TaxTMI 
TaxTMI 
TaxTMI 
2024 (6) TMI 210
X X X X Extracts X X X X
X X X X Extracts X X X X
....he case and in law, the learned CIT (A) is justified in deleting the addition made on a/c of claim of forfeited amount of Rs.1,25,00,000/- by not appreciating the fact that during the assessment proceedings the assessee had not made any submission in response to the statutory notices and show cause issued and assessment was completed under Section 144 of the Act as best judgment assessment? B. Whether on the facts and in the circumstances of the case and in law, the learned CIT (A) has justified in deleting the addition made on a/c of expenses claimed under the head, Miscellaneous Expenditure, Tour & Travel Expenditure, Sale Promotion, Labour Charges and Vehicle Expenses @40% of total expenditure aggregating to Rs.1,22,14,178/- on the ground that during appellate proceedings, the assessee submitted copy of Profit and Loss Account audited under Section 44AB of the Act without verifying the correctness and genuineness of expenditure claimed and without calling the remand report from the Assessing Officer? C. Whether on the facts and in the circumstances of the case and in law, the learned CIT (A) has justified in stating that, the relevant details submitted by the assessee were for....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ity was not granted to the assessee to adduce evidence relevant to any ground of appeal. Whether the admission of any evidence by CIT (A) in violated the provision of Rule 46 A(1) of the IT Rules is admissible? G. Whether on the facts and in the circumstances of the case and in law, the learned CIT (A) is justified in not appreciating the decision of Delhi High Court in the case of CIT (Central-1) V/s Manish Build Well Pvt. Ltd., reported in 245 CTR 397 (Del) (2011), wherein the Hon'ble Delhi High Court has held that, where additional evidence was admitted and accepted as genuine at first appellate stage without Assessing Officer furnishing his comments and without verification, requirement of Rule 46(3) were not satisfied? In the instant case there was violation of Rule 46A(3) on the part of Learned CIT (A), NFAC as the evidence produced during the appellate proceeding which were not produced before the Assessing Officer, the learned CIT (A) failed to allow a reasonable opportunity to Assessing Officer. (a) To examine the evidence or documents produced by the appellant. (b) To produce any evidence or documents, etc. in rebuttal of the additional evidence, produced by....
X X X X Extracts X X X X
X X X X Extracts X X X X
....hipping Co. Ltd. for development of Passenger Water and coastal transport at seven locations at Mumbai. To bid for this project was called for MSRDC. M/s Satyagiri Shipping Co. Ltd. was short listed for implementation of this project. M/s Satyagiri Shipping Co. Ltd. was awarded the above work. 08. The learned CIT (A) considered the above explanation and held that the issue is squarely covered in favour of the assessee and held that the above forfeited amount is allowable to the assessee as deduction. 09. With respect to the disallowance of 40% of the expenditure, he also considered the explanation of the assessee and held that audited accounts submitted by the assessee are forwarded to the learned Assessing Officer for his comments; however, the learned Assessing Officer did not submit the remand report. Therefore, he deleted the addition. 010. With respect to the third disallowance of Rs.27,33,792/-under Section 14A of the Act, whereas the dividend earned is only Rs.60,00,000/- , he following the decision of several High Courts, held that the disallowance under Section 14A of the Act should not exceed the exempt income. Thus, he restricted the disallowance to the same. He passe....
