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07-01-2020, Aeco India, Section 139(1), 40(a)(ia), Tribunal Mumbai

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2 weeks 3 hours ago #11959 by amit
Section - 139(1), 40(a)(ia), 92A(2), 92, 194C(6)
Order Date - 07-01-2020
Favouring - Revenue allowed for statistical purposes
Court - Tribunal Mumbai
Appellant - ACIT
Respondent - Aeco India Pvt.Ltd.
Justice - SHAMIM YAHYA AM & PAWAN SINGH JM
Citation - 120Taxpundit64
Appeal No. - ITA no.7547/Mum/2016
Asstt. Year - 2011-12

Order

PER : SHAMIM YAHYA

This appeal by the revenue is directed against order of ld.CIT(A)- 2, Mumbai dated 10/08/2016 and pertains to assessment year 2011 – 12.

2. The grounds of appeal read as under:-

i. Whether, on the facts and circumstances of the case and in Law, the Id. CIT(A) erred in deleting the addition of Rs. 1,25,31,547/-without giving an opportunity of being heard to the Assessing Officer (AO) to examine the additional evidence produced before him in the form of bills/vouchers, TDS Challans etc, which were not produced before the AO, as mandated by Rule 46A(3) of the Income-tax Rules, 1963 ("the Rules'% whereby the CIT(A) shall not take into account any additional evidence produced under Rule 46A(1) of the Rules unless the AO has been allowed a reasonable opportunity to examine the evidence or document produced by the appellant, and also to produce any evidence or document in rebuttal of the additional evidence produced by the assessee?

ii. Whether, on the facts and circumstances of the case and in Law, the Id. CIT(A) erred in ignoring crucial fact - whether Tax Deducted at Source (TDS) under provisions of Chapter XVII-B of the Income-tax Act, 1961 was deposited into Government Treasury on or before due date specified in Section 139(1) of the Income-tax Act, 1961 i.e. 30-11-2011 for AY 2011-12, so as not to attract provisions of Section 40(a)ia) of the Income-tax Act, 1961 ?

iii. Whether, on the facts and circumstances of the case and in Law, the Id. CIT(A) erred in deleting the addition of Rs 2,12,24,848/- by citing that the party i.e., Nomanbhoy & Sons Pte Ltd, Singapore, treated as an Associated Enterprise of assessee by A.O. is not an Associated Enterprise of assessee as per information in Form 3CEB without calling for Remand Report from the A.O. before deciding the issue in favour of the assessee?"

iv. Whether, on the facts and circumstances of the case and in law, whilst it is true that it is the obligation of the AO to conduct proper scrutiny of the material, given the fact that the AO did not examine whether the conditions specified in clause (h) of Section 92A(2) of the Income-tax Act, 1961 are fulfilled so as to make i.e. Nomanbhoy & Sons Pte Ltd, Singapore an Associated Enterprise (AE) of the assessee, the obligation to conduct proper inquiry of facts would shift to Ld.CIT(A) in view of the Hon'ble Delhi High Court decision in the case of C/T Vs Jansampark. Advertising am Marketing (P) Ltd (ITA No. 525/2014) which was not discharged the Ld.CIT(A)?

v. Whether, on the facts and circumstances of the case and in law, the Id. CIT(A) erred in deleting the transfer pricing adjustment of Rs.27,37,951/- & Rs.6,83,205/- without giving an opportunity of being heard to the Assessing Officer (AO) to examine the additional evidence produced before him in the form of Transfer Pricing Study Report, data on comparable companies etc, which were not produced before the AO, as mandated by Rule 46A(3) of the Income-tax Rules, 1963 ("the Rules"), whereby the CIT(A) shall not take into account any additional evidence produced under Rule 46A(1) of the Rules unless the AO has been allowed a reasonable opportunity to examine the evidence or document produced by the appellant, and also to produce any evidence or document in rebuttal of the additional evidence produced by the assessee?

3. The brief facts of the case are that assessee company is engaged in the business of trading of iron ore . The Assessing Officer observed that the quantitative details and other relevant information on trading activity have not been provided by the assessee. He noted that Auditor’s report as well as tax audit report vide form No. 3 CD also do not provide any information in this regard. Thereafter, the Assessing Officer dealt with the issue of disallowance of expenses to the tune of Rs. 1,25,31,547.

4. The Assessing Officer noted that whi e filing the revised return, the assessee has made various adjustments to the amount of income declared vide original return. That one of the adjustments relates to claim for expenses to the tune of Rs.1,25,31,547 The Assessing Officer referred to the assessee’s note in this regard as under:-

The assessee company undertook during the year under consideration a transaction of export of iron ore fines to China from Goa, During the course of statutory audit for the subsequent financial year ending 31st March, 2011, had erroneously not been booked as expenditure in the said financial year, but were instead booked in the financial year ending 31" March, 2012 on receipt, of the relevant bills from the respective parties. The sa d amounts have been classified in the subsequent financial year in the accounts as "prior period expense".

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