2020 (1) TMI 41 - AT - Income Tax

Tribunal Adjusts Appeal: Section 68 Addition Deleted for Some, Confirmed for Mr. Arvind; Late Section 43CA Appeal Dismissed.

Shri Akhilesh Agarwal Versus The ITO, Ward-6 (3), Jaipur.

The Tribunal partially allowed the appeal, deleting the addition under Section 68 for Mr. Solanki and M/s Mewad Infrastructure (P) Ltd., as the necessary ... Addition u/s 68 - unexplained cash credit - non-appearance by creditor - HELD THAT:- Transaction with Mr S L Solanki, the assessee has filed the necessary information in terms of name and address, PAN Number, ITR, bank statement and confirmation of Mr S L Solanki - the notice issued u/s 133(6) and u/s 131 have been duly served on him, however, he has explained his non- appearance due to health problem. In absence of any adverse finding of the AO on the documents so submitted, merely on account of non-appearance for which reasonable cause has been explained, no addition is called for in hands of the assessee. Transaction with M/s Mewad Infrastructure (P) Ltd - As gone through the financial statements of M/s Mewad Infrastructure (P) Ltd and find that it has reported operating revenues from sale of flats of ₹ 1,53,46,000 and net profits from operations amounting to ₹ 525,645 with cumulative reserves of ₹ 65,14,045 and therefore, the finding of the AO that it is a paper company is not borne out of the records and cannot be accepted. Further, we find that the assessee has submitted the necessary documentation in discharge of his primary onus and the addition so made u/s 68 cannot be sustained. In absence of any adverse finding of the Assessing officer on the documents so submitted, no addition is called for in hands of the assessee and the same is directed to be deleted. Transaction with Mr Arvind - as submitted that by the ld AR that inadvertently, the assessee categorized the said transaction under the head “unsecured loan” instead of the head “advance received from customers” and the identity of Mr. Arvind stood established as notice u/s 131 of the Act was duly served upon him, however, there is nothing on record in terms of basic documentation to support the said contention that the transaction was in nature of advance from customers in regular business dealings of the assessee and whether the same has been adjusted and offered to tax as income either in the year under consideration or in the subsequent years. Therefore, the amount so found credited in the books of accounts is hereby confirmed as unexplained credit u/s 68 of the Act and the addition to this extent is confirmed. Admission of additional ground - Addition u/s 43CA - retrospective applicability of tolerance band of 5% introduced by the Finance Act, 2018 - HELD THAT:- No doubt, the matter is emerging from the impugned order so passed by the ld CIT(A). At the same time, when the same was raised before the ld CIT(A) and the assessee has given up its claim before the ld CIT(A) by specifically stating that he doesn’t wishes to press the same and following the said submission of the assessee, the ld CIT(A) has dismissed the said ground, we do not see any infirmity in the said order of the ld CIT(A). Further, once the assessee has given up its claim and the same has been accepted by the ld CIT(A), there is no prejudice and cause of action which lies with the assessee to raise the said ground again before the Tribunal against the said order of the ld CIT(A). In the instance case, there is nothing which has been stated by the ld AR as to the reasons for delay in filing the additional ground of appeal. The amendments brought in by Finance Act, 2018, to which recourse has been taken, were very much on statue book at the time of filing the memorandum of appeal. Similarly, the decisions of Coordinate Benches relied upon by the ld AR namely, Sita Bai Khetan vs ITO [2016 (11) TMI 955 - ITAT JAIPUR] were pronounced and were in public domain at the time of filing the memorandum of appeal. Therefore, it is not a case where as a result of any amendment in the statue or any judicial decision given while the appeal of the assessee is pending before the Tribunal, the assessee couldn’t take the additional ground of appeal and which explains the delay so happened in taking such additional ground of appeal. Therefore, on this account as well, the additional ground of appeal cannot be admitted. Issues Involved:1. Addition under Section 68 for unexplained cash credit.2. Admission of additional ground of appeal regarding addition under Section 43CA.Detailed Analysis:1. Addition under Section 68 for unexplained cash credit:The primary issue is the addition of Rs. 22,50,000 under Section 68 for unexplained cash credit. The assessee filed a return of income declaring Rs. 8,59,010, but the assessment was completed at Rs. 32,78,890, including the disputed addition. The assessee provided documentation, including the name, PAN, address, confirmations, ITR, financial statements, and bank statements for loans from Mr. S.L. Solanki and M/s Mewad Infrastructure (P) Ltd. The loans were taken through banking channels, and M/s Mewad Infrastructure (P) Ltd.'s loan was repaid in FY 2018-19. Notices under Sections 133(6) and 131 were issued but were not served on M/s Mewad Infrastructure (P) Ltd. due to an incorrect address. The AO did not record statements as the parties arrived late, and Mr. Solanki could not appear due to health issues but sent relevant documents. The CIT(A) sustained the addition as the assessee could not produce Mr. Solanki and the books of M/s Mewad Infrastructure (P) Ltd.Upon review, the Tribunal found that the assessee had provided necessary information, and Mr. Solanki's non-appearance was due to a valid reason. The AO had no adverse findings on the submitted documents. For M/s Mewad Infrastructure (P) Ltd., the assessee, as a director, appeared before the AO and submitted confirmations, bank statements, and financial statements. The AO's claim that it was a paper company was not supported by records showing substantial operations. Thus, the addition for Mr. Solanki and M/s Mewad Infrastructure (P) Ltd. was deleted.Regarding Mr. Arvind, the assessee mistakenly categorized the transaction as an unsecured loan instead of an advance from customers. However, there was no supporting documentation to prove it was a business advance. Therefore, the addition for Mr. Arvind was confirmed.2. Admission of additional ground of appeal regarding addition under Section 43CA:The assessee sought to raise an additional ground of appeal for an addition of Rs. 1,69,878 under Section 43CA, which was not pressed before the CIT(A). The Tribunal examined whether the additional ground could be admitted. The assessee relied on the case of Vijay Kumar Jain vs. CIT, where it was held that grounds not pressed before the CIT(A) could be urged before the Tribunal. The Tribunal noted that the additional ground was legal and related to the retrospective applicability of a tolerance band of 5% introduced by the Finance Act, 2018. However, the Tribunal found no justification for the delay in raising the additional ground, as the amendment and relevant judicial decisions were already in the public domain at the time of filing the appeal. Consequently, the additional ground was not admitted.Conclusion:The appeal was partly allowed, with the addition under Section 68 for Mr. Solanki and M/s Mewad Infrastructure (P) Ltd. deleted, but the addition for Mr. Arvind confirmed. The additional ground of appeal regarding Section 43CA was not admitted due to delayed filing without sufficient justification. The order was pronounced in the open Court on 23/12/2019.