DCIT CORPORATE CIRCLE 1(1), CHENNAI V. AL-AMEEN INTERNATIONAL LTD, CHENNAI

MA 96/CHNY/2020

• Counselvise Citation: [2022] 104 COUNSELVISE.COM (IT) 0837 (ITAT-CHENNAI)
• Duration Of Justice: 2 year(s) 4 month(s) 3 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 13-10-2022
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: D
• Next Hearing Date: 13-10-2022
• Assessment Year: 2015-2016
• Appeal Filed On: 09-06-2020
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Unexplained cash credit; Set aside
• Section: 68; 254(2)

Judgement Text

आयकर अपीलीय अिधकरण, ‘डी’ ᭠यायपीठ, चे᳖ई IN THE INCOME TAX APPELLATE TRIBUNAL ‘D’ BENCH, CHENNAI Įी वी द ु गा[ राव,ÛयाǓयक सदèय एवं ᮰ी जी. मंजुनाथ, लेखा सद᭭य के समᭃ BEFORE SHRI V. DURGA RAO, JUDICIAL MEMBER AND SHRI G. MANJUNATHA, ACCOUNTANT MEMBER M.A. Nos.: 96 & 97/Chny/2020 [In ITA No: 1444/Chny/2019] [In CO No.: 100/Chny/2019] िनधाᭅरण वषᭅ / Assessment Year: 2015-16 M/s. Al-Ameen International Ltd No. 165/2A, 166/2, GST Main Road, Milano Orchard, Urapakkam, Kanchipuram, Tamilnadu – 603 210. [PAN: AAFCA-7728-M] v. Dy. Commissioner of Income Tax, Corporate Circle -1(1), Chennai. (अपीलाथᱮ/Appellant) (ᮧ᭜यथᱮ/Respondent) अपीलाथᱮ कᳱ ओर से/Appellant by : Shri. N. Quadir Hoseyn, Advocate ᮧ᭜यथᱮ कᳱ ओर से/Respondent by : Shri. P. Sajit Kumar, JCIT स ु नवाई कȧ तारȣख/Date of Hearing : 14.10.2022 घोषणा कȧ तारȣख/Date of Pronouncement : 14.10.2022 आदेश /O R D E R PER G. MANJUNATHA, ACCOUNTANT MEMBER: The assessee has filed present Miscellaneous Applications u/s. 254(2) of the Income-tax Act, 1961 (hereinafter referred to as “the Act”) against the order of the Tribunal dated :-2-: MA. Nos:96 &97 /Chny/2020 24.02.2020 in ITA No. 1444/Chny/2019 & CO No. 100/Chny/2019 and relevant to assessment year 2015-16. 2. The assessee has narrated facts of its case and mistake stated to be apparent in the order dated 24.02.2020 and relevant contents of Miscellaneous Application filed by the assessee are as under: 1) By orders dated 24.02.2020, the above appeal by the department and the crossobjection of the assessee were disposed off by allowing the appeal by the department on merits and dismissing the cross-objection of the assessee, being supportive of CIT(A)'s order. 2) The effective ground of appeal raised by the department in this particular instance was as follows. "Ground No.2: The Ld. CIT(A) erred in giving relief to the assessee by deleting the addition under section 68 of the Income tax Act,1961 based on fresh evidence submitted for the first time before the CIT(A) without giving opportunity to the AO under Rule 46A of the Income tax Rules, for verifying the said claim of the assessee based on evidences filed afresh during appellate proceedings." 3) The effective argument advanced by the Departmental Representative, as recorded in para 5 of order was as follows. "Thus, she submitted that the Ld. CIT(A) had considered irrelevant material which was not produced before the Assessing Officer and without affording an opportunity of being heard to the Assessing Officer. She further submitted that the order of the Ld. CIT(A) should be set aside." 4) It was self-evident that the one and the only effective ground was that there was violation of Rule 46A and that an opportunity ought to have been given regarding additional evidence filed before CIT(A). 5) The Tribunal, however, held that the Ld. CIT(A) ought not to have deleted the addition merely based on the new material which was not placed before the Assessing Officer. In any event the ld. CIT(A) ought not to have deleted addition by placing reliance on ROC document of 1994-95 instead of financial year 2013-2014. In :-3-: MA. Nos:96 &97 /Chny/2020 the circumstances, the order of the ld. CIT(A) is set aside and we confirm the action of the Assessing Officer." 6) By doing So, the Tribunal had gone beyond the grounds of appeal and the arguments raised by the Departmental and allowed the same on merits. In point of fact, no grounds or arguments were raised on merits. Besides, the cross-objection was also dismissed since it was supportive of CIT(A)'s order. 7) According to Section 254(1), the Appellate Tribunal may, after giving both the parties to the appeal an opportunity of being heard, pass such orders thereon as it thinks fit. The word 'thereon' restricts the jurisdiction of the Tribunal to the subject-matter of the appeal. [Hukumchand Mills Ltd. v.CIT [1967] 63 ITR 232 (SC)] 8) It is submitted that in as much as a mistake has crept in, by way of disposing off the appeal on merits instead of sending it back to CIT(A) for giving an opportunity to the parties as prayed for in the grounds and arguments, and such an action on the part of the Tribunal warrants rectification by recalling the order. 