M/S GOLDWAY ENTERPRISES PVT. LTD.,JAIPUR vs. INCOME TAX OFFICER, WARD-4-4, JAIPUR

PER: SANDEEP GOSAIN, J.M. The present appeal has been filed by the assessee against the order of CIT(A), Ajmer dated 11.03.2019 for the assessment year 2009-10 raising therein following grounds of appeal. (i) In the facts and circumstances of the case the ld. CIT(A) has erred in confirming the findings of AO in passing the M/s. Goldway Enterprises (P) Ltd vs ITO Ward- 4(4), Jaipur

orde3r u/s 143(3)/147 of the I.T. Act, 1961 which is abinitio void being in violation of the principles of equity and justice. (ii) In the facts and circumstances of the case the ld. CIT(A) has erred in confirming the findings of the AO in passing the order u/s 143(3)/147 of the I.T. Act, 1961 which is bad in law as the same has been passed without furnishing reasons for issuing notice u/s 148 of the I.T. Act, 1961. (iii) In the facts and circumstances of the case the ld. CIT(A) has erred in confirming the addition of Rs. 20,00,000/- without discussing the nature of addition. As the AO has made the addition u/s 56(1) of the I.T. Act, 1961 by holding that share capital and premium of Rs. 1,20,00,00,000/- is assessable as income of the assessee u/s 56(1) of the I.T. Act, 1961. (iv) In the facts and circumstances of the case the ld. CIT(A) has erred in confirming the finding of AO for applying the provision of section 56(1) of the I.T. Act, 1961 treating the share capital and premium as income of the assessee.’’

our attention to the application filed by the assessee under Rule 29of the Income Tax (Appellate Tribunal) Rules.1963 by submitting that during

the course of assessment proceedings as well as appellate proceedings,

the assessee could not submit necessary documents and other evidences

in support of creditworthiness and genuineness of the share applicants /

share application money and payments. It was also submitted that documents placed in paper book at Serial No. 1 to 6 containing pages 1 to 30 could not be submitted before the lower authorities as the company

had closed its business and were not traceable. The details of additional

evidences are as under:- (i) Ledger account/confirmation of M/s Dhanvarsha Motor Finance Pvt Ltd. (ii) Bank account statement of M/s Dhanvarsha Motor Finance Pvt Ltd reflecting the transactions.

(iii) Copy of acknowledgement of return and audit report along with all annexure of M/s Dhanvarsha Motor Finance Pvt Ltd for AY 2009-10 (iv) Copy of acknowledgement of return of M/s Link Distributors Pvt Ltd for AY 2009-10 (v) Ledger account/confirmation of M/s Link Distributors Pvt Ltd. (vi) Bank account statement of M/s Link Distributors

The ld.AR of the assessee further submitted that when technicalities

are pitched against the substantive discharge of justice, the later has to prevail, in a case where the bona fides are not in doubt (Maruti Civil Works Vs. ITO [2011] 136 TTJ 448 [Pune]). It is further

submitted that all the judicial institutions —the Hon'ble ITAT being one of them — are respected not on account of its power to legalize

injustice on technical grounds but because these are capable of removing injustice. The assessee is only furnishing supporting

evidences only. These are not cooked up or manipulated in any way.

In view of this the Hon'ble ITAT is requested to admit the additional ITR 383 (SC) :- Tribunal has jurisdiction to examine a question of law which arises from the facts as found by the authorities below and having a bearing on the tax liability of the assessee, notwithstanding the fact that same was not raised before the lower authorities.

(ii) CIT Vs. Raoraja Hanut Singh 117 Taxman 613 / 252 ITR 0528 : {Raj)”The position is that the Tribunal can admit the additional evidence if it requires it to enable it to pass orders.

(iii) Electra (Jaipur) Pvt Ltd. vs. IAC 26 ITD 236: If evidence produced by assessee is genuine, reliable and proves assessee's case than assessee should not be denied opportunity of it being produced even if he first time produces same before appellate authority.

