M/S. KALANI INDUSTRIES PVT. LTD., Indore V. THE DCIT1(1), Indore

ITSSA 260/IND/2015

• Counselvise Citation: [2019] 118 COUNSELVISE.COM (IT) 0108 (ITAT-INDORE)
• Duration Of Justice: 3 year(s) 7 month(s) 20 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 01-04-2019
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: DB
• Next Hearing Date: 25-03-2019
• Assessment Year: 2007-2008
• Appeal Filed On: 12-08-2015
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: ASHIMA GUPTA
• Keywords: Loose papers; Opportunity of being heard; Reasonable cause; Condonation of delay
• Section: 143(3); 153A; 14A; 132

Judgement Text

KALANI INDUSTRIES PVT. LTD IT (S.S.) NO.260/IND/2015 1 , , IN THE INCOME TAX APPELLATE TRIBUNAL, INDORE BENCH, INDORE BEFORE SHRI KUL BHARAT, JUDICIAL MEMBER AND SHRI MANISH BORAD, ACCOUNTANT MEMBER IT (SS) NO.260/IND/2015 ASSESSMENT YEAR 2007-08 REVENUE BY SMT. ASHIMA GUPTA, CIT ASSESSEE BY S/ S HRI MANJIT SACHDEVA & AVINASH GAUR, ADVOCATES DATE OF HEARING 2 6 .03 . 20 1 9 DATE OF PRONOUNCEMENT 01 .0 4 . 201 9 O R D E R PER MANISH BORAD, AM. THE ABOVE CAPTIONED APPEAL IS FILED AT THE INSTANCE OF ASSESSEE PERTAINING TO ASSESSMENT YEARS 2007-08 AND IS DIREC TED AGAINST THE ORDERS OF LD. COMMISSIONER OF INCOME TAX (APPEALS)- I (IN SHORT LD.CIT(A)], INDORE DATED 227.02.2015 WHICH IS ARI SING OUT OF THE ORDER U/S 143(3) R.W.S. 153A OF THE INCOME TAX ACT 1961(I N SHORT THE ACT) DATED 29.12.2011 FRAMED BY DCIT-1(1), INDORE. M/S. KALANI INDUSTRIES PVT. LTD, 11 TUKOGANJ MAIN ROAD, INDORE VS. DCIT 1(1), INDORE ( APPELLANT ) (RESPONDENT ) PAN AAACK7074P KALANI INDUSTRIES PVT. LTD IT (S.S.) NO.260/IND/2015 2 2. AS INFORMED BY THE REGISTRY, THE INSTANT APPEAL IS DELAYED BY 19 DAYS. AN APPLICATION FOR CONDONATION OF DELAY HAS BEEN PLACED ON RECORD. CONTENTIONS OF BOTH THE PARTIES HEARD ON THE ISSUE OF DELAY OF 19 DAYS. WE OBSERVE THAT THE IMPUGNED ORDER OF LD. CIT(A) WA S RECEIVED BY THE DIRECTOR MR. QURESH MATKAWALA AND WAS HANDED OVER T O MR. SUDHIR WAYKOLE FOR PREPARATION OF FILING APPEAL BEFORE INC OME TAX APPELLATE TRIBUNAL. FIRSTLY IT WAS DECIDED TO ASSIGN THE MAT TER TO THE CONSULTANT OF BOMBAY WHO ALSO LOOKS AFTER THE GROUP CASES. LATER ON IT WAS ASSIGNED TO I.P. SACHDEVA & CO. WE ARE SATISFIED THAT DUE TO T HIS REASON OF DELAY IN SELECTION OF THE COUNSEL TO FILE THE APPEAL DELAY O F 19 DAYS HAVE OCCURRED WHICH IN OUR VIEW IS A REASONABLE CAUSE AND NEEDS T O BE CONDONED IN THE INTEREST OF JUSTICE. WE ACCORDINGLY CONDONE THE DE LAY AND ADMIT THE APPEAL FOR HEARING. 3. BRIEFLY STATED FACTS AS CULLED OUT FROM THE RECO RDS ARE THAT THE ASSESSEE IS A PRIVATE LIMITED COMPANY AND DERIVES I NCOME FROM ACTIVITIES SUCH AS MANUFACTURING, LEASING & HIRE PURCHASE, WIN D FARM, TRADING, REAL ESTATE DEVELOPMENT AND COLD STORAGE. ON 16.4.2009 SEARCH U/S 132 OF THE ACT WAS CONDUCTED AT THE PREMISES OF APPELLANT COMPANY. VARIOUS LOOSE PAPERS AND DOCUMENTS WERE SEIZED. NOTICE U/S 153A OF THE ACT KALANI INDUSTRIES PVT. LTD IT (S.S.) NO.260/IND/2015 3 SERVED AND ASSESSMENT U/S 143(3) R.W.S. 153A OF THE ACT COMPLETED AFTER MAKING VARIOUS ADDITIONS WHICH INCLUDED DISALLOWANC E U/S 14A OF THE ACT AT RS.11,70,953/- AND ADDITION FOR UNRECORDED RECEI PTS AT RS.1,66,94,250/- AND RS.1,03,00,000/- RESPECTIVELY. APPEAL WAS PREFERRED BEFORE LD. CIT(A) AGAINST THE ADDITION OF UNRECORDED RECEIPTS BUT THE ASSESSEE FAILED TO SUCCEED, RATHER LD. CIT(A) E NHANCED THE ADDITION OF RS.1,03,00,000/- TO RS.1,12,50,000/-. 