M/S IJM ESTATE PRIVATE LIMITED, NAKODAR V. INCOME TAX OFFICER , NAKODAR

ITA 774/ASR/2017

• Counselvise Citation: [2019] 118 COUNSELVISE.COM (IT) 7111 (ITAT-AMRITSAR)
• Duration Of Justice: 1 year(s) 25 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 17-01-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 17-01-2019
• Assessment Year: 2013-2014
• Appeal Filed On: 22-12-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SHAKIL AHMAD
• Keywords: Unexplained cash credit; Unexplained expenditure; Opportunity of being heard; Principle of natural justice
• Section: 69C; 143(1); 68

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL CAMP BENCH AT JALANDHAR BEFORE SH. N. K. SAINI, HONBLE VICE PRESIDENT AND SH. RAVISH SOOD, JUDICIAL MEMBER ITA NO.774/ASR./2017 : ASSTT. YEAR : 2013-14 M/S IJM ESTATE PVT. LTD., RAILWAY ROAD, NAKODAR VS INCOME TAX OFFICER, NAKODAR (APPELLANT) (RESPONDENT) PAN NO. AACCI8557M ASSESSEE BY : SH. ASHRAY SARNA, CA REVENUE BY : SH. SHAKIL AHMAD, DR DATE OF HEARING : 17.01.2019 DATE OF PRONOUNCEMENT : 17.01.2019 ORDER PER N. K. SAINI, VICE PRESIDENT: THIS IS AN APPEAL BY THE ASSESSEE AGAINST THE ORDER DATED 14.11.2017 OF CIT(A)-2, JALANDHAR. FOLLOWING GROUNDS HAVE BEEN RA ISED IN THIS APPEAL:- 1. THAT THE ORDER PASSED BY THE HONBLE CIT(A) DATED 14.11.20 17 IS AGAINST THE LAW AND FACTS OF THE CASE. 2. THAT HAVING REGARD TO THE FACTS AND CIRCUMSTANCES OF THE CA SE, LD. CIT(A) HAS ERRED IN LAW AND ON FACTS IN CONFIRMING THE ACTION OF LD. AO IN MAKING AN ADDITION OF RS.23.75,000/- AS UNEXPLAINED CREDIT U/S 68 OF THE ACT ON ACCOUNT OF SHARE APPLICATION MONEY RECEIVED. 3. THAT IN ANY CASE AND IN ANY VIEW OF THE MATTER, ACTION O F LD. CIT(A) IN CONFIRMING THE ACTION OF LD. AO IN MAKING ADDITION OF R S.23,75,000/- U/S 68 OF THE ACT WITHOUT CONSIDERING THE SUBMISSIONS OF THE ASSESSEE A ND WITHOUT GIVING PROPER OPPORTUNITY OF BEING HEARD, IS BAD IN LAW AND AGAINST THE FACTS AND CIRCUMSTANCES OF THE CASE 4. THAT HAVING REGARD TO THE FACTS AND CIRCUMSTANCES OF THE CA SE, LD. CIT(A) HAS ERRED IN LAW AND ON FACTS IN CONFIRMING THE ACTION OF LD. AO IN MAKING AN ADDITION OF RS. 1,61,500/- AS UNEXPLAINED EXPENDITURE U/ S 69C OF THE ACT ON ACCOUNT OF ROC FEES PAID AND WITHOUT OBSERVING THE PRINC IPLES OF ITA NO. 774/ASR./2017 2 NATURAL JUSTICE. 5. THAT IN VIEW OF THE MATTER, ACTION OF LD. CIT(A) IN CON FIRMING THE ACTION OF LD. AO IN MAKING ADDITION OF RS.1,61,500/- U/S 69C OF THE ACT BY IGNORING THE SUBMISSIONS OF THE ASSESSEE, IS BAD IN LAW AND AGAINST THE FAC TS AND CIRCUMSTANCES OF THE CASE. 6. THAT THE APPELLANT CRAVES THE LEAVE TO ADD, MODIFY, AMEND OR DELE TE ANY OF THE GROUNDS OF APPEAL AT THE TIME OF HEARING AND ALL T HE ABOVE GROUNDS ARE WITHOUT PREJUDICE TO EACH OTHER. 