DCIT, Circle - 12, Kolkata, Kolkata V. M/s. Gamuda WCT (India) Pvt. Ltd., Kolkata

ITA 685/KOL/2011

• Counselvise Citation: 68523514 RSA 2011
• Duration Of Justice: 3 year(s) 9 month(s) 5 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 10-02-2015
• Appeal Filed By: Department
• Order Result: Partly Allowed
• Bench Allotted: A
• Assessment Year: 2008-2009
• Appeal Filed On: 05-05-2011
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: VARINDER MEHTA
• Assessee Lawyers: N K PODDA R
• Keywords: Additional evidence

Judgement Text

I.T.A. NO . 68 5 /KOL./201 1 & C.O. NO. 31 /KOL/201 1 (IN ITA NO. 68 5/KOL/201 1 ) ASSESSMENT YEAR: 200 8 - 20 0 9 PAGE 1 OF 4 IN THE INCOME TAX APPELLATE TRIBUNAL, KOLKATA A BENCH, KOLKATA BEFORE SHRI SHAMIM YAHYA (ACCOUNTANT MEMBER) , AND SHRI GEORGE MATHAN (JUDICIAL MEMBER) I.T.A. NO. 68 5 /KOL . / 20 1 1 ASSESSMENT YEAR : 200 8 - 20 0 9 DEPUTY COMMISSIONER OF INCOME TAX,... ....... ... .. .APP ELL ANT CIRCLE - 1 2 , KOLKATA , P - 7, CHOWRINGHEE SQUARE, AAYAKAR BHAWAN, 7 TH FLOOR, KOLKATA - 700 06 9 - VS. - M/S. GAMUDA WCT (INDIA) PVT. LIMITED, ........ . RESPONDENT ARIHANT BUILDING, 53A, MIRZA GHALIB STREET, KOLKATA - 700 016 [PAN : A A B CG 4987 E ] & C.O. NO. 31 /KOL/201 1 (ARISING OUT OF ITA NO. 68 5/KOL/201 1 ) ASSESSMENT YEAR : 2008 - 2009 M/S. GAMUDA WCT (INDIA) PVT. LIMITED, ......... . ..CROSS OBJECTOR ARIHANT BUILDING, 53A, MIRZA GHALIB STREET, KOLKATA - 700 016 [PAN : AABCG 4987 E] - VS. - ADDITIONAL COMMISSIONER OF INCOME TAX, ............ ...... . RESPONDENT CIRCLE - 12, KOLKATA, P - 7, CHOWRINGHEE SQUARE, AAYAKAR BHAWAN, 7 TH FLOOR, KOLKATA - 700 069 APPEARANCES BY: SHRI VARINDER MEHTA , CIT, D.R., FOR THE DEPARTM ENT SHRI N.K. PODDAR , SR. ADVOCATE , FOR THE ASSESSEE DATE OF CONCLUDING THE HEARING : FEBRUARY 10 , 2 01 5 DATE OF PRONOUNCING THE ORDER : FEBRUARY 10 , 201 5 I.T.A. NO . 68 5 /KOL./201 1 & C.O. NO. 31 /KOL/201 1 (IN ITA NO. 68 5/KOL/201 1 ) ASSESSMENT YEAR: 200 8 - 20 0 9 PAGE 2 OF 4 O R D E R PER GEORGE MATHAN : ITA 68 5/KOL/201 1 IS AN APPEAL FILED BY THE REVENU E AGAINST THE ORDER OF LD. COMMISSIONER OF INCOME TAX (APPEALS) - XI I , KOLKATA IN APPEAL NO. 2 59 / CIT( A ) - X I I/ R - 1 2/10 - 11 DATED 2 8 . 0 2 .201 1 FOR TH E ASSESSMENT YEAR 200 8 - 0 9 , AND C.O. 31 /KOL/201 1 IS A CROSS OBJECTION FILED BY THE ASSESSEE IN THE REVENUE S APPEAL . 