M/S. EXPANSION INFRACON PRIVATE LIMITED, Mumbai V. INCOME TAX OFFICER-8(3)(4), Mumbai

ITA 870/MUM/2018

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 6754 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 1 month(s) 29 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 11-04-2019
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: E
• Assessment Year: 2012-2013
• Appeal Filed On: 12-02-2018
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: V K CHATURVEDI
• Section: 143(3); 133(6); 68

Judgement Text

1 IN THE INCOME-TAX APPELLATE TRIBUNAL E BENCH MUMB AI BEFORE SHRI PAWAN SINGH, JUDICIAL MEMBER AND SHRI RAMIT KOCHAR, ACCOUNTANT MEMBER ITA NO. 870/MUM/2018 (ASSESSMENT YEAR 2012-13 ) M/S EXPANSION INFRACON PVT. LTD. 53-B, 2 ND FLOOR, BHAGESHWAR BHUVAN, PLOT NO. 197B, DILIP GUPTA ROAD, SHIVAJI PARK, MAHIM, MUMBAI-400016 . PAN: AAACY3439Q VS. ITO-8(3)(4) AAYAKAR BHAVAN, MUMBAI-400020. APPELLANT RESPONDE NT APPELLANT BY : NONE RESPONDENT BY : SHRI V.K. CHATURVEDI ( SR. DR) DATE OF HEARING : 11.04.2019 DATE OF PRONOUNCEMEN T : 11.04.2019 ORDER UNDER SECTION 254(1)OF INCOME TAX ACT PER PAWAN SINGH, JUDICIAL MEMBER; 1. THIS APPEAL BY ASSESSEE IS DIRECTED AGAINST THE ORD ER OF LD. COMMISSIONER OF INCOME-TAX (APPEALS)-14, MUMBAI [HEREINAFTER REF ERRED AS LD CIT (A)] DATED 28.02.2017 FOR ASSESSMENT YEAR 2012-13. THE A SSESSEE HAS RAISED THE FOLLOWING GROUNDS OF APPEAL: 1. THE HON'BLE COMMISSIONER OF INCOME TAX (APPEAL) (HE REIN AFTER REFERRED AS CIT(A) ERRED IN PASSING EX-PARTE ORDER STATING T HAT NOTICES ISSUED ON THE APPELLANT WAS RETURNED UNSERVED. IT IS SUBMITTED TH AT THE OFFICE ADDRESS OF THE APPELLANT WAS CHANGED AND THE SAID FACT WAS REM AINED TO BE INFORMED TO THE CIT(A). IT IS THEREFORE PRAYED TO YOUR HONOU R TO GIVE NECESSARY DIRECTION IN THIS REGARD. 2. WITHOUT PREJUDICE TO GROUND NO. 1, CIT(A) ERRED IN CONFIRMING THE ORDER OF LEARNED ASSESSING OFFICER BY CONFIRMING THE ADDITIO N OF RS. 1 CRORE, ON ACCOUNT OF UNSECURED LOAN TAKEN DURING THE YEAR FRO M M/S DUKE BUSINESS ITA NO. 870 MUM 2018-M/S EXPA NSION INFRACON PVT. LTD. 2 PVT. LTD, BY INVOKING THE PROVISION OF SECTION 68 O F THE INCOME TAX ACT, 1961. IT IS SUBMITTED THAT LEARNED ASSESSING OFFICE R WAS PROVIDED ALL THE DOCUMENTS OF THE SAID PARTY FOR A.Y. 2011-12 SUCH A S LEDGER ACCOUNT CONFIRMATION, RETURN OF INCOME, PAN CARD, ANNUAL AC COUNTS, BANK STATEMENT OF THE SAID PARTY HIGHLIGHTING THE TRANSA CTIONS MADE WITH THE APPELLANT. IT IS THEREFORE PRAYED TO YOUR HONOUR TO DELETE SUCH ADDITION AND NECESSARY DIRECTION SHALL BE GIVEN IN THIS REGARD. 2. BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE IS A COMPANY ENGAGED IN THE BUSINESS OF FINANCE AND INVESTMENTS, FILED ITS RETU RN OF INCOME FOR ASSESSMENT YEAR 2012-13 ON 30.09.2012 DECLARING INC OME OF RS. 1,81,460/-. THE RETURN WAS SELECTED FOR SCRUTINY. T HE ASSESSMENT WAS COMPLETED UNDER SECTION 143(3) ON 20.03.2015. DURIN G THE ASSESSMENT, THE ASSESSING OFFICER NOTED THAT ASSESSEE WAS IN RECEIP T OF INTEREST FREE UNSECURED LOAN OF RS. 1.00 CRORE FROM M/S DUKE BUSI NESS PVT. LTD. ON 26.09.2011, WHICH WAS REPAID TO IT ON 06.08.2012. T HE ASSESSING OFFICER IN ORDER TO VERIFY THE CREDITWORTHINESS AND GENUINE NESS OF TRANSACTION, ASKED THE ASSESSEE TO PRODUCE THE BOOKS OF ACCOUNT AND EVIDENCES. THE ASSESSEE FILED ITS REPLY VIDE REPLY DATED 20.03.201 5. IN THE REPLY, THE ASSESSEE CONTENDED THAT UNSECURED LOAN FROM M/S DUK E BUSINESS PVT. LTD. WAS TAKEN DURING THE YEAR UNDER CONSIDERATION. THE ASSESSEE ALSO FURNISHED THE COPY OF PAN AND ADDRESS OF CREDITOR COMPANY RET URN OF INCOME AND COPY OF ANNUAL ACCOUNTS OF M/S. DUKE BUSINESS PVT L TD. THE ASSESSEE AGAIN VIDE REPLY DATED 23.02.2015 FURNISHED THE SIM ILAR INFORMATION. THE ASSESSING OFFICER NOTED THAT THE ASSESSEE FILED ITS REPLY AND COPY OF PAN AND ADDRESS OF CREDITOR COMPANY IN TAPAL. THE ASSES SING OFFICER ISSUED ITA NO. 870 MUM 2018-M/S EXPA NSION INFRACON PVT. LTD. 3 NOTICE UNDER SECTION 133(6) TO THE CREDITOR. M/S. D UKE BUSINESS PVT LTD ALSO FURNISHED THE SAME INFORMATION BY FILING REPLY IN TAPAL ON 23.03.2015. FROM THE BANK STATEMENT OF M/S DUKE BUSINESS PVT. L TD., THE ASSESSING OFFICER NOTED THAT THERE WAS A CREDIT BALANCE OF RS . 23,753/- ON 26.09.2011. FURTHER, A CHEQUE OF RS. 1.75 CRORE WAS DEPOSITED O N THE SAME DAY AND A CHEQUE IN THE NAME OF TAJ IMPEX WAS ISSUED FOR RS. 74.90 LACS AND ANOTHER CHEQUE OF RS. 1.00 CRORE WAS IN THE NAME OF M/S YASHODHAN INFRASTRUCTURE PVT. LTD. (PREDECESSOR OF ASSESSEE). THE ASSESSING OFFICER NOTED THAT DESPITE GIVING THE OPPORTUNITY TO THE AS SESSEE, THE ASSESSEE FAILED TO PROVE THE CREDITWORTHINESS OF LENDER AND GENUINE NESS OF TRANSACTION. THE ASSESSING OFFICER CONCLUDED THAT IN A COMMON PARLAN CE, NOBODY GIVES LOAN WITHOUT INTEREST AND SECURITY OF RE-PAYMENT. THE LE NDER HAS GIVEN A LOAN OF RS. 1.00 CRORE TO THE ASSESSEE WITHOUT ANY INTEREST , WHICH CANNOT BE BELIEVED WITHOUT CREDITWORTHINESS ON THE DAY OF LEN DING WAS ONLY RS. 23,753/- AND AT THE END OF DAY, IT WAS JUST RS. 33, 753/- ONLY. THE ASSESSING OFFICER MADE THE ADDITION UNDER SECTION 68 OF THE A CT. ON APPEAL BEFORE THE LD. CIT(A), THE ACTION OF ASSESSING OFFICER WAS CON FIRMED. 3. WHILE CONFIRMING THE ADDITION THE LD CIT(A) NOTED T HAT THAT THE ASSESSEE FAILED TO APPEAR DESPITE FIXING THE HEARING ON FOUR OCCASIONS. THE NOTICES SENT TO ASSESSEE WERE RETURNED BACK WITH THE REMARK OF POSTAL AUTHORITIES LEFT. THE LD. CIT(A) DECIDED THE APPEAL ON THE BA SIS OF MATERIAL AVAILABLE ON RECORD. THE LD. CIT(A) PASSED THE SPEAKING ORDER WHILE CONFIRMING THE ITA NO. 870 MUM 2018-M/S EXPA NSION INFRACON PVT. LTD. 4 ACTION OF ASSESSING OFFICER. FURTHER, AGGRIEVED BY THE ORDER OF LD. CIT(A), THE ASSESSEE HAS FILED THE PRESENT APPEAL BEFORE US . 