Casa Grand Builder Private limited, Chennai V. DCIT, CORP CIRCLE -1(2), Chennai

ITA 933/CHNY/2023

• Counselvise Citation: [2024] 100 COUNSELVISE.COM (IT) 1260 (ITAT-CHENNAI)
• Duration Of Justice: 10 month(s) 2 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 02-07-2024
• Appeal Filed By: Assessee
• Order Result: PartlyAllowed
• Bench Allotted: A
• Next Hearing Date: 24-06-2024
• Assessment Year: 2018-2019
• Appeal Filed On: 30-08-2023
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: NILAY BARAN SOM LD
• Assessee Lawyers: REDDY PRAKASH VIRTUAL LD
• Keywords: Opportunity of being heard; TDS; Rule 8D
• Section: 68; 143(3); 143(1); 250; 139(1)

Judgement Text

आयकर अपीलीय अिधकरण “ए” ायपीठ चे ई म । IN THE INCOME TAX APPELLATE TRIBUNAL “A” BENCH, CHENNAI माननीय ी महावीर िसंह, उपा ! एवं माननीय ी मनोज कुमार अ%वाल ,लेखा सद( के सम!। BEFORE HON’BLE SHRI MAHAVIR SINGH, VP AND HON’BLE SHRI MANOJ KUMAR AGGARWAL, AM आयकरअपील सं./ ITA No.933/Chny/2023 (िनधा)रण वष) / As sessment Year: 2018-19) M/s Casa Grand Builder Private Ltd. 5 th floor, NPL Devi, LB Road, Thiruvanmiyur, Chennai-600 041. बनाम/ Vs . DCIT Corporate Circle -1(2) Chennai. थायीलेखासं./जीआइआरसं./PAN/GIR No. AACCC-2758-A (अपीलाथ /Appellant) : ( थ / Respondent) अपीलाथ कीओरसे/ Appellant by : Shri Reddy Prakash (CA) (Virtual)- Ld.AR थ कीओरसे/Respondent by : Shri Nilay Baran Som (CIT) -Ld. DR सुनवाईकीतारीख/Date of Hearing : 25-06-2024 घोषणाकीतारीख /Date of Pronouncement : 03-07-2024 आदेश / O R D E R Manoj Kumar Aggarwal (Accountant Member) 1.1 Aforesaid appeal by assessee for Assessment Year (AY) 2018-19 arises out of an order passed by Learned Commissioner of Income Tax (Appeals), National Faceless Appeal Centre (NFAC), Delhi [CIT(A)] on 31-03-2022 in the matter of an assessment framed by Ld. Assessing Officer [AO] u/s 143(3) r.w.s. 144B of the Act on 08-09-2021. 1.2 The registry has noted a delay of 458 days in the appeal, the condonation of which has been sought by Ld. AR on the strength of affidavit of Chief Financial Officer of the assessee company. It has been submitted that the assessee preferred writ petition against original assessment order before Hon’ble High Court of Madras. In view of the same, the assessee did not prefer statutory appeal. The writ petition is stated to have been withdrawn. Considering the same, we condone the delay and proceed for disposal of appeal on merits. 1.3 The grounds of appeal read as under: - 1.The order passed by the Learned CIT (A), is opposed to law and contrary to the facts and circumstances of the case and is therefore unsustainable. 2.The LD. CIT(A) has passed the order in haste, without providing sufficient opportunity to the appellant to present its case before the CIT(A). 3.The CIT(A) has passed the appeal order purely based on the original assessment order, without analyzing the facts of the case and without granting the appellant sufficient time to provide its explanations and clarifications. Hence, the Order passed by the CIT(A) is bad in law. 4.The Original assessment order was passed on 08.09.2021 and the appellant has filed appeal before the CIT(A) on 08.10.2021. Hearing notice u/s 250 of the Act was received on 23.03.2022 at 15.30 Hrs directing the appellant to furnish documentary evidences in support of the appeal filed before 25.03.2022. The Appellant sought for time to reply to the notice on 25.03.2022 in view of the fact that the appellant has filed a writ application before the Honourable High Court of Madras against the same assessment order. Second hearing notice u/s 250 of the Act was issued on the appellant on 30.03.2022 at 13.19 Hrs asking the appellant to furnish reply before 31.03.2022. Order u/s 250(6) of the Act was passed on 31.03.2022 at 17.29 Hrs. The above facts demonstrates that the Ld CIT(A) has not granted sufficient time to the appellant and hence the order passed by the Ld.CIT(A) is bad in law. 5.The order of the Learned Assessing Officer is arbitrary and without considering the detailed submissions made by the appellant. 6.The Ld Assessing Officer has erred in treating unsecured loans received during the year as unexplained though the appellant has proved the identity, credit worthiness and genuineness of the transaction. 7.The Ld. Assessing Officer also erred in stating that credit worthiness of the transaction is not proved though the appellant has provided the list of persons from whom unsecured loans were received along with the details of PAN of the lender, amount of loan received in the year, loan repaid in the year, closing balance of loan as on the end of the year, interest paid and TDS deducted on the interest paid. 8.The LO. Assessing officer did not to appreciate that the appellant has provided PAN of all the lenders. The LD AO failed to appreciate that the copy of ITR acknowledgment of the lenders is their private document and it was not provided to the appellant by some of the lenders. 9.The LD AO's action in completely disregarding the loan agreements provided by the appellant is not acceptable. 10The LO AO erred in stating that the Bank statement given by assessee is not authentic as it is given in excel though the e filing portal allows the submissions in the form of Excel or PDF. The LD AO failed to understand that the extract is given in Excel format only for the sake of convenience of identifying the transaction easily. 