M/S GOLDWAY ENTERPRISES PVT. LTD., JAIPUR V. INCOME TAX OFFICER, WARD-4-4, JAIPUR

ITA 561/JPR/2019

• Counselvise Citation: [2019] 115 COUNSELVISE.COM (IT) 5974 (ITAT-JAIPUR)
• Duration Of Justice: 5 month(s) 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 03-10-2019
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: A
• Assessment Year: 2009-2010
• Appeal Filed On: 22-04-2019
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: RAJENDER SINGH
• Assessee Lawyers: S L PODDAR
• Keywords: Opportunity of being heard; Additional evidence; Question of law; Corroborative evidences
• Section: 148; 2

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHES,A JAIPUR JH LAANHI XKSLKBZ] U;KF;D LNL; ,OA JH FOE FLAG ;KNO] YS[KK LNL; DS LE{K BEFORE: SHRI SANDEEP GOSAIN, JM & SHRI VIKRAM SING H YADAV, AM VK;DJ VIHY LA- @ ITA NO. 561/JP/2019 FU/KZKJ.K O'K Z @ ASSESSMENT YEAR : 2009-10 M/S. GOLDWAY ENTERPRISES PVT.LTD 203, AMBABARI, JHOTWARA ROAD JJPR CUKE VS. THE ITO WARD- 4(4) JAIPUR LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN/GIR NO.: AACCG 8908 J VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT FU/KZKFJRH DH VKSJ L S@ ASSESSEE BY : SHRI S.L. PODDAR,, ADVOCATE JKTLO DH VKSJ LS @ REVENUE BY : SHRI RAJENDER SINGH, (JCIT) LQUOKBZ DH RKJH[ K@ DATE OF HEARING : 01/10/2019 MN?KKS'K.KK DH RKJH[ K@ DATE OF PRONOUNCEMENT: 03/10/2019 VKNS'K@ ORDER PER: SANDEEP GOSAIN, J.M. THE PRESENT APPEAL HAS BEEN FILED BY THE ASSESSEE A GAINST THE ORDER OF CIT(A), AJMER DATED 11.03.2019 FOR THE ASSESSME NT YEAR 2009-10 RAISING THEREIN FOLLOWING GROUNDS OF APPEAL. (I) IN THE FACTS AND CIRCUMSTANCES OF THE CASE THE LD. CIT(A) HAS ERRED IN CONFIRMING THE FINDINGS OF AO I N PASSING THE ITA NO. 561/JP/2019 M/S. GOLDWAY ENTERPRISES (P) LTD VS ITO WARD- 4(4), JAIPUR 2 ORDE3R U/S 143(3)/147 OF THE I.T. ACT, 1961 WHICH I S ABINITIO VOID BEING IN VIOLATION OF THE PRINCIPLES OF EQUITY AND JUSTICE. (II) IN THE FACTS AND CIRCUMSTANCES OF THE CASE THE LD. CIT(A) HAS ERRED IN CONFIRMING THE FINDINGS OF THE AO IN PASSING THE ORDER U/S 143(3)/147 OF THE I.T. ACT, 1961 WHIC H IS BAD IN LAW AS THE SAME HAS BEEN PASSED WITHOUT FURNISHING REAS ONS FOR ISSUING NOTICE U/S 148 OF THE I.T. ACT, 1961. (III) IN THE FACTS AND CIRCUMSTANCES OF THE CASE TH E LD. CIT(A) HAS ERRED IN CONFIRMING THE ADDITION OF RS. 20,00,000/- WITHOUT DISCUSSING THE NATURE OF ADDITION. AS THE A O HAS MADE THE ADDITION U/S 56(1) OF THE I.T. ACT, 1961 BY HOLDING THAT SHARE CAPITAL AND PREMIUM OF RS. 1,20,00,00,000/- IS ASSE SSABLE AS INCOME OF THE ASSESSEE U/S 56(1) OF THE I.T. ACT, 1961. (IV) IN THE FACTS AND CIRCUMSTANCES OF THE CASE THE LD. CIT(A) HAS ERRED IN CONFIRMING THE FINDING OF AO FO R APPLYING THE PROVISION OF SECTION 56(1) OF THE I.T. ACT, 1961 TR EATING THE SHARE CAPITAL AND PREMIUM AS INCOME OF THE ASSESSEE. 