Silicon Securities Pvt. Ltd., Pune V. The ITO, Ward-8(2), Ahmedabad

MA 15/PUN/2023

AI Insights

The case involves M/s. Silicon Securities Pvt. Ltd., which filed a miscellaneous application under section 254(2) of the Income Tax Act, 1961, seeking to recall or rectify the Tribunal's earlier order. The original dispute centered on unexplained cash credits and the jurisdiction of the Pune Bench to hear the Revenue's appeal. The Tribunal had previously restored the issue of unexplained cash credits to the Assessing Officer, emphasizing the need for the assessee to prove the genuineness of the credits. The assessee contested the jurisdiction of the Pune Bench, citing recent Supreme Court decisions, but the Tribunal upheld its jurisdiction based on the procedural transfer of the case from Ahmedabad to Pune.

• Counselvise Citation: [2023] 140 COUNSELVISE.COM (IT) 137036 (ITAT-PUNE)
• Duration Of Justice: 6 month(s) 6 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 30-07-2023
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 20-07-2023
• Assessment Year: 2009-2010
• Appeal Filed On: 23-01-2023
• Other Referred Cases: Sumati Dayal V/s CIT (1995) 214 ITR 801(SC), CIT V/s Durgaprasad More (1972) 82 ITR 540 (SC), PCIT V/s. NRA Iron & Steel Pvt. LTd. (2019) 412 ITR161 (SC), Pr.CIT vs. ABC Papers Limited [2022] 447 ITR 1 (SC), MSPL Limited vs. Pr. CIT & Others 436 ITR 199 (Bom.), PCIT vs. MSPL Ltd., [2023] 150 taxmann.com 41 (SC)
• Laws Referred To: Income Tax Act, 1961
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Keywords: Unexplained cash credit
• Section: 68; 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH “A” : PUNE BEFORE SHRI SATBEER SINGH GODARA, JUDICIAL MEMBER AND DR. DIPAK P. RIPOTE, ACCOUNTANT MEMBER M.A.No.15/PUN./2023 Arising out of I.T.A.No.3017/AHD./2014 - Assessment Year 2009-2010 M/s. Silicon Securities Pvt. Ltd., B-11, Kumar Medoeus, Opp. Sagar Inn Hotel, Pune – 412 037 PAN AACCS6529H vs. The ITO, Ward – 8 (2), Ahmedabad. (Applicant) (Respondent) For Assessee : Shri Ashok N. Kothary For Revenue : Shri Ramnath P. Murkunde Date of Hearing : 21.07.2023 Date of Pronouncement : 31.07.2023 ORDER PER SATBEER SINGH GODARA, J.M. : This assessee’s miscellaneous application M.A.No.15/ PUN./2023 filed u/sec.254(2) of the Income Tax Act, 1961 (in short "the Act"). seek to recall/rectify the tribunal’s order dated 06.07.2022 ITA.No.3017/AHD./2014 restoring the sole issue of unexplained cash credit back to the Assessing Officer as under : “3. We first of all come to the former issue of section 68 unexplained share capital of Rs.1,56,35,000/-,share application money of Rs.25,00,000/- and share premium of 2 M.A.No.15/PUN./2023 Rs.2,22,65,000/-; respectively. There is hardly any dispute between the parties that the Assessing officer had framed his section 144 r.w.s. 147 assessment/reassessment dated 30.11.2011 ex- parte after holding that the assessee had failed to even respond to his various show cause notices asking it to prove identity, genuineness and creditworthiness of the concerned parties. The assessee thereafter appears to file its additional evidence and Rule 46A of the Income Tax Rules. The CIT(A) had asked the Assessing Officer to submit his remand report. A perusal of the CIT(A) detailed discussion suggests that the said remand report came to be filed on 17.10.2013 at the first instance. This followed Assessing Officer’s further remand reports dated 27.03.2014, 31.03.2014 and 12.05.2014 in the next three instances. 4. We put a specific query to the assessee as to what manner it had proved genuineness of the impugned sums. Mr. Kothari took us to the assessee’s detailed paper book(s) mainly running to 85 pages as well as supplementary compilation that the assessee had duly filed all the relevant documentary evidence along with bench 3 M.A.No.15/PUN./2023 statements, confirmations, income tax returns, balance sheets, Profit & Loss accounts as well as audit reports of the concerned investor parties before the Assessing Officer in remand proceedings. 