Confidence Finance & Trading Limited, CHENNAI V. ACIT, CHENNAI

MA 345/CHNY/2016

• Counselvise Citation: [2017] 124 COUNSELVISE.COM (IT) 5545 (ITAT-CHENNAI)
• Duration Of Justice: 5 month(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 30-05-2017
• Appeal Filed By: Assessee
• Bench Allotted: B
• Assessment Year: 2012-2013
• Appeal Filed On: 30-12-2016
• Court: TRIBUNAL
• Department Lawyers: SUPRIYO PAL
• Assessee Lawyers: B RAMAKRISHNAN
• Keywords: Unexplained investment; Opportunity of being heard; Additional evidence
• Section: 37(1); 69; 37

Judgement Text

, , IN THE INCOME - TAX APPELLATE TRIBUNAL B BENCH, CHENNAI . , . , BEFORE SHRI A. MOHAN ALANKAMONY, ACCOUNTANT MEMBER & SHRI DUVVURU R L REDDY , JUDICIAL MEMBER M.P. NO. 345/MDS/2016 [IN I . T.A. NO. 228 9 /MDS/201 6 ] ASSESSMENT YEAR :20 1 2 - 1 3 M/S. CONFIDENCE TRADING COMPANY LTD., NO. 9, BOTAWALA BUILDING, 3 RD FLOOR, 11/13 HORNIMAN CIRCLE, FORT MUMBAI, MAHARASHTRA 400 001. [PAN:AABCC5629F] VS. THE ASSISTANT COMMISSIONER OF INCOME TAX, CORPORATE CIRCLE 1(2), CHENNAI 600 034. ( / APPELLANT ) ( / RESPONDENT ) / APPELLANT BY : SHRI B. RAMAKRISHNAN, C.A. / RESPONDENT BY : SHRI SUPRIYO PAL, JCIT / DATE OF HEARING : 17 . 0 3 .201 7 / DATE OF P RONOUNCEMENT : 30 . 0 5 .201 7 / O R D E R PER DUVVURU RL REDDY , JUDICIAL MEMBER : BY MEANS OF PRESENT MISCELLANEOUS PETITION, THE ASSESSEE SEEKS TO MODIFY THE ORDER PASSED BY THE TRIBUNAL IN I.T.A. NO. 2289/MDS/2012 DATED 30.11.2016 RELEVANT T O THE ASSESSMENT YEAR 2012 - 13 ON THE GROUND THAT THE ADDITIONAL EVIDENCE PRODUCED BEFORE THE LD. CIT(A) WAS IN ACCORDANCE WITH RULE 46A OF THE INCOME TAX RULES ONLY WITH REGARD TO THE ADDITION IN RESPECT OF UNEXPLAINED LOANS AND ADVANCES WHICH M.P. NO . 345 /M/ 16 2 WAS CONFIRME D BY THE PARTY VIZ., M/S. BALAJI INTERNATIONAL, WHEREAS THE SAME WAS NOT FINDING A PLACE IN THE LIST OF OUTSTANDING BALANCE GIVEN BY THE ASSESSEE. BY REFERRING TO THE MISCELLANEOUS PETITION, THE LD. COUNSEL FOR THE ASSESSEE HAS SUBMITTED THAT O UT OF THE TO TAL ADDITION OF .64,29,645/ - MADE BY THE ASSESSING OFFICER, THE ACTUAL AMOUNT CONSTITUTES TO ONLY .4,00,000/ - , WHICH WAS CONFIRMED BY SHRI VIKAS SINGHANIA [PROP. OF BALAJI INTERNATIONAL) WHICH WAS CORROBORATED THE CLOSING BALANCE OF .4,00,000/ - CLAIMED BY THE ASSESSEE IN ITS FINANCIAL STATEMENT. IT WAS FURTHER SUBMITTED THAT THE WITH REGARD TO BALANCE ADDITIONS OF .56,29,64/ - , THE ASSESSEE HAS PRODUCED CONFIRMATIONS BEFORE THE ASSESSING OFFICER DURING THE COURSE OF ASSESSMENT. HOWEVER, THE TRIBUNAL HAS REMITTED BOTH THE ISSUES WITH REGARD TO THE ADDITIONS MADE UNDER SECTION 69 AS WELL AS UNDER SECTION 37 OF THE ACT. HENCE, IT WAS PLEADED THAT THE ONLY EVIDENCE TO BE RE - EXAMINED BY THE ASSESSING OFFICER IS THE ADDITIONAL EVIDENCE TOWARDS THE ADDITION MADE UNDER SECTION 69 OF THE ACT , WHICH WAS FILED BEFORE THE LD. CIT(A) AND PRAYED THAT THE ORDER OF THE TRIBUNAL MAY BE MODIFIED. 