Income Tax Appellate Tribunal - Mumbai
Ask Corporation, Mumbai vs Ito 20(1)(1), Mumbai on 26 July, 2017
IN THE INCOME TAX APPELLATE TRIBUNAL, BENCH "J", MUMBAI BEFORE SHRI RAJENDRA, ACCOUNTANT MEMBER AND SHRI PAWAN SINGH, JUDICIAL MEMBER ITA No. 3347/Mum/2012 (Assessment Year- 2005-06) M/s Ask Corporation ITO Ward-(20)(1)(4), E-5A, Crystal Plaza, New Link Mumbai.
Road, Andheri (W), Vs.
Mumbai-400053
PAN: AAMFA4763G
(Appellant) (Respondent)
ITA No. 3348/Mum/2012 (Assessment Year- 2006-07)
M/s Ask Corporation ITO Ward-(20)(1)(4),
E-5A, Crystal Plaza, New Link Mumbai.
Road, Andheri (W), Vs.
Mumbai-400053
PAN: AAMFA4763G
(Appellant) (Respondent)
ITA No. 3349/Mum/2012 (Assessment Year- 2007-08)
M/s Ask Corporation ITO Ward-(20)(1)(4),
E-5A, Crystal Plaza, New Link Mumbai.
Road, Andheri (W), Vs.
Mumbai-400053
PAN: AAMFA4763G
(Appellant) (Respondent)
ITA No. 3350/Mum/2012 (Assessment Year- 2008-09)
M/s Ask Corporation Vs. ITO Ward-(20)(1)(4),
E-5A, Crystal Plaza, New Link
ITA No.3347 to 3350/M/2012 & 2175 to 2178 /M/2015 M/s Ask Corporation Road, Andheri (W), Mumbai.
Mumbai-400053
PAN: AAMFA4763G
(Appellant) (Respondent)
ITA No. 2175/Mum/2015 (Assessment Year- 2005-06)
M/s Ask Corporation ITO Ward-(20)(1)(4),
E-5A, Crystal Plaza, New Link Mumbai.
Road, Andheri (W), Vs.
Mumbai-400053
PAN: AAMFA4763G
(Appellant) (Respondent)
ITA No. 2176/Mum/2015 (Assessment Year- 2006-07)
M/s Ask Corporation ITO Ward-(20)(1)(4),
E-5A, Crystal Plaza, New Link Mumbai.
Road, Andheri (W), Vs.
Mumbai-400053
PAN: AAMFA4763G
(Appellant) (Respondent)
ITA No. 2177/Mum/2015 (Assessment Year- 2007-08)
M/s Ask Corporation ITO Ward-(20)(1)(4),
E-5A, Crystal Plaza, New Link Mumbai.
Road, Andheri (W), Vs.
Mumbai-400053
PAN: AAMFA4763G
(Appellant) (Respondent)
2
ITA No.3347 to 3350/M/2012 & 2175 to 2178 /M/2015 M/s Ask Corporation ITA No. 2178/Mum/2015 (Assessment Year- 2008-09) M/s Ask Corporation ITO Ward-(20)(1)(4), E-5A, Crystal Plaza, New Link Mumbai.
Road, Andheri (W), Vs.
