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Income Tax Appellate Tribunal, DELHI BENCH ‘G’, NEW DELHI
IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH ‘G’, NEW DELHI BEFORE SH. ANIL CHATURVEDI, ACCOUNTANT MEMBER AND SH. ANUBHAV SHARMA, JUDICIAL MEMBER ITA No. 8071/Del/2018 (Assessment Year : 2012-13) Swami Advertising Pvt. Vs. ITO Ltd., R. P. Basia & Co., Ward – 22(4) CAs, 11, Central Market, New Delhi Phase-1, Ashok Vihar, Delhi-110 052 PAN No. AAPCS 2950 K (APPELLANT) (RESPONDENT) Assessee by -None- Revenue by Shri Kumar Parnav, Sr. D.R. Date of hearing: 15.05.2023 Date of Pronouncement: 17.05.2023
ORDER PER ANIL CHATURVEDI, AM:
This appeal filed by the assessee is directed against the order dated 21.11.2016 of the Commissioner of Income Tax (Appeals)-17, New Delhi relating to Assessment Year 2012-13.
Brief facts of the case as culled out from the material on record are as under:-
ITA No.8071/Del/2018 Swami Advertising Pvt. Ltd.. vs. ITO 2 3. Assessee is a company stated to be engaged in the business of advertising etc. Assessee electronically filed its return of income for A.Y. 2012-13 on 08.02.2023 declaring loss of Rs.10,729/-. The case of the assessee was selected for scrutiny and thereafter assessment was framed u/s 143(3) of the Act vide order dated 30.03.2015 determining the total income at Rs.8,00,01,320/-.
Aggrieved by the order of AO, assessee carried the matter before CIT(A). CIT(A) vide order dated 01.06.2015 dismissed the appeal of the assessee. Aggrieved by the order of CIT(A), assessee is now in appeal and has raised the following grounds :
“The Ld. A.0. had erred on the facts and in law in holding that the share capital plus premium amounting to Rs.8,00,00,000/-(Rs. Eight Crore only) received during the year from corporate entities in unexplained credit within the meaning of section 68 of the Income Tax Act,1961. 2. The Ld. A.O. erred in law as well as on the facts in invoking section 14A of the Act read with Rule 8D of the Income Tax Rules,1962 to make a disallowance of Rs.12,047/- without giving any opportunity of being heard to the appellant and without appreciating categorical ruling of higher judicial authorities on this issue. 3. The Ld. A.O. wrongly initiated penalty proceedings u/s 271(1)(c) and 271(1)(b) of the Act. 4. The Ld. A.O. wrongly charged interest U/s 234A, 234B and 234C of the Act. 5. The Original order dated 21.11.2016 passing appeal order vide appeal No. 87/2015-16 was probably sent at old address of the asseessee company and consequently was not received resulting in inability to file the appeal against the said order. It was beyond the control of Assesse Company. Upon gathering information from respective department the fact regarding impugned appeal order was known and application for certified copy of the said order
ITA No.8071/Del/2018 Swami Advertising Pvt. Ltd.. vs. ITO 3 dated 11.09.2018 was submitted and the certified copy was received on 11.09.2018 after a delay of 669 days. Due to time baring in filing ITRs, ROC and other matters, the filing of appeal was delayed for another period of 42 days .The appellant company request for the condonation of delay of 711 days in filing the said appeal. 6. The assessee craves leaves to amend/alter, modify the ground(s) of appeal and/or raise additional ground(s) of appeal, during the course of appellate proceedings.”
The case file reveals that the present appeal was listed for hearing on various occasions and on all the occasions, assessee did not appear before the Tribunal despite notices issued through RPAD nor any application was filed seeking for adjournment. Further, the notice issued by the Registry through RPAD was returned unserved. In case of any change of address, it is for the assessee to file revised Form No.36 duly mentioning the new address. Preferring an appeal does not mean merely formally filing the appeal but also taking all the necessary steps to effectively pursue the appeal. In the absence of any Co-operation from the side of the assessee, we do not find any reason to keep the matter pending before us more so when the appeal has been filed by the assessee in 2018. Considering the aforesaid facts, we have no option except to dispose of the appeal on merits, after hearing the Ld. D.R.
The grievance of the assessee vide ground no.1 is with respect to the addition of Rs.8,00,00,000/- u/s 68 of the Act.
