Asstt.commissioner of Income -tax (2), BILASPUR(CG) V. M/s Sagar Productions Ltd, Mumbai

ITA 82/BIL/2012

• Counselvise Citation: [2015] 134 COUNSELVISE.COM (IT) 0546 (ITAT-RAIPUR)
• Duration Of Justice: 3 year(s) 2 month(s) 29 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 09-10-2015
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Assessment Year: 2008-2009
• Appeal Filed On: 11-07-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S K MEENA
• Keywords: Additional evidence
• Section: 68

Judgement Text

, RAIPUR IN THE INCOME TAX APPELLATE TRIBUNAL, RAIPUR BEFORE S/SHRI G.D.AGARWAL( VP) & MUKUL KR. SHRAWAT (JM) . . , , ./ I.T.A. NO.82 /BLPR/2012 ( / ASS ESSMENT YEAR : 2008 - 09 ) ACIT - 2, CENTRAL REVENUE BUILDING, CIVIL LINE, RAIPUR. / VS. SAGAR PRODUCTIONS LTD., (FORMERLY KNOWN ASW KIRTI FINVES LTD), 907, 9 TH FLOOR, DAV PLAXA, OPP TO ANDHERI FIRE STATION, ANDHERI(W), MUMBAI ./ ./ PAN/GIR NO. AAACK 9830 B ( / APPELLANT ) .. ( / RESPONDENT ) / APPELLANT BY : SH. S.K.MEENA / RESPONDENT BY : NONE / DATE OF HEARING :0 8 - 10 - 2015 / DATE OF PRONOUNCEMENT : 9 - 10 - 2015 / O R D E R PER MUKUL KR SHRAWAT, JUDICIAL MEMBER: THIS IS AN APPEAL FILED BY THE REVENUE ARISING FROM AN ORDER O F THE LD CIT(A), RAIPUR DATED 1 5.3.2012. THE GROUND S RAISED BY THE REVENUE READ AS UNDER: 2 I.T.A. NO. 82 /BLPR/2012 ASS ESSMENT YEAR : 2008 - 2009 1. WHETHER IN LAW AND ON FACTS & CIRCUMSTANCES OF THE CASE, THE CIT(A) HAS ERRED IN DELETING THE ADDITION OF RS.5,00,000 / - MADE BY THE AO U/S.68 OF THE INCOME TAX ACT, 1961 ON ACCOUNT OF UNSECURED LOANS AND SUNDRY CREDITORS. 2. WHETHER IN LAW AND ON FACTS AND CIRCUMSTANCES OF THE CASE, THE CIT(A) WAS JUSTIFIED IN ADMITTING ADDITIONAL EVIDENCES SUBMITTED BY THE ASSESSEE IN VIOLATI ON OF RULE 46A OF THE I.T.RULES. 2. FACTS IN BRIEF AS EMERGED FROM THE CORRESPONDING ASSESSMENT ORDER U/S.1 43(3) /144 OF THE ACT DATED 31.12.2010 WERE THAT THE ASSESSEE IS A PRIVATE LIMITED COMPANY. THE RETURN OF INCOME WAS FILED ON 30.11.2008 DECLARING LOSS OF RS.25,17,273/ - . DURING THE COURSE OF ASSESSMENT PROCEEDINGS, THE ASSESSING OFFICER NOTICED THAT THE ASSESSEE HAS RECEIVED FRESH UNSECURED LOAN OF RS.5,00,000/ - . SINCE THE ASSESSEE COULD NOT FURNISH THE PARTICULARS OF THE PERSONS FROM WHOM THE U NSECURED LOAN WAS RECEIVED AND THEIR IDENTITY, CREDITWORTHINESS AND GENUINENESS OF THE TRANSACTION, THE AO TREATED THE SAME AS UNEXPLAINED AND ADDED U/S.68 OF THE ACT TO THE TOTAL INCOME