M/s Urvashi World Wide P Ltd, Indore, Indore V. ITO,Ward 4(5), Indore, Indore

ITA 411/Ind/2018

• Counselvise Citation: [2018] 125 COUNSELVISE.COM (IT) 0571 (ITAT-INDORE)
• Duration Of Justice: 4 month(s) 16 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 19-09-2018
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: DB
• Assessment Year: 2012-2013
• Appeal Filed On: 03-05-2018
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: LALCHAND
• Assessee Lawyers: P D NAGAR
• Keywords: Opportunity of being heard
• Section: 143(3); 68

Judgement Text

URVASHI WORLD WIDE PRIVATE LIMITED ITA NO.411/IND/2018 1 , , IN THE INCOME TAX APPELLATE TRIBUNAL, INDORE BENCH, INDORE BEFORE SHRI KUL BHARAT, JUDICIAL MEMBER AND SHRI MANISH BORAD, ACCOUNTANT MEMBER ITA NO.411/IND/2018 ASSESSMENT YEAR: 2012-13 REVENUE BY S HRI LAL CHAND, CIT ASSESSEE BY S HRI P.D. NAGAR , CA DATE OF HEARING 1 2 .09. 2018 DATE OF PRONO UNCEMENT 19 . 9 .2018 O R D E R PER MANISH BORAD, AM . THE APPEAL FILED BY THE ASSESSEE PERTAINING TO A.Y. 2012-13 IS DIRECTED AGAINST THE ORDER OF LD. COMMISSIONER OF I NCOME TAX(APPEALS)-II, INDORE, (IN SHORT CIT(A)), VIDE APPEAL NO. IT- 178/15-16/361 ORDER DATED 02.03.2017 WHICH IS ARISI NG OUT OF THE ORDER U/S 143(3) OF THE INCOME TAX ACT 1961(HEREINA FTER CALLED AS THE ACT) FRAMED ON 30.03.2015 BY ITO-4(5), INDOR E. M/S. URV ASHI WORLD WIDE PVT.LTD, 305, D/S-3 SCHEME NO.78, INDORE VS. INCOME TAX OFFICER WARD 4(5), INDORE ( APPELLANT ) (RESPONDENT ) PAN NO. AAACU2067J URVASHI WORLD WIDE PRIVATE LIMITED ITA NO.411/IND/2018 2 2. ASSESSEE HAS RAISED FOLLOWING GROUNDS OF APPEAL ; 1.THAT THE LEARNED COMMISSIONER OF INCOME TAX (A) ERRED IN LAW IN NOT AFFORDING REASONABLE OPPORTUNITY OF BEING HEARD WHILE DISMISSING THE APPEAL DUE TO NON-ATTENDANCE BY THE APPELLANT OR ITS COUNSEL. HE DID NOT APPRECIATE THAT PROPER NOTICES WERE NOT SERVED ON THE APPELLANT BECAUSE THE REGISTERED OFFICE OF T HE COMPANY WAS SHIFTED TO MUMBAI SINCE 26/07/2016 AND THERE WAS NO RESPONSIBLE PERSON AT INDORE. THE APPELLANT HAD IN FACT REQUEST ED TO TRANSFER THE APPELLATE PROCEEDINGS TO CIT (A), MUMBAI FOR PROPER ADJUDICATION VIDE LETTER DATED 21.02.2017. SUCH BON AFIDE AND HONEST BELIEF THAT THE PROCEEDINGS WILL CONTINUE AT MUMBAI ONLY, RESULTED INTO NON-ATTENDANCE BY THE APPELLANT. UNDE R THE CIRCUMSTANCES DISMISSAL OF APPEAL IN DEFAULT IS UNJ USTIFIED, IMPROPER, BAD IN LAW AND DESERVES TO BE QUASHED. 2)THAT THE LEARNED COMMISSIONER OF INCOME TAX (A) ERRED IN LAW IN NOT CONSIDERING THE MERITS OF THE CASE IN ITS TRUE PERSPECTIVE. HE OUGHT TO HAVE AT LEAST CALLED THE CASE RECORDS, OF THE APPELLANT BEFORE DECIDING THE CASE ON MERITS BECAUSE ALL RELE VANT DOCUMENTS IN SUPPORT OF CREDITS LYING IN THE BOOKS WERE SUBMI TTED ALONG WITH PROPER EVIDENCES. UNDER THE CIRCUMSTANCES DISMISSAL OF APPEAL IN URVASHI WORLD WIDE PRIVATE LIMITED ITA NO.411/IND/2018 3 DEFAULT EVEN ON MERITS WITHOUT