Sh. Basant Bansal, Gurgaon V. DCIT, Faridabad

CO 223/DEL/2015

• Counselvise Citation: [2015] 123 COUNSELVISE.COM (IT) 1188 (ITAT-DELHI)
• Duration Of Justice: 2 month(s) 7 day(s)
• Appeal Type: Cross Objection
• Pronouncement Date: 23-09-2015
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: SMC 1
• Next Hearing Date: 08-09-2015
• Assessment Year: 2005-2006
• Appeal Filed On: 16-07-2015
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Assessee Lawyers: DR B R R KUMAR
• Keywords: Deemed dividend
• Section: 143(3); 153A

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH: SMC - I NEW DELHI BEFORE SMT DIVA SINGH, JUDICIAL MEMBER I.T.A .NO. - 194 9 /DEL/201 5 (ASSESSMENT YEAR - 20 0 5 - 06 ) DCIT, CENTRAL CIRCLE - II, FARIDABAD ( APPELLANT) VS BASANT BANSAL, C - 13, SUSHANT LOK, PHASE - I, GURGAON. PAN - AHYPB1937A (RESPONDENT ) C.O.NO. - 223/DEL/2015 (IN I. T.A .NO. - 1949 /DEL/201 5) (ASSESSMENT YEAR - 20 05 - 06) BASANT BANSAL, C - 13, SUSHANT LOK, PHASE - I, GURGAON. PAN - AHYPB1937A ( APPELLANT) VS DCIT, CENTRAL CIRCLE - II, FARIDABAD (RESPONDENT ) APPELLANT BY DR.B.R.R.KUMAR, SR.DR RESPONDENT BY SH.GAUTAM JAIN, CA ORDER THE REVENUE HAS FILED THE PRESENT APPEAL ASS AILING THE CORRECTNESS OF THE ORDER DATED 3 0.0 1 .2015 OF CIT(A) , ALWAR PERTAINING TO 20 0 5 - 06 ASSESSMENT YEAR ON THE FOLLOWING GROUNDS: - WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE THE LD.CIT(A WAS RIGHT IN DELETING THE ADDITION OF RS.14,00,000/ - MADE U/S 2(22)(E) OF THE ACT & FAILED TO APPRECIATE THE CATEGORICAL FINDINGS MADE BY A.O. 2. THE LD. SR. DR AT THE TIME OF HEARING MOVED AN ADJOURNMENT PETITION S TATING THAT HE MAY BE GIVEN TIME TO MODIFY THE GROUNDS RAISED. OBJE CTING TO THE SAID REQUEST THE L D. AR SUBMITTED THAT THE PRESENT APPEAL CAME UP FOR HEARING ON 23.07.2015 AND IT WAS SUBMITTED THAT IF THERE WAS ANY SUCH NEED TO MODIFY DATE OF HEARING 08 .0 9 .2015 DATE OF PRONOUNCEMENT 23 .0 9 .2015 I.T.A .NO. - 1949 / DEL/201 5 & C.O. - 223/DEL/2015 PAGE 2 OF 3 THE GROUND THEN IT COULD HAVE BE EN MODIFIED THUS SINCE IT IS NOT DONE ADJOURNMENT ON THE SAID GROUND WAS OPPOSED . IT WAS ALSO HIS SUBMISSION THAT EVEN IF THE REVENUE MODIFIES THE GROUNDS EVEN IN SUCH AN EVENTUALITY THE ISSUE IS DECIDED IN FAVOUR OF THE ASSESSEE BY THE JURIS DICTIONAL HIGH COURT IN THE CASE OF KABUL CHAWLA VS ACIT WHEREIN THE APPEAL OF THE REVENUE HAS BEEN DISMISSED BY JUDGEMENT DATED 28.08.2015 IN ITA