The ACIT, Bhopal V. M/s. Indo Irish Foods Limited, Bhopal

ITA 454/IND/2009

• Counselvise Citation: 45422714 RSA 2009
• Duration Of Justice: 2 year(s) 1 month(s) 10 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 20-10-2011
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Next Hearing Date: 09-06-2011
• Assessment Year: 2000-2001
• Appeal Filed On: 10-09-2009
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: P K JAIN
• Assessee Lawyers: ARUN DEWAN
• Keywords: Additional evidence
• Section: 144

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL INDORE BENCH, INDORE BEFORE SHRI JOGINDER SINGH, JUDICIAL MEMBER AND SHRI R.C. SHARMA, ACCOUNTANT MEMBER ITA NO.454/IND/2009 A.YS.2000-01 ASSTT. COMMISSIONER OF INCOME TAX 2(1), BHOPAL ... APPELLANT VS M/S INDO IRISH FOODS LIMITED BHOPAL PAN AABCI-0947C ... RESPONDENT APPELLANT BY : SHRI ARUN DEWAN DEPARTMENT BY : SHRI P.K. JAIN DATE OF HEARING : 19.9.2011 DATE OF PRONOUNCEMENT : 20 .10.2011 O R D E R PER JOGINDER SINGH BY WAY OF THIS APPEAL THE REVENUE IS BEFORE US ON T HE GROUND THAT THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) 2 WAS NOT JUSTIFIED IN DELETING THE ADDITION OF RS.41 ,34,000/- MADE BY THE ASSESSING OFFICER ON ACCOUNT OF INCREASE IN THE ISSUED/SUBSCRIBED CAPITAL DURING THE YEAR. 2. DURING THE LEARNED SENIOR DR SHRI ARUN DEWAN STR ONGLY OPPOSED THE DELETION OF THE IMPUGNED ADDITION MADE ON ACCOUNT OF INCREASE IN THE ISSUED/SUBSCRIBED CAPITA L BY FURTHER SUBMITTING THAT THE ASSESSMENT WAS FRAMED U/S 144 O F THE ACT AS NECESSARY DETAILS WERE NOT FILED BY THE ASSESSEE . IT WAS FURTHER SUBMITTED THAT THE ASSESSING OFFICER DULY O BJECTED TO THE ADMISSION OF ADDITIONAL EVIDENCE FILED FOR THE FIRS T TIME BEFORE THE LEARNED FIRST APPELLATE AUTHORITY. A PLEA WAS A LSO RAISED THAT IDENTITY OF THE SUBSCRIBER WAS NOT PROVED BY THE AS SESSEE. ON THE OTHER HAND, THE LD. COUNSEL FOR THE ASSESSEE C ONTENDED THAT THE ADDITIONAL EVIDENCE WAS FILED BEFORE THE L EARNED COMMISSIONER OF INCOME TAX (APPEALS) AND AS PER THE DIRECTION OF THE TRIBUNAL, THE ASSESSEE AS WELL AS THE ASSESSING OFFICER WERE GIVEN OPPORTUNITY TO PRESENT THEIR CAS ES. A PLEA WAS ALSO RAISED THAT THE ASSESSEE HAD NO LIABILITY TO FILE ANY RETURN OF INCOME BECAUSE IT HAS NOT COMMENCED ANY B USINESS 3 AND MERELY ON THE BASIS OF IGNORANCE/ILL ADVICE THE RETURN WAS FILED FOR THE IMPUGNED ASSESSMENT YEAR DECLARING NI L INCOME ON 30 TH NOVEMBER, 2002. IT WAS FURTHER SUBMITTED THAT TH E ADDITIONAL EVIDENCE FILED BEFORE THE LEARNED COMMIS SIONER OF INCOME TAX (APPEALS) WAS FORWARDED TO THE ASSESSING OFFICER FOR HIS COMMENTS AND IN TURN SHE VIDE LETTER DATED 23.10.2008 WITHOUT MENTIONING THE REASON MERELY STATED THAT TH E SAME MAY NOT BE ACCEPTED. 3. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS OF LD. REPRESENTATIVES OF BOTH SIDES AND PERUSED THE MATER IAL AVAILABLE ON RECORD. BRIEF FACTS ARE THAT THE ASSE SSEE IS A PUBLIC LIMITED COMPANY WITH THE OBJECTS OF SETTING UP OF MUSHROOM MANUFACTURING UNIT AT VILLAGE SEMRIDAJAYI DISTRICT BHOPAL. DURING THE PREVIOUS YEAR NO BUSINESS ACTIV ITY WAS CARRIED OUT NOR ANY COMMERCIAL PRODUCTION WAS DONE BY THE ASSESSEE AND THE ASSESSEE MERELY REMAINED BUSY IN F INALISING CONSTRUCTION OF ITS FACTORY BUILDING AND PROCUREMEN