11.The LO AO ought to have given an opportunity to the appellant to produce the bank statement in PDF format when the extract in excel form is not reliable in the opinion of the AO. The AO has not given any opportunity to the appellant inspite of the fact that the AO had sufficient time to complete the assessment. 12.The LO Assessing Officer also erred in treating the opening balance of unsecured loans along with the loans taken during the year as unexplained u/s 68 of the Act. 13.The LD Assessing Officer erred in disallowing interest on the loans considered as unexplained. 14.The LO Assessing Officer erroneously computed the interest corresponding to the loans considered as unexplained as Rs. 6,32,15,000/- instead of Rs. 5,49,70,500/-, 15.The LO Assessing Officer erred in disallowing Employee's contribution towards PF and ESI of Rs. 23,65,011/- on the grounds that the appellant has not made the payments before the due date as per Section 36(1)(va) of the Act. 16.The LO Assessing Officer failed to appreciate that all these payments had been made before the due date for filing of return of income under Section 139(1) and are allowable under Section 43B(b) of the Income Tax Act, 1961. 17.The LO Assessing Officer erred in disallowing donation of Rs 7,00,000/- as unexplained. 18.The LO Assessing Officer erred in considering the total income as per the intimation u/s 143(1) of the Act though the appellant has explained the difference between the tax audit report in Form 3CD and the ITR in detailed manner. 19.The LO Assessing Officer failed to appreciate the fact that the disallowance made by the CPC was already disallowed by the appellant in the ITR and his action tantamount to disallowance of the same amount twice. 20.The LO Assessing officer erred in passing the assessment order without giving opportunity of being heard by way of video conferencing though sufficient time was there to complete the assessment. As is evident, the issue that fall for our consideration are- (i) Additions of unsecured loans u/s 68 r.w.s 115BBE and disallowance of consequential interest; (ii) disallowance u/s.14A; (iii) disallowance u/s. 36(1)(va); (iv) disallowance of donation; (v) Repetition of disallowance made u/s 143(1). 1.4 The Ld. AR advanced arguments on above issues and filed paper book. The Ld. CIT-DR controverted the arguments of Ld. AR. Having heard rival submissions, our adjudication would be as under. The assessee being resident corporate assessee is stated to be engaged in real estate business. 2. Additions u/s 68 & disallowance of consequential interest 2.1 During assessment proceedings, the assessee submitted only partial documents to establish the genuineness of loans. Accordingly, Ld. AO made addition of Rs.4057.20 Lacs. The consequential interest paid by the assessee on the same for Rs.632.15 Lacs was also disallowed. The position remained the same during appellate proceedings and accordingly, the assessment was confirmed. The Ld. AR has pleaded for another opportunity of hearing to the assessee to substantiate its case. 2.2 Accepting the prayer of Ld. AR, this issue is restored back to the file of Ld. CIT(A) for fresh adjudication with a direction to the assessee to substantiate its case. The corresponding grounds stands allowed for statistical purposes. 3. Disallowance u/s.14A 3.1 The assessee computed disallowance @0.5% of average investments whereas Rule 8D provided for disallowance @1%. Applying statutory rate, Ld. AO computed additional disallowance of Rs.0.53 Lacs. Aggrieved, the assessee is in further appeal before us. 3.2 Since the computation of Ld. AO is as per statutory provisions, no interference is required in the same. The corresponding grounds stand dismissed. 4. Disallowance u/s. 36(1)(va) As per Form 3CD, the assessee defaulted into remittance of Rs.23.65 Lacs towards PF/ESI dues. The Ld. AO disallowed the same. The Ld. CIT(A) confirmed the same. We find that this issue is covered against the assessee by the decision of Hon’ble Supreme Court in the case of Checkmate Services Pvt. Ltd. (143 Taxmann.com 178). Considering the same, the corresponding grounds stands dismissed. 5. Disallowance of donation 5.1 The assessee could not substantiate donations of Rs.7 Lacs. Accordingly, Ld.AO made disallowance of Rs.3.50 Lacs as claimed by the assessee. The position remained the same during first appellate proceedings and accordingly, the disallowance was confirmed. 5.2 Considering the prayer of Ld.AR, this issue is remitted back to the file of Ld. CIT(A) for fresh adjudication with a direction to the assessee to substantiate its case. The corresponding grounds stands allowed for statistical purposes. 6. Repetition of disallowance made u/s 143(1). 6.1 In assessment order, Ld. AO computed total income by considering income determined in the intimation issued u/s 143(1)(a) i.e., after disallowances made by CPC in the intimation. During first appeal, the assessee did not file any submissions in this regard. 6.2 Considering the prayer of Ld.AR, this issue is remitted back to the file of Ld. CIT(A) for fresh adjudication with a direction to the assessee to substantiate the same. The corresponding grounds stands allowed for statistical purposes. 7. No other ground has been urged during hearing. Conclusion 8. The appeal stand partly allowed for statistical purposes. Order pronounced on 3 rd July, 2024 Sd/- Sd/- (MAHAVIR SINGH) (MANOJ KUMAR AGGARWAL) उपा56 / VICE PRESIDENT लेखा सद8 / ACCOUNTANT MEMBER चे:ई Chennai; िदनांक Dated :03-07-2024 DS आदेशकीGितिलिपअ%ेिषत/Copy of the Order forwarded to : 1. अपीलाथ /Appellant 2. थ /Respondent 3. आयकरआयुB/CIT Chennai. 4. िवभागीय ितिनिध/DR 5. गाडGफाईल/GF