DCIT-3(1) , Bhopal, Bhopal V. M/s. NIC construction India (P) Ltd., , Bhopal

ITA 894/Ind/2018

• Counselvise Citation: [2020] 111 COUNSELVISE.COM (IT) 8373 (ITAT-INDORE)
• Duration Of Justice: 1 year(s) 2 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 22-01-2020
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Next Hearing Date: 07-01-2020
• Assessment Year: 2012-2013
• Appeal Filed On: 22-11-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Unexplained cash credit; Additional evidence
• Section: 143(3); 133(6); 13; 22

Judgement Text

[ITA NO.894/IND/2018] [M/S. NIC CONSTRUCTION INDIA P. LTD., BHOPAL] , , IN THE INCOME TAX APPELLATE TRIBUNAL INDORE BENCH, INDORE BEFORE SHRI KUL BHARAT, JUDICIAL MEMBER AND SHRI MANISH BORAD, ACCOUNTANT MEMBER ITA NO.894/IND/2018 ASSESSMENT YEAR: 2012-13 DCIT 3(1) BHOPAL / VS. M/S. NIC CONSTRUCTION P. LTD. 12, 3 RD FLOOR, CITY CENTRE PRESS COMPLEX, M.P. NAGAR, ZONE-I BHOPAL ( APPELLANT ) ( REVENUE ) P.A. NO. AABCN9232D APPELLANT BY SHRI ARUN JAIN, A.R. RESPONDENT BY SHRI ASHISH PORWAL, D.R. DATE OF HEARING: 07.01.2020 DATE OF PRONOUNCEMENT: 22.01.2020 / O R D E R PER KUL BHARAT, J.M: THIS APPEAL BY THE REVENUE IS DIRECTED AGAINST ORDER OF THE CIT(A)-2, BHOPAL DATED 14.9.2018 PERTAINING TO THE [ITA NO.894/IND/2018] [M/S. NIC CONSTRUCTION INDIA P. LTD., BHOPAL] 2 ASSESSMENT YEAR 2012-13. THE REVENUE HAS RAISED FOLLOWING GROUNDS OF APPEAL: 1. ON THE FACTS AND CIRCUMSTANCES OF THE CASE THE LD. CIT(A) HAS ERRED IN DELETING THE ADDITION OF RS.1,65,01,885/- ON ACC OUNT OF BOGUS SUNDRY CREDITORS BY IGNORING THE FACT THAT ASSESSEE HAD FAILED TO FURNISH BANK STATEMENTS OF CREDITORS NOT ONLY IN AS SESSMENT PROCEEDINGS, BUT IN REMAND REPORT PROCEEDINGS AND I N PROCEEDINGS BEFORE CIT(A). 2. ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LD. CIT(A), BHOPAL HAS ERRED IN STATING THAT APPELLANT WAS NOT IN A PO SITION OR IN CIRCUMSTANCES TO FURNISH CONFIRMATIONS AND BANK STA TEMENTS BY IGNORING THE SETTLED PRINCIPLE OF LAW THAT ONUS OF PROVING THE IDENTITY, GENUINENESS AND CREDIT WORTHINESS OF SUNDRY CREDITO RS AND GENUINENESS OF ITS PURCHASE IS ON THE ASSESSEE. 3. ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) BHOPAL HAS ERRED IN DELETING THE ADDITION OF RS.1,65,01,88 5/- ON ACCOUNT OF BOGUS SUNDRY CREDITORS WITHOUT CONDUCTING AN INQUIR Y FROM BANK W.R.T. GENUINENESS OF SUNDRY CREDITORS WHEN THERE I S ABSENCE OF BANK STATEMENTS OF CREDITORS. 4. ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) BHOPAL HAS ERRED IN ACCEPTING ADDITIONAL EVIDENCES UNDER R ULE 46A, DESPITE OF THE FACTS THAT ASSESSEES CASE DOES NOT FALL IN ANY OF THE FOUR CIRCUMSTANCES MENTIONED IN RULE 46A OF THE INCOME T AX RULES, 1962. 2. BRIEFLY STATED FACTS ARE THAT IN THIS CASE THE ASSESSE E HAD FILED A RETURN OF INCOME ON 29.9.2012 DECLARING TO TAL INCOME AT RS.1,00,13,930/-. SUBSEQUENTLY, THE CASE WAS SELECTED FOR SCRUTINY ASSESSMENT AND THE ASSESSMENT U/ S 143(3) OF THE INCOME TAX ACT, 1961 (HEREINAFTER CALLE D AS [ITA NO.894/IND/2018] [M/S. NIC CONSTRUCTION INDIA P. LTD., BHOPAL] 3 THE ACT) WAS FRAMED VIDE ORDER DATED 13.3.2015, THER EBY THE A.O. MADE ADDITION OF RS.1,81,29,128/- IN RESPECT OF UNEXPLAINED CREDITORS AND DISALLOWANCE OUT OF DIESEL EXPENDITURE OF RS.7,92,727/-, OUT