OF THE ASSESSEE. SIMILARLY ALSO, THE AO NOTICED THAT DURING THE YEAR THE SUNDRY CREDITORS OF THE COMPANY HAS ALSO INCREASED BY RS.5,60,000/ - COMPARED TO PRECEDING YEAR AS NIL , THE AO TREATED THE CLAIM OF SUNDRY CREDITORS OF RS.5,60,000/ - AS UNDISCLOSED INCOME OF THE ASSESSEE. ACCORDINGLY, THE AO COMPLETED THE ASSESSMENT U/S.143(3) OF THE ACT DETERMINING TOTAL LOSS AT RS.14,57,273/ - , INTER ALIA, MAKING DISALLOWANCE OF RS.10,60,000/ - UNDER SECTION 68 OF THE ACT. BEING AGGRIEVED, THE ASSESSEE CARRIED THE MATTER IN APPEAL BEFORE THE FIRST APPELLATE AUTHORITY. 3. BEFORE THE LD CIT(A), IT WAS SUBMITTED THAT THE ASSESSEE HAD OBTAINED FRESH UN SECURED LOAN OF RS.5,00,000/ - AND ADVANCE AGAINST SALE OF SHARES OF 3 I.T.A. NO. 82 /BLPR/2012 ASS ESSMENT YEAR : 2008 - 2009 RS.5,60,00/ - APPEARING IN THE BALANCE SHEET AS ON 31.3.2008 IN SUNDRY CREDITOR S. THE DETAILS OF UNSECURED LOAN OUTSTAND ING AS ON 31.3.2008 IN THE NAME OF SHRI BASANT KUMAR LADHA (HUF) PAN NO.AAAHL 7597 K WAS FURNISHED BEFORE THE CIT(A). IT WAS SUBMITTED THAT SAID AMOUNT WAS RECEIVED THROUGH CHEQUE NO.419200 DATED 3.1.2008 . TO SUBSTANTIATE THE ABOVE CLAIM, INCOME TAX RETU RN, BANK STATEMENT AND CONFIRMATION OF UNSECURED LOANS TO THE ASSESSEE WERE FURNISHED. SINCE THE ASSESSMENT WAS COMPLETED U/S.144 OF THE ACT, THE LD CIT(A) CALLED FOR A REMAND REPORT FROM THE ASSESSING OFFICER. AFTER CONSIDERING THE REMAND REPORT AND T HE SUBMISSIONS OF THE ASSESSEE, THE LD CIT(A) HAS GIVING A FINDING THAT THE ASSESSEE HAS FURNISHED THE NAME , ADDRESS AND PAN OF THE LENDERS AND CREDITORS, COPIES OF BANK STATEMENTS AND ITRS OF THE LENDERS AND CREDITORS AND ALSO THE CONFIRMATION OF ACCOUNT S. IN VIEW OF THIS, THE LD CIT (A) WAS OF THE OPINION THAT THE ASSESSEE HAS DISCHARGED THE ONUS LAY ON IT U/S.68 AND DELETED THE ADDITION MADE BY THE AO. HENCE, THE REVENUE HAS FILED APPEAL BEFORE THE TRIBUNAL. 4. NONE APPEARED FROM THE SIDE OF THE ASSE SSEE. WE, THEREFORE, PROCEED TO DECIDE THE APPEAL OF THE REVENUE EXPARTE QUA - RESPONDENT ASSESSEE AFTER HEARING LD D.R. AND ON THE BASIS OF MATERIAL AVAILABLE ON RECORD. 