2 . SHRI V ARINDER MEHTA , CIT, D.R., REPRESENTED ON BEHALF OF THE REVENUE AND SHRI N.K. PODDAR, S ENIOR ADVOCATE , REPRESENTED ON BEHALF OF THE ASSESSEE . 3 . AT THE TIME OF HEARING, IT WAS SUBMITTED BY THE LD. CIT, D.R. THAT BEFORE THE TRIBUNAL THE ASSESSEE HAS FILED ADDITIONAL EVIDENCES. TO THIS, LD. SR. COUNSEL SUBMITTED THAT THE DETAILS PAPER BOOK VOLUME III AND VOLUME - IV, I.E. PAGES 265 TO 361 OF THE PAPER BOOK IN VOLUME - III AND PAGES 1 TO 23 OF THE PAPER BOOK IN VOLUME - IV WERE FRESH EVIDENCES. IT W A S THE SUBMISSIO N BY THE LD. SR. COUNSEL THAT THE S A ID EVIDENCES HAD COME INTO EXISTENCE AFTER THE ASSESSMENT ORDER IN SOME CASES AND SUBSTANTIALLY AFTER THE ORDER OF THE LD. CIT(APPEALS). IT WAS SUBMITTED BY THE LD. CIT, D.R. THAT THE ISSUE IN THE APPEAL WAS AGAINST THE ACTION OF THE LD. CIT(APPEALS) IN DELETING AN ADDITION MADE BY THE ASSESSING OFFICER OF AN AMOUNT OF RS.161.15 CRORES REPRESENTING THE SHARE CAPITAL RECEIVED FROM M/S. GAMUDA OFFSHORE PVT. LIMITED AND M/S. WCT OFFSHORE PVT. LIMITED, BOTH FROM MAURITIUS. IT WAS THE SUBMISSION THAT THE FRESH EVIDENCES PRODUCED BY THE ASSESSEE BEFORE THE TRIBUNAL WAS NOT LIABLE TO BE ENTERTAINED. 4. IN REPLY, LD. SENIOR C OUNSEL SUBMITTED THAT THE FRESH EVIDENCES WERE IN THE NATURE OF THE CLEARANCE GIVEN BY THE RESERVE BANK OF INDIA IN I.T.A. NO . 68 5 /KOL./201 1 & C.O. NO. 31 /KOL/201 1 (IN ITA NO. 68 5/KOL/201 1 ) ASSESSMENT YEAR: 200 8 - 20 0 9 PAGE 3 OF 4 RESPECT OF THE RECEIPT OF THE SHARE APPLICATION MONEY AS ALSO VARIOUS CORRESPONDENCES. IT WAS THE SUBMISSION THAT THE ASSESSEE HAD RECEIVED THE SHARE APPLICATION MONEY DURING THE ASSESSMENT YEARS 2002 - 03, 2005 - 06 AND 2006 - 07. HOWEVER, THE ASSESSI NG OFFICER HAD ADDED THE SAID AMOUNT DURING THE ASSESSMENT YEAR 2008 - 09. IT WAS THE SUBMISSION THAT PRIMARILY AS THE AMOUNT HAS BEEN RECEIVED BY THE ASSESSEE DURING THE EARLIER ASSESSMENT YEAR, THE SAME COULD NOT BE TREATED AS INCOME OF THE ASSESSEE DURING THE RELEVANT ASSESSMENT YEAR. HOWEVER, IT WAS THE SUBMISSION THAT THE PAPER BOOK FILED BY THE ASSESSEE IN THE FORM OF THE ADDITIONAL EVIDENCES WOULD ALSO HAVE TO BE CONSIDERED. AT THIS POINT, IT WAS POINTED OUT TO THE LD. SENIOR COUNSEL THAT THE ASSESSING O FFICER HAD MADE THE ADDITION ON THE GROUND THAT IT HAS BEEN ACCEPTED FOR THE FIRST TIME DURING THE RELEVANT ASSESSMENT YEAR THAT THE ENTIRE MONEY HAS BEEN UTILIZED AND THERE WAS NO INTENTION OF THE COMPANY TO REPAY THE SAME, WHICH TANTAMOUNT TO ENRICHMEN T OF