Shambho Construction P. Ltd, Mumbai vs Department Of Income Tax

बनाम/ Circle-5(3), R. No.573, 321 Kumud Villa, V.P. Road, 5th floor, Aaykar Bhawan, Vs. 1st Floor, Rear Building, M.K. Raod, Mumbai-400004 Mumbai-400020 (राजःव /Revenue) (िनधा[ǐरती /Assessee) P.A. No.AAJCS5692Q

राजःव कȧ ओर से / Revenue by : Shri Love Kumar-DR

िनधा[ǐरती कȧ ओर से / Assessee by) Shri D.C. Jain

सुनवाई कȧ तारȣख / 13/01/2015 Date of Hearing :

घोषणा कȧ तारȣख / 13/01/2015 Date of Pronouncement : Date of Order: 14/01/2015 आदे श कȧ तारȣख / आदे श / O R D E R

PER JOGINDER SINGH (Judicial Member):

The Revenue is aggrieved by the impugned order dated 31/03/2011 of the ld. First Appellate Authority, Mumbai. The Revenue has raised the following grounds:-

"Whether on the facts and in the circumstances of the case and in law, the Ld. CIT(A) erred in :-

2 M/s Shambho Construction Pvt. Ltd.

1. deleting the addition of Rs.5 lacs made by the Assessing Officer on account of unsecured loans without appreciating that the amounts of unsecured loans were not appearing in the bank statements of the loan creditors as well as the assessee company, further, the Ld.CIT(A) admitted the fresh and additional evidences in violation of Rule 46A of the I. T. Rules, 1962 without giving an opportunity to the Assessing Officer.

2. deleting the addition of Rs.10 lacs made by the Assessing Officer on account of share capital and admitting the fresh and additional evidences in violation of Rule 46A of the I. T. Rules, 1962 without giving an opportunity to the Assessing Officer.

3. deleting the addition of RS.58,31,4001- out of Rs.70,01,4001- made by the Assessing Officer on account of unexplained cash credits without appreciating the fact that several cash deposits were found in the bank account of the assessee which was not satisfactorily explained by the assessee and admitting the fresh and additional evidences in violation of Rule 46A of the I. T. Rules, 1962 without giving an opportunity to the Assessing Officer."

2. At the time of hearing, the ld. DR, Shri Love Kumar, advanced his arguments which are identical to the ground raised by further submitting that the First Appellate Authority granted relief without appreciating the fact that the amount of unsecured loans were not appearing in the bank statement of loan creditors as well as the assessee company. It was also contended that addition of Rs.58,31,400/- was deleted out of 70,01,400/- on account of unexplained cash credit without appreciating the fact that several cash deposits were found in the bank account of the assessee which were not explained before the Assessing Officer. It was further submitted that there is violation of Rule 46A of 3 M/s Shambho Construction Pvt. Ltd.

Income Tax Rules as fresh/additional evidence was admitted by the ld. Commissioner of Income tax (Appeals) and no opportunity was granted to the Assessing Officer.

2.1. On the other hand, Shri D.C. Jain, ld. counsel for the assessee, defended the conclusion arrived at by the ld. Commissioner of Income tax (Appeals). Without going into much deliberation and the fact that necessary details were not furnished before the Assessing Officer in spite of the fact that various notices on 07/01/2009, 22/06/2009, 27/07/2009, 07/09/2009 and 12/10/2009 (along with questionnaire) were sent to the assessee and the assessee did not file the necessary details/documents/information relevant to the impugned assessment year. At the same time, the ld. Commissioner of Income tax (Appeals) admitted additional evidence, without affording opportunity to the Assessing Officer, therefore, it is violation of Rule 46A of the Rules, thus, we remand this file to the file of the ld. Assessing Officer to examine the claim of the assessee afresh and decide in accordance with law for which due opportunity of being heard with further liberty to furnish evidence, if any, in support of its claim be provided to the assessee. The mandate of the Constitution is to collect/levy due taxes, consequently, so that no grievance is caused either side, we deem it appropriate to send this file to the ld. Assessing Officer. Thus, appeal of the Revenue is allowed for statistical purposes only.

Finally, the appeal of the Revenue is allowed for statistical purposes only.

4 M/s Shambho Construction Pvt. Ltd.

This Order was pronounced in the open court in the presence of ld. representatives from both sides at the conclusion of the hearing on 13/01/2015.

आदे श कȧ घोषणा Ǒदनांकः 13/01/2015 को कȧ गई ।

Sd/- Sd/- (Sanjay Arora) (Joginder Singh) लेखा सदःय / ACCOUNTANT MEMBER Ûयाियक सदःय / JUDICIAL MEMBER

मुंबई Mumbai; Ǒदनांक Dated : 14/01/2015 f{x~{tÜ? P.S/.िन.स.

आदे श कȧ ूितिलǒप अमेǒषत/Copy षत of the Order forwarded to :

1. अपीलाथȸ / The Appellant

2. ू×यथȸ / The Respondent.

3. आयकर आयुƠ(अपील) / The CIT, Mumbai.

4. आयकर आयुƠ / CIT(A)- , Mumbai

5. ǒवभागीय ूितिनिध, आयकर अपीलीय अिधकरण, मुंबई / DR, ITAT, Mumbai

6. गाड[ फाईल / Guard file.

आदे शानुसार/ ार BY ORDER, स×याǒपत ूित //True Copy//

उप/सहायक पंजीकार (Dy./Asstt. Registrar) आयकर अपीलीय अिधकरण, अिधकरण, मुब ं ई / ITAT, Mumbai