SATYAM GENERIC PHARMA PRIVATE LIMITED, MUMBAI V. DEPUTY COMMISSIONER OF INCOME TAX 13(2)(1), MUMBAI

ITA 5407/MUM/2017

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 8455 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 7 month(s) 6 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 27-03-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: E
• Assessment Year: 2012-2013
• Appeal Filed On: 21-08-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Unexplained cash credit; Opportunity of being heard; Principle of natural justice
• Section: 68

Judgement Text

THE INCOME TAX APPELLATE TRIBUNAL G BENCH, MUMBAI BEFORE SHRI SHAMIM YAHYA ( A M) & SHRI AMARJIT SINGH ( J M) I.T.A. NO. 5407/ MUM/ 2017 (ASSESSMENT YEAR 20 12 - 13 ) M/S. SATYAM GENERIC PHARMA PVT. LTD. U - 12, JAY MATA DI COMPOUND KALHER BHIVANDI DISTRICT TH ANE - 421 302 PAN : AAHCS0020L V S . DCIT 13(2)(1) 146, 1 ST FLOOR AAYAKAR BHAVAN M.K. ROAD MUMBAI - 400020. ( APPELLANT ) ( RESPONDENT ) ASSESSEE BY NONE DEPARTMENT BY SHRI ASHISH KUMAR DATE OF HEARING 3 . 3 . 201 9 DATE OF PRONOUNCEMENT 27 . 3 . 201 9 O R D E R PER SHAMIM YAHYA (AM) : THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF LEARNED CIT(A) DATED 24.1.2017 AND PERTAINS TO A.Y. 2012 - 13. THE GROUNDS OF APPEAL READ AS UNDER : - A) PRINCIPLES OF NATURAL JUSTICE VIOLATED 1. T HE LD. C.I.T. APPEALS ERRED IN NOT FURNISHING THE APPELLANT THE COPY OF THE REMAND REPORT FOR SAY OF THE APPELLANT. B) ADDITION ON ACCOUNT OF LOANS RS.22,32,720/ - U/S. 68 OF THE ACT 2. THE LD. C.I.T. APPEALS ERRED IN FACTS AND IN LAW IN UPHOLDING THE ORDER OF THE A.O. MAKING AN ADDITION OF RS. 22,32,7207 - AS UNEXPLAINED. 3. THE LD. ITO ERRED IN NOT GRANTING PROPER OPPORTUNITY TO THE APPELLANT TO REPRESENT IN THE REMAND PROCEEDINGS AND ALSO ERRED IN NOT ISSUING SUMMONS TO THE LOAN CREDITORS TO PR OVE THE GENUINENESS OF LOANS TO THE APPELLANT. M/S. SATYAM GENERIC PHARMA P VT. LTD. 2 4. IN VIEW OF THE ABOVE, THE APPELLANT PRAYS THAT YOUR HONOURS HOLD THAT THE ADDITION UNDER SECTION 68 AMOUNTING TO RS. 22,32,720/ - IS UNCALLED FOR AND HENCE, THE SAME MAY BE DELETED . 2 . B RIEF FACTS OF T HE CASE ARE THAT THE ASSESSING OFFICER HAS TREATED SOME OF THE LOANS OBTAINED AS UNEXPLAINED CREDITS AS THE CONFIRMATION THEREOF COULD NOT BE RECEIVED. BEFORE LEARNED CIT(A) ASSESSEE SUBMITTED THAT THE ASSESSING OFFICER HAD GIVEN VERY LESS TIME AND PROPOSE D TO SUBMIT THE CONFIRMATION BEFORE THE LEARNED CIT(A). IN TERMS OF THE PROVISIONS OF RULE 46A, LEARNED CIT(A) REMANDED THE MATTER TO THE ASSESSING OFFICER. ASSESSING OFFICER NOTED THAT LEARNED CIT(A) IN HIS REMAND HAS GIVEN VERY SHORT TIME. HE G A VE THE CR EDITORS EVEN SHORTER TIME TO RESPOND TO THE NOTICE U/S. 133(6). THE ASSESSING OFFICER INFORMED LEARNED CIT(A) ACCORDINGLY. LEARNED CIT(A) NOTED THAT FACTS OF THE REMAND AND NOTED THAT THE ASSESSEE DID NOT APPEAR BEFORE HIM DESPITE SEVERAL OPPORTUNITIES. HE NCE, HE CONFIRMED THE ADDITION. 3. AGAINST THE ABOVE ORDER, THE ASSESSEE IS IN APPEAL BEFORE US. 4. WE HAVE HEARD LEARNED DEPARTMENTAL REPRESENTATIVE AND PERUSED THE RECORD. NONE APPEARED ON BEHALF OF THE ASSESSEE DESPITE NOTICE. 5. UPON CAREFUL CONSID ERATION, WE NOTE THAT THE ASSESSING OFFICER HAS VIRTUALLY GIVEN A FEW DAYS NOTICE FOR THE CREDITORS TO RESPOND TO NOTICE U/S. 133(6). IN THIS VIEW OF THE MATTER IN OUR CONSIDERED OPINION PROPER TIME HAS NOT BEEN GIVEN IN THIS CASE. IN OUR CONSIDERED OPINIO N LEARNED CIT(A) SHOULD HAVE ACCEDED TO THE REQUEST OF THE ASSESSING OFFICER TO GIVE MORE TIME TO THE REMAND REPORT. HENCE, IN THE INTEREST OF JUSTICE REMIT THIS ISSUE TO THE FILE OF THE ASSESSING OFFICER. THE ASSESSING OFFICER DIRECTED TO COMPLETE THE ENQ UIRY WITH RESPECT OF THE UNEXPLAINED CREDITORS IN DISPUTE. NEEDLESS TO ADD ASSESSEE SHOULD BE GRANTED ADEQUATE OPPORTUNITY OF BEING HEARD. M/S. SATYAM GENERIC PHARMA P VT. LTD. 3 6. IN THE RESULT, APPEAL FILED BY THE ASSESSEE ALLOWED FOR STATISTICAL PURPOSES. ORDER HAS BE EN PRONOUNCE D IN THE COURT ON 27 . 3 . 201 9 . SD/ - SD/ - (AMARJIT SINGH ) (SH A MIM YAHYA ) J U DICIAL MEMBER ACCOUNTANT MEMBER MUMBAI ; DATED : 27 / 3 / 20 1 9 COPY OF THE ORDER FORWARDED T O : 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT(A) 4. CIT 5. DR, ITAT, MUMBAI 6. GUARD FILE. BY ORDER, //TRUE COPY// ( SENIOR P RIVATE S ECRETARY ) PS ITAT, MUMBAI