Krishkon Developers (P) Ltd., Indore V. The ITO-3(1), Indore

ITA 755/Ind/2019

• Counselvise Citation: [2020] 111 COUNSELVISE.COM (IT) 0878 (ITAT-INDORE)
• Duration Of Justice: 10 month(s) 21 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 09-06-2020
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: DB
• Assessment Year: 2010-2011
• Appeal Filed On: 19-07-2019
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: R P MOURYA
• Keywords: Tangible material; Set aside
• Section: 234B; 68; 148

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL, INDORE BENCH, INDORE BEFORE SHRI KUL BHARAT, JUDICIAL MEMBER AND SHRI MANISH BORAD, ACCOUNTANT MEMBER ITA NO.755/IND/2019 ASSESSMENT YEAR: 2010-11 APPELLANT BY SHRI PANKAJ MOGRA, CA REVENUE BY SHRI R.P. MOURYA , SR. DR DATE OF HEARING 08.06 .2020 DATE OF PRONOUNCEMENT 09 .0 6 .2020 O R D E R PER MANISH BORAD, AM. THIS APPEAL IS FILED BY THE ASSESSEE AGAINST THE OR DER OF LD. CIT(A)-I, INDORE DATED 26.11.2018 PERTAINING TO ASSESSMENT YE AR 2010-11. THE ASSESSEE HAS RAISED FOLLOWING GROUNDS OF APPEAL: 2. ASSESSEE HAS RAISED FOLLOWING GROUNDS OF APPEAL; 1. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF TH E CASE AND IN LAW, THE LD. CIT(A) ERRED IN DECIDING THE APPEAL EX-PARTE E VEN WITHOUT DECIDING THE M/S KRISHCON DEVELOPERS PVT. LTD, C/O RAJPAL AGENCIES PVT. LTD, 26-A SAPNA SANGEETA ROAD, INDORE VS. ITO 3 (1),INDORE (APPELLANT) (REVENUE ) PAN A ADCK8127C ITANO.755/IND/2019 KRISHCON DEVELOPERS PVT. LTD 2 CASE ON MERITS BY REFERRING THE DOCUMENTS AS FILED BEFORE THE ASSESSING OFFICER. 2.1 THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD. CIT(A) ERRED IN CONFIRMING THE ACT OF A.O IN R ESPECT OF ISSUANCE OF NOTICE U/S 148 OF THE ACT EVEN WHEN NOTICE U/S 148 OF THE ACT WAS ISSUED WITHOUT OBTAINING PROPER SANCTION. 2.2 THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD. CIT(A) GROSSLY ERRED IN MAINTAINING THE ACT OF A.O IN RESPECT OF ISSUANCE OF NOTICE U/S 148 OF THE ACT AND FRAMING ASSESSMEN T ON THE BASIS OF SUCH NOTICE EVEN WHEN EVEN WHEN THE ASSESSEE HAS DISCLO SED ENTIRE FACTS OF THE CASE ALONG WITH THE ORIGINAL RETURN OF TOTAL INCOM E AND NO NEW FACT HAS CAME TO THE KNOWLEDGE OF THE A.O ON THE BASIS OF W HICH IT CAN BE PRESUMED THAT ANY INCOME CHARGEABLE TO TAX HAS ESCAPED ASSE SSMENT. THE NOTICE SO ISSUED AND ASSESSMENT FRAMED THEREON IN ABSENCE OF ANY TANGIBLE MATERIAL IN POSSESSION OF THE ASSESSING OFFICER AN D HAVING LIVE LINK OF ANY CONCEALMENT OF INCOME BY THE ASSESSEE THEREFORE RE QUIRES TO BE QUASHED. 2.3 THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW THE LD CIT(A) ERRED IN CONFIRMING THE ISSUANCE OF THE NOTICE U/S 148 OF THE ACT EVEN WHEN NOTICE WAS ISSUED U/S 148 OF THE ACT ON THE BASIS OF BORROWED OPINION WITHOUT INDEPENDENT APPLICATION OF MIND OF THE ASSESSING OFFICER. 