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Income Tax Appellate Tribunal, NAGPUR BENCH, NAGPUR
Before: SHRI D. KARUNAKARA RAO, AM & SHRI VIKAS AWASTHY, JM
PER VIKAS AWASTHY, JM :
This appeal by the assessee is directed against the order of Commissioner of Income Tax (Appeals)-16, Mumbai, Camp : Nagpur dated 29-11-2013 for the assessment year 2010-11. 2 ITA No.185/NAG/2014, A.Y. 2010-11
The brief facts of the case as emanating from records are : The assessee company is engaged in the business of manufacturing of calcined dolomite, trading of coal and dolomite and transportation, etc. A search and seizure operations u/s. 132 of the Act was carried out at the business and residential premises of Shri Mukesh Gupta on 29-07-2009. During the course of search various incriminating documents and books of account were found and seized. The Assessing Officer inter alia made addition of Rs.98,83,245/- holding that the assessee is engaged in speculative transaction of sale of coal. The Assessing Officer made further addition of Rs.3.50 crores in respect of unexplained share premium and share application money.
Aggrieved against the assessment order dated 28-12-2011, the assessee filed appeal before the Commissioner of Income Tax (Appeals). The Commissioner of Income Tax (Appeals) granted part relief to the assessee by deleting some of the additions, however, the aforesaid additions made by Assessing Officer were confirmed. The assessee is in appeal before the Tribunal against the findings of Commissioner of Income Tax (Appeals) by raising following grounds : “(1) That the order of Asstt. Commissioner of Income Tax, Circle 2(3) is bad in law and wrong on facts and the learned CIT(A) erred in confirming the same. (2) That the Assessing Officer erred in law and on facts in disallowing Rs.98,83,245/ - from out of financial expenses and the learned CIT(A) was unjustified in only partly allowing the expenditure. On the facts and circumstances of the case, the financial expenses have been incurred for carrying out business activity which yielded profit and 3 ITA No.185/NAG/2014, A.Y. 2010-11
therefore allowable. The action of both the authorities below is contrary to facts available on record and therefore highly unjustified. (3) That the learned CIT(A) erred in law and on facts in holding that the regular activity of trading in coal by the assessee as speculative activity within the meaning of Section 43(5) of the Income Tax Act and thereby holding that the profit earned on such transaction and speculative profit and not business profit. On the facts and circumstances of the case the action of learned CIT(A) is highly unjustified. (4) That the learned CIT(A) erred in law and on facts in holding that the financial expenses (partly) have been incurred for speculative transactions and thereby deciding about its allowability / disallowability. On the facts and circumstances of the case, the funds have been utilised for working capital of the regular business of the assessee and the action of learned CIT(A) is arbitrary and unjustified. (5) That the Assessing Officer erred in law and on facts in making addition of Rs.3.50 Crores as undisclosed income holding that the increase in Share Capital and Share Premium and its source is not explained and the learned CIT(A) erred in upholding the action of the AO. On the facts and circumstances of the case, the explanation with evidence is duly submitted and the action of Authorities below in rejecting such explanation is highly unjustified. (6) That the learned CIT(A) erred in law and on facts in holding that the Share Capital and Share Premium received during the year is not genuine and confirming the addition u/s. 68 of the Income Tax Act. On the facts and circumstance of the case, the amount of Share Capital and Share Premium received during the year are genuine and fully explained. (7) That for any other ground with kind permission of Hon’ble members at the time of hearing of appeal.”
Shri Rajesh Loya appearing on behalf of the assessee has filed written submissions against the findings of Commissioner of Income Tax (Appeals) in upholding the additions made on account of sale of coal and share
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application money and share premium. The written submissions filed by the assessee are as under : “Ground No. 1:
(1) The action of the Assessing Officer in considering the gross profit for taxation and not allowing the expenditure for earning gross profit is illegal. The learned CIT(A) erred in law in holding that the impugned transactions are speculative transactions. The provisions of section 43(5) are not applicable due to facts of the case as there is no settlement of transaction by way of payment of difference or the transaction of purchase and sale inter-se.
