HGL BUILDER AND DEVELOPER, MUMBAI V. ITO 42(1)(2), MUMBAI

ITA 992/MUM/2023

AI Insights

The case involves HGL Builder and Developer, the appellant, contesting the reopening of their assessment under section 147 of the Income Tax Act, based on a notice issued under section 148. The appellant argued that the notice was issued without an independent application of mind by the Assessing Officer (A.O), relying instead on information from the Pr. DGIT (Inv) - 1 Mumbai. Additionally, the appellant contested the addition of Rs.2,46,554 as interest paid to certain parties, which was claimed after deducting TDS. The CIT(A) upheld the A.O's decision, leading to the appeal before the Income Tax Appellate Tribunal.

• Counselvise Citation: [2023] 140 COUNSELVISE.COM (IT) 299904 (ITAT-MUMBAI)
• Duration Of Justice: 2 month(s) 17 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 14-06-2023
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Next Hearing Date: 12-06-2023
• Assessment Year: 2013-2014
• Appeal Filed On: 27-03-2023
• Laws Referred To: Income Tax Act
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Accommodation entries; Reason to believe; TDS
• Section: 68; 148; 142(1); 133(6); 143(1); 250; 143(2)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL “SMC” BENCH MUMBAI BEFORE SHRI PAVAN KUMAR GADALE, JUDICIAL MEMBER ITA No. 992/Mum/2023 (Assessment Year: 2013-14) HGL Builder and Developer, 403, F-Wing, Shree Ganesh Aangan Bldg: Thakur Village, Near Thakur College, Kandivali (E), Mumbai. 400101. बनाम/ Vs. ITO – 42(1)(2), Kautilya Bhavan, BKC, Bandra (E) Mumbai – 400051. ा लेखा सं./ज आइआर सं./PAN/ GIR No. : AAFFH9 709L ( /Appellant) ( / Respondent) / Appellant by : Mr. Ajay Singh.AR /Respondent by : Ms. Kavita Kaushik.DR ुनव ई त ख / D a t e o f H e a r i n g 13/06/2023 घोषण त ख /D a t e o f P r o n o u n c e m e n t 15/06/2023 आद श / ORDER PER PAVAN KUMAR GADALE - JM: The appeal is filed by the assessee against the order of the National Faceless Appeal Centre (NFAC)/CIT(A), Delhi passed u/s 250 of the Act. The assessee has raised the following grounds of appeal: 1. The Ld CIT(A) erred in upholding the reopening the assessment u/s 147 of the Act by issue of notice u/s. 148 dt. 05/08/2015 without appreciating that notice was issued merely on the basis of Information received from the Pr. DGIT (Inv) - 1 Mumbai 2 ITA No. 992/Mum/2023 Mafatlal Harkchandji Bothra, Mumbai thus there was no independent application of mind by the A.O in fact several discrepancies were noted in the notice itself. It is based on borrowed satisfaction of some other authority; hence the reopening is bad in law and is liable to be quashed. 2. The Learned CIT(A) failed to appreciate the fact that the notice u/s. 148 dtd. 05/08/2015 was issued on the basis of third party's statement recorded by the dept wherein he has admitted that he was not doing any genuine business activity only providing accommodation entries, without discussing how the same is relevant to the assessee's case, the reopening merely for making routing inquiry is bad in law and is liable to be quashed. ON MERITS: 3. The CIT(A) erred in upholding the addition of Rs.2,46,554/- being interest paid to the parties Rajat Diamond Exim Pvt Ltd & Frontline Diamond Pvt Ltd after deducting TDS without appreciating that, the assessee firm had repaid the entire loan amount to both the companies through banking channel in the subsequent financial years i.e. 2013-2014, 2014-2015 & 2015- 2016. 4. The CIT(A) failed to appreciate that all the primary evidence were produced for the purpose of proving the identity, creditworthiness & genuineness of the transaction namely documents like loan confirmation, ITR, banks statements of the said party, the said companies were active on the MCA portal & also filed their audited financial accounts upto 31/03/2015. 5. The ld CIT(A) failed to appreciate the fact that, the entire transaction of receipt of loan by the assessee firm from the said parties is sub judice before CIT(A) in appeal bearing no 306394671190220 for AY 2012-13, therefore the CIT(A) erred in deciding the present appeal before the main appeal. 