Mumbai-400053
PAN: AAMFA4763G
(Appellant) (Respondent)
Assessee by : Shri Rahul K. Hakani (AR)
Revenue by : Ms Anju Garodia (DR)
Date of hearing : 26.07.2017
Date of Pronouncement : 26.07.2017
Order Under Section 254(1) of Income Tax Act PER BENCH:
1. This set of eight appeals under section 253 of Income tax Act ('Act') are directed by assessee against the various order of Commissioner of Income-
tax (Appeals) (the CIT(A) . Out of which four appeals being ITA No. 3347 to 3350/Mum/2012 are directed against the order of ld. Commissioner of Income-tax (Appeals) -31, Mumbai, in quantum assessment for Assessment Year (AY) 2005-06 to 2008-09. The appeals ITA No. 2175 to 2178/Mum/2015 are directed against the confirmation of penalty levied under section 271(1) (c ) for same assessment years i.e. AY 2005-06 to 2008-09. As common grounds of appeal are raised in all the appeals, facts of all the appeals are also common. Thus, all the appeals were clubbed together and are decided by a consolidated order to avoid the conflicting decision. 3
ITA No.3347 to 3350/M/2012 & 2175 to 2178 /M/2015 M/s Ask Corporation
2. Brief facts of the cases are that the assessee-firm is engaged in the business of developer and clearance and rehabilitation of SRA Schemes. A survey u/s 133A was carried out in the premises of assessee on 16.02.2009. In the survey certain incriminating documents were found and were seized. It was further noticed that assessee has not filed return of income for AY 2005-06. Therefore, notice u/s 148 r.w.s. 147 of the Act was served on 31.01.2010, in response to the notice under section 148 , the assessee filed return of income for AY 2005-06 on 13.04.2010. The assessee not disputed the re-opening of the assessment. The assessment for AY 2005-06 was completed u/s 143(3) r.w.s. 147 of the Act on 27.12.2010. The Assessing Officer (AO) while framing the assessment made the addition of Rs. 56,83,894/- u/s 68 of the Act. On appeal before the ld. CIT(A), the addition was confirmed. For AY 2006-07, the assessment was re-opened vide notice dated 29.07.2009 u/s 148 of the Act. The assessment was completed u/s 143(3) r.w.s. 147 of the Act on 27.12.2010. While framing the assessment, the AO made the addition u/s 68 of the Act for Rs. 5,057,5,000/- u/s 68 of the Act. On appeal before the ld. CIT(A), the addition was sustained. For AY 2007-08, the assessment was re-opened on 28.03.2010 u/s 148 of the Act. The assessment was completed under section 143(3) rws 147 on 27.12.2010 . The assessing officer made the addition of Rs. 3, 16,50,000/- u/s 68 of the Act. However, on appeal before the ld. CIT(A), the addition on account of 4 ITA No.3347 to 3350/M/2012 & 2175 to 2178 /M/2015 M/s Ask Corporation unexplained cash credit to the extent of Rs. 1,44,85,000/- was sustained and the remaining amount to the extent of Rs. 2,83,31,089/- was treated as unexplained expenditure u/s 69C of the Act by giving partial relief of deleting of Rs. 33,18,911/-. For AY 2008-09, the assessee filed return of income on 16.07.2009 declaring nil income. The assessment was completed u/s 143(3) of the Act on 27.12.2010. The AO while framing the assessment order made the addition u/s 68 of the Act of Rs. 91,05,000/-. On appeal before the ld. CIT(A), the ld. CIT(A) enhanced the addition by a sum of Rs. 53,04,000/- , thereby making u/s 68 to Rs. 1,44,09,000/-.Being aggrieved by the different orders of ld. CIT(A) for different AY, the assessee filed the present appeal before us.
3. We have heard the ld. Authorized Representative (AR) of the assessee and ld. Departmental Representative (DR) for the Revenue and perused the material available on record. The ld. AR of the assessee argued that the assessee has filed an application under Rule 29 of Income Tax Rules for admission of additional evidence. The additional evidence is filed in the form of Paper Book (PB) No.III. It was further submitted that the assessee has filed consolidated PB for all AYs. In the application for admitting the additional evidences, it is pleaded that the additions were made on the basis of entries in the cash book found during the survey. On the basis of entries in the cash book the assessee filed details and working of the certain entries 5 ITA No.3347 to 3350/M/2012 & 2175 to 2178 /M/2015 M/s Ask Corporation before the ld CIT(A). The ld CIT(A) not disclosed to the assessee that the evidences filed before him is not sufficient, though the ld CIT(A) in its order observed that the assessee failed to file confirmations to substantiate its contentions. The ld AR for the assessee argued that the additional documents consist of the affidavit and confirmation of Accountants (page No. 72 to 110) and working of Peak Credit for AY 2005-06 to 2008-09 (page No. 111 to 128). It was further argued that the assessee prepared the Working of Peak Credit during the first; however, the same was not made a part of record as the same was not called from the assessee. It was further argued that the documents required to be filed on record goes to the root of the issue. It was prayed that the additional evidence filed before the Tribunal has a direct bearing on the grounds of appeal involved in the present appeal and may be admitted under Rule 29 of the Income-tax Rules. In support of the submission, the ld. AR of the assessee relied upon the decision of Hon'ble Bombay High Court in Prabhawati Vs. CIT 231 ITR 1 (Bom.). On the other hand, ld. DR for the Revenue strongly opposed the admission of additional evidence. It was argued that the assessee has not placed all these documents before the lower authorities. It was argued that the assessee has not shown the sufficient cause that if working of Peak Credit, if prepared during the first appellate stage, as to why the same was not filed before the authorities concern. The ld. DR for the Revenue further argued that the 6 ITA No.3347 to 3350/M/2012 & 2175 to 2178 /M/2015 M/s Ask Corporation additional evidence filed by assessee is propounded one and may not be admitted at this stage.