5. FROM THE SIDE OF REVENUE, SHRI S.K.MEENA, LD D.R. APPEARED AND PLEADED THAT THE LD CIT(A) HAS ADMITTED ADDITIONAL EVIDENCE IN CONTRAVENTION OF RULE 46A OF I.T.RULES. HE CONTENDED THAT THE LD CIT(A) WAS NOT JUSTIFIED IN DELETING THE 4 I.T.A. NO. 82 /BLPR/2012 ASS ESSMENT YEAR : 2008 - 2009 ADDITION BY ADMITTING ADDITIONAL EVIDENCE WITHOUT AFFORDING AN OPPORTUNITY OF HEARING TO THE AO. 6. THE P RELIMINARY OBJECTION OF LD D.R. PERTAINING TO INFRINGEMENT OF RULE 46A, WE HAVE NOTED THAT THE LD CIT(A) HAS CALLED FOR A REMAND REPORT FROM THE AO, WHICH WAS DULY CONSIDERED WHILE DECIDING THIS APPEAL. IN SUCH A SITUATION, WHEN THE LD CIT(A) HAS PROVIDED AN OPPORTUNITY TO THE REVENUE DEPARTMENT TO EXAMINE THE EVIDENCES FILED DURING THE APPELLATE PROCEEDINGS, THEN THE REVENUE DEPARTMENT SHOULD NOT HAVE ANY SUCH GRIEVANCE PERTAINING TO LACK OF OPPORTUNITY BEING HEARD. THEREFORE, THIS PRELIMINARY OBJECTION IS HEREBY REJECTED. 7. AS FAR AS MERITS OF THE CASE ARE CONCERNED, WE FIND NO FALLACY IN THE FACTUAL FINDINGS OF LD CIT(A.). FROM THE SIDE OF THE RESPONDENT ASSESSEE, THE ONUS WAS DISCHARGED BY PROVIDING THE IDENTITY AND GENUINENESS OF THE TRANSACTION. AT THE ASSESSMENT STAGE, IT APPEARS, THE ASSESSEE WAS NOT PROVIDED PROPER OPPORTUNITY OF HEARING BECAUSE A NOTICE U/S.143(2) OF THE ACT WAS ISSUED ON 22.11.2010 AND THE ASSESSMENT WAS COMPLETED ON 31.12.2010 THAT TOO U/S.144 OF THE ACT. THAT COULD BE THE REASON FOR NON - FURNISHING OF REQUISITE EVIDENCES AS PRESCRIBED U/S.68 OF THE ACT. BUT WHEN OPPORTUNITY WAS GIVEN, THE ASSESSEE HAS FURNISHED PAN NO., DETAILS OF CHEQUES THROUGH WHICH THE SAID AMOUNT WAS RECEIVED, INCOME TAX RETURN OF THE SAID CREDITOR, BA NK STATEMENT SHOWING DEBIT ENTRY AND CONFIRMATION OF THE LOAN. SINCE THE LD CIT(A) HAS DULY EXAMINED ALL THOSE EVIDENCES AFTER PROVIDING AN OPPORTUNITY TO THE REVENUE DEPARTMENT, THEREFORE, 5 I.T.A. NO. 82 /BLPR/2012 ASS ESSMENT YEAR : 2008 - 2009 WE ARE NOT INCLINED TO DISTURB THOSE FACTUAL FINDINGS OF THE LD C IT(A). THE DECISION OF THE LD CIT(A) IN THIS REGARD IS HEREBY CONFIRMED. WE FIND NO FORCE IN THE GROUND OF THE REVENUE, HENCE, DISMISSED. 8. IN THE RESULT, APPEAL FILED BY THE REVENUE IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 9 /10/2015 . SD/ - SD/ - ( . . , ) ( , ) G . D . AGARWAL , VICE PRESIDENT MUKUL KR SHRAWAT , JUDICIAL MEMBER RAIPUR , DATED 9 / 10/2015 . . ./ PARIDA , SR. PS / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT : ACIT - (2),CENTRAL REVENUE BUILDING, CIVIL LINE, RAIPUR. 2. / THE RESPONDENT: SAGAR PRODUCTIONS LTD., (FORMERLY KNOWN ASW KIRTI FINVES LTD), 907, 9 TH FLOOR, DAV PLAXA, OPP TO ANDHERI FIRE STATION, ANDHERI(W), MUMBAI 3. ( ) / THE CIT(A) - RAIPUR 4. / CIT , RAIPUR 5. , , / DR, ITAT, RAIPUR 6. / GUARD FILE. / BY ORDER, //TRUE COPY// SR. PS, ITAT, CAMP: RAIPUR