3 ITA No. 992/Mum/2023 Mafatlal Harkchandji Bothra, Mumbai 6. The ld CIT(A) erred in not providing sufficient and proper opportunity of hearing while deciding the appeal and failed to appreciate the facts and explanation. The Appellant craves leave to add, amend, alter vary and / or withdraw any or all the above grounds of Appeal., 2. The brief facts of the case are that the assessee is engaged in the business as Builder & Developer and the assessee has filed the return of income for the A.Y 2012-13 on 30.09.2013 disclosing a total income of Rs.Nil and the return of income was processed u/s 143(1) of the Act. Subsequently the Assessing Officer (AO) has received information from DGIT (Inv) that the assessee has obtained accommodation entries from the party of Rs 7 lakhs, who are indulged in providing accommodation entries and bogus purchase bills and the assessee is a beneficiary. Therefore, the A.O has reason to believe that the income has escaped the assesseement and issued notice u/s 148 of the Act and the assessee has vide letter dated 25.04.2016 has submitted the copy of the acknowledgement of ITR and other details. Subsequently, the Assessing Officer (AO) has issued notice u/s 143(2) and 142(1) of the Act. In compliance, the Ld. AR of the assessee appeared from time to time and submitted the information and the case was discussed. 4 ITA No. 992/Mum/2023 Mafatlal Harkchandji Bothra, Mumbai 3.The AO on perusal of the financial statements found that the assessee has obtained unsecured loan from M/s Rajat Diamond Exim Pvt Ltd and paid interest of Rs.73,168/- and further the assessee also paid interest of Rs.1,73,386/- to M/s Frontline Diamond P Ltd and both aggregating to Rs.2,46,554/-. Further the A.O has issued show cause notice referred at Para 5.2 of the order to prove the genuineness and creditworthiness of the unsecured loan creditors. Whereas the assessee has filed the explanations along with the evidences to substantiate the unsecured loans dealt at Para 6 of the order. Further The AO has issued the notice u/s 133(6) of the Act on the parties and there was no proper compliance. Finally the AO has issued show cause notice and also further information was called and the A.O has dealt at page 6 to 8 of the order and disallowed the claim of interest expenditure treated as unexplained cash credit u/s 68 of the Act and assessed the total income of Rs.2,46,550/- and passed the order u/s 143(3) r.w.s 147 of the Act dated 28.07.2016. 4. Aggrieved by the order, the assessee has filed an appeal before the CIT(A), whereas the CIT(A) considered the grounds of appeal, submissions of the assessee and findings of the assessee and confirmed the action of the AO and dismissed the assessee appeal. Aggrieved by the CIT(A)order, 5 ITA No. 992/Mum/2023 Mafatlal Harkchandji Bothra, Mumbai the assessee has filed an appeal before the Honble Tribunal. 5. At the time of hearing, the Ld. AR submitted that the assessee CIT(A) has erred in not considering the facts that the assessee has paid interest and it was subject to TDS and claimed in profit and loss account and the AO has not doubted the genuineness of the loan transactions but doubted the transaction of payment of interest. The Ld. AR submitted that the similar issue for earlier assessment year is pending before the CIT(A) and supported the submissions with the factual paper book and prayed for allowing the appeal. Contra, the Ld. DR relied on the order of the CIT(A). 6. Heard the rival submissions and perused the material on record. The sole matrix of the disputed issue as envisaged by the Ld.AR that the CIT(A) has erred in sustaining the addition of interest payment made to parties subject to TDS and the assessee has obtained the loan in earlier year and current year and the Ld. AR has referred to page 16 to 45 of the paper book substantiating the creditworthiness and the genuineness of unsecured loan. Further the Ld.AR emphasized that similar issue in the assessee’s own case for the A.Y 2012-13 is pending before the CIT(A) and has barring on the current assessment year. Therefore considering the facts, circumstances and the submissions of the Ld. AR, the order of the CIT(A) is set-aside and remit the entire disputed 6 ITA No. 992/Mum/2023 Mafatlal Harkchandji Bothra, Mumbai issues to the file of the CIT(A) to adjudicate afresh and the assessee should be provided adequate opportunity of hearing and shall cooperate in submitting the information for early disposal of the appeal. Accordingly, allow the grounds of appeal of the assessee for statistical purposes. 7. In the result, the appeal filed by assessee is allowed for statistical purposes. Order pronounced in the open court on15.06.2023. Sd/- (PAVAN KUMAR GADALE) JUDICIAL MEMBER Mumbai, Dated 15/06/2023 KRK, PS आदेश की ितिलिप अ ेिषत/Copy of the Order forwarded to : 1. / The Appellant 2. / The Respondent. 3. ! ! " / The CIT(A) 4. ! ! "( ) / Concerned CIT 5. # $ ! , ! ! ण, मु瀓बई / DR, ITAT, Mumbai 6. $ %& ' / Guard file. आदेशानुसार/ BY ORDER, //True Copy// 1. उप/सहायक पंजीकार ( Asst. Registrar) आयकर अपीलीय अिधकरण, मु瀓बई मु瀓बईमु瀓बई मु瀓बई / ITAT, Mumbai