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TMI Blog2019 (12) TMI 1359X X X X Extracts X X X X X X X X Extracts X X X X ..... als were heard together and were disposed of the by the aforesaid common order of the Hon'ble ITAT, 2. The grounds of appeal raised by the appellant for A.Y. 2011-12 is reproduced hereunder: 1. On the facts and circumstances of the case and in law the Ld CIT(A) erred in confirming the initiation of the reassessment proceeding under section 147. 2. On the facts and circumstances of the ease and in law the Ld CIT(A) failed to consider that reassessment proceedings cannot be initialed. a. No reassessment can be made just to make an enquiry or verification, b. Reassessment proceedings cannot be initiate merely on the information received from investigation wing c. Reassessment proceeding cannot be initiated when the LD. CIT(A) have reason to suspect and not reason to believe. 3. On the Facts and circumstances of case and law the Ld CIT(A) erred in confirming the assessment order under section 143 sub section 3 r w s 147 of income tax Act which is passed against the principal of natural justice. 4. The Ld CIT(A) erred in confirming and rejecting the books of accounts under section 145 of the. Income Tax Act. 5. The Ld.CIT(A) erred in confirming and treating Rs. 42, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uspect and not reason to believe. 3. On the Facts and circumstances of case and taw the Ld CIT(A) erred in confirming the assessment order under section 143 sub section 3 r.w.s. 147 of income tax Act which is passed against the principal of natural justice. 4. The Ld CIT(A) erred in confirming and rejecting the books vf accounts under section 145 of the. Income Tax Act. 5. The Ld.CIT(A) erred in confirming and treating Rs, 42,05,6507- being 12.5 percent of the total purchases of Rs. 3,36.45,1977- as bogus non-genuine expenditure and thereby erred in adding the same to the total income of t he assessee in view of. section 69C of the Income Tax Act, 1961. 6. The Ld. CIT(A) erred in confirming the disallowance of unsecured loans taken of Rs. 1,.50,00,000/- and thereby erred in confirming and treating the same as unexplained cash credits in view of section 68 of the Income Tax Act, I96I. 7 The Ld. CIT(A) erred in confirming the disallowance of unsecured loans taken of Rs. 20,958/ and thereby erred in confirming and treating the same as unexplained cash credits in view of section 68 of the Income Tax Act, 1961. 8. The Ld. CIT(A) erred in confirming the disallowance of genuin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... respect of unsecured loan. Further, mere furnishing of confirmation letter, ledger extract and bank statement is not sufficient enough to come out of the shadow cast upon the assesses and what is required to be proved is genuineness oj transactions. In this case, the AO has brought out number of reasons to doubt transactions between the parties, bat the assesses failed to file any evidence to contradict the facts brought out by the AO while making addition towards unsecured loan. Therefore, we are of the considered view that the lower authorities were fight in making addition towards unsecured loan taken from three companies belonging to Shri Bhanwarlal Jain and hence, we are not inclined to deviate from the findings recorded by the Ld. CIT(A). Accordingly, the ground of appeal taken by the assesses is rejected. 12. The next issue that came up for our consideration is disallowance of expenditure incurred in relation to exempt income u/ 14A of the I.T. Act, 1961. The AO has determined disallowance of Rs. 2,24,398 u/s 14A r.w.r. 8D. According to the AO, although the assesses has exempt income but, failed to disallow expenditure incurred in relation to exempt income. Therefore, he ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... income, the possibility of incurring certain expenditure towards such income cannot he ruled out. Further, since the assessee has not filed any apportionment of expenses in respect of exempt income, we find no reason to interfere with the findings of AO in applying prescribed procedure provided u/r SD{2){iii) white determining disallowances u/s !4A in relation to exempt income. Therefore, we concur with the findings of Ld.CIT(A) in confirming the disallowance of expenditure u/r 8D(2)(iii) @0.5% of average value of investments amounting to Rs. 26,049/-. 15. In the result, ail appeals filed by the assessse are partly allowed. " 5. In the aforesaid order disposed of by the Hon'ble Tribunal, only the following grounds were adjudicated: a. Addition of alleged bogus purchases from Bhanwarlal Jain group concerns u/s. 69C of the Act. b. Addition of alleged bogus Joan transactions from Bhanwarlal Jain group concerns u/s 68 of the Act. c. Disallowance u/s 14Aof the Act. 6. However, the Hon'ble Tribunal in the aforementioned order has not discussed or adjudicated the following grounds as slated in the memorandum of appeal for A,Y. 2011-12 bearing ITA No.4434/Mum/2018. Ground ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t been discussed and have been summarily rejected stating that the facts in the case are different from those of the appellant's case. In this regard reference is invited on the jurisdict ional High Court judgment in the case of Amore_Jewels Pvt.Ltd. v, The Dy. Commissioner of Income Tax [Writ Petition NO.12833 of 2018] which states that: "6. We find that, though the order dated I3th February, 2015 does render a finding that no positive material was brought on record, them is no discussion whatsoever of the various case laws detailed in the submissions which according to the petitioner clinches the issues in support oj its case that (he shareholding investment by the jive Companies was genuine. In the above view, the Tribunal ought to have allowed the petitioner's Rectification Application and considered the petitioner's Appeal before it on merits, interalia, taking Into account the material and case laws which has been already filed by the petitioner's during the hearing leading lo the order dated 1 3th February, 2015. 7. In view of the peculiar facts of the present case, we are not only setting aside the impugned order dated 4th May, 2018 hut also the order da ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Act, 1961 and hence, the order of the Tribunal may be recalled in the interest of justice. 3. The Ld. DR, on the other hand, strongly supporting order of the Tribunal submitted that the assesse has failed to makes out a case of prima-facie mistake apparent on record, which could be rectified u/s 254(2) of the I.T.Act, 1961, but what the Ld. AR for the assessee seeking by way of this miscellaneous application is to review the decision rendered by the Tribunal in the given facts and circumstances of the case, which is not permissible u/s 254(2) of the I.T Act,1961 and hence, the miscellaneous applications filed by the assesse for all assessment years needs to be dismissed. 4. We have heard both the parties, perused the miscellaneous application filed by the assesee along with order of the Tribunal, dated 27/03/2019. We find that the assessee has taken certain grounds in its appal, filed for the AY 2011-12 to 2013-14, in respect of reopening of assessment u/s 147 of the Act 1961. The Tribunal, while adjudicating the appeal filed by the assessee has failed to consider grounds No.1, 2 and 3 of assesee, which challenges initiation of reassessment proceedings u/s 147, on the erroneous p ..... X X X X Extracts X X X X X X X X Extracts X X X X
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