Ground No. 2 to 4 :
(1) The assessee is engaged in the business of manufacturing of calcined dolomite, trading of coal, trading of dolomite, transportation etc. The transactions are supported by audited books of accounts, bills, invoices, vouchers, bank accounts etc. Complete quantitative details are maintained and reported in Tax Audit Report. The turnover of the assessee includes sale of manufactured goods in which delivery is effected and trading of goods in which delivery is not effected. (2) Trading sales (non-delivery) are supported by bills and against each bill payments is being received through banking channel. Similarly, purchases are supported by invoices and against each invoice payment is being made through Le/ bank account. The delivery is enforceable as the transactions are backed by bills. All the transactions are contracts of sales and purchase and have been disclosed to the Sales Tax Authority by filing Sales Tax Return. The quantitative details are separately maintained and reported in Tax Audit Report.
(3) There is no settlement of any transaction without making payment or by making payment of difference in rates. The transaction of purchase and sale is with different party and is settled by making! receiving complete payment. Therefore, the transactions are not speculative transactions within the meaning of Section 43(5) of the Income Tax Act. (Refer Page 7 & 8 of CIT(A) order)
The quantitative details are separately maintained. Purchase and sales are supported by invoices. The delivery against each transaction was legally enforceable by the other party. Payments were made against purchase through LC discounting or by cheque. Similarly, payments were received against sales by cheque. The purchase parties and sale parties are different in a transaction.
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(4) The issue raised by the AO in the Assessment Order that the expenses are huge, exorbitant and non-genuine have been considered by the learned CIT(A) and the same has been held as allowable expenditure. Thus, there is no dispute about the genuineness of the expenditure and that it is incurred for the purpose of business. Department is not disputing the order of learned CIT(A).
(5) The transactions of sale and purchase in which delivery is not enforced cannot be considered within the strict meaning of speculative transaction as per the provision of section 43(5) for the reason that each transaction is complete by way of payment. There is no settlement of any transaction by way of payment of difference or by way of adjustment in between the transactions inter-se. Ground No. 5 and 6:
(1) The credit on account of share premium and share application money was duly explained with the help of evidence such as Balance Sheet, addresses and PAN of the applicants before both the learned authorities. During search action and in post search proceedings also the transaction of shares was explained with the help of documentary evidences. The abovesaid documents were part of seized documents. We have been informed by the share applicants that the department had verified the transactions with them. No deficiency was communicated to the assessee in any of the submission or otherwise. (2) Following details of share transaction were furnished during search action, post search proceedings and assessment proceedings. The assessee has discharged primary onus to establish the identity and prove the creditworthiness and genuineness of share transaction.
Details of applicants with names, address, PAN, date of application, no of shares applied, nominal value and premium value
Transaction were carried out through banking channel and the details of date of receipt and cheque no were provided
Account confirmation received from applicants alongwith Balance sheet (3) No defect was pointed out by Aa in any submission made. AO has neither communicated his non satisfaction to the explanation and documents provided relating to share application money and share premium nor has he issued
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summons to the applicant parties. (4) The AO has made addition on the basis that the assessee has utilized services of various bogus entities through D.P. Sarda and other brokers to launder unaccounted money. Such details and evidence referred by the AO have never been confronted to the assessee. The very basis of making addition is arbitrary and without any sound basis for the following reasons. No transaction was carried out with Shri. D.P. Sarda or any of his concerns. No evidence was brought on record to prove the involvement of assessee in such transaction. The details and transactions mentioned in the order are related with Shri. D.P. Sarda and have no eo-relation with the assessee. The names of two companies viz. Liberal Sales Pvt Ltd and Lovely Commercial Pvt Ltd do not find place in any of the evidence seized from the premises of Shri. D.P Sarda and Gupta Group and the same are in no way connected with Shri. D.P. Sarda. The Hon'ble CIT(A) has observed that on confrontation of seized material, Shri. D.P. Sarda denied of having any connection with the same. (5) It is prerogative of the assessee company that at what value share is to be issued and the amount of premium to be charged.”
On the other hand Shri U.U. Kasar representing the Department vehemently defended the impugned order and prayed for dismissing the appeal of assessee.
We have heard the submissions made by representatives of rival sides and have perused the orders of authorities below. The ground No. 1 of the appeal is general in nature, hence, requires no adjudication.