(iv) Smt. Prabhavati S. Shah Vs. CIT 231 ITR 1 (Bom.): :Production of additional evidence — assessee taking loans from two creditors — ITO treating loans as income from undisclosed sources as summons could not be served on creditors — Assessee wanting to prove genuineness of loan by relying on fact that amount borrowed and repaid by cheques. Assessee producing Photostat copies of cheques and certificate from Bank before AAC . AAC refusing to admit additional evidence. AAC should have considered evidence produced by assessee regarding loan.

(v) CIT Vs. Gani Bhai Wahab Bhai 232 ITR 900 (MP): There is no prohibition for taking additional evidence at the appellate stage, the only condition being that the Department should not be prejudiced and should be given reasonable opportunity to rebut this additional evidence. In this case, no such request was made by the representative of the Department whether they disputed this certificate or not. Therefore, there is no illegality committed by the Tribunal which accepted the certificate of 46 per cent of the yield. In this view of the matter, the additional evidence entertained by the Tribunal cannot be said to be bad.

(vi) Smt. Surinder Kaur Vs. ITO (2008) 118 TTJ 710 (Luck):- Where additional evidence sought to be produced before Tribunal was a certificate relating to assessee's claim for deduction of a sum and if was relevant to decide claim of assessee, same was to be admitted for substantial cause and to enable tribunal to pass appropriate order in matter.

(vii) Mascon Global Ltd. Vs. Assistant Commissioner of Income Tax (2010) 37 SOT 202 (Chennai): Rule 29 permit the Tribunal to admit the additional evidence for any substantial cause.

We have heard the rival contentions and perused the materials

available on record. From the contents of the application, we noticed that the assessee wanted to place on record documents in the shape of bank

account statement, copy of acknowledgement of return, ledger accounts

and confirmation etc. from two parties i.e. M/s. Dhanvarsha Motor

Finance Pvt. Ltd and M/s. Link Distributors Pvt Ltd. As per facts, initially

the addition of Rs. 1.20 crores were made by the AO. However, the ld.

CIT(A) restricted the addition to Rs. 20.00 lacs as the assessee could not prove the creditworthiness of these two parties. Therefore, in these

circumstances of the case, these documents are necessary to adjudicate

upon the controversy arose between the parties and thus in our view no prejudice shall be caused to Revenue in case the application filed by the assessee is allowed and the documents raised at Serial No. 1 to 6 are admitted as additional evidence. We order accordingly.

evidence of the assessee by admitting the documents placed at Serial No.

1 to 6 in the paper book which requires verification. Therefore, we restore

this issue to the file of the AO to verify the following documents and also to pass afresh assessment order by providing adequate opportunity of being heard to the assessee.

‘’1. Ledger account/ confirmation of M/s. Dhanvarsha

Thus the appeal of the assessee is allowed for Statistical purpose 3.0 In the result, the appeal filed by the assessee is allowed for Statistical purposes with no order as to cost.

Order pronounced in the open court on 03/10/2019. ¼lanhi xkslkbZ½ ¼foØe flag ;kno½ (Sandeep Gosain) (Vikram Singh Yadav) ys[kk lnL;@Accountant Member U;kf;d lnL;@Judicial Member

Tk;iqj@Jaipur fnukad@Dated:- 03 /10/2019. *Mishra

आदेश की प्रतिलिपि अग्रेf’ात@ब्वचल वf जीम वतकमत वितूंतकमक जवरू 1.vihykFkhZ@The Appellant- M/s. Goldway Enterprises (P) Ltd., Jaipur 2.izR;FkhZ@ The Respondent-The ITO, Ward- 4 (4) 3. vk;dj vk;qDr@ CIT vk;dj vk;qDr@ CIT(A) 4. 4. विभागीय प्रतिनिधि] आयकर अपीलीय अधिकरण] जयपुर@क्त्ए प्ज्Aज्ए Jंपचनत. xkMZ QkbZy@ Guard File {ITA No. 561/JP/2019} 5. vkns'kkuqlkj@ By order, सहायक पंजीकार@Aेेजज. त्महपेजतंत

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