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Income Tax Appellate Tribunal, ‘A’ BENCH, CHENNAI
Before: SHRI MANOJ KUMAR AGGARWAL & SHRI SONJOY SARMA
आदेश /O R D E R
PER SONJOY SARMA, JM:
This appeal by the Assessee is arising out of the order of the Commissioner of Income Tax (Appeals)-3, Chennai vide order No.ITA No.81/17-18/A-3, dated 30.08.2018. The assessment was framed by the Assistant Commissioner of Income Tax, Corporate Circle-5(2), Chennai for the Assessment Year 2015 – 2016 u/s.143(3) of the Income
:: 2 :: I.T.A No.:3130/CHNY/2018 Tax Act, 1961 (hereinafter “the Act”), vide order dated 30.12.2017.
At the outset, it is noticed that the appeal is time bared by limitation by 18 days and the Assessee has filed a condonation petition stating the reason that the delay in filing the appeal was not willful. The delay in filing the appeal before the Tribunal was due to the Appellant had submitted Form No.36 [Old & New] in which the date was wrongly mentioned inadvertently and due to which the circumstances was beyond the control of the Assessee to communicate well in time and hence the delay and requested the Bench to condone the delay. On going through the affidavit filed by the Assessee, we noted that the reason stated by the Assessee seems reasonable. Hence, we condone the delay of 18 days and admit the appeal for adjudication on merits.
:: 3 :: I.T.A No.:3130/CHNY/2018
The Assessee has raised the following Grounds of appeal that are as under: [1] The order of the Commissioner of Income Tax (Appeals)- 3, Chennai dated 30.08.2018 in for the above mentioned Assessment Year is contrary to law, facts and in the circumstances of the case. [2] The Commissioner of Income Tax (Appeals) erred in sustaining the addition of Rs.8,69,471/- representing the sundry credit in the name of M/s. BCD Travel India Private Limited on the application of Section 68 of the Act in the computation of taxable total income without assigning proper reasons and justification. [3] The Commissioner of Income Tax (Appeals) failed to appreciate that the provisions of Section 68 of the Act have no application to the facts of the case and further ought to have appreciated that the discharge of the initial onus cast upon the Appellant thus vitiating his action in sustaining the addition in the computation of taxable total income. [4] The Commissioner of Income Tax (Appeals) failed to appreciate that the rejection of the explanation offered by the Appellant supported by material evidences to question the correctness of the additions made u/s.68 of the Act in the computation of taxable total income was wrong, erroneous, unjustified, incorrect and not sustainable in law. [5] The Commissioner of Income Tax (Appeals) went wrong in recording the findings in this regard in para 4.7 of the impugned order without assigning proper reasons and justification. [6] The Assistant Commissioner of Income Tax failed to appreciate that there was no proper opportunity given before passing of the impugned order and any order passed in violation of the principles of natural justice would be nullity in law.
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At the time of hearing the appellant assessee submitted vide an application letter dated 30.06.2021 additional grounds of appeal for consideration of this Tribunal and due to inadvertent mistake this grounds could not be raised at the time of filing of this appeal. The additional grounds raised by the assessee are as under: “01. The CIT (Appeals) failed to appreciate that the sum of Rs. 8,69,471/being the amount payable to M/s BCD Travel India P Ltd was written off in the assessment year 2016-17 and the same was offered to tax while computing the taxable total income for the said assessment year thereby amounting to double taxation of the same sum.
02. The CIT(Appeals) failed to appreciate that double taxation would go against the charging provisions of the Act and hence ought to have appreciated that having not examined the subsequent assessment year's return of income independently, the mechanical addition should fall to the ground.”
4. The Assessee company is engaged in the business of Software Development Company and provider of Software-led IT solutions and had filed its original return of income on 28.09.2015 admitting a total income as ‘Nil’ after adjusting brought forward losses of Rs.97,60,390/-. The case was selected for scrutiny under the Computer Assisted Scrutiny Selection [CASS] and a notice u/s.143(2) of the :: 5 :: I.T.A No.:3130/CHNY/2018 Act dated 25.05.2016 was issued and served to the Assessee. Also, a notice u/s.142(1) of the Act along with a questionnaire was issued to the Assessee on 09.02.2017. In response to the above notices, the Authorized Representative of the Assessee Company, Shri V. Sriraman, Director appeared from time to time and submitted the details sought for in the notice u/s.142(1) of the Act and the case was heard and the AO made addition under the following heads: Loan waiver : 90,22,42,054/- Sundry Creditor : 8,69,471/-
5. Dissatisfied with above order assessee preferred an appeal before the Ld. CIT(A) where appeal of the assessee was partly allowed.
Aggrieved by the order of the Ld. CIT(A), appellant assessee preferred an appeal before this Tribunal
At the time of hearing, the Ld. AR at the outset submitted that alleged sum of addition under the head of :: 6 :: I.T.A No.:3130/CHNY/2018 sundry creditor Rs. 8,69,471/- being amount payable to M/s. BCD Travel India Pvt Ltd was written off by the appellant assessee in the assessment year 2016-17 and same was offered to tax while computing the taxable income for the said assessment year and thereby it would be amounting to double taxation of the said sum and ld. CIT(A) failed to appreciate the fact that double taxation would go against the charging provision of the Act and having not examined the subsequent assessment years return of income independently, the mechanical addition shall fall to the ground and accordingly alleged addition made by AO may be deleted.
On the other hand ld. DR relied on the order(s) passed by the authority below.
We, after hearing the rival submissions of the party and material available on record, we find force in the contention of the appellant/assessee. However, in the interest of justice remand back to the file of AO to decide whole issue
:: 7 :: I.T.A No.:3130/CHNY/2018 raised before us to examine the correctness of the fact that the sum of Rs. 8,69,471/- being the amount payable to M/s. BCD Travels India Pvt Ltd was written off in the subsequent AY i.e., 2016-17 by the appellant assessee and it had actually offered to tax, if it is to do so that event the addition of Rs. 8,69,471/- made by the AO required to be deleted for the assessment year in question, as the double taxation would goes against the charging provisions of the Act. We direct the AO to pass a speaking order as we direct in preceding para after due verification of the fact.
Further, we also direct the asssessee to remain vigilant in receiving notices of hearing and should not request for any adjournment unless otherwise required for reasonable cause and should file all necessary documents so as to facilitate the AO for passing speaking order, needless to mention here that while doing so assessee should be given proper opportunity of being heard as such appeal is allowed for statistical purposes.
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In the result, appeal filed by the assessee is allowed for statistical purposes.
Order pronounced in the court on 26th August, 2022 at Chennai.