5. We have given our thoughtful consideration to the foregoing rival arguments and find merit in Revenue’s stand in principle. There is hardly any dispute that any evidence filed income tax proceedings has to considered in the light of human probabilities after removing all blinkers as held in Sumati Dayal V/s CIT 1995) 214 ITR 801(SC) and CIT V/s Durgaprasad More (1972) 82 ITR 540 (SC). Their lordships further hold in PCIT V/s. NRA Iron & Steel Pvt. LTd. (2019) 412 ITR161 (SC) that an assessee cannot discharge its burden in proving genuineness of such credits merely by filing the corresponding documents. The fact remains that the assessee herein had not produced the investor parties to prove the genuineness by satisfying all the relevant parameters. We therefore deem it appropriate to restore the instant issue unexplained cash credits back to the Assessing Officer with a clear cut direction that it shall be 4 M.A.No.15/PUN./2023 risk and responsibility of the assessee only to lead all evidence; at its own risk and responsibility, in the consequential proceedings within three effective opportunities of hearing. We order accordingly. The Revenue’s first and foremost substantive ground succeeds for statistical purposes. 6. Coming to Revenues’ second substantive ground of investments of Rs.9,28,00,000/- and source thereof, we are of the opinion the same must also follow the suit as the assessee had attributed source thereof the foregoing cash credits’ investment only in page 42 to 45 of the lower appellate discussion. Ordered accordingly.” 2. Learned counsel has raised vehement contentions inter alia touching upon our territorial jurisdiction in light of hon’ble apex court’s landmark decision in Pr.CIT vs. ABC Papers Limited [2022] 447 ITR 1 (SC) as well as hon’ble jurisdictional high court’s judgment in MSPL Limited vs. Pr. CIT & Others 436 ITR 199 (Bom.); upheld in PCIT vs. MSPL Ltd., [2023] 150 taxmann.com 41 (SC) that Pune Benches of the tribunal could not have heard the Revenue’s main appeal at Pune as the ‘situs’ of the Assessing Officer having framed the assessment dated 30.11.2011 happened to be at 5 M.A.No.15/PUN./2023 Ahmedabad. Learned counsel’s case therefore is that once our jurisdiction no more extended to the Revenue’s instant appeal filed at Ahmedabad, our impugned order is void ab initio which deserves to be recalled/rectified u/sec.254(2) of the Act. 3. We have given our thoughtful consideration to the assessee’s foregoing vehement contentions and find the same to be entirely misconceived. We make it clear first of all that the Revenue had indeed filed it’s main appeal before Ahmedabad Benches of the Income Tax Appellate Tribunal. The assessee thereafter filed a petition before hon’ble President seeking for it’s transfer to Pune Benches of the Tribunal which stood accepted vide order dated 24.02.2020 [after getting no objections from the department]. It is in this factual backdrop that the Pune Benches of the tribunal decided the Revenue’s main appeal ITA.No.3017/AHD./2014 thereby restoring it back to the Assessing Officer. We accordingly hold that hon’ble jurisdictional high court or the hon’ble apex court’s decisions having settled the issue would not ipso facto lead to annulment of the hon’ble President’s order dated 24.02.2020, and more so, when the same is further followed by our adjudication on merits in the main appeal. Faced with the situation, we conclude that the assessee’s instant 6 M.A.No.15/PUN./2023 miscellaneous application deserves to be dismissed. No order as to costs. 4. This assessee’s miscellaneous application is dismissed in above terms. Order pronounced in the open Court on 31.07.2023. Sd/- Sd/- [DR. DIPAK P. RIPOTE] [SATBEER SINGH GODARA] ACCOUNTANT MEMBER JUDICIAL MEMBER Pune, Dated 31 st July, 2023 VBP/- Copy to 1. The applicant 2. The respondent 3. The CIT(A)-XIV, Ahmedabad 4. The CIT-IV, Ahmedabad 5. D.R. ITAT, Pune “A” Bench, Pune 6. Guard File. //By Order// Assistant Registrar, ITAT, Pune Benches, Pune.