X X X X Extracts X X X X
X X X X Extracts X X X X
....see did not participate therefore, it resulted into an assessment order where the total income of the assessee was determined at Rs.2,76,37,284/-. On appeal before the learned CIT (A), the assessee raised only three grounds of appeal regarding deletion of Rs.1.25 crores, disallowance of expenses under Section 14A of the Act. In the statement of facts, the assessee wrote only one line that due to unavoidable circumstances beyond control, the representative of the assessee could not attend before the learned Assessing Officer. Before the learned CIT (A) seven hearings took place. In paragraph no.6, the learned CIT (A) has mentioned that the assessee furnished some additional evidences. It is not known what are those additional evidences but he admitted the same holding as under:- "6. Before deciding upon the addition made by the AO, it is important to decide whether additional evidence submitted by the appellant should be accepted or not. In this regard, it needs to be emphasized here that, the provisions of Rule 46A have been framed for the purpose of ensuring that a fair and reasonable opportunity is provided to the appellant for submitting additional documents & evidences at the....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... any additional evidence which would be necessary to do substantial justice in the matter. Their Lordships further observed that the various procedures, including that relating to filing of additional evidence, is handmade for justice and justice should not be allowed to be choked only because of some inadvertent error or omission on the part of one of the parties to lead evidence. (d) In the case of CIT v. Virgin Securities & Credits (P) Ltd.: 332 ITR 396 (Del), the Hon'ble Delhi High Court held that the CIT(A) may admit additional evidence, after obtaining a remand report from the assessing officer, if the evidence sought to be adduced by the applicant is crucial to the disposal of the appeal. The Hon'ble ITAT Delhi have also held in the case of Plectra (Jaipur) (P) Ltd. vs. IAC (26 ITD 236) that if the evidence is genuine, reliable, proves the assessee's case, then the assessee should not be denied the opportunity. 7. It is also seen that the additional evidence submitted by the appellant was never submitted during the assessment proceedings, the additional evidences comprises certain facts of the case of different Assessment Years of the appellant on the similar iss....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ssment or penalty (whether on his own motion or on the request of the 19[Assessing Officer]) under clause (a) of sub-section (1) of section 251 or the imposition of penalty under section 271.] 016. Admittedly, he did not follow the provisions of Rule 46A of the income tax Rules 1962. Therefore an order passed in violation of Rule 46A deserves to be set aside and more so for the reason that ld CIT (A) has not even cared to mention satisfaction of any of the conditions which entitles the assessee for admission of additional evidence. 017. With respect to the ground no.1, regarding deletion of disallowance of Rs.1.25 crores, he considered the detailed explanation of the assessee which is reproduced in paragraph no.8.2 of his appellate order. Vide Para 8.3 to 8.7, he followed certain judicial precedents and deleted the disallowance. He deleted the disallowance as under :- "8.3 The facts of the case and submission made by the appellant has been gone through. During the year under appeal, the appellant entered into an agreement with M/s. Satyagiri Shipping co. Ltd. (in short 'SSCL) to complete the developmental project awarded to SSCL by MSRDC. SSCL was required to deposit a sum of R....
X X X X Extracts X X X X
X X X X Extracts X X X X
....enuineness of the transaction is not disputed, we are unable to find any cogent ground or reason for the same to be considered as colourable device. In fact, the assessee had produced several documents in support of the forfeiture, such as the copy of the agreement to sell dated 12th October, 2004; letter requesting for extension of agreement; letters granting extension from HDIL; letter granting final opportunity, and; letter of forfeiture of advance, which in fact has been extracted in the impugned order. In order to claim deduction, the assessee has to satisfy requirements of section 37(1) of the Act, which lays down several conditions, such as-the expenditure should not be in the nature described under Section 30 to 36; it should not be in the nature of capital expenditure; it should be incurred in the previous year; it should be in respect of business carried by the assessee; and be expended wholly and exclusively for the purpose of such business. The assessee is a company which is engaged in the business of real estate. The main object of the business of the company is development of real estate. It made a payment of Rs. 3.50 crores as advance to HDIL for purchase of land to ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ce. His findings are as under :- "9.3 The assessment order and submissions of the appellant have been considered. It is seen from the Assessment Order that the AO disallowed 40% of expenses of Rs. 1,22,14,178/- claimed under the head Miscellaneous Expenditure, Tour & Travel Expenditure, Sale Promotion, Labour Charges and Vehicle Expenses amounting to the tune of Rs. 48,85,671/- for want of details. The AO stated that correctness and genuineness of the expenses can't be established and thereby disallowed 40% of such expenses resulted into disallowance of Rs. 48,85,671/-. During appellate proceedings, the appellant submitted the copy of Profit and Loss Account audited u/s. 44AB of the Act. The reason mentioned in the assessment order is that correctness and genuineness can't be established in absence of details. The relevant details submitted by the appellant are forwarded to AO to submit his comments. However, the AO didn't submit the remand report. Therefore, the details submitted by the appellant on account of expenses claimed under the head Miscellaneous Expenditure, Tour & Travel Expenditure, Sale Promotion, Labour Charges and Vehicle Expenses aggregating to Rs. 1,22,14,178/- ....