MIGHTY CONSTRUCTIONS (P) LTD,MUMBAI vs. DCIT CIR 9(2), MUMBAI

आदेश / O R D E R Per Joginder Singh (Judicial Member) The assessee is aggrieved by the impugned order dated 13/08/2014 of the Ld. First Appellate Authority, Mumbai. The assessee has filed revised grounds of appeal challenging the confirmation of addition of Rs.6,42,00,000/- as undisclosed income, addition of Rs.58,818/-, on the basis of 26AS and denial of deduction claimed u/s 80G of the Act amounting to Rs.55,500/-.

2. However, during hearing, before us, the ld. counsel for the assessee, Dr. K. Shivaram, Sr. Advocate along with Ms. Neelam Jadhav, argued additional ground, raised before us. It was contended that the issue being question of law and goes to the root of the matter, the assessee may be allowed to take up the legal ground. Reliance was placed upon the decision in Jute Corporation of India vs CIT (1991) 187 ITR 688 (SC) and Ahmedabad Electricity Co. Ltd. vs CIT (1993) 199 ITR 351 (Bom.). The ld. counsel took us to various paras of the impugned order and more specifically para 3.9 (page-8) of the impugned order by contending that the finding recorded by the First Appellate Authority is contrary to facts. Our attention was also invited to para 5.16 of the assessment order by explaining that there was lack of opportunity by the Ld. Commissioner of Income Tax (Appeal). Our attention was M/s Mighty Construction Pvt. Ltd.

also invited to paged 188, 196 of the paper book by contending that the assessee is still ready to produce the parties and there is no basis for the addition on the bases of peak. The crux of the argument is that the explanation adduced by the assessee was not considered by Ld. Assessing Officer/CIT(A). The ld. counsel for the assessee relied upon the decision in the case of COMMISSIONER OF INCOME TAX vs. S. KHADER KHAN SON (2008) 214 CTR 0589: (2008) 300 ITR 0157 (Madras), and COMMISSIONER OF INCOME TAX vs. S. KHADER KHAN SON (2012) 254 CTR 0228 : (2012) 79 DTR 0184 (SC) : (2013) 352 ITR 0480 (SC) : (2012) 210 TAXMAN 0248 (SC), wherein, appeal of the Revenue was dismissed.

2.1. On the other hand, the ld. DR, Shri Suman Kumar, contended that this ground was not raised before the Ld. Commissioner of Income Tax (Appeal), therefore, the assessee may not be permitted to agitate the same before this Tribunal. It was asserted that the explanation submitted before this Tribunal, by the assessee, was also taken before the Ld. Commissioner of Income Tax (Appeal) and after going through the same, a particular view was taken. It was contended that the assessee moved application u/s 144A of the Act before the Ld. Addl. CIT, hearing was provided to the assessee, report from the Assessing Officer was sought and the statement recorded in 2010 was neither denied by the assessee to be recorded under duress nor it was claimed that the papers were not M/s Mighty Construction Pvt. Ltd. recovered from the premises of the assessee. The ld. DR also contended that copies of impounded papers were provided to the assessee, which were never contradicted by the assessee. It was asserted that the assessee is merely trying to defer the proceedings as opportunities were provided to the assessee by the Ld. Assessing Officer/Ld. Commissioner of Income Tax (Appeal).

2.2. We have considered the rival submissions and perused the material available on record. Before us, the assessee has contended that principle of natural justice has been violated as reasonable opportunity of being heard was not provided to the assessee to explain the documents and blindly additions were made by the Assessing Officer. It was contended that whether addition can be made, merely on the basis of statement, recorded u/s 133A of the Act, during survey proceedings, in respect of documents found during the course of survey. It was also explained that even the Ld. Commissioner of Income Tax (Appeal) failed to consider the factual matrix that no addition was made by the Assessing Officer on the basis of documents, found during survey, and the explanation of the assessee was ignored. The crux of the argument is that whether addition can be made merely on the basis of statement recorded during course of survey u/s 133A of the Act. Considering the factual matrix, arguments from both sides and the cases relied upon both sides, we are of the view that no persons should be condemned unheard. In para-

M/s Mighty Construction Pvt. Ltd.

3.9 of the impugned order, there is argument by the assessee that addition has been made merely on the basis o statement, though denied by the Revenue. There is observation in the order itself that on the basis of facts appearing in Annexure-1A, containing 66 pages and allegedly accepted by the Managing Director of the assessee firm as financial transaction, therefore, it was admitted of undisclosed income/investment to the extent of Rs.6.5 crores. The Ld. Commissioner of Income Tax (Appeal) affirmed the stand of the Assessing Officer on the ground that admission of facts by the assessee through its Managing Director is substantive piece of evidence for making the addition. The assessee has also relied upon the decision in the case of CIT vs S. Khader Khan Son (2012) 210 taxman 248 (SC), wherein it was held that the statement recorded u/s 133A of the Act has no evidentiary value and any admission made during survey statement cannot be the basis of addition. However, in the interest of justice, we remand this appeal to the file of the Ld. Assessing Officer to examine the factual matrix and co- relate the documents with the statement recorded from the assessee and after examining the factual matrix decide in accordance with law. The assessee be given opportunity of being heard with further liberty to furnish evidence in support of its claim. Since, on technical ground, we have remanded the appeal to the file of the ld. Assessing Officer, we are refraining ourselves to go into the merits of the case.

M/s Mighty Construction Pvt. Ltd.

Even otherwise, the mandate of Article-265 of the Constitution of India only due taxed has to be levied/collected. Thus, the appeal of the assessee is allowed for statistical purposes only.

Finally, the appeal of the assessee is allowed for statistical purposes.

This Order was pronounced in the open on 15/03/2017.

Sd/- sd/- (Ashwani Taneja) (Joginder Singh) ऱेखा सदस्य / ACCOUNTANT MEMBER न्याययक सदस्य / JUDICIAL MEMBER भुिंफई Mumbai; ददनािंक Dated :15/03/2017 Shekhar, P.S/.यन. . आदेश की प्रयिलऱपप अग्रेपषि/Copy of the Order forwarded to : अऩीराथी / The Appellant 1. 2. प्रत्मथी / The Respondent. आमकय आमुक्त(अऩीर) / The CIT, Mumbai. 3. 4. आमकय आमुक्त / CIT(A)- , Mumbai ववबागीम प्रयतयनगध, आमकय अऩीरीम अगधकयण, भुिंफई / DR, 5. ITAT, Mumbai गार्ा पाईर / Guard file. 6. आदेशान सार/ BY ORDER, त्मावऩत प्रयत //True Copy//