68 OF THE ACT BY PROVIDING THE P ARTICULARS RELATING TO IDENTITY, GENUINENESS AND CREDITWORTHINESS BY FURNI SHING COMPELLING DOCUMENTARY EVIDENCES. HE FURTHER ARGUED THAT THE L D. CIT(A) ERRED IN NOT ADJUDICATING ALL THE GROUND RELATING TO THE ALL OWING THE SET OFF OF CURRENT YEAR LOSS AGAINST THE INCOME ASSESSED UNDER SECTION 68 OF THE ACT AND CERTAIN EXPENSES WHICH WERERAISED IN THE APPEAL BEFORE THE LD. CIT(A). HE FURTHER SUBMITTED THAT AS COULD BE SEEN FROM THE ORDER OF THE LD. CIT(A) THOUGH THE ASSESSEE SOUGHT TIME TO PRODU CE THE ADDITIONAL EVIDENCE, LD. CIT(A) REFUSED THE SAME STATING THAT SUCH AN EVIDENCE SHOULD HAVE BEEN PRODUCED AT THE EARLIEST POINT OF TIME SINCE THE ASSESSEE BEING A GOOD COMPANY HAD THE LUXURY OF BEST PROFESS IONAL ADVICE. HE THEREFORE SUBMITTED THAT THE ORDER OF THE LD. CIT(A ) IS NOT WELL CONSIDERED ORDER AND HAS TO BE SET ASIDE. 4. PER CONTRA, LD. DR HEAVILY RELIED ON THE ORDERS OF THE AUTHORITIES BELOW AND SUBMITTED THAT WITHOUT SATISFYING THE CON DITIONS REQUIRED FOR ADMISSION OF ADDITIONAL EVIDENCE, IS NOT OPEN FOR T HE ASSESSEE TO SEEK TIME TO PLACE THE ADDITIONAL EVIDENCE ON RECORD. SH E FURTHER SUBMITTED THAT THE LD. CIT(A) REACHED A CONCLUSION, AFTER EXA MINATION OF THE DOCUMENTS FILED BY THE ASSESSEE DURING THE COURSE O F ASSESSMENT 3 PROCEEDINGS, THAT THE AMOUNTS ADVANCED BY THE CREDI TORS OF THE ASSESSEE ARE DISPROPORTIONATELY TO THEIR TOTAL INCOME AND SU CH AN ASPECT REMAINED UNEXPLAINED. 5. WE HAVE GONE THROUGH THE RECORD IN THE LIGHT OF THE SUBMISSIONS MADE ON EITHER SIDE. LD. CIT(A) REJECTED THE ADDITI ONAL EVIDENCE ON THE GROUND THAT SUCH AN EVIDENCE WAS AVAILABLE WITH THE ASSESSEE AT THIS STAGE OF ASSESSMENT ITSELF, IT IS NOT THE CASE OF T HE ASSESSEE THAT NO ADEQUATE OPPORTUNITY WAS PROVIDED TO THEM, ASSESSEE BEING A BIG COMPANY WITH THE LUXURY OF BEST PROFESSIONALS TO AD VISE THEM CANNOT CONTEND THAT THEY DID NOT THINK IT NECESSARY TO PLA CE SUCH EVIDENCE ON RECORD AT THIS STAGE OF ASSESSMENT AND LASTLY, THAT THE ASSESSEE FAILED TO EXPLAIN CIRCUMSTANCES TO PLEAD THAT NONPRODUCTION O F SUCH EVIDENCE WAS BEYOND THE CONTROL OF THE ASSESSEE. 6. IT COULD, HOWEVER, BE SEEN FROM THE PARAGRAPH NO . 3 OF THE IMPUGNED ORDER, LD. CIT(A) RECORDED THAT ON 22/11/2 018 THE ASSESSEE PRODUCED A PAPER BOOK CONTAINING THE COPIES OF DOCU MENTS FILED BEFORE THE LEARNED ASSESSING OFFICER AND SUBMITTED THAT CE RTAIN DOCUMENTS COULD NOT BE SUBMITTED BEFORE THE LEARNED ASSESSING OFFICER AND, THEREFORE, THEY NEED TO BE FILED AS ADDITIONAL EVID ENCE UNDER RULE 46-A OF THE RULES, BUT NO SUCH AN APPLICATION WAS FILED NOR THE ADDITIONAL EVIDENCE WAS ADDUCED. IN THE CIRCUMSTANCES, WE FAIL TO UNDERSTAND HOW THE LD. CIT(A) REJECTED THE ADDITIONAL EVIDENCE THA T WAS NEVER PRODUCED THROUGH ANY APPLICATION UNDER RULE 46-A OF THE RULE S. UNLESS THE ASSESSEE FILES ANY APPLICATION UNDER RULE 46-A OF T HE RULES, IT WOULD BE DIFFICULT TO ASSESS THE REASONS FOR NONPRODUCTION O F ANY DOCUMENTS AT THE TIME OF ASSESSMENT OR TO KNOW THE CIRCUMSTANCES WHI CH PREVENTED THE ASSESSEE FOR PRODUCING THE SAME BEFORE THE LEARNED ASSESSING OFFICER. 