2019 (10) TMI 1071 - AT - Income Tax

Disposal of appeal by CIT(A) without giving proper opportunity to the assessee - HELD THAT - CIT(A) posted the present case for hearing on two occasions. But, the assessee did not appear before the CIT(A) and there was no response from the assessee on both the occasions. On third occasion, the assessee has requested for adjournment. Subsequently, the assessee neither appeared personally nor made any written submissions. Hence the CIT(A) disposed-of the appeal on merits. Since the CIT(A) has given sufficient opportunity by posting the case for hearing on three occasions, we do not find any error in disposal of appeal by the CIT(A). Hence, we dismiss this Ground raised by the assessee. Addition u/s 68 - subscription of share capital received in the earlier years - HELD THAT - We have gone through the Balance Sheet and also the list of shareholders and change in pattern of shareholding, furnished in the statement of facts and find that there is no fresh share capital introduced in the company for making addition u/s.68 - For the purpose of making addition u/s.68 of the Act, any credit found during the year, for which the source was not explained required to be considered for addition. In the instant case, there is no credit found to be credited in the books of account for which the source remained un-explained. Thus, there is no case for making the addition u/s.68 of the Act. Hence, we set aside the order of Ld.CIT(A) and delete the addition made by the AO. Addition relating to difference in payments of subcontracts - HELD THAT - CIT(A) decided the appeal ex-parte, without going into the facts of the case. The fact whether the amount charged to P L A/c represented ₹ 1,65,92,944/- or ₹ 1,73,82,082/- was not clearly discussed in the assessment order. Therefore, in the interest of justice, we are of the considered view that the issue needs to be verified at the end of the AO. Hence, we remit the matter back to the file of AO and direct the AO to reconsider the issue and decide the same afresh on merits, after giving due opportunity of hearing to the assessee. This Ground raised by assessee is treated as allowed for statistical purposes. Addition relating to additional profit - HELD THAT - It is true that there was a closing balance relating to finished goods of flats. Sale consideration was declared in the P L A/c. AO has simply taken the closing balance of the earlier year and sale consideration of the flats and brought the difference as income, which was incorrect. The AO also required to consider the expenditure incurred and accounted relating the marketing and distribution and administrative expenses to determine the profit. In the instant case, the assessee has maintained the books of account, which were duly audited by the qualified accountant u/s.44AB of the Act as well as the Companies Act. No defects were pointed out by the AO in spite of production of books of account during the assessment proceedings - no reason to make the addition, without having considered the expenditure. Hence, we set aside the order of CIT(A) and delete the addition made by the AO - Ground raised by assessee is allowed.

Summary

Issues Involved:
1. Disposal of appeal by the CIT(A) without giving proper opportunity to the assessee.
2. Addition of ?81,15,000/- under Section 68 of the Income Tax Act.
3. Addition of ?7,89,138/- relating to the difference in payments of subcontracts.
4. Addition of ?1,88,500/- relating to additional profit.
5. Charging of interest under Sections 234B and 234C of the Income Tax Act.

Issue-wise Detailed Analysis:

1. Disposal of Appeal by CIT(A) Without Proper Opportunity:
The assessee contended that the CIT(A) decided the appeal ex-parte without giving sufficient opportunity, violating the principles of natural justice. However, the Tribunal noted that the CIT(A) had posted the case for hearing on three occasions, and the assessee failed to appear or provide written submissions. Therefore, the Tribunal dismissed this ground, finding no error in the CIT(A)’s disposal of the appeal.

2. Addition of ?81,15,000/- Under Section 68 of the Act:
- Addition of ?74,75,000/-:
The AO added ?74,75,000/- under Section 68, stating the assessee did not furnish confirmation letters, Income Tax returns, capital accounts, and bank statements to prove the genuineness of the share capital received from old investors. The CIT(A) confirmed this addition due to the assessee’s non-response. However, the Tribunal found that the share capital remained unchanged from the previous year and was related to share transfers among existing shareholders, not fresh capital infusion. Hence, the Tribunal deleted this addition, as there was no unexplained credit during the year.

- Addition of ?6,40,000/-:
The AO doubted the genuineness of ?6,40,000/- received as share application money, despite the assessee providing confirmation letters and bank details. The CIT(A) upheld this addition. The Tribunal, however, found the assessee had furnished adequate proof, including bank statements and Aadhar card details, establishing the identity and genuineness of the transaction. Thus, the Tribunal deleted this addition as well.

3. Addition of ?7,89,138/- Relating to the Difference in Payments of Subcontracts:
The AO disallowed ?7,89,138/- due to discrepancies between the payments made and the bills raised by subcontractors. The CIT(A) confirmed this addition ex-parte. The assessee argued that the amount debited to the P&L account was only ?1,65,92,944/-, not ?1,73,82,082/-. The Tribunal found the records indicated the amount charged to the P&L account was indeed ?1,65,92,944/- and remitted the matter back to the AO for verification and reconsideration.

4. Addition of ?1,88,500/- Relating to Additional Profit:
The AO added ?1,88,500/- based on the difference between the closing stock of finished flats and their sale consideration, without accounting for administrative and marketing expenses. The CIT(A) upheld this addition. The Tribunal noted the assessee maintained audited books of accounts and no defects were pointed out by the AO. It found the addition unjustified without considering the related expenses and deleted the addition.

5. Charging of Interest Under Sections 234B and 234C:
The Tribunal directed the AO to correctly charge interest under Sections 234B and 234C while giving effect to the order, as it is mandatory and consequential in nature.

Conclusion:
The appeal was partly allowed, with the Tribunal deleting the major additions made by the AO and remitting one issue back for verification. The interest under Sections 234B and 234C was to be charged correctly by the AO.