APPRECIATING IS UNJU STIFIED, IMPROPER, BAD IN LAW AND DESERVES TO BE QUASHED. WITHOUT PREJUDICE TO ABOVE, THE LEARNED COMMISSIONE R OF INCOME TAX (A) ERRED IN LAW IN CONFIRMING THE ADDITION U/S 68 OF THE ACT AMOUNTING TO RS.18, 92, 50,000/- LYING TO THE CREDIT OF SIX COMPANIES WHO ARE ASSOCIATE CONCERNS ONLY. THE AO DID NOT APP RECIATE THE FACT THAT A SUM OF RS.7.25 CRORES WAS ACCEPTED AS LOAN I N EARLIER YEAR AND IT CONTINUED DURING THE YEAR. NOT ONLY IDENTITY , CAPACITY, CREDIT WORTHINESS AS WELL GENUINENESS OF LOANS TAKEN WAS P ROVED BEYOND DOUBT BUT EVEN SOURCE OF THE SOURCE WAS PROVED BECA USE NONE OF THE LOANS WERE ACCEPTED FROM OUTSIDERS. THEREFORE, ADDITION MADE AT RS. 18, 92, 50,000/- BY THE AO AND CONFIRMED BY THE CIT (A) IS UNJUSTIFIED, IMPROPER, BAD IN LAW AND DESERVES TO B E QUASHED. 4) THAT THE LEARNED COMMISSIONER OF INCOME TAX (A) ERRED IN LAW IN CONFIRMING THE ADDITION U/S 68 OF THE ACT AMOUNTING TO RS. 4O,OO,OOO/- BEING THE AMOUNT OF LOAN GIVEN TO M/S .SWASTIK WORLDWIDE PVT LTD IGNORING THE FACT THAT THE AMOUNT WAS NOT RECEIVED BY THE APPELLANT AND IT WAS NOT IN THE FOR M OF CASH CREDIT. IT BEING A ASSET ADDITION MADE BY AO U/S 68 OF THE ACT AND CONFIRMATION THEREOF IS WHOLLY UNJUSTIFIED, IMPROPE R AND BAD IN LAW. URVASHI WORLD WIDE PRIVATE LIMITED ITA NO.411/IND/2018 4 5)THAT THE LEARNED COMMISSIONER OF INCOME TAX (A) ERRED IN LAW IN CONFIRMING THE ADDITION U/S 68 OF THE ACT AMOUNTING TO RS.50 LACS BEING THE AMOUNTS RECEIVED TOWARDS SHARE CAPITAL AN D PREMIUM THEREON IN EARLIER YEARS FROM M/S. CLIFTON SECURITIES PVT LTD, MIS ZENSER MERCHANDISE PVT LTD & M/S BHUWANIA VINIMAY PVT LTD. HE DID 110T APPRECIATE THAT SUCH AMOUNT BY WAY OF SHAR E APPLICATION MONEY WAS RECEIVED IN EARLIER YEARS WHEREAS SHARES WERE ISSUED DURING THE YEAR. THE IDENTITY, CAPACITY AND GENUINENESS OF THE TRANS ACTIONS WAS ALSO PROVED BY DOCUMENTARY EVIDENCES YET ADDITION MADE D URING THE YEAR IGNORING THE FACT THAT THE AMOUNTS WERE RECEIV ED IN EARLIER YEARS IS WHOLLY UNJUSTIFIED, IMPROPER, BAD IN LAW A ND DESERVES TO BE QUASHED. THE LEARNED COMMISSIONER OF INCOME TAX (A) FURTHER ERRED IN LAW IN CONFIRMING THE ADDITION OF RS.L1 ,50,000/-- U/S 2(22)(E) OF THE ACT IGNORING THE FACT THAT THE APPELLANT HAD ADVANCED A N AMOUNT OF RS.LL ,50,000/- TO M/S. SHRASHTI HOMES PVT LTD WHO DOES NOT HOLD ANY SHARES OF THE APPELLANT COMPANY. JUST BECAUSE M/S. PARAM HOLDINGS PVT LTD, AND M/S. PARAM TRUST PVT LTD, TWO SHAREHOLDERS OF APPELLANT COMPANY HOLD MORE THAN 10 SHARES OF M/S. SHRASHTI URVASHI WORLD WIDE PRIVATE LIMITED ITA NO.411/IND/2018 5 HOMES PVT LTD, HENCE MONEY ADVANCED TO M/S. SHRASHTI HOMES PVT LTD AT RS.LL.5O LACS CANNOT BE ASSESSED TO TAX IN T HE HANDS OF THE APPELLANT COMPANY UNDER SECTION 2(22) (E) OF THE AC T.. BY NO STRETCH OF IMAGINATION THE MONEY ADVANCED BY THE APPELLANT COMPANY TO OTHER PRIVATE LIMITED COMPANY CAN BE ASSESSED TO TA X IN ITS HAND BECAUSE IT WAS NOT RECEIVED FROM ANY OTHER COMPANY BY THE APPELLANT HENCE ADDITION SO MADE AND CONFIRMED BY C IT(A) IS WHOLLY UNJUSTIFIED AND DESERVES TO BE QUASHED. 