ASWATHI INDUSTRIES LTD, MUMBAI V. ASST CIT CIR 9(1), MUMBAI

ITA 8012/MUM/2011

• Counselvise Citation: [2014] 120 COUNSELVISE.COM (IT) 7967 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 8 month(s) 14 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 13-08-2014
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 06-08-2014
• Assessment Year: 2006-2007
• Appeal Filed On: 29-11-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Additional evidence
• Section: 68

Judgement Text

, , , , IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH A, MUMBAI , ! ! ! ! , ' ' ' ' BEFORE SHRI B R BASKARAN, ACCOUNTANT MEMBER AND SHRI VIVEK VARMA, JUDICIAL MEMBER . : . : . : . : 801 801 801 8012 22 2/ // / / // / 2011, * ! +! 2006-07 ITA NO. : 8012/MUM/2011 , AY 2006-07 ASWATHI INDUSTRIES LTD, A-001/002, APEKSHA ENCLAVE, MAHAVIR NAGAR, KANDIVALI (W), MUMBAI -400 067 / .: PAN: AACCA 0541 R VS ACIT -9(1), CHURCHGATE MUMBAI -400 020 /0 (APPELLANT) 12/0 (RESPONDENT) APPELLANT BY : MS. ARATI VISSANJI RESPONDENT BY : SHRI MANVENDRA GOYAL *345 /DATE OF HEARING : 06-08-2014 67+ 345/ DATE OF PRONOUNCEMENT : 13-08-2014 8 8 8 8 O R D E R ! ! ! ! , . . . . . .. . PER VIVEK VARMA, J.M. : THE APPEAL IS FILED BY THE ASSESSEE AGAINST THE ORD ER OF CIT(A) 19, MUMBAI, DATED 01.09.2011, WHEREIN, THE FOLLOWING GR OUNDS HAVE BEEN TAKEN: 1. THE COMMISSIONER OF INCOME TAX (APPEALS) HAS ER RED IN CONFIRMING THE ADDITION UNDER SECTION 68 IN RESPECT OF THE SHARE CAPITAL RECEIVED FROM THREE PERSONS. 2. THE APPELLANT COMPANY CRAVES LEAVE TO ADD OR T O DELETE THE GROUND(S) OF APPEAL ON OR BEFORE THE HEARING OF THE APPEAL. 2. THE SOLITARY ISSUE PERTAINS TO ADDITION SUSTAINE D AT RS. 11,99,500/-, OUT OF TOTAL ADDITION OF RS. 43,75,000 /- MADE BY THE AO U/S 68 OF THE INCOME TAX ACT, 1961. 3. THE FACTS ARE THAT THE ASSESSEE, DURING THE RELE VANT FINANCIAL YEAR, RECEIVED RS. 35,00,000/- AS SHARE PREMIUM AND RS. 8,75,000/- AS SHARE CAPITAL FROM THE FOLLOWING PERSONS AND SHA RES: ASWATHI INDUSTRIES LTD ITA NO. 8012/MUM/2011 2 SR. NAME OF THE SHAREHOLDERS NUMBER OF SHARE APPLIED/HELD A SHRI BASHEER KANDATATA ABDUL 4000 B SHRI BASHEER POKKAKILLATH FIAZAL 2000 C MR. ABDULMAJEED ABDULRAHMAN OLAKKATA 18000 D MRS. KAVITA NARAYAN HINGORANI 17500 E ASWATHI PACKAGING PVT LTD 46000 4. THE AO CALLED FOR GENUINENESS OF TRANSACTIONS, I DENTITY AND CREDITWORTHINESS OF THE ABOVE PERSONS, BUT THE ASSE SSEE WAS UNABLE TO PROVIDE THE DETAILS. SINCE THERE WAS LACK OF EVIDEN CE, THE AO ADDED THEM TO THE INCOME OF THE ASSESSEE U/S 68. 5. AGGRIEVED, THE ASSESSEE APPROACHED THE CIT(A), B EFORE WHOM, THE ASSESSEE SUBMITTED THAT IT HAD ISSUED EQUITY SHARES AT A PREMIUM OF RS. 40/- AND PROVIDED DETAILS OF MRS. KAVITA NARAYA N HINGORANI & M/S ASWATHI PACKAGING PVT. LTD. WHICH INCLUDED BANK STATEMENTS AND ROI. WITH RESPECT OF THE OTHER THREE, THE ASSESSEE SUBMITTED THAT THE MONEY WAS RECEIVED THROUGH CHEQUES, WHICH PROVED TH EIR IDENTITY. THE ASSESSEE ALSO PROVIDED THE ADDRESSES OF THE PERSONS . 