4. NONE APPEARED ON BEHALF OF ASSESSEE WHEN THE APPEAL WAS TAKEN UP FOR HEARING. PERUSAL OF RECORD REVEALS THAT NOTICES THR OUGH RPAD WERE SENT FOR MORE THAN ONE OCCASION. THE REGISTERED NOTICES SENT TO ASSESSEE RETUNED BACK WITH THE POSTAL REMARK NOT KNOWN. CONSIDERIN G THE ABOVE FACT, WE LEFT NO OPTION EXCEPT TO DECIDE THE APPEAL AFTER HE ARING THE LD. DR FOR THE REVENUE AND ON THE BASIS OF MATERIAL AVAILABLE ON R ECORD. 5. THE LD. DR FOR THE REVENUE SUPPORTED THE ORDER OF L OWER AUTHORITIES. THE LD. DR FURTHER SUBMITS THAT THE ASSESSEE FAILED TO PROV E THE IDENTITY, CREDITWORTHINESS OF CREDITOR AND THE GENUINENESS OF TRANSACTION BEFORE THE LOWER AUTHORITIES. EVEN BEFORE THE TRIBUNAL, THE AS SESSEE HAS NOT FILED ANY DOCUMENTARY EVIDENCES IN SUPPORT OF THE GROUNDS OF APPEAL RAISED BY ASSESSEE. THE LD. DR PRAYED FOR DISMISSAL OF THE AP PEAL. 6. WE HAVE CONSIDERED THE SUBMISSION OF LD. DR FOR THE REVENUE AND ALSO PERUSED THE ORDERS OF LOWER AUTHORITIES CAREFULLY. THE ASSESSING OFFICER MADE THE ADDITION ON HIS OBSERVATION THAT THE CREDI TOR M/S DUKE BUSINESS PVT. LTD. WAS HAVING A CREDIT BALANCE OF RS. 23,753 /- ONLY ON 26.09.2011. ON 26.09.2011, A CHEQUE OF RS. 1.75 CRORE OF M/S K. B. GEMS WAS DEPOSITED. ON THE SAME DAY, THE CHEQUE OF RS. 74.90 LACS IN THE NAME OF TAJ IMPEX AND ANOTHER CHEQUE OF RS. 1.00 CRORE WA S ISSUED IN THE NAME OF PREDECESSOR OF ASSESSEE WAS ISSUED. THE ASSESSE E HAS SHOWN THE INTEREST ITA NO. 870 MUM 2018-M/S EXPA NSION INFRACON PVT. LTD. 5 FREE LOAN. WE HAVE NOTED THAT NO DOCUMENTARY EVIDE NCES ABOUT THE BUSINESS ACTIVITIES OF M/S DUKE BUSINESS PVT. LTD. NOR ANY EVIDENCE TO PROVE THE GENUINENESS OF TRANSACTION IS PLACED BEFO RE THE ASSESSING OFFICER, CIT(A) OR BEFORE THIS TRIBUNAL. THE ASSESS EE WAS GIVEN SUFFICIENT OPPORTUNITY OF HEARING BY LD. CIT(A). HOWEVER, THE ASSESSEE FAILED TO BRING ANY DOCUMENTARY EVIDENCE, THEREFORE, THE ADDITION W AS CONFIRMED. BEFORE US, NEITHER THE ASSESSEE CAME FORWARD NOR FILED ANY DOCUMENTARY EVIDENCES TO SUBSTANTIATE THE GROUNDS OF APPEAL RAISED BY ASS ESSEE. NO WRITTEN SUBMISSIONS TO SUBSTANTIATE THE GROUNDS OF APPEAL A RE PLACED ON RECORD. THEREFORE, WE DO NOT FIND ANY REASON TO DEVIATE FRO M THE FINDING OF LOWER AUTHORITIES, WHICH WE CONFIRM. 7. IN THE RESULT, APPEAL OF THE ASSESSEE IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 11/04/2019, W HILE HEARING THE APPEAL. SD/- SD/ - RAMIT KOCHAR PAWAN SINGH ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI, DATE: 11.04.2019 SK COPY OF THE ORDER FORWARDED TO : 1. ASSESSEE 2. RESPONDENT 3. THE CONCERNED CIT(A) 4. THE CONCERNED CIT 5. DR E BENCH, ITAT, MUMBAI 6. GUARD FILE BY ORDER, DY./ASST. REGISTRAR ITAT, MUMBAI