THE ASSESSEE - C OMPANY BY THE SAID MONEY AND CONSEQUENTLY THE SAME WAS LIABLE TO BE TREATED AS INCOME OF THE ASSESSEE. IT WAS ALSO POINTED OUT THAT THE ASSESSING OFFICER HAD ALSO TAKEN INTO CONSIDERATION THE ISSUE THAT IT WAS HIS SUBMISSION THAT RIGHT F ROM INCEPTION THE ASSESSEE WAS NOT TREATING THE SUM OF SHARE APPLICATION MONEY AND UTILIZING THE SAME FOR ITS BUSINESS. SECONDLY THE ASSESSEE HAD ALSO NOT SHOWN ANY INTENTION TO RETURN OF THIS SUM AT ANY POINT OF TIME. IT WAS THEN INFORMED THAT AS THE FRES H EVIDENCES HAVE BEEN FILED IT WOULD BE IN THE INTEREST OF JUSTICE THAT THE ISSUES IN THE APPEAL AND THE CROSS OBJECTION BE RESTORED TO THE FILE OF THE ASSESSING OFFICER FOR RE - ADJUDICATION AFTER CONSIDERING THE FRESH EVIDENCES. 5. IN THESE CIRCUMSTANCES , AFTER HEARING THE LD. SENIOR COUNSEL AND THE LD. CIT, D.R., WE ARE OF THE VIEW THAT THE ISSUES IN THIS APP E AL AS ALSO THE CROSS O BJECTION FILED BY THE ASSESSEE ARE LIABLE TO THE RESTORED TO THE FILE OF THE ASSESSING O FFICER FOR RE - ADJUDICATING THE ISSUES AFTER GRANTING THE ASSESSEE ADEQUATE OPPORTUNITY TO PRODUCE ALL SUCH EVIDENCES AS IT DEEMS I.T.A. NO . 68 5 /KOL./201 1 & C.O. NO. 31 /KOL/201 1 (IN ITA NO. 68 5/KOL/201 1 ) ASSESSMENT YEAR: 200 8 - 20 0 9 PAGE 4 OF 4 NECESSARY TO SUBSTANTIATE ITS CASE. THOUGH THE LD. CIT, D.R. HAS MENTIONED THAT SECTION 28(IV) WAS TO BE CONSIDERED AND H AS RELIED UPON TO THE GROUNDS OF APPEAL AND THE ASSESSMENT ORDER WE ARE NOT GIVING ANY FINDING ON THE SAID ISSUES AS WE ARE OF THE VIEW THAT IN VIEW OF THE ADDITIONAL EVIDENCES PRODUCED, THE ISSUES NEED TO BE RE - ADJUDICATED BY THE ASSESSING OFFICER. 6 . IN THE RESULT, THE APPEAL OF THE REVENUE AND THE CROSS OBJECTION FILED BY THE ASSESSEE STANDS PARTLY ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 10 TH FEBRUARY , 201 5 . SD/ - SD/ - SHAMIM YAHYA GEORGE MATHAN ( ACCOUNTANT MEMBER) ( JU DICIAL MEMBER) KOLKATA, THE 1 0 TH D AY OF FEBRUARY , 201 5 COPIES TO : (1) DEPUTY COMMISSIONER OF INCOME TAX, CIRCLE - 12, KOLKATA, P - 7, CHOWRINGHEE SQUARE, AAYAKAR BHAWAN, 7 TH FLOOR, KOLKATA - 700 069 (2) M/S. GAMUDA WCT (INDIA) PVT. LIMITED, ARIHANT BUILDING , 53A, MIRZA GHALIB STREET, KOLKATA - 700 016 (3) COMMISSIONER OF INCOME TAX (APPEALS) ( 4 ) COMMISSIONER OF INCOME TAX ( 5 ) THE DEPARTMENTAL REPRESENTATIVE ( 6 ) GUARD FILE BY ORDER ASSISTANT REGISTRAR INCOME TAX APPELLATE TRIBUNAL KOLKATA B ENCHES, KOLKATA LAHA/SR. P.S.