6. THE CIT(A), AFTER CONSIDERING THE ABOVE EVIDENCE S, OBSERVED THAT SHARE APPLICATIONS RECEIVED FROM MRS. KAVITA NARAYA N HINGORANI & M/S ASWATHI PACKAGING PVT. LTD. COULD BE HELD TO BE EXPLAINED AS HE FOUND THAT ROI, BANK STATEMENT AND STATEMENT OF ACC OUNTS WAS PROVIDED TO THE AO AS WELL, BUT CONFIRMED THE ADDIT ION OF THE REMAINING THREE SHARE APPLICANTS FOR LACK OF COMPLE TE EVIDENCE. HE THEREFORE DELETED RS. 31,75,500/- BUT SUSTAINED RS. 11,99,500/-. 7. THE ASSESSEE IS BEFORE THE ITAT ON SUSTAINING TH E ADDITION OF RS. 11,99,500/-. 8. AT THE TIME OF HEARING THE AR SUBMITTED THAT THE ASSESSEE WAS UNABLE TO PROVIDE COMPLETE EVIDENCE WITH REGARD TO THE ABOVE FIVE ASWATHI INDUSTRIES LTD ITA NO. 8012/MUM/2011 3 PERSONS BEFORE THE AO, BUT WAS ABLE TO PROVIDE THE EVIDENCE PARTLY BEFORE THE CIT(A). THE AR SUBMITTED THAT WHATEVER R ELIEF WAS GIVEN BY THE CIT(A), WAS BASED ON CONCRETE EVIDENCE AND SINC E THE BALANCE EVIDENCE WAS NOT PROVIDED, THE CIT(A) SUSTAINED THA T PORTION OF ADDITION. THE AR SUBMITTED THAT PROOF OF GENUINENES S, CREDITWORTHINESS AND CAPACITY, PERTAINING TO THE TH REE PERSONS WERE NOW AVAILABLE, & THE SAME IS BEING NOW SUBMITTED BE FORE THE ITAT IN THE FORM OF ADDITIONAL EVIDENCE. 9. THE AR, THEREFORE, PLEADED THAT ADDITIONAL EVIDE NCE BE ACCEPTED AND ADJUDICATED UPON. 10. THE DR ON THE OTHER HAND SUBMITTED THAT IF THE ADDITIONAL EVIDENCE IS BEING ADMITTED THEN, THE ISSUE MUST BE RESTORED TO THE AO FOR HIS SATISFACTION. 11. WE HAVE HEARD THE SUBMISSIONS, THE AR HAS FAIRL Y CONTENDED THAT THE ADDITIONAL EVIDENCE WAS BEING FILED NOW, A S THE ASSESSEE WAS UNABLE TO SUBMIT THE SAME BECAUSE OF VARIOUS REASON S. WE ALSO ACCEPT THAT THAT THE DR HAS FAIRLY SUBMITTED THAT IN CASE EVIDENCE IS ADMITTED THEN THE ISSUE NEEDS TO BE EXAMINED BY THE AO. 12. ON HEARING WITH THE PARTIES, IN OUR OPINION, TH E JUST AND FAIR POSITION WOULD BE TO ACCEPT THE ADDITIONAL EVIDENCE , NOW BEING PLACED BEFORE US, WITH REGARD TO THE ISSUE OF RS. 11,99,50 0/-. SINCE THE ADDITIONAL EVIDENCE HAS BEEN ADMITTED BY US, IN THE INTEREST OF JUSTICE, THE AO MUST BE SATISFIED WITH THE EVIDENCE. IN THIS CIRCUMSTANCE, THE ISSUE IS RESTORED TO THE AO FOR FRESH ADJUDICATION. 13. AS A RESULT, THE ORDER OF CIT(A) IS SET ASIDE T O THE EXTENT OF RS. 11,99,500/-, WITH THE DIRECTION TO THE AO, AS ABOVE . ASWATHI INDUSTRIES LTD ITA NO. 8012/MUM/2011 4 14. IN THE RESULT, THE APPEAL AS FILED BY THE ASSES SEE IS TREATED AS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 13 TH AUGUST, 2014. SD/- SD/- ( ) ( ! ! ! !) (B R BASKARAN) (VIVEK VARMA) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI, DATE: 13 TH AUGUST, 2014 14/ COPY TO:- 1) /0/ THE APPELLANT. 2) 12/0/ THE RESPONDENT. 3) THE CIT (A)-19, MUMBAI. 4) ; 5 , MUMBAI / THE CIT-5, MUMBAI. 5) <=14* , , THE D.R. A BENCH, MUMBAI. 6) =>!? COPY TO GUARD FILE. 8* / BY ORDER / / TRUE COPY / / [ @/AB , DY. / ASSTT. REGISTRAR I.T.A.T., MUMBAI *DEA* .*. * CHAVAN, SR. PS