OF REPAIR AND MAINTENANCE OF RS.5,85,165/-, OUT OF LOADING AND UNLOADING EXPENSES OF RS.1,11,572/- AND OUT OF DISALLOWANCE OF TRAVELLING EXPENSES OF RS.22,805/-. H ENCE, THE A.O. HAS ASSESSED INCOME AT RS.2,96,55,330/- AGAINS T THE RETURNED INCOME OF RS.1,13,930/-. THE A.O. OBS ERVED THAT THE ASSESSEE HAD SHOWN SUNDRY CREDITORS OF RS.3,25,89,759/-. TO VERIFY THE SUNDRY CREDITORS, THE A.O. ISSUED NOTICE U/S 133(6) OF THE ACT. THE A.O. IN P ARA 4 OF HIS ORDER OBSERVED AS UNDER: THE DETAILS OF THE SUNDRY CREDITORS WHOSE LETTERS WERE RECEIVED UNSERVED/NO INFORMATION RECEIVED IS AS UND ER: [ITA NO.894/IND/2018] [M/S. NIC CONSTRUCTION INDIA P. LTD., BHOPAL] 4 [ITA NO.894/IND/2018] [M/S. NIC CONSTRUCTION INDIA P. LTD., BHOPAL] 5 [ITA NO.894/IND/2018] [M/S. NIC CONSTRUCTION INDIA P. LTD., BHOPAL] 6 [ITA NO.894/IND/2018] [M/S. NIC CONSTRUCTION INDIA P. LTD., BHOPAL] 7 3. AGGRIEVED AGAINST THIS ADDITION ASSESSEE PREFERRED APPEAL BEFORE LD. CIT(A), WHO PARTLY ALLOWED THE APPEAL O F THE ASSESSEE ON THIS ISSUE, THEREBY OUT OF ADDITION O F RS.1,81,29,128/-, HE SUSTAINED ADDITION OF RS.16,27,2 43/- AND REST OF THE ADDITION WAS DELETED. AGAINST THIS ORD ER, THE REVENUE IS IN APPEAL. THE GRIEVANCE OF THE REVENU E IN THIS APPEAL IS TWOFOLD. FIRSTLY, THE LD. CIT(A) ACCEP TED THE ADDITIONAL EVIDENCES AND SECONDLY ON THE BASIS OF THESE ADDITIONAL EVIDENCES DELETED THE ADDITION. WE FIND TH AT LD. CIT(A) PARTLY DELETED THE ADDITION BY OBSERVING AS UND ER: 5.8 THE APPELLANT HAS CONTENDED THAT IT HAD FILED CONFIRMATION WITH THE A.O. VIDE LETTERS DATED 09.1. 2015 AND [ITA NO.894/IND/2018] [M/S. NIC CONSTRUCTION INDIA P. LTD., BHOPAL] 8 [ITA NO.894/IND/2018] [M/S. NIC CONSTRUCTION INDIA P. LTD., BHOPAL] 9 [ITA NO.894/IND/2018] [M/S. NIC CONSTRUCTION INDIA P. LTD., BHOPAL] 10 [ITA NO.894/IND/2018] [M/S. NIC CONSTRUCTION INDIA P. LTD., BHOPAL] 11 [ITA NO.894/IND/2018] [M/S. NIC CONSTRUCTION INDIA P. LTD., BHOPAL] 12 [ITA NO.894/IND/2018] [M/S. NIC CONSTRUCTION INDIA P. LTD., BHOPAL] 13 [ITA NO.894/IND/2018] [M/S. NIC CONSTRUCTION INDIA P. LTD., BHOPAL] 14 4. THE ABOVE FINDING OF FACT IS NOT REBUTTED BY THE REVENUE. MOREOVER, LD. CIT(A) HAS CATEGORICALLY OBSER VED THAT THE CONFIRMATION WAS ALSO FILED WITH THE A.O. VIDE LETTER DATED 9.1.2015. IT IS ALSO TRANSPIRED FROM THE RECORD S THAT THE LD. CIT(A) HAD SOUGHT REMAND REPORT FROM THE A.O. IN RESPECT OF ADDITIONAL EVIDENCES FILED BY THE ASSESSEE. THEREFORE, IT CANNOT BE CONCLUDED THAT THE CONFIRMATIO NS WERE FILED FIRST TIME BEFORE THE LD. CIT(A) AND NO OPPORTUNITY WAS GRANTED TO THE A.O. FOR REBUTTING TH E SAME. [ITA NO.894/IND/2018] [M/S. NIC CONSTRUCTION INDIA P. LTD., BHOPAL] 15 FROM THE RECORDS, IT IS CLEAR THAT THE A.O. WAS GIVEN SUFFICIENT OPPORTUNITY TO REBUT THE EVIDENCES SO FI LED. UNDER THESE FACTS, WE SEE NO REASON TO INTERFERE WIT H THE FINDING OF THE LD. CIT(A) AND THE SAME IS HEREBY AFFIR MED. THE GROUNDS RAISED BY THE REVENUE ARE DISMISSED. 5. IN THE RESULT, THE APPEAL FILED BY THE REVENUE IS DISMISSED. ORDER WAS PRONOUNCED IN THE OPEN COURT ON 22 . 01.2020. SD/- (MANISH BORAD) SD/- (KUL BHARAT) A CCOUNTANT MEMBER JUDICIAL MEMBER INDORE; DATED : 22/01/2020 VG/SPS COPY TO: ASSESSEE/AO/PR. CIT/ CIT (A)/ITAT (DR)/GUAR D FILE. BY ORDER ASSISTANT REGISTRAR, INDORE