Astt. Commissioner of Income Tax, Lucknow V. M/s M.S Rice Industries Pvt. Ltd., Shahjahanpur

ITA 76/LKW/2015

• Counselvise Citation: 7623714 RSA 2015
• Duration Of Justice: 5 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 23-06-2015
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 16-06-2015
• Assessment Year: 2010-2011
• Appeal Filed On: 23-01-2015
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: AMIT NIGARM
• Assessee Lawyers: K G BANSAL
• Keywords: Unexplained investment
• Section: 56(2); 56

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL LUCKNOW BENCH B, LUCKNOW BEFORE SHRI SUNIL KUMAR YADAV, JUDICIAL MEMBER AND SHRI. A. K. GARODIA, ACCOUNTANT MEMBER ITA NO.76 & 77/LKW/2015 ASSESSMENT YEAR:2010-11 & 2011-12 ACIT CENTRAL CIRCLE II LUCKNOW V. M/S M. S. RICE INDUSTRIES PVT. LTD. KHUTAR ROAD, BANDA SHAHJAHANPUR TAN/PAN:AAFCM5515Q (APPELLANT) (RESPONDENT) APPELLANT BY: SHRI. AMIT NIGARM, D.R. RESPONDENT BY: SHRI. K. G. BANSAL, C.A. DATE OF HEARING: 16 06 2015 DATE OF PRONOUNCEMENT: 2 06 2015 O R D E R PER SUNIL KUMAR YADAV: THESE APPEALS ARE PREFERRED BY THE REVENUE AGAINST THE ORDERS OF THE LD. CIT(A) ON A SOLITARY GROUND RELATING TO DELETION OF ADDITION OF RS.15..,75 LAKHS IN ASSESSMENT YEAR 2010-11 AND RS.20.70 LAKHS IN ASSESSMENT YEAR 2011-12 MADE BY THE ASSESSING OFFICER ON ACCOUNT OF DIFFERENCE OF COST OF SHARES ACQUIRED BY THE ASSESSEE AND MARKET VALUE OF THE SHARES IN ASSESSMENT YEARS 2010-11 AND 2011-12. 2. DURING THE COURSE OF HEARING, THE LD. D.R. HAS INVITED OUR ATTENTION THAT THE ASSESSEE HAS PURCHASED SHARES OF M/S GOEL INFRACON PVT. LTD. ON FACE VALUE OF RS.10/- PER SHARE. THE ASSESSING OFFICER HAS NOTICED THAT THERE WAS ALSO A PREMIUM OF RS.90/- PER SHARE. THE ASSESSING OFFICER ACCORDINGLY HELD THAT THE ASSESSEE HAS MADE UNEXPLAINED INVESTMENT OF RS.15.75 LAKHS IN ASSESSMENT YEAR 2010-11 AND RS.20.70 LAKHS IN :- 2 -: ASSESSMENT YEAR 2011-12. THOUGH THE ASSESSING OFFICER HAS MADE REFERENCE OF PROVISIONS OF SECTION 56 (2)(VIIA) WHILE MAKING THE ADDITION, BUT HE HAS NOT SPECIFICALLY INVOKED THIS PROVISION. IN ANY CASE, ADDITION ON ACCOUNT OF UNEXPLAINED INVESTMENT CAN BE MADE UNDER SECTION 69B OF THE ACT. 3. THE LD. CIT(A) HAS DELETED THE ADDITION ONLY FOR THE REASON THAT PROVISIONS OF CLAUSE (VIIA) TO SECTION 56(2) OF THE ACT WAS INSERTED W.E.F. 1.6.2010, THEREFORE, IT CAN ONLY BE INVOKED FROM ASSESSMENT YEAR 2012-13. THE LD. D.R. HAS FURTHER CONTENDED THAT NO DOUBT CLAUSE (VIIA) TO SECTION 56(2) OF THE ACT WAS INSERTED W.E.F. 1.6.2010 BUT PROVISIONS OF SECTION 69B OF THE ACT WAS ALREADY ON THE STATUTE, THEREFORE, ADDITION CAN ALSO BE MADE UNDER SECTION 69B OF THE ACT. NON-MENTIONING OF A PARTICULAR PROVISION BY THE ASSESSING OFFICER WILL NOT MAKE THE ASSESSMENT ORDER ILLEGAL OR INVALID ON THE ISSUE. THE LD. CIT(A) OUGHT TO HAVE EXAMINED THE ASPECT OF APPLICABILITY OF PROVISIONS OF SECTION 69B OF THE ACT TO THE IMPUGNED ADDITION. THEREFORE, IN THE INTEREST OF JUSTICE, THE MATTER MAY BE RESTORED TO THE LD. CIT(A) FOR EXAMINING THE APPLICABILITY OF PROVISIONS OF SECTION 69B OF THE ACT TO THE SAID ADDITION. 4. THE LD. COUNSEL FOR THE ASSESSEE, ON THE OTHER HAND, BESIDES PLACING RELIANCE UPON THE ORDER OF THE LD. CIT(A), HAS CONTENDED THAT APPLICABILITY OF PROVISIONS OF SECTION 69B OF THE ACT CANNOT BE EXAMINED AT THIS STAGE. 5. HAVING CAREFULLY EXAMINED THE ORDERS OF THE LOWER AUTHORITIES IN THE LIGHT OF THE RIVAL SUBMISSIONS, WE FIND THAT THE ASSESSING OFFICER HAS SIMPLY MADE REFERENCE TO THE PROVISIONS OF SECTION 56(2)(VIIA) OF THE ACT, BUT THE LD. CIT(A) HAS SIMPLY DELETED THE ADDITION HAVING OBSERVED THAT THE PROVISIONS OF SECTION 56(2)(VIIA) OF THE ACT WOULD BE APPLICABLE ONLY W.E.F. ASSESSMENT YEAR 2012-13 AND NOT FOR THE IMPUGNED ASSESSMENT YEAR. BUT IN ANY CASE PROVISIONS OF SECTION 69B OF THE ACT, WHICH DEALS WITH THE UNEXPLAINED INVESTMENT, IS ALREADY ON THE STATUTE AND APPLICABILITY OF THIS :- 3 -: PROVISION SHOULD HAVE BEEN EXAMINED BY THE LD. CIT(A). WE, THEREFORE, SET ASIDE THE ORDER OF THE LD. CIT(A) AND RESTORE THE MATTER TO HIS FILE WITH A DIRECTION TO ADJUDICATE THE APPLICABILITY OF PROVISIONS OF SECTION 69B OF THE ACT TO THE IMPUGNED ADDITION. ACCORDINGLY THESE APPEALS OF THE REVENUE STAND ALLOWED FOR STATISTICAL PURPOSES. 6. IN THE RESULT, APPEALS OF THE REVENUE ARE ALLOWED FOR STATISTICAL PURPOSES ORDER WAS PRONOUNCED IN THE OPEN COURT ON THE DATE MENTIONED ON THE CAPTIONED PAGE. SD/- SD/- [A. K. GARODIA] [SUNIL KUMAR YADAV] ACCOUNTANT MEMBER JUDICIAL MEMBER DATED:23 RD JUNE, 2015 JJ:1606 COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT(A) 4. CIT 5. DR ASSISTANT REGISTRAR