M/s. M.B.Bakers Pvt. Ltd., Indore V. The Assistant Commissioner of Income Tax 3(1), Indore

ITA 465/IND/2010

• Counselvise Citation: 46522714 RSA 2010
• Duration Of Justice: 1 year(s) 1 month(s) 8 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 17-08-2011
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 17-08-2011
• Assessment Year: 2007-2008
• Appeal Filed On: 09-07-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ARUN DEWAN
• Keywords: Opportunity of being heard; Principle of natural justice; Additional evidence; Deemed dividend
• Section: 145

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.465/IND/2010 A.Y. 2007-08 M.B. BAKERS PVT. LTD., INDORE PAN AADCM 2663 D APPELLANT VS ACIT-3(1), INDORE RESPONDENT APPELLANT BY : SHRI ANIL KAMAL GARG, CA RESPONDENT BY : SHRI ARUN DEWAN, SR. DR DATE OF HEARING : 17.8.2011 DATE OF PRONOUNCEMENT : 17.8.2011 O R D E R PER JOGINDER SINGH THIS APPEAL IS BY THE ASSESSEES AGAINST THE ORDER O F THE LEARNED CIT(A)-I, BHOPAL, DATED 16.3.2010 ON THE FO LLOWING GROUNDS: 2 1. IN VIEW OF FACTS AND CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) HAS ERRED IN LAW IN CONFIRMING THE AMOUNT RECEIVED AS INTER CORPORATE DEPOSIT FROM M/S. M.B. FOOD P. LTD. AN ASSOCIATE COMPANY FOR SETTING UP SIMILAR BUSINESS OF MANUFACTURING OF BISCUIT AS DEEMED DIVIDEND UNDER SECTION 2(22)(E) OF THE ACT. 2. IN VIEW OF FACTS AND CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) HAS ERRED IN LAW IN TREATING THE PAYMENT BY M/S. M.B. FOOD P. LTD. TO THE ASSESSEE COMPANY AS FOR THE BENEFIT OF THE INDIVIDUAL SHAREHOLDERS. 3. IN VIEW OF FACTS AND CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) HAS ERRED IN LAW IN CONFIRMING THE ADDITION DEEMED DIVIDEND IN THE HANDS OF THE ASSESSEE DESPITE THE FACT THAT THE AMOUNT WAS GIVEN AS INTER CORPORATE DEPOSIT REPAYABLE ON DEMAND. 4. IN VIEW OF FACTS AND CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) HAS ERRED IN LAW IN CONFIRMING ARBITRARY AND UNREASONED ADDITION BY 1/5 TH OF REPAIR & MAINTENANCE EXPENSES INCURRED BY THE ASSESSEE, IGNORING THE FACTS THAT THE BOOKS OF ACCOUNT HAVE BEEN REJECTED UNDER SECTION 145 OF THE ACT. 2. THE LD. COUNSEL FOR ASSESSEE ALSO MOVED APPLICATION FOR ADMISSION OF ADDITIONAL GROUNDS. TH E LD. SR. DR HAS NO OBJECTION FOR ADMISSION OF THIS APPLICATION, CONSEQUENTLY, THIS BENCH VIDE ORDER DATED 21.7.2011 (ORDER 3 SHEET) ADMITTED THE ADDITIONAL GROUNDS. TODAY, THE ASSESSEE ALSO MOVED APPLICATION FOR ADMISSION OF ADDITIONAL EVIDENCE UNDER SUB-RULE (4) OF RULE 18 OF THE APPELLATE TRIB UNAL RULES, 1963. THE LD. SR. DR CONTENDED THAT IF THE ADDITION AL EVIDENCES ARE ADMITTED THEN OPPORTUNITY SHOULD BE GIVEN TO TH E LD. ASSESSING OFFICER AS THE ADDITIONAL EVIDENCES, FILE D BEFORE THE TRIBUNAL, WERE NOT FILED BEFORE THE LD. ASSESSING O FFICER. 2. ON PERUSAL OF RECORD AND AFTER HEARING THE RIVAL SUBMISSIONS, ADMITTEDLY, THESE ADDITIONAL EVIDENCES WERE NOT AVAILABLE BEFORE THE LD. ASSESSING OFFICER, CONSEQU ENTLY, KEEPING IN VIEW THE PRINCIPAL OF NATURAL JUSTICE, W E REMAND THIS APPEAL ALONG WITH ADDITIONAL GROUNDS & ADDITIONAL E VIDENCES FOR FRESH CONSIDERATION OF THE LD. ASSESSING OFFICER FO R WHICH DUE OPPORTUNITY OF BEING HEARD BE PROVIDED TO THE ASSES SEE. THE ASSESSEE IS ALSO AT LIBERTY TO FURNISH EVIDENCE, IF ANY, IN SUPPORT OF ITS CLAIM. FINALLY, THE APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES ONLY. 4 ORDER PRONOUNCED IN THE OPEN COURT IN THE PRESENCE OF LD. REPRESENTATIVES OF BOTH SIDES AT THE CONCLUSION OF THE HEARING ON 17 TH AUGUST, 2011. (R.C.SHARMA) (JOGINDER SI NGH) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 17.8.2011 COPY TO: APPELLANT, RESPONDENT, CIT, CIT(A), DR, GU ARD FILE !VYAS!