M/s AD-Manum Packaging Ltd., Indore V. The ACIT, 5(1), Indore

MA 128/IND/2012

• Counselvise Citation: [2013] 124 COUNSELVISE.COM (IT) 0265 (ITAT-INDORE)
• Duration Of Justice: 6 month(s) 11 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 13-05-2013
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: DB
• Assessment Year: 2005-2006
• Appeal Filed On: 01-11-2012
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: R R MEENA
• Assessee Lawyers: S N AGARWAL; PANKAJ MOGRA CAS
• Keywords: Question of law
• Section: 260A; 131; 68

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL , INDORE BENCH, INDORE BEFORE SHRI JOGINDER SINGH, J.M. AND SHRI R.C.SHARM A, A.M. PAN NO. : AABCA4240L M.A. NO. 128 /IND/201 2 (ARISING OUT OF I.T.A.NO. 163/IND/2012) A.Y. : 2005 - 06 M/S.AD - MANUM PACKAGING LIMITED, VS. ACIT, 5(1), 1 ST FLOOR, AGRAWAL HOUSE, 5, YESHWANT COLONY, INDORE. INDORE APP LICANT RESPONDENT APP LICANT BY : SHRI S. N. AGARWAL & SHRI PANKAJ MOGRA, CAS RESPONDENT BY : SHRI R. R. MEENA, SR. DR DATE OF HEARING : 10 . 0 5 .201 3 DATE OF PRONOUNCEMENT : 13 . 0 5 .201 3 O R D E R PER R. C. SHARMA, A.M. THIS MISC. PETITION IS FILED BY THE ASSESSEE TO REC TIFY A MISTAKE ALLEGED TO BE OCCURRED IN THE ORDER OF THE TRIBUNAL DATED 6.9.2012. -: 2: - 2 2. IT WAS ARGUED BY THE LD. AUTHORIZED REPRESENTATIVE THAT I.T.A.T. WHILE DECIDING THE APPEAL HAS NOT APP RECIATED THE VERBAL ARGUMENTS AND WRITTEN SYNOPSIS FILED DURING THE COURSE OF APPELLATE PROCEEDINGS AND MAINTAINED THE ADDITIO N MADE UNDER SECTION 68 OF THE INCOME-TAX ACT, 1961, FOLLO WING ITS EARLIER DECISION IN THE CASE OF AGRAWAL COAL CORPOR ATION, 18 ITJ 717. 3. IT WAS FURTHER ARGUED BY THE LD. AUTHORIZED REPRESENTATIVE THAT THERE IS AN AMOUNT OF RS. 20,00,000/- RECEIVED FROM HINDUSTAN CONTINENTAL LTD DURING THIS ASSESSMENT YEAR AS UNSECURED LOAN. THE INVESTIGATIO N IN OTHER CASES RELATED TO LONG TERM CAPITAL GAIN RECEIVED ON THE SALE OF SHARES OF HINDUSTAN CONTINENTAL LTD CAME OUT TO BE BOGUS. SO PRIMA FACIE THIS TRANSACTION APPEARED NON GENUINE A ND A DETAILED INVESTIGATION WAS CARRIED OUT. THE ASSESSE E WAS ASKED TO PRODUCE THE SAID PARTY TO ESTABLISH IDENTITY, CREDITWORTHINESS AND GENUINENESS OF TRANSACTION. BU T THE ASSESSEE WAS NOT ABLE TO PRODUCE THE SAID PARTY. TH E ASSESSEE PRODUCED THE INCOME TAX RETURN ALONG WITH ITS BANK STATEMENT FOR THE RELEVANT ASSESSMENT YEAR AND ARGUED THAT ON CE IT -: 3: - 3 PRODUCED INCOME TAX RETURN, BANK STATEMENT AND LOAN CONFIRMATIONS THEN THE ONUS OF THE PARTY IS FULFILL ED. SUBSEQUENTLY, SUMMON U/S 131 OF IT ACT, 1961, WAS ISSUED TO THE M/S. HINDUSTAN CONTINENTAL LTD ON THE ADDRESS M ENTIONED IN THE INCOME TAX RETURN AS WELL AS IN THE SHARE AP PLICATION. THE SUMMONS RETURNED UNSERVED AND INSPECTOR'S REPOR T STATES THAT NO SUCH PARTY AVAILABLE PRESENTLY IN THE GIVEN ADDRESS AND NOBODY AROUND AWARE OF SUCH COMPANY. ON PERUSAL OF THE INCOME TAX RETURN IT INDICATES THAT THE SAID COMPAN Y IS HAVING AN ADDRESS AT MANDSAUR. IN REPLY TO A COMMISSION IS SUED BY ACIT 1(1), INDORE THE INCOME TAX OFFICER, MANDSAUR STATED THAT NO SUCH PARTY AVAILABLE IN THE GIVEN ADDRESS. LATER THIS OFFICE CAME TO KNOW THAT THE PARTY IN THE AY. 2004- 05 SUBMITTED ITS INCOME TAX RETURN AT ACIT 4(1), INDOR E AND LATER THE SAID RETURN IS TRANSFERRED TO WARD 1(2), INDORE CURRENTLY, THE ASSESSEE FILING RETURN