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TMI Blog2022 (3) TMI 1380X X X X Extracts X X X X X X X X Extracts X X X X ..... ional evidences produced u/r 46A of the I.T. Rules, 1962, to support the argument that the provisions of section 2(22)(e) were not attracted in respect of the business advance by M/s. MAAD Realtors & Infra Ltd. to M/s. D.M. Logistic Pvt. Ltd. thereby denying the appellant opportunity to support his arguments, which action being not as per law may kindly be overruled and the Hon. CIT(A) may be directed to admit the additional evidences and consider the same in deciding the merits of the addition. 2. The Hon. CIT(A) erred in upholding the addition of Rs. 19,61,500/- u/s 2(22)(e) of the I. T. Act, 1961 as deemed dividend on account of advance by M/s. MAAD Realtors & Infra Ltd. to M/s. D.M. Logistic Pvt. Ltd. not appreciating that the said ad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d by the above, the assessee was in appeal before the Ld. CIT(A) on the addition of Rs. 88,99,265/- u/s 2(22)(e) of the Act and the interest charged u/s 234A, 234B & 234C of the Act. The Ld. CIT(A) confirmed the addition of 50% only to the extent of Rs. 39,23,000/- as deemed dividend u/s 2(22)(e) of the Act only for the year under consideration and directed to assess 50% of deemed dividend for FY 2011-12 and 2012-13 for the advance of Rs. 66,48,503 and Rs. 72,27,028/- respectively. The Ld. CIT(A) also confirmed the interest payable u/s 234A, 234B & 234C and also rejected the admission of additional evidence on the ground that the documents to be produced as additional evidence does not explain or certify the claim made by the assessee as th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eby condoning the delay of 50 days as per the request of the Ld. AR. 7. The pre-dominant issue that has to be decided in the present appeal is whether the Ld. CIT(A) has erred in not admitting the additional evidence produced u/s 46A of the I.T. Rules, 1962, to substantiate the fact that Section 2(22)(e) of the Act does not apply to the assessee‟s present case and subsequently to decide on the issue that the addition u/s 2(22)(e) has to be deleted or upheld. 8. We are of the considered opinion that the first ground of appeal has to be decided primarily on the basis of the facts of the case and the authorities to be relied on. The balance sheet of MAAD Realtors & Infra Ltd and M/s D. M. Logistics Pvt. Ltd. seized during the search pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pose of buying developable FSI to the extent of 30,000 Sq. ft after conversion of land for non-agriculture purpose after obtaining the necessary sanction from the local authorities. The consideration was fixed for Rs. 700 per Sq. Ft. It was contended that the payment made by M/s MAAD Realtors & Infra Ltd. to M/s D. M. Logistics Pvt. Ltd. is towards acquisition of the said FSI as per the MOU between both the companies. It was further contended that M/s MAAD Realtors & Infra Ltd. has also made direct payment to the land owner Shri Dilip Kansaw and M/s D. M. Logistics Pvt. Ltd. could not execute conveyance deed from land owners owing to unexplained reasons. As the additional evidence pertains to the said transaction which according to the Ld. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... me due to wrong interpretation of the provision. We are of the considered opinion that the assessee may be given an opportunity to be heard before the Ld. CIT(A) and the Ld. CIT(A) is directed to consider the additional evidence and adjudicate the matter in the light of those evidences produced by complying with the procedures enumerated in Rule 46(A)(3) of the Income Tax Rules 1962. Since the second ground of appeal has to be adjudicated afresh based on the additional evidence before the Ld. CIT(A), it becomes infructuous. The matter is remanded back to the Ld. CIT(A) with the above observation.
11. In the result, the appeal filed by the assessee is allowed for statistical purposes.
Orders pronounced in the open court on 15.03.2022. X X X X Extracts X X X X X X X X Extracts X X X X
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