9) It is further submitted that a mistake has crept in in the light of the judicial mandate of the Apex Court warranting rectification. 10) It is therefore. prayed that the Tribunal may be pleased to recall the order by sending it back to CIT(A) and dispose off this M.A. and thus render justice. 11) It is, also prayed, that the Tribunal may be pleased to recall the order passed in cross objection in the light of what is stated above and thus render justice.” 3. The Ld. AR for the assessee submitted that although the revenue has taken a ground in light of Rule 46A of the Income-tax Rules, 1962 and violation of natural justice, but the Tribunal has decided the issue on merits by holding that the assessee has failed to prove unexplained credit u/s. 68 of the Act and said findings constitute an apparent mistake on record which needs to be rectified u/s. 254(2) of the Act. In this regard, he relied upon the decision of Hon’ble Madras High :-4-: MA. Nos:96 &97 /Chny/2020 Court in the case of Ramco Industries Ltd vs DCIT (2020) 426 ITR 388 (Mad HC). 4. The Ld. DR on the other hand submitted that there is no merit in Miscellaneous Applications filed by the assessee because the Tribunal decided the issue on the basis of evidences filed by the assessee, and arguments of the Ld. DR on the issue of share premium and thus, the arguments of the Ld. Counsel for the assessee that the Tribunal has exceeded his jurisdiction is de-void of merit. 5. We have heard both the parties and considered the relevant contents of Miscellaneous Applications filed by the assessee along with ratio laid down by the Jurisdictional Madras High Court in the case of Ramco Industries Ltd vs DCIT, supra. We find that the issue before the Tribunal was addition made towards share premium u/s. 68 of the Act. The AO has made addition towards share premium u/s. 68 of the Act on the ground that the assessee could not establish genuineness of credit in the books of accounts. The Ld. CIT(A) has deleted addition made by the AO. The revenue challenged the order passed by the ld. CIT(A) in light of Rule 46A of the :-5-: MA. Nos:96 &97 /Chny/2020 Income Tax Rules, 1962. However, the Tribunal has decided the issue on merits based on the arguments of the Ld. DR present for the revenue and evidence placed on record including financial statement filed by the assessee for the assessment year 2014-15 and the same has been rebutted by the counsel for the assessee which is evident from para 5 & 6 of the Tribunal order. Therefore, we are of the considered that the findings recorded by the Tribunal in their order dated 24.02.2020 in para 7 on the basis of arguments of both the sides and evidences placed during the course of hearing, and thus, it cannot be said that there is an error in the order of the Tribunal which needs to be rectified u/s. 254(2) of the Act. As regards to case law cited by the assessee in the case of Ramco Industries Ltd vs DCIT, supra, we find that facts of said case is entirely different, where the Tribunal has relied upon the information gathered from Google study in order to have an idea about the air pollution control equipment without giving an opportunity to rebut the evidence. Under these facts, Hon’ble Madras High Court held that the Tribunal has committed an error in not providing opportunity to the assessee. But, in this case the facts recorded by the Tribunal is on the basis of arguments of both the sides and appreciation :-6-: MA. Nos:96 &97 /Chny/2020 of relevant material placed on record and thus, we are of the considered view, the assessee is unable to make out case of Prima Facie mistake apparent on record in the order of the Tribunal dated 24.02.2020 which can be rectified u/s. 254(2) of the Act. Hence, we reject arguments of the Counsel for the assessee and dismiss the Miscellaneous Applications filed by the assessee. 6. In the result, Miscellaneous Applications filed by the assessee are dismissed. Order pronounced in the court on 14 th October, 2022 at Chennai. Sd/- (वी दुगाᭅ राव) (V. DURGA RAO) ÛयाǓयकसदèय/Judicial Member Sd/- (जी. मंजुनाथ) (G. MANJUNATHA) लेखासदèय/Accountant Member चे᳖ई/Chennai, ᳰदनांक/Dated: 14 th October, 2022 JPV आदेश कᳱ ᮧितिलिप अᮕेिषत/Copy to: 1. अपीलाथᱮ/Appellant 2. ᮧ᭜यथᱮ/Respondent 3. आयकर आयुᲦ (अपील)/CIT(A) 4. आयकर आयुᲦ/CIT 5. िवभागीय ᮧितिनिध/DR 6. गाडᭅ फाईल/GF