AT JABALPUR. THE ACIT-1, JABALPUR TO ENQUIRE INTO THE MATTERS OF HINDUSTAN CONTINENTAL L TD. THE REPLY SENT BY THE ACIT -1, JABALPUR, CLEARLY STATES THAT NO SUCH COMPANY EXISTS THERE. IN THE PROCEEDINGS OF AN ANOTHER CASE THE ASSESSEE CAME OUT WITH A NEW ADDRESS OF M/S. -: 4: - 4 HINDUSTAN CONTINENTAL LTD AT MUMBAI. THIS OFFICE HA S ISSUED A COMMISSION TO ASST DIRECTOR INVESTIGATION IX (3), M UMBAI FOR THE VERIFICATION OF THE ADDRESS. THE REPLY OF THE S AID OFFICER CLEARLY SAYS THAT THERE IS NO SUCH COMPANY EXISTS T HERE. 4. THE BANK STATEMENT OF M/S. HINDUSTAN CONTINENTAL LIMITED AVAILABLE, WHICH INDICATED THAT HUGE AMOUNT OF MONEY COMING INSPITE ITS BANK ACCOUNT IN THE FORM OF CHEQ UE AND HUGE AMOUNT OF MONEY GOING OUTSIDE THE ACCOUNT TO V ARIOUS PARTIES IN THE NAME OF UNSECURED LOAN OR SHARE APPL ICATION MONEY. 5. ON THE OTHER HAND, THE LD. SENIOR DR SUBMITTED THAT THERE IS NO MISTAKE IN THE ORDER OF THE I.T.A.T. 6. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND GONE THROUGH THE ORDER PASSED BY THE TRIBUNAL AS WELL AS PAPER BOOK FILED BEFORE US DURING THE COURSE OF HEARING O F THE APPEAL. WE FOUND THAT AFTER DISCUSSING IN GREAT DETAIL AND FOLLOWING THE DECISION OF COORDINATE BENCH IN THE CASE OF HINDUST AN CONTINENTAL LIMITED, THE ADDITION SO MADE BY THE LO WER AUTHORITIES WAS CONFIRMED. SINCE THE ASSESSEE COULD NOT SUBSTANTIATE THE FACT THAT THE LOAN AMOUNT RECEIVED FROM THE -: 5: - 5 SAME CONCERN WERE REPEATED AND THE SAME AMOUNT WAS UTILIZED BY THE LOAN CREDITOR FOR GIVING THE AMOUNT OF LOAN, NO WEIGHTAGE WAS GIVEN TO THE ARGUMENTS OF THE LD. AUT HORIZED REPRESENTATIVE AS MADE DURING THE COURSE OF HEARING . 7. HOWEVER, FILING OF FORM NO. 8 U/S 158A TO AVOID THE REPETITION OF APPEAL, WAS ALLEGED TO BE NOT CONSIDE RED. THE LD. AUTHORIZED REPRESENTATIVE FURTHER STATED THAT AN A PPEAL BEFORE THE HON'BLE HIGH COURT FILED U/S 260A WAS DE CIDED VIDE ORDER DATED 6.1.2012, WHREIN APPEALS HAVE BEEN ADMI TTED. COPY OF THE ORDER OF THE HON'BLE HIGH COURT WAS PLA CED AT PAGES 147 TO 158 OF THE SYNOPSIS. 8. AS PER OUR CONSIDERED VIEW, THE PROVISIONS OF SECTI ON 158A, IS APPLICABLE WHERE AN ASSESSEE CLAIMS THAT A NY QUESTION OF LAW ARISING IN HIS CASE FOR AN ASSESSMENT YEAR, WHICH IS PENDING BEFORE THE ASSESSING OFFICER OR AN Y APPELLATE AUTHORITY, IDENTICAL WITH THE QUESTION ARISING IN H IS CASE FOR ANOTHER ASSESSMENT YEAR WHICH IS PENDING BEFORE THE HIGH COURT ON A REFERENCE U/S 256 OR U/S 260A. HOWEVER, IN THE INSTANT CASE, WE FOUND THAT NO APPEAL OF THE ASSESS EE WAS ADMITTED BY THE HIGH COURT AND WHATEVER ORDER WAS R EFERRED -: 6: - 6 BY THE LD. AUTHORIZED REPRESENTATIVE PERTAINS TO T HE APPEAL FILED BY DIFFERENT ASSESSEE I.E. SHRI DARPAN ANAND , HARBHAJAN ANAND, HUF AND SHRI GAURAV ANAND. SINCE NO APPEAL O F THE ASSESSEE WAS PENDING BEFORE THE HIGH COURT U/S 256 OR 260A, THE PROVISIONS OF SECTION 158A IS NOT APPLICABLE IN THE CASE OF THE ASSESSEE. 9. IN VIEW OF THE ABOVE DISCUSSION, WE DO NOT FIND ANY MISTAKE APPARENT IN THE ORDER PASSED BY THE TRIBUNA L, WHICH COULD BE RECTIFIED U/S 254(2) OF THE INCOME-TAX ACT , 1961. 10. IN THE RESULT, THE MISC. APPLICATION IS DISMISSED. THIS ORDER HAS BEEN PRONOUNCED IN THE OPEN COURT ON 13 TH MAY, 2013. SD/- SD/- (JOGINDER SINGH) (R. C. SHARMA) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED : 13 TH MAY, 2013. CPU* 10135