2.4 THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE THE ORDER SO PASSED U/S 143(3)/147 OF THE INCOME TAX IS BAD, IL LEGAL AND WITHOUT JURISDICTION. 3.1 THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD. CIT(A) ERRED IN MAINTAINING THE ADDITION AS MA DE BY THE LD. A.O OF RS. 89,10,000/- TO THE INCOME OF THE ASSESSEE IN RESPE CT OF SHARE CAPITAL/PREMIUM AS RECEIVED BY THE ASSESSEE U/S 68 OF THE INCOME TAX ACT WITHOUT PROPERLY APPRECIATING THE FACTS OF THE CAS E AND SUBMISSION MADE BEFORE HIM. ITANO.755/IND/2019 KRISHCON DEVELOPERS PVT. LTD 3 3.2 THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD. CIT(A) ERRED IN CONFIRMING THE ADDITION AS MAD E BY THE LD. ASSESSING OFFICER ON THE BASIS OF THIRD PARTY DOCUMENTS WHIC H WERE NOT EVEN CONFRONTED TO THE APPELLANT. 4. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF T HE CASE AND IN LAW, THE LD. CIT(A) ERRED IN CHARGING INTEREST U/S 234A OF RS.2,47,787/- AND 234B OF RS.8,44,644/-. THE SAME IS EXCESSIVE AND MORE SO INTEREST UNDER SECTION 234B SECTION IS CHARGEABLE AS PER SUB-SECT ION (3) OF SECTION 234B OF THE ACT. 5. THE ASSESSEE RESERVE ITS RIGHT TO ADD, ALTER, M ODIFY OR AMEND THE GROUNDS OF APPEAL AS TAKEN IN THE PRESENT APPEAL A S AND WHEN REQUIRED. 3. LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT LD. CIT(A) DECIDED THE APPEAL EX-PARTE WITHOUT DECIDING THE CASE ON MERITS AND REQUESTED TO GIVE ONE MORE OPPORTUNITY TO SUBMIT TH E FACTS BEFORE LD. CIT(A). ON PERUSAL OF THE IMPUGNED ORDER WE FIN D THAT THE ORDER OF LD. CIT(A) IS EX-PARTE DUE TO NON APPEARANCE OF THE ASSESSEE. LD. CIT(A) HAS NOT DEALT WITH MERITS OF THE CASE. 4. LD. DEPARTMENTAL REPRESENTATIVE RAISED NO OBJECT ION IF THE ISSUES ON MERITS IN THE INSTANT APPEAL ARE RESTORED TO LD. CIT(A) FOR AFRESH ADJUDICATION. 5. WE, THEREFORE IN THE INTEREST OF JUSTICE AND BEI NG FAIR TO BOTH THE PARTIES SET ASIDE THE ORDER OF LD. CIT(A) AND R ESTORE ALL THE ITANO.755/IND/2019 KRISHCON DEVELOPERS PVT. LTD 4 ISSUES RAISED ON MERITS IN THE INSTANT APPEAL TO TH E FILE OF LD. CIT(A) FOR AFRESH ADJUDICATION AND DIRECT LD. CIT(A) TO PA SS A SPEAKING ORDER AFTER PROVIDING REASONABLE OPPORTUNITY OF BEI NG HEARD TO THE ASSESSEE. ASSESSEE IS ALSO DIRECTED TO NOT TO TAKE UNNECESSARY ADJOURNMENT UNLESS OTHERWISE REQUIRED FOR REASONABL E CAUSE. 6. IN THE RESULT APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSE. THE ORDER PRONOUNCED IN THE OPEN COURT ON 09 .06.2020. SD/- SD/- ( KUL BHARAT) (MANISH BORAD) JUDICIAL MEMBER ACCOUNTANT MEMBER / DATED : 9 TH JUNE, 2020 /DEV COPY TO: THE APPELLANT/RESPONDENT/CIT CONCERNED/CIT (A) CONCERNED/ DR, ITAT, INDORE/GUARD FILE. BY ORDER, ASSTT.REGISTRAR, I.T.A.T., INDORE