ITA No.8071/Del/2018 Swami Advertising Pvt. Ltd.. vs. ITO 4 7. During the course of assessment proceedings, AO noticed that assessee had received Share Premium amounting to Rs.7,96,00,000/- and equity share capital of Rs.4,00,000/- aggregating to Rs.8,00,00,000/- from five companies listed at page 2 of the order. To examine the identification, genuineness and creditworthiness of the investor’s companies, AO issued notice u/s 133(6) of the Act at the address given by the assessee. AO noted that earlier notices issued u/s 133(6) of the Act were returned unserved. AO has noted that no reply was received from the investors nor any reply was received from the notice issued to the assessee calling for the details. AO thereafter for the reasons stated in his order and relying on the various decisions cited in the order concluded that assessee had failed to discharge its onus about proving genuineness, identification and creditworthiness of the investor’s companies. He accordingly made addition of Rs.8,00,00,000/- u/s 68 of the Act.
Aggrieved by the order of AO, assessee carried the matter before CIT(A). CIT(A) noted that various notices were issued to the assessee for hearing of the appeal but there was no representation from the side of the assessee. He noted that no supporting documents has been furnished by the assessee to substantiate the identity, genuineness and creditworthiness of the investors. He accordingly upheld the order of the AO.
ITA No.8071/Del/2018 Swami Advertising Pvt. Ltd.. vs. ITO 5 9. Aggrieved by the order of CIT(A), assessee is now before the Tribunal.
Before us, Learned DR pointed to the order of AO and CIT(A) and submitted that despite various opportunities granted to the assessee, no detailed submissions were made by the assessee before lower authorities to prove identity, genuineness and creditworthiness of the transaction. He further submitted that there was no appearance before the CIT(A) nor there is any appearance before the Tribunal which means that assessee has nothing to say on this matter. He thus supported the order of CIT(A).
We have heard the Learned DR and perused the material on record. The issue in the present ground is with respect to the addition made on account of unexplained cash credit u/s 68 of the Act. AO in the order has noted that assessee had received share application money from five parties listed in the assessment order and assessee was asked to prove the identity, genuineness and creditworthiness of the transactions but the same was not proved. AO has also noted that notices issued u/s 133(3) of the Act to the investors were not responded by the investors. The AO therefore made addition u/s 68 of the Act. CIT(A) while upholding the order of AO has noted that no details to substantiate its case has been furnished by the assessee before him. When the appeal is filed before the Tribunal by the assessee himself against the
ITA No.8071/Del/2018 Swami Advertising Pvt. Ltd.. vs. ITO 6 orders of the lower authorities, it is expected that the assessee may put forth some documentary evidences in support of his contentions to decide the appeal as it is the duty of the assessee to lead evidence in support of its claim and for the adjudicating authority to decide upon the sustainability of the claim on the basis of the evidence led by the parties before it. However, the assessee did not appear before the Tribunal despite numerous adjournments allowed and notices issued through RPAD. No material has been placed by assessee to controvert the findings of lower authorities nor has assessee pointed to any fallacy in the findings of lower authorities. In this view of the matter and in absence of any contrary material brought on record to rebut the findings of lower authorities, we find no reason to interfere with the order of CIT(A) and thus we dismiss the ground of the assessee.
Ground No.2 is with respect to the disallowance u/s 14A of the Act.
Through this ground assessee is challenging the addition of Rs.12,047/- made u/s 14A of the Act.
Before us, Learned DR pointing to the order of CIT(A) submitted that issue of disallowance u/s 14A of the Act was not agitated before CIT(A) as is evident from the order. He therefore
ITA No.8071/Del/2018 Swami Advertising Pvt. Ltd.. vs. ITO 7 submitted that issue does not arise from the order of CIT(A) and therefore, the ground be dismissed.
We have heard the Learned DR and perused the material available on record. We find force in the argument placed by Learned DR. The perusal of the CIT(A)’s order reveals that assessee had not raised any grievance about the disallowance u/s 14A of the Act. Assessee has also not placed any material on record to demonstrate that it had agitated the addition made u/s 14A of the Act before CIT(A). In such a situation, we find force in the contention of Learned DR that the issue raised in the present ground does not arise from the order of CIT(A). We thus find no merit in the ground raised by assessee and thus dismiss the ground of assessee.
In the result, appeal of assessee is dismissed. Order pronounced in the open court on 17.05.2023
Sd/- Sd/- (ANUBHAV SHARMA) (ANIL CHATURVEDI) JUDICIAL MEMBER ACCOUNTANT MEMBER Date:- 17.05.2023 PY* Copy forwarded to: 1. Appellant 2. Respondent 3. CIT 4. CIT(Appeals) 5. DR: ITAT ASSISTANT REGISTRAR ITAT NEW DELHI