The ITO, Ward-8(4), Ahmedabad V. Zen Industries Pvt.Ltd., Ahmedabad

MA 37/AHD/2013

• Counselvise Citation: [2013] 124 COUNSELVISE.COM (IT) 0389 (ITAT-AHMEDABAD)
• Duration Of Justice: 4 month(s) 24 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 31-07-2013
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: C
• Next Hearing Date: 05-07-2013
• Assessment Year: 2008-2009
• Appeal Filed On: 07-03-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: P L KUREEL
• Assessee Lawyers: S N SOPARKAR
• Keywords: Additional evidence; Deemed dividend

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH, AHMEDABAD BEFORE SHRI A.K. GARODIA, ACCOUNTANT MEMBER AND SHR I KUL BHARAT, JUDICIAL MEMBER M.A. NO.37/AHD/2013 (ARISING OUT OF ITA NO. 26/AHD/2012) A.Y: 2008-09 DCIT (OSD), CIRCLE-8, AHMEDABAD VS ZEN INDUSTRIES PVT. LTD. (APPELLANT) (RESPONDENT) REVENUE BY : SHRI P.L. KUREEL, ASSESSEE(S) BY : SHRI S.N. SOPARKAR / // / DATE OF HEARING : 05/07/2013 / DATE OF PRONOUNCEMENT: 31/07/2013 / O R D E R PER SHRI A.K. GARODIA, ACCOUNTANT MEMBER : THIS M.A. IS FILED BY THE REVENUE. IN THIS M.A., TH E CLAIM OF THE REVENUE IS THAT GROUND NO.2 OF THE REVENUES APPEAL REGARDING VIOLATION OF RULE 46A WAS NOT DECIDED BY THE TRIBUNAL IN THE IMPUGNED ORDER AND, THEREFORE, IT IS AN APPARENT MISTAKE IN THIS TRIBUN AL ORDER, WHICH SHOULD BE RECTIFIED. 2. IN COURSE OF HEARING BEFORE US, LEARNED D.R. FOR THE REVENUE REITERATED THE SAME CONTENTIONS. WE FIND THAT AS PE R THE IMPUGNED ORDER, IT IS NOTED BY THE TRIBUNAL THAT GROUND NO.2 WAS RA ISED BY THE REVENUE, AS PER WHICH, IT WAS THE CLAIM OF THE REVENUE THAT LEA RNED CIT(A) ERRED IN LAW AND ON FACTS IN ADMITTING ADDITIONAL EVIDENCE I N VIOLATION OF RULE 46A BUT THIS GROUND IS LEFT TO BE DECIDED IN THE IM PUGNED TRIBUNAL ORDER AND HENCE, WE DECIDE THE SAME NOW. MA N O.37/AHD/2013 (IN ITA NO.26/AHD/2012) DCIT VS. ZEN INDUSTRIES A.Y. 2008-09 - 2 - 3. WE FIND THAT AT PAGES 19 AND 20 OF HIS ORDER, LE ARNED CIT(A) HAS DECIDED THIS ISSUE REGARDING ADMISSION OF ADDITIONA L EVIDENCE AND HENCE THE RELEVANT PARAGRAPH OF THE ORDER OF LEARNED CIT( A) IS REPRODUCED BELOW:- AFTER CONSIDERING VARIOUS REPLIES/SUBMISSION FILED BY THE APPELLANT DURING THE COURSE OF APPELLATE PROCEEDINGS, IT IS NOTED TH AT THE APPELLANT HAS RAISED THE ISSUE REGARDING INTER-CORPORATE DEPOSITS FROM T HE VERY FIRST SUBMISSION GIVEN BY HIM. IT HAS STATED THAT THE AMOUNT ADVANCE D BY ZEN TOBACCO PVT. LTD. WAS AN INTER-CORPORATE DEPOSIT. IN THE SUBSEQUENT S UBMISSION ALSO, THE APPELLANT HAS MADE AS SIMILAR CLAIM. THE ADDITIONAL EVIDENCE THAT HAS BEEN SUBMITTED BY THE APPELLANT VIDE HIS LETTER DATED 23 /08/2011 IS A FURTHER EVIDENCE WHICH WAS AVAILABLE WITH THE COMPANY SINCE THE CASE WAS PICKED UP FOR SCRUTINY BUT IT