M/s Shree Coal Enterprises (India) Pvt. Ltd., Bhopal V. The ACIT 3(1), Bhopal

ITA 99/IND/2012

• Counselvise Citation: [2012] 140 COUNSELVISE.COM (IT) 66618 (ITAT-INDORE)
• Duration Of Justice: 5 month(s) 14 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 06-08-2012
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: DB
• Assessment Year: 2006-2007
• Appeal Filed On: 21-02-2012
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: R A VERMA
• Assessee Lawyers: M K SHARMA
• Keywords: Principle of natural justice; Additional evidence; Reasonable cause
• Section: 68

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL INDORE BENCH, INDORE BEFORE SHRI JOGINDER SINGH, JUDICIAL MEMBER AND SHRI R.C. SHARMA, ACCOUNTANT MEMBER ITA NO. 99/IND/2012 A.Y. 2006-07 M/S SHREE COAL ENTERPRISES(INDIA) BHOPAL PAN AAJCS -0305A :: APPELLANT VS ASSISTANT COMMISSIONER OF INCOME TAX 3(1), BHOPAL :: RESPONDENT APPELLANT BY SHRI M.K. SHARMA RESPONDENT BY SHRI R.A. VERMA DATE OF HEARING 26.07.2012 DATE OF PRONOUNCEMENT 06.08.2012 O R D E R PER JOGINDER SINGH, JUDICIAL MEMBER THE ASSESSEE IS AGGRIEVED BY THE IMPUGNED ORDER DA TED IST NOVEMBER, 2011 ON THE GROUND THAT THE LEARNED FIRST APPELLATE AUTHORITY ERRED IN CONFIRMING THE ADDITION OF RS. 36,26,766/- TO 2 THE TOTAL INCOME OF THE ASSESSEE WITHOUT ACCEPTING THE EVIDENCES FURNISHED BY THE ASSESSEE AND FURTHER DENYING SUCH ADMISSION OF ADDITIONAL EVIDENCE WITHOUT REASONABLE CAUSE ESPECI ALLY WHEN THE AO NEVER ASKED FOR SUCH EVIDENCES AND FURTHER THE A DDITIONS MADE U/S 68 ARE INCORRECT AS NECESSARY EVIDENCES AL ONG WITH CONFIRMATIONS OF LENDERS WERE FURNISHED BY THE ASSE SSEE. 2. DURING HEARING OF THIS APPEAL, WE HAVE HEARD SHR I M.K. SHARMA, LEARNED COUNSEL FOR THE ASSESSEE AND SHRI R .A. VERMA, LEARNED SENIOR DR. THE CRUX OF ARGUMENTS ON BEHALF OF THE ASSESSEE IS IDENTICAL TO THE GROUND RAISED BY FURTH ER SUBMITTING THAT EVEN REMAND REPORT WAS SOUGHT FROM THE AO AND IN SPITE OF THAT THE ADDITIONAL EVIDENCES FILED BEFORE THE LEAR NED FIRST APPELLATE AUTHORITY WERE IGNORED/NOT ADMITTED. THE LEARNED COUNSEL INVITED OUR ATTENTION TO PAGE 33 OF THE PAP ER BOOK AND ALSO PAGE 4 PARA 2.1 OF THE IMPUGNED ORDER. IN VIEW OF THIS FACT, IT WAS REQUESTED THAT THE ADDITIONAL EVIDENCE MAY BE A DMITTED AND MAY BE SENT TO THE FILE OF THE AO FOR EXAMINATION. ON THE OTHER HAND, THE LEARNED SENIOR DR, SHRI R.A. VERMA STRON GLY DEFENDED THE IMPUGNED ORDER BY SUBMITTING THAT THE ADDITIONS WERE RIGHTLY CONFIRMED, THEREFORE, MAY NOT BE REMANDED BACK. 3 3. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND P ERUSED THE MATERIAL AVAILABLE ON RECORD. THE FACTS IN BRIEF AR E THAT THE ASSESSEE COMPANY IS ENGAGED IN BUSINESS OF TRADING OF COAL, MAINTAINING ITS BOOKS OF ACCOUNTS ON MERCANTILE SYS TEM OF ACCOUNTING, DECLARED INCOME OF RS.35,55,766/- IN I TS RETURN FILED ON 21 ST NOVEMBER, 2006. SINCE THE CASE WAS SELECTED FOR SC RUTINY UNDER CASS, THEREFORE, NOTICE U/S 143(2) WAS ISSUED TO THE ASSESSEE AND IN RESPONSE THE ASSESSMENT PROCEEDING S WERE