2. ON THE OTHER HAND, THE LD. DR DID NOT OBJECT TO THE ABOVE SUBMISSIONS OF THE LD. COUNSEL FOR THE ASSESSEE. M.P. NO . 345 /M/ 16 3 3. WE HAVE CO NSIDERED THE RIVAL SUBMISSIONS. IN THE ASSESSMENT ORDER, THE ASSESSING OFFICER HAS DISALLOWED THE UNEXPLAINED INVESTMENTS UNDER SECTION 69 OF THE ACT AS WELL AS DISALLOWANCE OF EXPENSES CLAIMED BY THE ASSESSEE TOWARDS SEBI PENALTY PAID. WITHOUT OBTAINING R EMAND REPORT ON THE CONFIRMATION RECEIVED FROM MR. VIKAS SINGHANIA, PROP. OF BALAJI INTERNATIONAL RECONCILING ITS ACCOUNT AND FILED, THE LD. CIT(A) HAS CONSIDERED SUCH EVIDENCE IN VIOLATION OF RULE 46A OF THE ACT. FURTHER, WITH REGARD TO OTHER DISALLOWANC ES OF LOANS/ADVANCES IN RESPECT OF I B ENTERPRISES, KAUL ENTERPRISES, SILVER CREATIVE FABRICS PVT. LTD. AND SHRINIVAS MACHINE CRAFT PVT. LTD., THE ASSESSING OFFICER HELD THAT THE ASSESSEE FAILED TO ESTABLISH THE NATURE AND SOURCE OF INVESTMENTS. HOWEVER, B Y FILING COPIES OF ACCOUNTS CONFIRMED BY THE PARTIES BEFORE THE LD. CIT(A) , THE ASSESSEE HAS CLAIMED TO HAVE FILED CONFIRMATION FROM THE ABOVE PARTIES BEFORE THE ASSESSING OFFICER. WITH REGARD TO THE DISALLOWANCE MADE UNDER SECTION 37 OF THE ACT, THE ASSESSEE HAS CLARIFIED THAT THE CLAIM OF THE ASSESSEE WAS NOT IN THE NATURE OF PENALTY PAID TO SEBI BUT IT WAS IN THE NATURE OF DELAY CHARGES ALLOWABLE UNDER SECTION 37(1) OF THE ACT AND THE SAME WAS ACCEPTED BY THE LD. CIT(A) AND ALLOWED THE GROUND RA ISED BY THE ASSESSEE. HOWEVER, INADVERTENTLY, THE TRIBUNAL REMITTED BOTH THE DISALLOWANCES M.P. NO . 345 /M/ 16 4 MADE UNDER SECTION 69 AS WELL AS 37 OF THE ACT TO THE ASSESSING OFFICER TO RE - EXAMINE AND DECIDE THE AFRESH. UNDER THE ABOVE FACTS AND CIRCUMSTANCES, WE HEREBY MODIF Y THAT THE DISALLOWANCE MADE UNDER SECTION 69 OF THE ACT ALONE REQUIRES RE - EXAMINATION AND THE ASSESSING OFFICER REQUIRES DECIDING THE ISSUE AFRESH AFTER GIVING AN OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. 4 . IN THE RESULT, THE MP FILED BY THE ASSESS EE IS ALLOWED . ORDER PRONOUNCED ON THE 30 TH MAY , 2017 AT CHENNAI. SD/ - SD/ - (A. MOHAN ALANKAMONY ) ACCOUNTANT MEMBER ( DUVVURU RL REDDY ) JUDICIAL MEMBER CHENNAI, DATED, THE 30 . 0 5 .201 7 VM/ - / COPY TO: 1. / APPELLANT , 2. / RESPONDENT , 3. ( ) / CIT(A) , 4. / CIT , 5. / DR & 6. / GF.