Prakash Asphaltingh & Toll of Highways (India) Ltd, Mhow V. The ACIT ,Centraal-1, Indore

MA 31/Ind/2023

• Counselvise Citation: [2023] 100 COUNSELVISE.COM (IT) 6680 (ITAT-INDORE)
• Duration Of Justice: 2 month(s) 15 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 09-10-2023
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 14-09-2023
• Assessment Year: 2009-2010
• Appeal Filed On: 24-07-2023
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Loose papers; Retraction
• Section: 254(2)

Judgement Text

आयकर अपीलȣय अͬधकरण, इंदौर Ûयायपीठ, इंदौर IN THE INCOME TAX APPELLATE TRIBUNAL INDORE BENCH, INDORE BEFORE SHRI VIJAY PAL RAO, JUDICIAL MEMBER AND SHRI B.M. BIYANI, ACCOUNTANT MEMBER MA Nos.31 & 32/Ind/2023 (Arising out of IT(SS)A Nos. 32 & 33/Ind/2021) Assessment Years: 2009-10 & 2010-11 Prakash Asphalting & Toll Highways (India) Limited, Mhow बनाम/ Vs. ACIT, Central-1, Indore. (Assessee /Applicant) (Revenue / Respondent) PAN: AABCP 0398 N Assessee by Shri Sumit Nema, Sr. Adv. with Shri Anoop Garg and Shri Gagan Tiwari, ARs Revenue by Shri Ashish Porwal, Sr. DR Date of Hearing 15.09.2023 Date of Pronouncement 10.10.2023 आदेश / O R D E R Per B.M. Biyani, A.M.: These two Misc. Applications [‘”M/A”] u/s 254(2) of Income-tax Act, 1961 are filed by the assessee, seeking part-recall of Order dt. 10.01.2023 of ITAT Indore Bench in IT(SS)A No. 32/Ind/2021 for assessment year 2009-10 and IT(SS)A No. 33/Ind/2021 for assessment year 2010-11. 2. Ld. AR for assessee submitted that while passing impugned Orders, the ITAT has allowed following grounds raised by Revenue: Prakash Asphalting & Toll Highways (India) Limited, M.A.Nos.31 & 32/Ind/2023 A.Ys. 2009-10 & 2010-11 Page 2 of 4 IT(SS)A No. 32/Ind/2021: “(2) On the facts and in the circumstances of the case, the Ld. CIT(A) erred in law in deleting the addition of Rs. 82,03,684/- made by the AO on account of unaccounted interest payment on cash loan and has overlooked the findings of the AO mentioned in the assessment order.” IT(SS)A No. 33/Ind/2021: “(2) On the facts and in the circumstances of the case, the Ld. CIT(A) erred in law in deleting the addition of Rs. 58,55,122/- made by the AO on account of unaccounted interest payment on cash loan and has overlooked the findings of the AO mentioned in the assessment-order.” 3. Then, Ld. AR carried us to Para No. 18 of the order of ITAT, wherein the ITAT has made following observation, among others, while deciding above grounds: “(vi) In Para No. 4.2.2., the Ld. CIT(A) has taken into account “During the course of search, statement of Shri G.C. Patidar was recorded on oath which has been retracted vide affidavit dated 28.12.2016. Since, the statement given during search has been retracted, therefore, the same cannot be relied upon.” On perusal of records, we observe that the affidavit dated 28.12.2016, though made in the name of Assessing Officer, yet there is no wishper by Ld. AO in the assessment-order on affidavit having been filed or the contents of affidavit. It is also noteworthy that the assessment-order depicts that the assessee filed last-reply to Ld. AO on 26.12.2016 and the affidavit is dated 28.12.2016. Be that as it may be, assuming that the said affidavit was submitted to Ld. AO, there are several infirmities. Firstly, the affidavit which is claimed to contain the retraction, is filed not before 28.12.20216, which is after about a period more than 2 years from the date of search as well as at the feg-end of assessment-order. Further, to appreciate the contents of affidavit, we reproduce a scanned copy of the same: XXX It is noteworthy that in Para No. 8 of the affidavit, Shri G.C. Patidar has clearly admitted that he had made jottings on various loosepapers and diaries under the instruction of Shri Puneet Agarwal. Thereafter in Para No. 10 of the affidavit, he has further admitted that he used to provide those loose-papers and diaries to Mr. Nilesh Tavrech based upon which Mr. Nilesh Tavrech used to make entries in his own laptop. Thus, there is a clear admission by Shri G.C. Patidar of three vital points, viz (i) he made loose papers; (ii) the loose papers were under the instructions of Shri Puneet Agarwal (Shri Puneet Agarwal was director of assessee-company); and (iii) those loose papers