2.1 AT THE OUTSET OF THE HEARING, THE LD.AR OF THE ASSESSEE HAD DRAWN OUR ATTENTION TO THE APPLICATION FILED BY THE ASSES SEE UNDER RULE 29OF THE INCOME TAX (APPELLATE TRIBUNAL) RULES.1963 BY SUBMI TTING THAT DURING THE COURSE OF ASSESSMENT PROCEEDINGS AS WELL AS APP ELLATE PROCEEDINGS, THE ASSESSEE COULD NOT SUBMIT NECESSARY DOCUMENTS A ND OTHER EVIDENCES IN SUPPORT OF CREDITWORTHINESS AND GENUINENESS OF T HE SHARE APPLICANTS / SHARE APPLICATION MONEY AND PAYMENTS. IT WAS ALSO S UBMITTED THAT DOCUMENTS PLACED IN PAPER BOOK AT SERIAL NO. 1 TO 6 CONTAINING PAGES 1 TO ITA NO. 561/JP/2019 M/S. GOLDWAY ENTERPRISES (P) LTD VS ITO WARD- 4(4), JAIPUR 3 30 COULD NOT BE SUBMITTED BEFORE THE LOWER AUTHORIT IES AS THE COMPANY HAD CLOSED ITS BUSINESS AND WERE NOT TRACEABLE. THE DETAILS OF ADDITIONAL EVIDENCES ARE AS UNDER:- (I) LEDGER ACCOUNT/CONFIRMATION OF M/S DHANVARSHA MOTOR FINANCE PVT LTD. (II) BANK ACCOUNT STATEMENT OF M/S DHANVARSHA MOTOR FINANCE PVT LTD REFLECTING THE TRANSACTIONS. (III) COPY OF ACKNOWLEDGEMENT OF RETURN AND AUDIT REPORT ALONG WITH ALL ANNEXURE OF M/S DHANVARSHA MOTOR FINANCE PVT LTD FOR AY 2009-10 (IV) COPY OF ACKNOWLEDGEMENT OF RETURN OF M/S LINK DISTRIBUTORS PVT LTD FOR AY 2009-10 (V) LEDGER ACCOUNT/CONFIRMATION OF M/S LINK DISTRIBUTORS PVT LTD. (VI) BANK ACCOUNT STATEMENT OF M/S LINK DISTRIBUTORS PVT LTD. THE LD.AR OF THE ASSESSEE FURTHER SUBMITTED THAT W HEN TECHNICALITIES ARE PITCHED AGAINST THE SUBSTANTIVE DISCHARGE OF JU STICE, THE LATER HAS TO PREVAIL, IN A CASE WHERE THE BONA FIDES ARE NOT IN DOUBT (MARUTI CIVIL WORKS VS. ITO [2011] 136 TTJ 448 [PUNE]). IT IS FURTHER SUBMITTED THAT ALL THE JUDICIAL INSTITUTIONS THE H ON'BLE ITAT BEING ITA NO. 561/JP/2019 M/S. GOLDWAY ENTERPRISES (P) LTD VS ITO WARD- 4(4), JAIPUR 4 ONE OF THEM ARE RESPECTED NOT ON ACCOUNT OF ITS P OWER TO LEGALIZE INJUSTICE ON TECHNICAL GROUNDS BUT BECAUSE THESE AR E CAPABLE OF REMOVING INJUSTICE. THE ASSESSEE IS ONLY FURNISHING SUPPORTING EVIDENCES ONLY. THESE ARE NOT COOKED UP OR MANIPULA TED IN ANY WAY. IN VIEW OF THIS THE HON'BLE ITAT IS REQUESTED TO AD MIT THE ADDITIONAL EVIDENCE AND CONSIDER THE SAME FAVOURABLY. THE FOLL OWING CASE LAWS ARE QUOTED IN SUPPORT FOR THE ADMISSION OF THE ADDI TIONAL EVIDENCE. (I) NATIONAL THERMAL POWER CO. LTD. VS. CIT (1998 ) 229 ITR 383 (SC) :- TRIBUNAL HAS JURISDICTION TO EXAMINE A QUESTION OF LAW WHICH ARISES FROM THE FACTS AS FOUN D BY THE AUTHORITIES BELOW AND HAVING A BEARING ON THE TAX L IABILITY OF THE ASSESSEE, NOTWITHSTANDING THE FACT THAT SAME WA S NOT RAISED BEFORE THE LOWER AUTHORITIES. (II) CIT VS. RAORAJA