2020 (10) TMI 141 - AT - Income Tax

Appeal ex-parte decided by CIT-A - AO objected to admission of the additional evidence - As argued Audited financial statements and audited report could not be filed during the course of assessment proceedings due to factors entirely beyond the control of the assessee - HELD THAT - Assessee did not file audited financial statements along with audit report either at the time of filing of return or during the course of assessment proceedings. It is the assessee s contention that the same could not be done because of the some changes in the management. The bona fide of the assessee is lent credence by the fact that the assessee had also moved an application before the Company Law Board for compounding of offences requesting compounding for not filing the audited annual accounts. We also note that the correct income of the assessee can be determined only on the basis of the audited financial results and, therefore, it would be incorrect to shut out an assessee in the process of administration of justice from leading evidence to prove its case. The earlier inability to lead evidence should not be held against the assessee unless it is known to be incorrect or suggested to be incorrect or there was evidence to suspect that the evidence was fabricated. In the present case no such adverse inference has been drawn by the Ld. CIT (A). No prohibition for admitting the additional evidence at the appellate stage, though, the same may pertain to a period after completion of the assessment proceedings and the only condition is that the Revenue should not be prejudiced and that the AO should be given a reasonable opportunity to rebut the additional evidence. Audited financial statements and audited report could not be filed during the course of assessment proceedings due to factors entirely beyond the control of the assessee, in the interest of substantial justice, the AO should de-novo make the assessment after duly considering the audited financial statements and the audit report of the assessee - Appeal of the assessee stands allowed for statistical purposes.

Summary

Issues Involved:
1. Admission of additional evidence by the CIT(A).
2. Denial of depreciation claim.
3. Confirmation of addition made by the AO based on a 12% mark-up.
4. Non-allowance of deduction under section 80-LA(2A).
5. Charging of interest under section 234B.
6. Initiation of penalty proceedings under section 271(1)(c).

Detailed Analysis:

1. Admission of Additional Evidence:
The assessee challenged the CIT(A)'s refusal to admit additional evidence, which included audited accounts, tax audit report, Form 3CEB, transfer pricing documentation, and computation of income. The Tribunal noted that the assessee was unable to submit these documents earlier due to changes in management and the absence of responsible persons for compliance. The Company Law Board had compounded the offences for not filing audited annual accounts, acknowledging the reasons for the delay. The Tribunal emphasized that the correct income of the assessee could only be determined based on audited financial results. It cited CBDT Instruction No.14 (XL-35) dated 11th April 1955 and the judgment of the Madhya Pradesh High Court in CIT vs. Gani Bhai Wahab Bhai, asserting that additional evidence should be admitted if it aids in determining the correct income and does not prejudice the Revenue. Consequently, the Tribunal directed the AO to reassess the income de-novo, considering the additional evidence.

2. Denial of Depreciation Claim:
The assessee contended that the CIT(A) erred in not allowing the depreciation claim of INR 3,70,41,482 as per the tax audit report, arguing that the claim should be allowed even if not included in the original return. The Tribunal's decision to remand the case for a fresh assessment implicitly addresses this issue, as the AO will now consider the audited financial statements and related claims, including depreciation.

3. Confirmation of Addition Based on 12% Mark-Up:
The CIT(A) upheld the AO's decision to apply a 12% mark-up on the total cost of services provided to the parent company, resulting in an addition of INR 58,66,890. The assessee argued that this mark-up was excessive and not substantiated with a basis. The Tribunal's direction for a de-novo assessment will require the AO to reconsider this mark-up in light of the additional evidence and the arm’s length principle.

4. Non-Allowance of Deduction Under Section 80-LA(2A):
The assessee claimed that the CIT(A) erred in not allowing the deduction under section 80-LA(2A) from the gross total income. This issue will also be reconsidered during the de-novo assessment, as the AO will reassess the income based on the complete set of audited financial statements.

5. Charging of Interest Under Section 234B:
The assessee contested the AO's decision to charge interest under section 234B. The Tribunal did not explicitly address this issue, but the de-novo assessment ordered will involve a comprehensive review of the tax liabilities, including interest charges.

6. Initiation of Penalty Proceedings Under Section 271(1)(c):
The assessee challenged the initiation of penalty proceedings under section 271(1)(c). The Tribunal's decision to remand the case for a fresh assessment implicitly affects the penalty proceedings, as the reassessment may alter the basis for any penalties.

Conclusion:
The Tribunal allowed the appeal for statistical purposes, directing the AO to conduct a de-novo assessment considering the additional evidence. This comprehensive reassessment will address all the issues raised by the assessee, ensuring a fair determination of the correct income based on the complete set of audited financial statements and related documentation.