WAS NOT POINTED OUT IN SUPPORT OF HIS CLAIM REGARDING INTER- CORPORATE DEPOSIT. THE INFORMATION WAS ALREADY AVAI LABLE IN THE RECORDS OF THE APPELLANT AS THE AMOUNT ACCEPTED FROM ZEN TOBACCO L IMITED WAS ALREADY THERE. THE CONTENTION OF THE A.O. THAT THE ISSUE WA S NOT RAISED EARLIER IS NOT ACCEPTABLE AS THE ISSUE RAISED BY THE APPELLANT IS NOT RELATED TO ANY NEW FACT AND IS VERY MUCH RELEVANT FOR DECIDING THE ISSUE OF DEEMED DIVIDEND, ANY LEGAL GROUND RAISED BY THE APPELLANT HAS TO BE CONSIDERED FOR ADJUDICATION, EVEN IF, IT HAS NOT BEEN RAISED AT EARLIER STAGE. IN ANY CAS E, THE AO HAS BEEN GIVEN SUFFICIENT OPPORTUNITY TO OFFER THE COMMENTS REGARD ING THE EVIDENCE SUBMITTED BY THE APPELLANT AT THIS STAGE. CONSIDERING ALL THE FACTS AND CIRCUMSTANCES, THE ADDITIONAL EVIDENCE SUBMITTED BY THE APPELLANT IS A DMITTED AND IS CONSIDERED FOR THE DECISION OF APPEAL. 4. FROM THE ABOVE PARAGRAPH OF THE ORDER OF LEARNED CIT(A), WE FIND THAT THIS ASPECT WAS DECIDED BY THE LEARNED CIT(A) ON THIS BASIS THAT ANY LEGAL GROUND RAISED BY THE ASSESSEE HAS TO BE CONSI DERED FOR ADJUDICATION, EVEN IF, IT HAD NOT BEEN RAISED AT EARLIER STAGE. H E HAS ALSO GIVEN A FINDING THAT THE AO HAS BEEN GIVEN SUFFICIENT OPPORTUNITY T O OFFER THE COMMENTS REGARDING THE EVIDENCE SUBMITTED BY THE ASSESSEE BE FORE LEARNED CIT(A). IT IS AN ADMITTED FACTUAL POSITION THAT REMAND REPO RT WAS OBTAINED BY LEARNED CIT(A) FROM THE AO. THE SO CALLED ADDITIONA L EVIDENCE WAS SUBMITTED IN SUPPORT OF THIS LEGAL CLAIM THAT THE A MOUNT ADVANCED BY ZEN TOBACCO PVT. LTD WAS AN INTER CORPORATE DEPOSIT (IC D). MA N O.37/AHD/2013 (IN ITA NO.26/AHD/2012) DCIT VS. ZEN INDUSTRIES A.Y. 2008-09 - 3 - 5. CONSIDERING ALL THESE FACTS, WE ARE OF THE CONSI DERED OPINION THAT IN THE FACTS OF THE PRESENT CASE, THERE IS NO CONTRAVE NTION OF RULE 46A BY THE LEARNED CIT(A) IN ADMITTING THE ADDITIONAL EVIDENCE SUBMITTED BY THE ASSESSEE BEFORE LEARNED CIT(A) AND HENCE, GROUND NO .2 OF THE REVENUES APPEAL IS ALSO REJECTED. THIS WILL NOT MAKE ANY DIF FERENCE IN THE RESULT OF THE APPEAL WHICH HAS BEEN DISMISSED AS PER THE IMPU GNED TRIBUNAL ORDER. 6. IN THE RESULT, THE M.A. OF THE REVENUE STANDS DI SPOSED OF IN ABOVE TERMS WITHOUT AFFECTING THE RESULT OF THE APPEAL AS PER THE IMPUGNED TRIBUNAL ORDER. SD/- SD/- (KUL BHARAT) (A.K. GARODIA) JUDICIAL MEMBER A CCOUNTANT MEMBER AHMEDABAD; DATED 31/07/2013 PRABHAT KR. KESARWANI, SR. P.S. TRUE COPY / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. !' / THE RESPONDENT. 3. #$#% ' '& / CONCERNED CIT 4. ' '&() / THE CIT(A)-III, AHMEDABAD 5. )*' %, ' ' % , ,-$ / DR, ITAT, AHMEDABAD 6. *./ 0 / GUARD FILE. / BY ORDER, 1 11 1/ // /,' #2 ,' #2 ,' #2 ,' #2 ( DY./ASSTT.REGISTRAR) ' ' % ' ' % ' ' % ' ' % , , , , ,-$ ,-$ ,-$ ,-$ / ITAT, AHMEDABAD