Appeal details
Counselvise Citation
[2023] 103 COUNSELVISE.COM (IT) 0564 (ITAT-HYDERABAD)
Assessee PAN
Bench
Appeal Number
Duration Of Justice
4 month(s) 17 day(s)
Appellant
Respondent
Appeal Type
Income Tax Appeal
Pronouncement Date
27-03-2023
Appeal Filed By
Department
Order Result
Allowed
Bench Allotted
DB-A
Next Hearing Date
27-03-2023
Assessment Year
2009-2010
Appeal Filed On
10-11-2022
Judgement Text
1 IN THE INCOME TAX APPELLATE TRIBUNAL Hyderabad ‘A’ Bench, Hyderabad Before Shri Rama Kanta Panda, Accountant Member AND Shri Laliet Kumar, Judicial Member O R D E R PER LALIET KUMAR, J.M. This appeal is filed by the Revenue feeling aggrieved by the order passed by the Commissioner of Income Tax (Appeals), National Faceless Appeal Centre (NFAC), Delhi dated 24.08.2022 for the AY 2009-10 on the following grounds : “1. The ld.CIT(A) erred in deleting the addition of Rs.1,88,26,649/- made u/s 69 towards share capital, share premium and share application money brought in by M/s. Avani A. Shah. ITA.No.614/Hyd/2022 Assessment Year: 2017-18 Asst. Commissioner of Income Tax, Circle 2(1), Hyderabad. Vs. M/s. Kaleesuwari Refinery and Industry Private Limited (Previously known as M/s. Naturol Bioenergy Ltd.) Hyderabad. PAN : AABCN7337H. (Assessee) (Respondent) Assessee by: Shri Surya Rao, C.A. Revenue by : Shri K.P.R.R. Murthy. Date of hearing: 28.03.2023 Date of pronouncement: 28.03.2023 2 2. The ld.CIT(A) ought not to have admitted additional evidence in the form of confirmation letter from Avani A Shah which was not produced before the Assessing Officer, without giving an opportunity to the Assessing Officer under Rule 46A of the I.T. Rules. 2. The appeal filed by the Revenue is barred by limitation by 19 days. The Revenue has moved a condonation petition explaining reasons thereof. We have heard both the parties on this preliminary issue. Having regard to the reasons given in the petition, we condone the delay and admit the appeal for hearing. 3. Facts of the case, in brief, are that the assessee is a company engaged in the business of manufacturing and sale of bio- diesel, furnished its return of income for A.Y. 2009-10 on 29.09.2009 admitting loss of Rs.89,66,72,824/-. The return was processed u/s 143(1) of the Act. Thereafter, the case was taken up for scrutiny by issuing notices u/s 143(2) on 24.08.2010. Subsequently, notice u/s 142(1) dt.12.10.2021 along with questionnaire was issued to the assessee calling for certain information. In response thereto, assessee had furnished the information as called for and after examining the same, Assessing Officer had completed the assessment u/s 143(3) of the Act dt.21.12.2011 by making certain additions / disallowances. 4. Feeling aggrieved with the order of Assessing Officer, assessee carried the matter before ld.CIT(A) / NFAC, who allowed the appeal of assessee. 3 5. Feeling aggrieved with the order of ld.CIT(A), Revenue is now in appeal before us. 6. Before us, ld.DR submitted that the ld.CIT(A) admitted the additional evidence filed by the assessee, which was not produced before the Assessing Officer, without giving an opportunity to the Assessing Officer under Rule 46A of the I.T. Rules. Hence, the matter may kindly be remitted back to the learned Assessing Officer for afresh adjudication. 7. Per contra, the ld. AR of the assessee had vehemently relied upon the order passed by the ld.CIT(A) / NFAC. He further submitted that the order passed by the ld.CIT(A) / NFAC is in accordance with the law. 8. We have heard the rival submissions and perused the material on record. In the present case, we find that NFAC / ld.CIT(A) had allowed the appeal of assessee based on the additional evidence filed by the assessee i.e., confirmation letter from Avani A. Shah (NRI Investor), which was reproduced at pages 17 and 18 of the order of ld.CIT(A) / NFAC. On perusal of the record, it is clear that the said confirmation letter was not produced by the assessee before the Assessing Officer. The ld.CIT(A) allowed the appeal of assessee based on the said additional evidence and he did not call for the remand report of the Assessing Officer, which is contrary to the provisions of Rule 46A of the Income Tax Rules, 1963. It has not been brought on record about the genuineness, creditworthiness and identity of said NRI investor. Since the order of the ld.CIT(A) was passed without granting the opportunity of hearing to the 4 Assessing Officer, we feel that in the interests of justice, it would be appropriate to remand back the matter to the file of the Assessing Officer with a direction to decide the issue denovo after affording due opportunity of hearing to the assessee. On the date of hearing fix by the AO, the assessee shall file all the documents in support of its case. In case, the assessee failed to file any documents in support of its case, Assessing Officer shall decide the matter in accordance with the law. Accordingly, the appeal of Revenue is allowed for statistical purposes. 9. In the result, the appeal of Revenue is allowed for statistical purposes. Order pronounced in the Open Court on 28 th March, 2023. Sd/- Sd/- (RAMA KANTA PANDA) ACCOUNTANT MEMBER (LALIET KUMAR) JUDICIAL MEMBER Hyderabad, dated 28 th March, 2023. TYNM/sps 5 Copy to: S.No Addresses 1 M/s. Kaleesuwari Refinery and Industry Private Limited (Previously known as M/s. Naturol Bioenergy Ltd.), No.1-1-780, 1 and 2, Flat No.308, Sumanjali Apartments, Gandhi Nagar, Hyderabad. 2 Asst. Commissioner of Income Tax, Circle 2(1), Hyderabad. 3 DR, ITAT Hyderabad Benches 4 Guard File By Order
AI Insights
The case involves an appeal by the Revenue against the order of the Commissioner of Income Tax (Appeals), National Faceless Appeal Centre (NFAC), which had allowed the appeal of the assessee, M/s. Kaleesuwari Refinery and Industry Private Limited, by deleting an addition made under section 69 of the Income Tax Act concerning share capital, share premium, and share application money. The Revenue contended that the CIT(A) erred in admitting additional evidence without following the proper procedure under Rule 46A, which requires that any additional evidence should be admitted only after providing an opportunity to the Assessing Officer. The Tribunal agreed with the Revenue's contention and remanded the matter back to the Assessing Officer for a fresh decision.
