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Income Tax Appellate Tribunal, INDORE BENCH, INDORE
Before: MS. MADHUMITA ROY & SHRI BHAGIRATH MAL BIYANI
आदेश / O R D E R
Per B.M. Biyani, A.M.:
Feeling aggrieved by appeal-order dated 03.07.2018 of learned Commissioner of Income-Tax (Appeals)-I, Indore [“Ld. CIT(A)”], which in turn arises out of assessment-order dated 21.03.2014 passed by learned ACIT, Circle-4(1), Indore [“Ld. AO”] u/s 144 of the Income-tax Act, 1961 [“the Act”] for Assessment-Year [“AY”] 2011-12, the revenue has filed this appeal on following grounds:
“1. Whether in the facts and circumstances of the case, Ld. CIT(A) was justified in condoning substantial delay of 2 years
Jiji Industries ITA No.807/Ind/2018 Assessment year 2011-12 and 2 months and 16 days without any justifiable reasons for prolonged delay and admitting the additional evidences in violation of Rules 46A of the IT Rules, while deleting the additions made. 2. Whether in the facts and circumstances of the case, Ld. CIT(A) was not justified in deleting the addition of Rs. 2,89,46,364/- on account of commission expenses relying on the submission filed by the assessee. 2.1 Whether in the facts and circumstances of the case, Ld. CIT(A) has erred in holding that Mr. Aashik Asaria, the payee is resident of UAE and has no permanent establishment in India and payment was not made on behalf of assessee, without any verification of the claim by any enquiry or remand report. 3. Whether in the facts and circumstances of the case, Ld. CIT(A) was justified in deleting the addition of Rs. 84,99,600/- on account of increase in share capital relying on the submission filed by the assessee.” 2. Briefly stated facts are such that the assessee is a company engaged in the business of manufacturing and trading of aluminum extrusion. The assessee submitted return declaring a total income of Rs. 1,26,15,950/- as against which the Ld. AO completed assessment at a total income of Rs. 5,09,13,150/- after making different additions. Against the order of Ld. AO, the assessee filed appeal to Ld. CIT(A). The Ld. CIT(A) allowed part-relief to assessee. Now, the revenue has challenged the order of Ld. CIT(A) by way of this appeal before us. We now proceed to decide different grounds one by one in seriatim.
Ground No. 1:
This Ground has two-fold grievances of revenue, viz. (i) the Ld. CIT(A) was not justified in condoning delay of 2 years, 2 months and 16 days in filing appeal before him, and (ii) the Ld. CIT(A) was not justified in admitting additional evidences in violation of Rule 46A of Income-Tax Rules, 1962.
With regard to the first-fold of this ground i.e. condonation of delay by Ld. CIT(A), we have perused the order of first-appeal and found following observation made by Ld. CIT(A): Page 2 of 5
Jiji Industries ITA No.807/Ind/2018 Assessment year 2011-12 “4. The AO passed the assessment order on 21.03.2014. The appellant was required to file the appeal on or before 20.4.2014. The appellant filed the appeal on 07.07.2016 which is beyond time limit. The appeal has been filed on 07.07.2016. The order for the A.Y.2011-12 was passed on 31.03.2014. The order was sent to plot no. 316, Sejwaya Ghatabillod, where the Co. had its factory. The factory of the company has been closed w.e.f. October 2012, in view of the major fire broke out on 07.01.2012. Thereafter the company’s position had deteriorated and the factory was also taken over by the bank against its loan in the month of October 2012 and assessment order could not be received. In view of non-receipt of order, the appellant company applied the ACIT- 2(1), Indore for issue of the copies of assessment order which was supplied to the appellant company on 10.06.2016 and accordingly the appeal has been filed on 07.07.2016. Therefore, there was a delay in filing of the appeal. The reasons for delay in filing of appeal are considered. The delay in filing of appeal is condoned and the appeal is decided on merit.”