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In ground Nos. 2 to 4 of appeal the assessee has assailed disallowance of expenditure Rs.98,83,245/-. A perusal of impugned order shows that the assessee has claimed expenditure in respect of delivery of coal. The Assessing Officer disallowed the expenditure primarily on the ground that since there was no physical delivery of coal the expenditure is not allowable. The Assessing Officer further observed that the assessee is engaged in non- delivery based speculative transaction of coal, therefore, expenditure claimed in respect of speculative transaction cannot be allowed from regular business income of the assessee. We observe that in the instant case complete facts are not clearly emerging to adjudicate this issue. We find that identical disallowance was made by the Revenue in the case of Ketan Ceramics Pvt. Ltd. Vs. ACIT in ITA No. 431/NAG/2013 for the assessment year 2010-11. The Co-ordinate Bench of Tribunal after examining the facts had restored the issue back to the file of Commissioner of Income Tax (Appeals) by observing as under :
“9. On hearing both the sides on this limited issue relating to the nature of settlement of the transactions on one side and/or the applicability of the provisions of section 43(5) of the Act on the other use of the funds or for coal based transactions, we find there is need for more information, the data relevant to the transactions to the assessee with supplier, the use of the loans towards the coal trading activities, applicability of the speculation provisions of the Income Tax Act etc. Therefore, for want of facts/ details, we find the issue raised in ground nos.2 to 4 required to be remanded to the file of the CIT(A). Thus, the ground nos. 2 to 4 are allowed for statistical purposes. General grounds are dismissed as such.”
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In the absence of complete details, we deem it appropriate to restore this issue back to the file of Commissioner of Income Tax (Appeals) for de- novo adjudication after affording reasonable opportunity of hearing to the assessee, in accordance with law. Thus, the ground Nos. 2 to 4 are allowed for statistical purpose.
In ground Nos. 5 and 6 of the appeal, the assessee has assailed addition made by Assessing Officer in respect of share application money and share premium received by the assessee from various investors. The contentions of the assessee is that the Assessing Officer has made addition merely on the presumptions that the assessee has utilized services of Shri D.P. Sarda and other brokers to launder unaccounted money, whereas, according to assessee, the assessee never entered into any transaction viz. Shri D.P. Sarda or any of his concerns. The assessee purportedly furnished details of the investors such as names, address, PAN, date of application, numbers of shares applied, nominal value of each share premium charged on shares, details of bank transaction etc., however, the same were brushed aside by Assessing Officer. We observe that the Commissioner of Income Tax (Appeals) in First Appellate proceedings have confirmed the findings of Assessing Officer without appreciating the facts and documents on record. The Commissioner of Income Tax (Appeals) while confirming the findings of Assessing Officer has merely considered peripheral issues without touching the core issue. Thus, in view of our above observations, we deem it appropriate to restore this issue back to the file of Commissioner of Income
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Tax (Appeals) for fresh adjudication after affording reasonable opportunity of hearing to the assessee, in accordance with law. Thus, the ground Nos. 5 and 6 are allowed for statistical purpose.
In the result, the appeal of assessee is allowed for statistical purpose.
Order pronounced on Wedne ay, the 29th day of May, 2019. (डी. करुणाकरा राव/D. Karunakara Rao) (ववकास अवस्थी / Vikas Awasthy) ऱेखा सदस्य / ACCOUNTANT MEMBER न्याययक सदस्य / JUDICIAL MEMBER
नागऩुर / Nagpur; ददनाांक / Dated : 29th May, 2019. RK आदेश की प्रयिलऱवऩ अग्रेवषि / Copy of the Order forwarded to : अऩीऱाथी / The Appellant. 1. प्रत्यथी / The Respondent. 2. आयकर आयुक्त (अऩीऱ) / The CIT(A) 3. आयकर आयुक्त / The CIT 4. ववभागीय प्रयतयनधध, आयकर अऩीऱीय अधधकरण, नागऩुर बेंच, 5. नागऩुर / DR, ITAT, Nagpur Bench, Nagpur. गाडड फ़ाइऱ / Guard File. 6. //सत्यावऩत प्रयत ////
आदेशानुसार / BY ORDER,
यनजी सधचव / Private Secretary, आयकर अऩीऱीय अधधकरण, नागऩुर / ITAT, Nagpur