4. NOW THE ASSESSEE IS IN APPEAL BEFORE THE TRIBUNA L AGAINST ADDITION CONFIRMED BY CIT(A) TAKING FOLLOWING GROUNDS OF APP EAL; 1. THAT THE LEARNED COMMISSIONER OF INCOME TAX (APP EALS) ERRED IN CONFIRMING THE ADDITION MADE OF RS.1,03,00,000/- BY ASSESSING OFFI CER ON ACCOUNT OF CAPITAL GAIN AND ENHANCING THE ADDITION TO RS.1,12,50,000/- 2. THAT THE LEARNED COMMISSIONER OF INCOME TAX (AP PEALS) ERRED IN CONFIRMING THE ADDITION WITHOUT APPRECIATING THE SUBMISSION MA DE BY THE ASSESSEE COMPANY. 3. THAT THE LEARNED COMMISSIONER OF INCOME TAX (AP PEALS) ENHANCED THE ADDITION MADE WITHOUT GIVING THE PROPER NOTICE AND OPPORTUNITY. 4. THAT THE ADDITION MADE IS NOT BASED ON THE FACTS OF THE CASE. 5. THAT THE ADDITION MADE IS UNCALLED FOR AND BAD I N LAW AND WRONG. 6. THAT THE APPELLANT CRAVES LEAVE TO ADD, ALTER OR AMEND ANY GROUNDS OF APPEAL. 5. AT THE OUTSET LD. COUNSEL FOR THE ASSESSEE REFER RING TO GROUND NO. 2 & 3 OF THE APPEAL SUBMITTED THAT NO PROPER OPPORTUN ITY OF BEING HEARD KALANI INDUSTRIES PVT. LTD IT (S.S.) NO.260/IND/2015 4 WAS GIVEN TO THE ASSESSEE BY LD. CIT(A) BEFORE ENHA NCING THE ADDITION THEREBY NOT FOLLOWING THE PRINCIPLE OF NATURAL JUST ICE. HE PRAYED FOR SETTING ASIDE THE ISSUE TO THE FILE OF LD. CIT(A) FOR AFRES H ADJUDICATION AFTER GIVING PROPER OPPORTUNITY OF BEING HEARD AND ALSO CONSIDER ING THE SUBMISSION TO BE MADE BY THE APPELLANT COMPANY. 6. PER CONTRA LD. DEPARTMENTAL REPRESENTATIVE READ THE ENTRIES IN THE ORDER SHEET OF THE FILE OF LD. CIT(A) AND SUBMITTED THAT ASSESSEE MADE NECESSARY SUBMISSIONS LD. CIT(A) BEFORE ENHANCING T HE ADDITION FIXED THE CASE FOR HEARING BUT THE ASSESSEE FAILED TO APPEAR AND SUBSEQUENTLY THE APPELLATE ORDER WAS FINALIZED. HOWEVER LD, DEPARTM ENTAL REPRESENTATIVE RAISED NO OBJECTION TO THE PLEA OF THE COUNSEL TO S ETTING ASIDE THE ISSUE RAISED IN THIS APPEAL TO THE FILE OF LD. CIT(A). 7. WE HAVE HEAD RIVAL CONTENTIONS AND PERUSED THE R ECORDS PLACED BEFORE US. LD. A.O MADE THE ADDITION FOR UNRECORDE D RECEIPTS AT RS.1,03,00,000/-. AGAINST THIS ADDITION ASSESSEE CA ME IN APPEAL BEFORE LD. CIT(A) WHO ENHANCED THE ADDITION TO RS.1,12,50, 000/-. LD. COUNSEL FOR THE ASSESSEE PRAYED THAT SUBMISSION GIVEN BEFOR E LD. CIT(A) WERE NOT CONSIDERED BY HIM BEFORE ENHANCING THE ADDITION NOR ANY PROPER OPPORTUNITY WAS GRANTED TO PLEAD BEFORE LD. CIT(A) EVEN WHEN THE COUNSEL KALANI INDUSTRIES PVT. LTD IT (S.S.) NO.260/IND/2015 5 APPEARED BEFORE HIM. LD. COUNSEL FOR THE ASSESSEE A LSO PLEADED THAT IF REQUIRED HE CAN STATE ON OATH THAT OPPORTUNITY WAS NOT GIVEN TO HIM TO FILE THE SUBMISSIONS TO THE SHOW CAUSE NOTICE FOR E NHANCING THE ADDITION. 8. WE THEREFORE IN THE GIVEN FACTS AND CIRCUMSTANCE S OF THE CASE AND IN THE INTEREST OF JUSTICE ARE OF THE CONSIDERED OPINI ON THAT ASSESSEE DESERVES ONE MORE OPPORTUNITY TO GO BEFORE THE LD. CIT(A) TO MAKE NECESSARY SUBMISSIONS WITH REGARD TO THE ADDITION OF RS.1,03, 00,000/- MADE BY LD. A.O. NEEDLESS TO MENTION THAT LD. CIT(A) SHOULD PR OVIDE PROPER OPPORTUNITY OF BEING HEARD TO THE ASSESSEE BEFORE D ECIDING THE ISSUE RAISED IN GROUND NO.1 THE INSTANT APPEAL. OTHER GRO UND NO.4, 5 & 6 ARE GENERAL IN NATURE WHICH NEEDS NO ADJUDICATION. 9. IN THE RESULT APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. THE ORDER PRONOUNCED IN THE OPEN COURT ON 01.04. 2019. SD/- SD/- ( KUL BHARAT) (MANISH BORAD) JUDICIAL MEMBER ACCOUNTANT MEMBER / DATED : MARCH, 2019 /DEV KALANI INDUSTRIES PVT. LTD IT (S.S.) NO.260/IND/2015 6 COPY TO: THE APPELLANT/RESPONDENT/CIT CONCERNED/CIT (A) CONCERNED/ DR, ITAT, INDORE/GUARD FILE. BY ORDER, ASSTT.REGISTRAR, I.T.A.T., INDORE