2. THE MAIN GRIEVANCE OF THE ASSESSEE RELATES TO TH E SUSTENANCE OF ADDITION MADE BY THE AO UNDER SECTION 68 OF THE ACT ON ACCOU NT OF SHARE APPLICATION MONEY RECEIVED. ANOTHER GROUND HAS BEEN RAISED RELA TING TO ADDITION ON ACCOUNT OF THE EXPENDITURE OF ROC FEE PAID. 3. FACTS OF THE CASE IN BRIEF ARE THAT THE ASSESSEE FILED THE RETURN OF INCOME WHICH WAS PROCESSED UNDER SECTION 143(1) OF THE ACT . LATER ON THE CASE WAS SELECTED FOR SCRUTINY. THE AO FRAMED THE ASSESSMENT AT AN INCOME OF RS. 25,36,500/- BY MAKING THE ADDITION THE ADDITION OF RS. 23,75,000/- UNDER SECTION 68 FOR THE REASON THAT THE ASSESSEE COULD NOT PRODU CE THE SHARE APPLICANT. ANOTHER ADDITION OF RS. 1,61,500/- WAS MADE ON ACCO UNT OF ROC FEE PAID FOR INCREASING AUTHORIZED CAPITAL. THE AO DID NOT ACCEP T THIS CONTENTION OF THE ASSESSEE THAT THE DIRECTORS OF THE COMPANIES MADE T HE PAYMENTS FROM THEIR INDIVIDUALS CASH IN HAND ON BEHALF OF THE ASSESSEE. 4. BEING AGGRIEVED THE ASSESSEE CARRIED THE MATTER BEFORE THE LD. CIT(A) WHO SUSTAINED THE ADDITIONS. 5. NOW THE ASSESSEE IS IN APPEAL. 6. THE LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED T HAT THE ASSESSEE COULD NOT PRODUCE THE SHARE APPLICANT SMT. JASWANT KAUR FOR T HE REASON THAT SHE WAS ABROAD BEING NON RESIDENT INDIAN. IT WAS FURTHER SU BMITTED THAT NOW THE ITA NO. 774/ASR./2017 3 ASSESSEE CAN PRODUCE THE SHARE APPLICANT THEREFORE, THE CASE MAY BE REMITTED TO THE AO FOR FRESH ADJUDICATION. IT WAS FURTHER SUBMI TTED THAT THE EXPLANATION OF THE ASSESSEE RELATING TO THE PAYMENT OF ROC FEE WAS NOT APPRECIATED IN RIGHT PERSPECTIVE BY THE AO OR THE LEARNED CIT(A). 7. IN HIS RIVAL SUBMISSIONS, THE LEARNED DR STRONGLY S UPPORTED THE ORDERS OF THE AUTHORITIES BELOW. 8. WE HAVE CONSIDERED THE SUBMISSIONS OF BOTH THE PART IES AND PERUSED THE MATERIAL AVAILABLE ON THE RECORD. IN THE PRESENT CA SE, IT APPEARS THAT THE ADDITION ON ACCOUNT OF SHARE APPLICATION MONEY WAS MADE BY T HE AO FOR THE REASONS THAT THE ASSESSEE COULD NOT PRODUCE THE SHARE APPLICANT. ANOTHER ADDITION HAS ALSO BEEN MADE IN THE ABSENCE OF SPECIFIC EVIDENCE PRODU CED IN SUPPORT OF THE CLAIM. HOWEVER, THE LEARNED COUNSEL FOR THE ASSESSEE STATE D AT BAR THAT THE ASSESSEE IS IN A POSITION TO PRODUCE THE SHARE APPLICANT BEFORE TH E AO AS WELL AS THE RELEVANT EVIDENCES FOR INCURRING THE EXPENSES ON ACCOUNT OF ROC FEE. WE, THEREFORE, KEEPING IN VIEW, THE PRINCIPLES OF NATURAL JUSTICE DEEM IT APPROPRIATE TO REMAND THIS CASE BACK TO THE FILE OF THE AO TO BE DECIDED AFRESH AFTER PROVIDING DUE AND REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESS EE. 9. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. (ORDER PRONOUNCED IN THE COURT ON 17/01/2019) SD/- SD/- (RAVISH SOOD) (N. K. SAINI) JUDICIAL MEMBER V ICE PRESIDENT DATED: 17/01/2019 *SH* ITA NO. 774/ASR./2017 4 COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT ASSISTANT REGISTRAR DATE INITIAL 1. DRAFT DICTATED ON 16.01.2019 PS 2. DRAFT PLACED BEFORE AUTHOR 17.01.2019 PS 3. DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER JM/AM 4. DRAFT DISCUSSED/APPROVED BY SECOND MEMBER. JM/AM 5. APPROVED DRAFT COMES TO THE SR.PS/PS PS/PS 6. KEPT FOR PRONOUNCEMENT ON PS 7. FILE SENT TO THE BENCH CLERK PS 8. DATE ON WHICH FILE GOES TO THE AR 9. DATE ON WHICH FILE GOES TO THE HEAD CLERK. 10. DATE OF DISPATCH OF ORDER.