ATTENDED BY THE ASSESSEE. THE ASSESSEE WAS ASKED T O FURNISH CERTAIN DETAILS AS PER QUESTIONNAIRES DATE 26.2.200 8 AND 26 TH MAY, 2008. AS PER THE ASSESSMENT ORDER (PAGE 1), T HESE DETAILS WERE FURNISHED ALONG WITH ENCLOSURE AND THE SAME WE RE EXAMINED ON TEST CHECK BASIS BY THE AO. THE ASSESSE E RAISED UNSECURED LOANS AS HAS BEEN MENTIONED IN TABULAR FO RM IN THE ASSESSMENT ORDER AMOUNTING TO RS.36,27,766/- MENTIO NING THE NAMES OF THE CREDITORS, THEIR ADDRESSES, PAN, ETC. AS PER THE REVENUE, IDENTITY, CREDIT WORTHINESS AND GENUINENES S OF THE TRANSACTIONS WITH RESPECT TO THESE CASH CREDITS WAS NOT DISCHARGED BY THE ASSESSEE, CONSEQUENTLY, THE IMPUG NED ADDITION WAS MADE BY THE LEARNED AO U/S 68 OF THE ACT. FROM THE QUESTIONNAIRE AVAILABLE ON RECORD AND THE REMAND RE PORT OF THE 4 AO, WE FIND THAT THOUGH OPPORTUNITY WAS GRANTED TO THE ASSESSEE REGARDING FURNISHING OF DETAILS BUT THERE WAS NO ME NTIONING OF CONFIRMATION. THE LEARNED COUNSEL FOR THE ASSESSEE CONTENDED THAT SHRI ASHUTOSH HARKARE (RS. 10 LACS) IS NOT COO PERATING WITH THE ASSESSEE, THEREFORE, THE CONFIRMATION COULD NOT BE FILED. FOR THE REMAINING PERSONS, THE ASSESSEE HAS FILED CONFI RMATIONS FROM MRS. NEELKAMAL JAIN WIFE OF SHRI MANOJ KUMAR JAIN ( PAGE 1 OF THE PAPER BOOK), MRS. DHANSHRI BAI JAIN WIFE OF SHR I K.C. JAIN (RS. 32,630/-) (PAGE 2 OF THE PAPER BOOK), MANOJ KU MAR JAIN (RS.22,127/-) (PAGE 3 OF THE PAPER BOOK), SHRI MANO J KUMAR JAIN (RS. 14,904/-) PAGE 4 OF THE PAPER BOOK), SANJAY KU MAR JAIN (RS. 5 LACS) PAGE 8 OF THE PAPER BOOK. STATEMENT OF ACC OUNT OF SAVINGS BANK OF SHRI SANJAY JAIN, HUF (PAGES 9 AND 10 OF TH E PAPER BOOK), RAJU JUNEJA (RS.20 LACS) (PAGE 11 OF THE PAP ER BOOK), ASHUTOSH HARKARE (RS. 10 LACS) (PAGE 15 OF THE PAPE R BOOK). HOWEVER, WE FIND THAT THERE IS NO SIGNATURE ON THE CONFIRMATION LETTER (PAGE 15 OF PAPER BOOK) FROM SHRI ASHUTOSH H ARKARE. IN VIEW OF THESE FACTS, KEEPING IN VIEW THE PRINCIPLE OF NATURAL JUSTICE, THE ADDITIONAL EVIDENCE FILED BY THE ASSES SEE IS ADMITTED BECAUSE NO PERSON SHOULD BE CONDEMNED UNHEARD ESPEC IALLY WHEN THE ADDITIONAL EVIDENCES WERE FILED BEFORE THE LEARNED 5 CIT(A). HOWEVER, THE INTEREST OF THE REVENUE ALSO CANNOT BE IGNORED, THEREFORE, THE ADDITIONAL EVIDENCES FILED BY THE ASSESSEE ARE REMANDED TO THE FILE OF THE AO FOR EXAMINATION. THE AO IS EXPECTED TO VERIFY THE RELEVANT RECORD OF THE CREDI TORS TO HIS SATISFACTION AND DECIDE IN ACCORDANCE WITH LAW. HO WEVER, WE ARE MAKING IT CLEAR THAT SINCE NO CONFIRMATION WAS FILE D FOR RS.10 LACS FROM SHRI ASHUTOSH HARKARE (PAGE 15 OF THE PAPER BO OK), THIS AMOUNT IS CONFIRMED U/S 68 OF THE ACT. FINALLY, THE APPEAL OF THE ASSESSEE IS PARTLY ALLO WED FOR STATISTICAL PURPOSES ONLY. THIS ORDER WAS PRONOUNCED IN THE OPEN COURT IN TH E PRESENCE OF LD. REPRESENTATIVES FROM BOTH SIDES AT THE CONCLUSION OF THE HEARING ON 6 TH AUGUST, 2012. SD SD (R.C.SHARMA) (JOGINDER SINGH ) ACCOUNTANT MEMBER JUDICIAL ME MBER DATED: 6 TH AUG., 2012 COPY TO: APPELLANT, RESPONDENT, CIT, CIT(A), DR, GU ARD FILE DN/-2627 6