HANUT SINGH 117 TAXMAN 613 / 2 52 ITR 0528 : {RAJ)THE POSITION IS THAT THE TRIBUNAL CAN ADMIT T HE ADDITIONAL EVIDENCE IF IT REQUIRES IT TO ENABLE IT TO PASS ORDERS. (III) ELECTRA (JAIPUR) PVT LTD. VS. IAC 26 ITD 236: IF EVIDENCE PRODUCED BY ASSESSEE IS GENUINE, RELIABLE AND PROVE S ASSESSEE'S CASE THAN ASSESSEE SHOULD NOT BE DENIED OPPORTUNITY OF IT BEING PRODUCED EVEN IF HE FIRST T IME PRODUCES SAME BEFORE APPELLATE AUTHORITY. (IV) SMT. PRABHAVATI S. SHAH VS. CIT 231 ITR 1 (BOM .): : PRODUCTION OF ADDITIONAL EVIDENCE ASSESSEE TAKING LOANS ITA NO. 561/JP/2019 M/S. GOLDWAY ENTERPRISES (P) LTD VS ITO WARD- 4(4), JAIPUR 5 FROM TWO CREDITORS ITO TREATING LOANS AS INCOME F ROM UNDISCLOSED SOURCES AS SUMMONS COULD NOT BE SERVED ON CREDITORS ASSESSEE WANTING TO PROVE GENUINENESS O F LOAN BY RELYING ON FACT THAT AMOUNT BORROWED AND REPAID BY CHEQUES. ASSESSEE PRODUCING PHOTOSTAT COPIES OF CHE QUES AND CERTIFICATE FROM BANK BEFORE AAC . AAC REFUSING TO ADMIT ADDITIONAL EVIDENCE. AAC SHOULD HAVE CONSIDER ED EVIDENCE PRODUCED BY ASSESSEE REGARDING LOAN. ( V) CIT VS. GANI BHAI WAHAB BHAI 232 ITR 900 (MP): THERE IS NO PROHIBITION FOR TAKING ADDITIONAL EVIDENCE AT TH E APPELLATE STAGE, THE ONLY CONDITION BEING THAT THE DEPARTMENT SHOULD NOT BE PREJUDICED AND SHOULD BE GIVEN REASONABLE OPPORTUNITY TO REBUT THIS ADDITIONAL EVIDENCE. IN T HIS CASE, NO SUCH REQUEST WAS MADE BY THE REPRESENTATIVE OF THE DEPARTMENT WHETHER THEY DISPUTED THIS CERTIFICATE O R NOT. THEREFORE, THERE IS NO ILLEGALITY COMMITTED BY THE TRIBUNAL WHICH ACCEPTED THE CERTIFICATE OF 46 PER CENT OF TH E YIELD. IN THIS VIEW OF THE MATTER, THE ADDITIONAL EVIDENCE EN TERTAINED BY THE TRIBUNAL CANNOT BE SAID TO BE BAD. (VI) SMT. SURINDER KAUR VS. ITO (2008) 118 TTJ 710 (LUCK):- WHERE ADDITIONAL EVIDENCE SOUGHT TO BE PRODUCED BEF ORE TRIBUNAL WAS A CERTIFICATE RELATING TO ASSESSEE'S C LAIM FOR DEDUCTION OF A SUM AND IF WAS RELEVANT TO DECIDE CL AIM OF ASSESSEE, SAME WAS TO BE ADMITTED FOR SUBSTANTIAL C AUSE AND TO ENABLE TRIBUNAL TO PASS APPROPRIATE ORDER IN MAT TER. (VII) MASCON GLOBAL LTD. VS. ASSISTANT COMMISSIONER OF INCOME TAX (2010) 37 SOT 202 (CHENNAI): RULE 29 PERMIT THE TRIBUNAL TO ADMIT THE ADDITIONAL EVIDENCE FOR ANY SUBSTANTIAL C AUSE. ITA NO. 561/JP/2019 M/S. GOLDWAY ENTERPRISES (P) LTD VS ITO WARD- 4(4), JAIPUR 6 2.2 ON THE OTHER HAND, THE LD. DR OPPOSED THE APPL ICATION FILED BY THE ASSESSEE UNDER 29 OF INCOME TAX (APPELLATE TRIBUNAL ) RULES, 1963 AND SUBMITTED THAT THE SAME IS NOT MAINTAINABLE. 