Suffice it to say that the Ld. CIT(A) has found a sufficient reason which prevented the assessee from filing appeal in time and on being consciously satisfied, condoned the delay. We do find any ground or reason of not agreeing to the well-founded decision taken by Ld. CIT(A). Therefore, we dismiss the first-fold of Ground No. 1.
With regard to the second-fold of this ground i.e. admission of additional evidences, we find that the Ld. CIT(A) has given following observation in his order:
“5. The fire broke out at the plant of the appellant. The plant remained closed and damaged the papers which requires for assessment proceedings. Therefore, there was sufficient cause for not producing the evidences which has been called by the assessing officer. Therefore, the appellant’s case is falling under rule 46A(1)(b) of Income
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Jiji Industries ITA No.807/Ind/2018 Assessment year 2011-12 Tax Rules. Therefore, additional evidences produced during the course of appellant proceedings have been admitted and the additional evidences have been forwarded to the AO for his comments. The AO submitted the remand report dated 08.05.2018.”
Thus, we observe that the Ld. CIT(A) was satisfied with the reasoning given by assessee for admission of additional evidences in terms of Rule 46A(1)(b) of Income Tax Rules, 1962. Therefore, there is nothing wrong in the action of Ld. CIT(A) in admitting additional evidences as per law. Ld. AR has also pointed out that an identical issue was also raised by revenue in the assessee’s own case in immediately preceding AY 2010-11 in ITA No. 806/Ind/2018 before ITAT, Indore Bench, wherein the Co-ordinate Bench has approved the action of Ld. CIT(A) in admitting additional evidences and thereby dismissed the ground of revenue. Since the factual matrix and the reasons of admitting additional evidences are same, we are persuaded to carry the decision of Hon’ble Co-ordinate Bench. Accordingly, we are dismiss the second-fold of Ground No. 1 as well.
This way, Ground No. 1 is fully dismissed.
Ground No. 2, 2.1 and 3:
In Ground No. 2 and 2.1, issue involved is the disallowance of commission of Rs. 2,89,46,364/- paid by assessee to Mr. Aashik Asaria, a non-resident. In Ground No. 3, issue involved is the addition made by Ld. AO on account of increase of Rs. 84,99,600/- in share-capital by applying section 68 of the act.
Ld. Representatives of both sides fairly agree that these issues are also covered against the revenue and in favour of assessee in the immediately preceding AY 2010-11 in the same order of Co-ordinate Bench in ITA No. 806/Ind/2018 (supra). In this view of the matter, when no change in facts or law is brought on record by either side, we respectfully follow the decision of Hon’ble Co-ordinate Bench and uphold the action of Ld. CIT(A) whereby
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Jiji Industries ITA No.807/Ind/2018 Assessment year 2011-12 he has deleted the disallowance / addition made by Ld. AO. Accordingly, these Ground No. 2, 2.1 and 3 of revenue are also dismissed.
In the result, this appeal of Revenue is dismissed.
Order pronounced in open court on 06 .12.2022.
Sd/- Sd/-
(MADHUMITA ROY) (B.M. BIYANI) JUDICIAL MEMBER ACCOUNTANT MEMBER
Indore �दनांक /Dated : 06.12.2022 Patel/Sr. PS Copies to: (1) The appellant (2) The respondent (3) CIT (4) CIT(A) (5) Departmental Representative (6) Guard File By order UE COPY
Sr. Private Secretary Income Tax Appellate Tribunal Indore Bench, Indore
Date of taking dictation 2. Date of typing & draft order placed before the Dictating Member 3. Date on which the approved draft comes to the Sr. P.S./P.S. 4. Date on which the fair order is placed before the Dictating Member for pronouncement 5. Date on which the file goes to the Bench Clerk 6. Date on which the file goes to the Head Clerk 7. Date on which the file goes to the Assistant Registrar for signature on the order 8. Date of dispatch of the Order
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