4. We have considered the rival submission of the parties and have gone through the additional evidence filed in the form of Paper Book-III. The documents consisting of affidavit of Mr. Afzal Baltiwala, who was looking after the accounts of the assessee during the relevant period. The affidavit and confirmation of Vijay Pawar and Friends (Page 74 to 81) who is partner of Friends Builder and was having Joint-Venture with the assessee-firm. We have also seen the contents of affidavit of Mr. Kamal Jadhwani, Mr. Ayub S. Panjwani, Mr. Yusuf Maqsood Khan, Mr. Rajesh Thakkar, Mr. Abdul Rashid, Mr. Ram Swaroop, Mr. Yunus Soratiya and Mr. Shantaram Mane. In all the affidavits, the deponent has stated that the transaction recorded in the cash-book pertains to them. The deponents have field confirmation along with the account. As per our considered view, the additional evidence filed by the assessee has a direct bearing on the issue involved in the present appeal and goes to the root of the same. Considering the relevancy and admissibility of the documents and the Principal of Natural Justice, we admit the additional evidence furnished by assessee before us. Since, the assessee has filed the additional evidence for the first time before us, in all fairness we deem it appropriate to remand the case to the file of AO to examine all the evidences and passed the order afresh in 7 ITA No.3347 to 3350/M/2012 & 2175 to 2178 /M/2015 M/s Ask Corporation accordance with law. We may make it clear that all other issues are kept open for consideration of the AO in accordance with law. Needles to say that AO shall grant sufficient and adequate opportunity to the assessee before passing the order in accordance with law after considering the documentary evidences furnished by the assessee. The assessee is also directed to fully co-operate and provide necessary information and document to the AO and not to seek adjournment without any valid reason. With these directions, the appeal for AY 2005-06 to 2008-09 in quantum assessment are allowed for statistical purpose.
5. ITA No. 2175 to 2178/Mum/2015. In all these appeals are directed against the confirmation of penalty order levied u/s 171(1)(c) of the Act. As we have already set-aside the order of assessing officer in quantum assessment in all the cases and restore the matter to the file of assessing officer to decide the issue afresh . Thus, in our considered view, no penalty orders survive thereafter. However, the AO is at liberty to initiate the penalty u/s 271(1)(c) of the Act afresh in case the additions are sustained, in accordance with law.
6. In the result, ITA No. 3347 to 3350/Mum/2012 are allowed for statistical purpose and ITA No. 2175 to 2178/Mum/2015 are allowed.
Order pronounced in the open court on 26th day of July 2017.
Sd/- Sd/-
(RAJENDRA) (PAWAN SINGH)
ACCOUNTANT MEMBER JUDICIAL MEMBER
Mumbai; Dated 26/07/2017
8
ITA No.3347 to 3350/M/2012 & 2175 to 2178 /M/2015 M/s Ask Corporation S.K.PS Copy of the Order forwarded to :
1. The Appellant
2. The Respondent.
3. The CIT(A), Mumbai.
4. CIT BY ORDER,
5. DR, ITAT, Mumbai
6. Guard file. या पत त //True Copy/ (Asstt.Registrar) ITAT, Mumbai 9