4 7. VIDE GROUNDS NO. 6 TO 8 IN THE APPEAL BEFORE THE LD. CIT(A), THE ASSESSEE CHALLENGED THE ADDITION UNDER SECTION 68 O F THE ACT IN THE LIGHT OF AN AMENDMENT TO SECTION 115 BBE W.E.F. 1/4/2017 PROHIBITING THE SET OFF LOSSES FROM THE ADDITION UNDER SECTION 68 OR SE CTION 69 OR 69-A OR SECTION 69-B OR SECTION 69-C OR SECTION 69-D OF THE ACT AND THE SAID AMENDMENT WILL NOT BE APPLICABLE TO THE ASSESSMENT YEAR 2015-16 AND THE DISALLOWANCE OF THE EXPENSES. THE IMPUGNED ORDE R, HOWEVER, DOES NOT SHOW ANY DISCUSSION ON THESE GROUNDS. 8. FURTHER, IN RESPECT OF THE ADDITION OF RS. 19,05 ,00,000/-ON ACCOUNT OF UNEXPLAINED CASH CREDIT UNDER SECTION 68 OF THE ACT, GRIEVANCE OF THE ASSESSEE IS THAT THOUGH THE CONFIRMATIONS, ITRS, BA NK STATEMENTS, FINANCIAL STATEMENTS ETC WERE PRODUCED BEFORE BOTH THE AUTHORITIES, THE IMPUGNED ORDER DOES NOT SHOW THAT SUCH DOCUMENTS WE RE CONSIDERED BY THE LD. CIT(A) ON THE ASPECT OF THE LOANS RECEIVED BY THE ASSESSEE COMPANY. 9. IN THESE CIRCUMSTANCES, WE FIND IT DIFFICULT TO BRUSH ASIDE THE SUBMISSIONS MADE ON BEHALF OF THE ASSESSEE THAT THE IMPUGNED ORDER DOES NOT SHOW THE DUE CONSIDERATION OF THE MATTER BY THE LD. CIT(A) IN A PROPER PERSPECTIVE AND IT REQUIRES TO BE REMANDED T O THE FILE OF THE LD. CIT(A) FOR CONSIDERATION OF ALL THE FACTS AND CIRCU MSTANCES OF THE CASE WITH REFERENCE TO THE CIRCUMSTANCES AND CONTENTIONS OF THE ASSESSEE SEEKING TO FILE THE ADDITIONAL EVIDENCE. WE ARE, TH EREFORE, OF THE CONSIDERED OPINION THAT THE MATTER REQUIRES A DETAI LED CONSIDERATION BY THE LD. CIT(A) AND LD. CIT(A) HAS TO CONSIDER AND A DJUDICATE THE GROUNDS OF APPEAL OF THE ASSESSEE AND ALSO THE REAS ONS SEEKING ADMISSION OF THE ADDITIONAL EVIDENCE UNDER RULE 46-A OF THE R ULES. SO ALSO, LD. 5 CIT(A) WOULD EDUCATE ALL THE GROUNDS OF APPEAL BEFO RE HIM AND PASS A REASONED ORDER. 10. THE IMPUGNED ORDER IS, THEREFORE, SET ASIDE AND THE MATTER IS REMANDED TO THE FILE OF THE LD. CIT(A) FOR ADJUDICA TION IN THE LIGHT OF OUR ABOVE OBSERVATIONS. 11. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWE D FOR STATISTICAL PURPOSE. ORDER PRONOUNCED IN THE OPEN COURT ON 14 TH MAY, 2019. SD/- SD/- (G.D. AGARWAL) (K. NARASIMHA CHARY) VICE PRESIDENT JUDICIAL MEMBER DATED: 14 TH MAY, 2019 COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT ASSISTANT REGISTRAR ITAT NEW DELHI DRAFT DICTATED ON 29.4.2019 DRAFT PLACED BEFORE AUTHOR 30.4.2019 DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER DRAFT DISCUSSED/APPROVED BY SECOND MEMBER. APPROVED DRAFT COMES TO THE SR.PS/PS KEPT FOR PRONOUNCEMENT ON DATE OF UPLOADING ORDER ON THE WEBSITE FILE SENT TO THE BENCH CLERK DATE ON WHICH FILE GOES TO THE AR DATE ON WHICH FILE GOES TO THE HEAD CLERK. DATE OF DISPATCH OF ORDER.