ACIT, NEW DELHI V. M/S. SUNNIVA PROMOTERS PVT. LTD., GURGAON

ITA 2846/DEL/2017

AI Insights

The case involves an appeal by the Revenue against the order of the Learned Commissioner of Income Tax (Appeals) which had deleted an addition of Rs.2,45,49,784 made on account of cash received by the assessee, M/s Sunniva Promoters Pvt. Ltd., during the assessment year 2012-13. The addition was initially made by the Assessing Officer under sections 147/144 of the Income Tax Act, 1961, following a survey that revealed unaccounted cash receipts. The CIT(A) deleted the addition, finding that the AO had not made proper enquiries. The Revenue challenged this decision, arguing that the CIT(A) had not properly considered the evidences and that the AO was not given a chance to respond to the new evidences presented during the appellate proceedings.

• Counselvise Citation: [2025] 140 COUNSELVISE.COM (IT) 474601 (ITAT-DELHI)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 19-02-2025
• Appeal Filed By: Department
• Order Result: Partly Allowed
• Bench Allotted: G
• Assessment Year: 2012-2013
• Laws Referred To: Income Tax Act, 1961
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: SAHIL KUMAR BANSAL
• Keywords: Set aside; Additional evidence
• Section: 147; 148; 144; 143(3); 133A