3. AT THE OUTSET LD. DEPARTMENTAL REPRESENTATIVE SU BMITTED THAT THE ASSESSEE DID NOT APPEARED BEFORE LD.CIT(A) EVEN AFT ER BEING PROVIDED VARIOUS OPPORTUNITIES OF BEING HEARD. AS A RESULT OF WHICH LD.CIT(A) HAS PASSED AN EX-PARTE ORDER DISMISSING A SSESSEES APPEAL. LD. DEPARTMENTAL REPRESENTATIVE PRAYED THA T ALL THE ISSUES RAISED IN THIS FILE NEEDS TO BE SET ASIDE TO THE FI LE OF LD.CIT(A) FOR FRESH ADJUDICATION. 4. LD. AUTHORIZED REPRESENTATIVE FOR THE ASSESSEE R AISED NO OBJECTION IF ALL THE ISSUES RAISED IN THIS APPEAL ARE SET ASI DE TO THE FILE OF LD.CIT(A). URVASHI WORLD WIDE PRIVATE LIMITED ITA NO.411/IND/2018 6 5. WE HAVE HEARD RIVAL CONTENTION AND PERUSED THE R ECORD PLACED BEFORE US. 6. BRIEF CASE OF THE FACT AS CULLED OUT FROM THE RE CORDS ARE THAT THE ASSESSEE IS A PRIVATE LIMITED COMPANY ENGAGED IN TH E TRADING OF AGRI BASED COMMODITIES. RETURN OF INCOME DECLARING TOTA L INCOME OF RS.1,83,160/- IN THE E-MAIL RETURN DATED 29.09.2012 . CASE SELECTED FOR SCRUTINY THROUGH CASS AND NOTICE U/S 1 43(2) /142(1) OF THE ACT WERE ISSUED. REPRESENTATIVE ON BEHALF OF T HE ASSESSEE ATTENDED AND FILED NECESSARY DETAILS. ASSESSMENT W AS COMPLETED ON 30.03.2015 AFTER MAKING VARIOUS ADDITIONS AT RS.20, 06,58,609/-. AGAINST VARIOUS ADDITIONS MADE BY LD.A.O APPEAL WAS FILED BEFORE LD.CIT(A). OPPORTUNITY WAS PROVIDED AT FOUR OCCASI ONS ON 22.12.2016, 12.02.2017, 31.01.2017 AND 02.03.2017 A ND NEITHER THE ASSESSEE NOR ITS REPRESENTATIVE APPEARED BEFORE LD.CIT(A) NOR ANY WRITTEN SUBMISSIONS WERE MADE. DUE TO THIS REA SON LD.CIT(A) PASSED EX-PARTE ORDER DISMISSING THE ASSESSEES APP EAL. 7. NOW THE ASSESSEE IS IN APPEAL BEFORE THE TRIBUN AL. BOTH THE PARTIES ARE HAVE REQUESTED TO GO BEFORE LD.CIT(A) O NCE AGAIN FOR ADJUDICATION OF THE ISSUES ON MERITS. WE ACCEPT TH E REQUEST OF SETTING ASIDE ALL THE ISSUES TO THE FILE OF LD. CIT (A) AND DIRECT THE URVASHI WORLD WIDE PRIVATE LIMITED ITA NO.411/IND/2018 7 ASSESSEE TO BE COMPLIANT TO THE NOTICE OF HEARING R ECEIVED FROM LD.CIT(A) THIS TIME AND SHOULD NOT TAKE ANY ADJOURN MENT UNLESS OTHERWISE REQUIRED FOR AND SHOULD ALSO FURNISH ALL NECESSARY DOCUMENTS AND DETAILS FOR THE ADJUDICATION OF VARIO US ISSUES RAISED IN THIS APPEAL. ACCORDINGLY ALL THE ISSUES RAISED IN THIS FILE ARE SET ASIDE TO THE FILE OF LD.CIT(A). NEEDLESS TO MENTIO N THAT PROPER OPPORTUNITY OF BEING HEARD TO BE PROVIDED TO THE AS SESSEE. 8. IN THE RESULT THE APPEAL OF THE ASSESSEE IS ALLO WED FOR STATISTICAL PURPOSES. THE ORDER PRONOUNCED IN THE OPEN COURT ON 19.9.2 018. SD/- SD/- ( KUL BHARAT) (MANISH BORAD) JUDICIAL MEMBER ACCOUNTANT MEMBER / DATED : 19 TH SEPTEMBER, 2018 /DEV COPY TO: THE APPELLANT/RESPONDENT/CIT CONCERNED/CIT (A) CONCERNED/ DR, ITAT, INDORE/GUARD FILE. BY ORDER PRIVATE SECRETARY/DDO, INDORE