2.3 WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE MATERIALS AVAILABLE ON RECORD. FROM THE CONTENTS OF THE APPLI CATION, WE NOTICED THAT THE ASSESSEE WANTED TO PLACE ON RECORD DOCUMENTS IN THE SHAPE OF BANK ACCOUNT STATEMENT, COPY OF ACKNOWLEDGEMENT OF RETUR N, LEDGER ACCOUNTS AND CONFIRMATION ETC. FROM TWO PARTIES I.E. M/S. DH ANVARSHA MOTOR FINANCE PVT. LTD AND M/S. LINK DISTRIBUTORS PVT LTD . AS PER FACTS, INITIALLY THE ADDITION OF RS. 1.20 CRORES WERE MADE BY THE AO . HOWEVER, THE LD. CIT(A) RESTRICTED THE ADDITION TO RS. 20.00 LACS AS THE ASSESSEE COULD NOT PROVE THE CREDITWORTHINESS OF THESE TWO PARTIES. TH EREFORE, IN THESE CIRCUMSTANCES OF THE CASE, THESE DOCUMENTS ARE NECE SSARY TO ADJUDICATE UPON THE CONTROVERSY AROSE BETWEEN THE PARTIES AND THUS IN OUR VIEW NO PREJUDICE SHALL BE CAUSED TO REVENUE IN CASE THE AP PLICATION FILED BY THE ASSESSEE IS ALLOWED AND THE DOCUMENTS RAISED AT SER IAL NO. 1 TO 6 ARE ADMITTED AS ADDITIONAL EVIDENCE. WE ORDER ACCORDING LY. ITA NO. 561/JP/2019 M/S. GOLDWAY ENTERPRISES (P) LTD VS ITO WARD- 4(4), JAIPUR 7 2.4 SINCE WE HAVE ALLOWED THE APPLICATION FOR LEADI NG THE ADDITIONAL EVIDENCE OF THE ASSESSEE BY ADMITTING THE DOCUMENTS PLACED AT SERIAL NO. 1 TO 6 IN THE PAPER BOOK WHICH REQUIRES VERIFICATIO N. THEREFORE, WE RESTORE THIS ISSUE TO THE FILE OF THE AO TO VERIFY THE FOL LOWING DOCUMENTS AND ALSO TO PASS AFRESH ASSESSMENT ORDER BY PROVIDING ADEQUA TE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. 1. LEDGER ACCOUNT/ CONFIRMATION OF M/S. DHANVARSH A MOTOR FINANCE PVT. LTD. 2. BANK ACCOUNT STATEMENT OF M/S. DHANVARSHA MOTOR FINANCE PVT. LTD. REFLECTING THE TRANSASCTIONS. 3. COPY OF ACKNOWLEDGEMENT OF RETURN AND AUDIT REPO RT ALONGWITH ALL ANNEXURE OF M/S. DHANVARSHA MOTOR FIN ANCE PVT. LTD. FOR A.Y. 2009-10. 4. COPY OF ACKNOWLEDGEMENT OF RETURN OF M/S. LINK DISTRIBUTORS PVT LTD. FOR A.Y. 2009-10. 5. LEDGER ACCOUNT/ CONFIRMATION OF M/S. LINK DISTRIBUTORS PVT LTD. 6. BANK ACCOUNT STATEMENT OF M/S. M/S. LINK DISTRIB UTORS PVT LTD. THUS THE APPEAL OF THE ASSESSEE IS ALLOWED FOR STAT ISTICAL PURPOSE ITA NO. 561/JP/2019 M/S. GOLDWAY ENTERPRISES (P) LTD VS ITO WARD- 4(4), JAIPUR 8 3.0 IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES WITH NO ORDER AS TO COST. ORDER PRONOUNCED IN THE OPEN COURT ON 03/10/2019 . SD/- SD/- FOE FLAG ;KNO LANHI XKSLKBZ (VIKRAM SINGH YADAV) (SANDEEP GOSAIN) YS[KK LNL;@ ACCOUNTANT MEMBER U;KF;D LNL;@ JUDICIAL MEMBER TK;IQJ@ JAIPUR FNUKAD@ DATED:- 03 /10/2019. *MISHRA VKNS'K DH IZFRFYFI VXZSFKR@ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ@ THE APPELLANT- M/S. GOLDWAY ENTERPRISES (P) LTD., J AIPUR 2. IZR;FKHZ@ THE RESPONDENT-THE ITO, WARD- 4 (4) 3. VK;DJ VK;QDR@ CIT 4. VK;DJ VK;QDR@ CIT(A) 4. FOHKKXH; IZFRFUF/K] VK;DJ VIHYH; VF/KDJ.K] T;IQJ@ DR, ITAT, JAIPUR . 5. XKMZ QKBZY@ GUARD FILE {ITA NO. 561/JP/2019} VKNS'KKUQLKJ@ BY ORDER, LGK;D IATHDKJ@ ASSTT. REGISTRAR