were entered by Shri Nilesh Tavrech in the tally-data in laptop. While submitting so, Shri G.C. Patidar has given additional averments by saying (i) loose-papers were made because some family members of assessee-company wanted to demonstrate other family members that the assessee-company was in huge loses and market debts, and (ii) those loose-papers were given to Shri Nilesh Tavrech (a deceased employee who was not available for verification by Prakash Asphalting & Toll Highways (India) Limited, M.A.Nos.31 & 32/Ind/2023 A.Ys. 2009-10 & 2010-11 Page 3 of 4 revenue-authorities) for learning tally-accounting. We are not impressed by these additional averments, which are in the first blush, do not appear credible to anyone. Thus, we do not find the affidavit of Shri G.C. Patidar as a retraction, rather it is acceptance of the loose-papers, laptop, entries in tally- data and the actual occurrence of the financial transactions found by revenue- authorities.” 4. Ld. AR submitted that the observations made by ITAT in above para No. 18(vi) qua the affidavit of Shri G.C. Patidar are, with all respect, not based on any discussions during the course of hearing and the ITAT has narrated its understanding without confronting assessee. Therefore, the assessee was not having any opportunity to make submissions on the point. Ld. AR submitted that the conclusion derived by ITAT without affording opportunity of explanation to assessee is a ‘mistake apparent from record’. Therefore, the order of the ITAT deserves to be re-called for adjudication afresh of the aforesaid grounds of revenue’s appeal. 5. Ld. DR for revenue opposed this application. He submitted that the affidavit of Shri G.C. Patidar was available in the Paper-Book filed by assessee. Therefore, the ITAT has rightly taken into account the affidavit held on record and derived conclusions therefrom irrespective of whether the same was discussed or not during hearing. Ld. AR went on submitting that during hearing, the assessee could very well explain the contents of affidavit when it was filed in the Paper-Book. Lastly, Ld. AR submitted that the ITAT is the last facts finding authority and can decide any issue on the basis of documents available before it. With these submissions, Ld. DR contended that there is no error in the order passed by ITAT. Hence, the present Misc. Application filed by the assessee is devoid of merit and must fail. 6. We have considered submissions of both sides and perused the impugned order. After a judicious and mindful consideration, we find that there is a weightage in the submission of Ld. AR of assessee. It is true that the ITAT has considered the affidavit held on record in the Paper-Book filed by assessee but Para No. 18(vi) demonstrates only the ITAT’s observations/ conclusions qua the affidavit but there is no indication that the same was confronted to the parties. In any case, when the assessee claims that he did Prakash Asphalting & Toll Highways (India) Limited, M.A.Nos.31 & 32/Ind/2023 A.Ys. 2009-10 & 2010-11 Page 4 of 4 not get opportunity to make submissions, we are of the view that we should not stop the assessee from making submissions. We do not hesitate in mentioning that ITAT is having motto of “Nishpaksh Sulabh Satvar Nyay”, which means the ITAT always wants to extent impartial justice to parties. Therefore, we must rectify the slightest apparent error, if any, which might have been identified by parties. Therefore, we are inclined to accept the prayer of assessee to recall our order partly to the extent it concerns to the grounds re-produced in foregoing Para No. 2 of this order. Accepted accordingly and these M/A are allowed. The Registry is directed to fix the original appeals for hearing qua the re-called issues, on a suitable date after giving intimation to the parties. 7. Resultantly, these Misc. Applications of assessee are allowed. Order pronounced in the open court on 10.10.2023. Sd/- sd/- (VIJAY PAL RAO) (B.M. BIYANI) JUDICIAL MEMBER ACCOUNTANT MEMBER Indore Ǒदनांक /Dated : 10.10.2023 CPU/Sr. PS Copies to: (1) The appellant (2) The respondent (3) CIT (4) CIT(A) (5) Departmental Representative (6) Guard File By order UE COPY Sr. Private Secretary Income Tax Appellate Tribunal Indore Bench, Indore