T OF PLANT AND MACHINERY ALONG WITH OTHER FIXED ASSETS. ADMITTEDL Y, THE ASSESSMENT WAS FRAMED U/S 144 OF THE ACT. THE CAS E OF THE 4 ASSESSEE WAS TAKEN UP FOR SCRUTINY AND THE ASSESSME NT WAS FRAMED COMPUTING TOTAL INCOME AT RS.3,50,00,000/- O N ESTIMATE BASIS. THE STAND OF THE LEARNED DR IS THAT IN SPIT E OF SUFFICIENT OPPORTUNITY THE ASSESSEE DID NOT ATTEND THE ASSESSM ENT PROCEEDINGS WHEREAS THE STAND OF THE ASSESSEE BEFOR E THE THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) WAS TH AT THE ASSESSEE FOR THE FIRST TIME WAS MADE TO KNOW BY THE ASSESSING OFFICER THAT ANY NOTICE WAS SERVED BY AFFIXTURE. TH E SERVICE OF NOTICE WAS CHALLENGED BEFORE THE LEARNED COMMISSION ER OF INCOME TAX (APPEALS) WHO QUASHED THE ASSESSMENT ON NON- SERVICE OF NOTICE AND RESULTANT DENIAL OF OPPORTUNI TY TO THE ASSESSEE. THE REVENUE PREFERRED APPEAL BEFORE THE TRIBUNAL WHEREIN THE MATTER WAS RESTORED TO THE FILE OF THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) AND FOR DISPOS AL OF THE APPEAL AFTER PROVIDING DUE OPPORTUNITY OF BEING HEA RD TO THE ASSESSEE AS WELL AS TO THE LEARNED ASSESSING OFFICE R. ADMITTEDLY, THE EVIDENCES WERE FILED BY THE ASSESSE E BEFORE THE LEARNED CIT(A) FOR THE FIRST TIME BUT THE FACT REMAINS THAT THE EVIDENCE SO FILED WAS FORWARDED TO THE ASSESSING OF FICER FOR 5 HER COMMENTS. THERE WAS ALLOTMENT OF 2,67,000 EQUI TY SHARES OF RS. 10/- EACH TO VARIOUS APPLICANTS WHICH RESULT ED INTO INCREASE OF RS. 27,60,000/- IN THE SHARE CAPITAL OF THE ASSESSEE. THE PHOTOCOPY OF MINUTES OF BOARD OF DIRE CTORS, ALLOTMENT LETTERS WERE FILED WITH THE REGISTRAR OF COMPANIES AS REQUIRED U/S 75(1) OF THE COMPANIES ACT. THE COMPLE TE DETAILS OF SHARE HOLDERS, THEIR NAMES, COMPLETE POSTAL ADDR ESSES, NUMBER OF SHARES ALLOTTED, SHARE APPLICATION MONEY RECEIVED FROM EACH SHARE HOLDERS, FOLIO NUMBER OF EACH SHARE HOLDER IN THE STATUTORY REGISTER WERE ALSO FURNISHED. COMPLE TE INFORMATION WITH ANNUAL RETURN ALONG WITH THE NECES SARY DETAILS OF SHARE HOLDERS OF THE COMPANY WERE ALSO FILED WIT H THE REGISTRAR OF COMPANIES. PHOTOCOPIES OF CONFIRMATIO N LETTERS WERE ALSO FURNISHED ALONG WITH THE LEDGER ACCOUNT O F SHARE CAPITAL. THIS FACTUAL FINDING OF THE LEARNED COMMI SSIONER OF INCOME TAX (APPEALS) WAS NOT CONTROVERTED BY THE R EVENUE. IN SUCH A SITUATION, WHETHER IT CAN BE SAID THAT THERE IS VIOLATION OF RULE 46A BY THE REVENUE. THE OBVIOUS REPLY IS NO. EVEN OTHERWISE, THE LEARNED FIRST APPELLATE AUTHORITY IS HAVING ALL THE 6 POWERS WHICH ARE AVAILABLE TO THE ASSESSING OFFICER . AS PER SECTION 250(4) AND SUB-SECTION (5) THE LEARNED COMM ISSIONER OF INCOME TAX (APPEALS) HAS POWER TO MAKE FURTHER I NQUIRY AS DEEMED FIT. FROM THE FINDING OF THE LEARNED COMMISS IONER OF INCOME TAX (APPEALS) IT IS CLEAR THAT THE ASSESSEE EXPLAINED THE SOURCE OF SHARE APPLICATION MONEY, OTHER CREDIT S FIGURING IN THE ACCOUNTS, THEREFORE, WE FIND NO INFIRMITY IN TH E STAND OF THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) AND TH E SAME IS CONFIRMED. FINALLY, THE APPEAL OF THE REVENUE IS DISMISSED. ORDER PRONOUNCED IN THE OPEN ON 20 .10.2011. SD SD (R.C.SHARMA) (JOGINDER SI NGH) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 20 .9.2011 COPY TO: APPELLANT, RESPONDENT, CIT, CIT(A), DR, GU ARD FILE DN/-