Judgement Text

" IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH ‘G’: NEW DELHI BEFORE SHRI ANUBHAV SHARMA, JUDICIAL MEMBER AND SHRI MANISH AGARWAL, ACCOUNTANT MEMBER ITA No.2846/Del/2017 (ASSESSMENT YEAR 2012-13) Asst. CIT, Central Circle-18, Jhandewalan Extn. New Delhi-110055 Vs. M/s Sunniva Promoters Pvt. Ltd. Block-C, Goldsouk Mall, Phase-1, Sushant Lok Sector-43, Gurgaon, Haryana-122002 PAN-AAICS7038R (Appellant) (Respondent) Assessee by None Department by Shri Sahil Kumar Bansal, Sr. DR Date of Hearing 10/02/2025 Date of Pronouncement 19/02/2025 ORDER PER MANISH AGARWAL, AM: This is appeal filed by the Revenue against the order of Learned Commissioner of Income Tax (Appeals)-27, New Delhi (‘the Ld. CIT(A)’ for short) for Assessment Year 2012-13. 2. The Revenue has challenged the order of Ld. CIT(A) by taking following grounds of appeal: “1. On the facts and in the circumstances of the case, the Ld. CIT(A) has erred in law in deleting the addition of Rs.2,45,49,784/- made on account of cash received by the assessee without examining and adjudicating upon the merits of the case. 2 ITA No.2846/DEL/2017 ACIT vs. M/s Sunniva Promoters Pvt. Ltd. vs. NFAC 2. On the facts and in the circumstances of the case, the Ld. CIT(A) has erred in law in deleting the addition of Rs.2,45,49,784/- made on account of cash received by the assessee company without considering the evidences provided in the form of seized annexures and statements taken on oath during the course of search and survey operations. 3. On the facts and in the circumstances of the case, the Ld. CIT(A) has erred in law in statistically allowing the appeal of the assessee on the ground relating to issuance of notice u/s 148 and recording of proper satisfaction note overlooking the provisions of section 148 of the Income Tax Act, 1961. 4. (a) The order of the Ld. CIT(A) is erroneous and not tenable in law and on facts. (b) The appellant craves leave to add, alter or amend any/all of the grounds of appeal before or during the course of the hearing of the appeal.” 3. The brief facts of the case are that assessee is a Private Limited Company. A survey u/s 133A was carried at the business premises of the M/s Aerens Jai Realty (Pvt.) Ltd. During the course of survey on 17/08/2011, certain documents were found indicating certain cash received which was shown as discounts in the books of accounts. The total of these cash receipts was of Rs.4,19,64,494/-, out of which Rs.1,74,14,710/- were related to M/s Aerens Jai Reality Pvt. Ltd. and remaining amount of Rs.4,19,64,494/- related to assessee. The assessee was asked to explain the nature and details of these cash receipts, however, no details were filed, therefore, the order was passed u/s 147/144 of the Income Tax Act, 1961 (‘the Act’ for short) after making addition of Rs.2,45,49,784/-. Against such order, assessee has preferred appeal before Ld. CIT(A). Before the Ld. CIT(A) assessee claimed that AO without making proper enquiries, merely on assumptions has made the additions. Considering the 3 ITA No.2846/DEL/2017 ACIT vs. M/s Sunniva Promoters Pvt. Ltd. vs. NFAC submissions of the assessee, Ld. CIT(A) has deleted the additions, however, has not decided the legal issue regarding reopening u/s 148 of the Act. Against such order, the Revenue is in appeal before us. 4. During the course of hearing, the Ld. Sr. DR submit that the Ld. CIT(A) has accepted the contentions of the assessee by appreciating the evidences filed during the course of appellate proceedings, which were in the shape of accounts, confirmation agreements etc. as stated in para 5.1 at page 21 of the appellate order. Ld. Sr. DR submit that during the course of assessment proceedings, the AO had provided sufficient opportunities to the assessee to explain the case and finally show cause notice was issued on 15/01/2015 which has reproduced at page 7 of the assessment order. Since, the assessee has not filed any explanation, the AO has passed the order u/s 144 of the Act. As per Ld. Sr. DR it is not correct that these evidences were filed before AO. However, the Ld. CIT(A) without obtaining the remand report on the evidences filed by the assessee nor such material was confronted to the AO, has allowed the appeal of the assessee. The Ld. CIT(A) has observed that the addition has been made “on presumption basis without making proper enquiries” and held the notice u/s 147/148 as against the sprit of the law which as per Ld. Sr. DR is contrary to the facts of the case. Since, the Assessing Officer was not allowed to rebut the evidences filed during the course of appellate proceedings, therefore, Ld. Sr. DR prayed that matter may be sent back to the file of Ld. 4 ITA No.2846/DEL/2017 ACIT vs. M/s Sunniva Promoters Pvt. Ltd. vs. NFAC CIT(A) for fresh adjudication after providing opportunity to the Assessing Officer on these evidences. 5. We have heard the parties and perused the materials available on record. From the findings given by Ld. CIT(A) in para 5.1 of the order, we find that Ld. CIT(A) has considered the evidences filed by the assessee, during the course of appellate proceedings. The Ld. CIT(A) further observed that the assessment was completed in this case u/s 143(3) and, thereafter, proceedings u/s 147 were initiated where the AO has not made proper enquiry with respect to the fresh evidences and material available on record. We found that the conclusion drawn by Ld. CIT(A) is based on the evidences filed by the assessee which were not confronted to the Assessing Officer. In the instant case, the assessee has not made any compliance against show cause notice dated 15/01/2015 issued by the AO. Under these circumstances, in our considered view, the Ld. CIT(A) must have confronted the AO with the material and evidences filed by the assessee before him during the course of appellate proceedings which he failed to do. It is also seen that due procedure under Rule 46A of ITAT, Rules for admission of additional evidences is also not followed by Ld. CIT(A). Therefore, in the interest of justice, we set aside the matter to the file of the Ld. CIT(A) with a direction that the evidences and documents filed by the assessee before him be provided to the AO and after obtaining the remand report, the matter be decided afresh. 5 ITA No.2846/DEL/2017 ACIT vs. M/s Sunniva Promoters Pvt. Ltd. vs. NFAC 6. In the result, the appeal of the Revenue is partly allowed for all statistical purposes. Order pronounced on 19/02/2025. Sd/- Sd/-/- (ANUBHAV SHARMA) (MANISH AGARWAL) JUDICIAL MEMBER ACCOUNTANT MEMBER Dated: 19/02/2025 PK/Sr. Ps Copy forwarded to: 1. Appellant 2. Respondent 3. CIT 4. CIT(Appeals) 5. DR: ITAT ASSISTANT REGISTRAR ITAT NEW DELHI "