The Dy. CIT., Circle-2(1)(2), Surat V. M/s. Sidhant Creation Pvt. Ltd., Surat

MA 29/SRT/2019

• Counselvise Citation: [2021] 109 COUNSELVISE.COM (IT) 4765 (ITAT-SURAT)
• Duration Of Justice: 1 year(s) 9 month(s) 28 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 09-02-2021
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Assessment Year: 2011-2012
• Appeal Filed On: 11-04-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SEEKING RECTIFICATION IN
• Keywords: Source of fund
• Section: 133(6); 254(2)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, SURAT BENCH, SURAT BEFORE SHRI PAWAN SINGH, JUDICIAL MEMBER AND DR. ARJUN LAL SAINI, ACCOUNTANT MEMBER MA NO.29/SRT/2019 IN ITA NO.1401/AHD/2016 FOR AY.2011-12 ( VIRTUAL HEARING) THE DEPUTY COMMISSIONER OF INCOME TAX, CIRCLE-2(1)(2), SURAT. VS SIDHANT CREATION PVT LTD., P-3807-3808, MILLENNIUM MARKET, RING ROAD, SURAT. [PAN: AAMCS 4206 P] APPLICANT RESPONDENT ASSESSEE BY SH. RASESH SHAH - CA/ AR REVENUE BY MRS ANUPMA SINGHLA-SR. DR DATE OF HEARING 05.02.2021 DATE OF PRONOUNCEMENT 09 .02.2021 ORDER UNDER SECTION 254(2) OF INCOME TAX ACT PER PAWAN SINGH, JUDICIAL MEMBER: 1. THIS MISCELLANEOUS APPLICATIONS (MA) IS FILED BY THE REVENUE FOR SEEKING RECTIFICATION IN THE ORDER DATED 19.09.2018. THE DEPARTMENTAL REPRESENTATIVE FOR THE REVENUE SUBMITS THAT DURING THE YEAR UNDER APPEAL, THE ASSESSEE COMPANY RECEIVED SHARE CAPITAL/SHARE PREMIUM FROM 19 INVESTORS. THE ASSESSING OFFICER AFTER DETAILED DISCUSSION IN THE ASSESSMENT ORDER HELD THAT ASSESSEE FAILED TO ESTABLISH THE GENUINENESS AND CREDITWORTHINESS OF INVESTORS COMPANY. THE SOURCE OF FUNDS ARRANGED BY INVESTOR COMPANY REMAIN UNEXPLAINED. THE ASSESSEE DURING THE ASSESSMENT FAILED TO SUBSTANTIATE THE GENUINENESS OF TRANSACTION. IN RESPONSE TO NOTICE UNDER SECTION 133(6) OF THE ACT, THE INVESTOR COMPANY HAVE NOT SUBMITTED COMPLETE DETAILS REQUIRED BY THE ASSESSING OFFICER, THUS IN ABSENCE OF DOCUMENTARY EVIDENCE THE MA NO.29/SRT/2019 IN ITA NO.1401/AHD/2016 SIDHANT CREATION PVT. LTD., (AY 2011-12) 2 GENUINENESS OF TRANSACTION COULD NOT BE PROVED. THE ADDITIONS WERE UPHELD BY THE LD.CIT(A). THE TRIBUNAL WHILE GRANTING RELIEF TO THE ASSESSEE HAS NOT PROPERLY APPRECIATED THE MATERIAL BROUGHT BY THE LOWER AUTHORITIES ON RECORD. 2. ON THE OTHER HAND, THE LD.AR OF THE ASSESSEE SUBMITS THAT THE REVENUE IS SEEKING REVIEW OF THE ORDER, WHICH IS BEYOND THE SCOPE OF APPLICATION UNDER SECTION 254(2) OF THE ACT. THE PREDECESSOR OF THIS BENCH, AFTER CONSIDERING THE FACTS AVAILABLE ON RECORD, EVIDENCES PLACED AND THE SUBMISSION MADE DURING HEARING PASSED A DETAILED AND REASONED ORDER RUNNING INTO 27 PAGES. THE IDENTITY OF INVESTOR COMPANY WAS NOT IN DISPUTE. THE ASSESSEE HAS DISCHARGED HIS ONUS IN PROVING IDENTIFY AND CREDITWORTHINESS OF PARTIES AND GENUINENESS OF TRANSACTIONS. THE ASSESSING OFFICER /REVENUE HAS FILED APPEAL AGAINST THE ORDER DATED 19.09.2018 BEFORE JURISDICTIONAL HIGH COURT VIDE TAX APPEAL NO.21/2019, WHICH IS STILL PENDING. THE MA FILED BY THE REVENUE IS NOT MAINTAINABLE AS THE REVENUE HAS ALREADY CHALLENGED THE ORDER, WHICH IS SOUGHT TO BE RECTIFIED IN APPEAL BEFORE HON'BLE JURISDICTIONAL HIGH COURT. THE LD.AR FURTHER SUBMITS THAT EVER OTHERWISE, THERE IS NO MISTAKE WHICH CAN BE CLASSIFIED AS MISTAKE APPARENT ON RECORD AND THE MISCELLANEOUS APPLICATION FILED BY THE REVENUE IS LIABLE TO BE REJECTED. IN SUPPORT OF HIS SUBMISSIONS, THE LD.AR OF THE ASSESSEE RELIED UPON THE DECISION OF HON'BLE GUJARAT HIGH COURT IN SHAMBHIBHAI MAHADEV MA NO.29/SRT/2019 IN ITA NO.1401/AHD/2016 SIDHANT CREATION PVT. LTD., (AY 2011-12) 3 AHIR VS ITAT IN SPECIAL CIVIL APPLICATION 6337 OF 2018 DATED 20.08.2018. 3. WE HAVE CONSIDERED THE SUBMISSION OF BOTH THE PARTIES AND PERUSED THE MATERIAL AVAILABLE ON RECORD. WE HAVE NOTED THAT IN THE PRESENT APPLICATION THE REVENUE IS SEEKING APPRECIATION AND RE-APPRECIATION OF EVIDENCE PLACED ON RECORD, WHICH IS BEYOND THE SCOPE OF SECTION 254(2) OF THE ACT. WE HAVE FURTHER NOTED THAT AGAINST THE ORDER DATED 19.09.2018 THE REVENUE HAS ALREADY FILED APPEAL BEFORE THE HON'BLE JURISDICTIONAL HIGH COURT VIDE TAX APPEAL NO.212 OF 2019, WHICH HAS BEEN ADMITTED AND PENDING FOR ADJUDICATION. IN OUR VIEW, ONCE THE APPEAL FILED BY THE REVENUE IS ADMITTED BY HON'BLE HIGH COURT, IT IS NO LONGER OPEN TO US TO EXERCISE THE POWER UNDER SECTION 254(2) OF THE ACT. 4. IN THE RESULT, MISCELLANEOUS APPLICATION FILED BY THE REVENUE IS DISMISSED. ORDER PRONOUNCED ON 9 TH FEBRUARY 2021 BY PLACING RESULT ON THE NOTICE BOARD. SD/- SD/- (DR. ARJUN LAL SAINI) (PAWAN SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER SURAT, DATED: FEBRUARY 2021/#SGR COPY OF ORDER SENT TO- ASSESSEE/AO/PR. CIT/ CIT (A)/ ITAT (DR)/GUARD FILE OF ITAT. BY ORDER / / TRUE COPY / / ASSISTANT REGISTRAR, SURAT