NO.707/2014. IN THE FACTS OF THE PRESENT CASE IT WAS SUBMITTED THAT ADDITION OF RS. 12,75,255/ - WAS MADE U/S 2(22)(E)OF THE ACT AND INITIATION OF PROCEEDINGS U/S 153A R.W.S.143(3) WAS CANCELLED BY THE CIT(A). RELYING UPON THE CASE OF KABUL CHAWLA WHEREIN ITAT VIDE ITS ORDER DATED 23.05.2014 IN ITA NO.7 7 9 - 83/DEL/2013 QUASHED THE PROCEEDINGS U/S 153A ON SIMILAR F ACTS AND ARGUMENTS , T HE DEPARTMENTAL APPEAL IT WAS SUBMITTED HAS BEEN DISMISSED BY THE HON BLE HIGH COURT . T HUS EVEN OTHERWISE I T W A S A R G U E D THERE WAS NO MERIT IN THE DEPARTMENTAL APPEAL. THE LD. SR. DR IN THE FACE OF THE ABOVE STAND WAS UNABLE TO SHOW HOW TIME GRANTED T O THE REVENUE WOULD RESULT IN ANY FRUITFUL EXERCISE. 3. HAVING HEARD THE SUBMISSIONS OF THE PARTIES IN THE CONTEXT OF THE PLEADING AS BROUGHT OUT ABOVE, THE RECORD SHOWS THAT AS A RESULT OF SEARCH OPERATION CONDUCTED O N KAMDHENU GROUP OF CASES WHERE SH. BASANT BANSAL WAS ALSO STATED TO BE BELONGING TO ITS SUB GROUP NOTICE DATED 28.04.2010 U/S 153A WAS ISSUED AND SERVED ON THE ASSESSEE . THE NOTICE ISSUED U/S 153A WAS CHALLENGED UNSUCCESSFULLY BEFORE THE AO ON VARIOUS GROUNDS. RESULTING IN AN ADDITION U/ S 22(E) OF THE ACT . IN APPEAL BEFORE THE FIRST APPELLATE AUTHORITY THE CIT(A) RELYING UPON THE DECISION OF THE CO - ORDINATE BENCH IN THE CASE OF KABUL CHAWLA AMONGST OTHERS CAME TO THE FOLLOWING CONCLUSION: - 4.9. I FIND THAT NO REFERENCE HAS BEEN MADE BY THE AO TO ANY ADVERSE MATERIAL FOUND DURING THE COURSE OF SEARCH WHILE COMPLETING THE ASSESSMENT U/S 153A OF THE I.T.ACT. THEREFORE, CONSIDERING ALL THESE FACTS AND AFTER PLACING RELIANCE ON THE JUDGEMENTS CITED ABOVE, I FIND NO JUSTIFICATION IN INITIATI ON OF PROCEEDINGS U/S 153A R.W.S 143(3) OF THE IT ACT IN THE ABSENCE OF ANY ADVERSE MATERIAL BEING FOUND IN THE COURSE OF SEARCH. ACCORDINGLY, THE ORDER PASSED U/S 153A R.W.S 143(3) OF THE IT ACT IS CANCELLED. 3 .1 . IN VIEW THEREOF ON THE GROUND AGITATE D BY THE REVENUE, THE CIT(A) CAME TO THE FOLLOWING CONCLUSION: - 6. THE GROUND NO.5, 5.1 AND 5.2 ARE AGAINST MAKING AN ADDITION OF RS.12,75,255 ON ACCOUNT OF DEEMED DIVIDEND AS PER SECTION 2(22)(E) OF THE IT ACT, 1961. I.T.A .NO. - 1949 / DEL/201 5 & C.O. - 223/DEL/2015 PAGE 3 OF 3 6.1. THE APPEAL OF THIS GROUND IS NOT CONSIDERED FOR ADJUDICATION IN VIEW OF THE FINDINGS GIVEN ABOVE WHERE THE ASSESSMENT PROCEEDINGS HAVE BEEN HELD TO BE NOT VALID. 4. IN THE AFORE - MENTIONED PECULIAR FACTS AND CIRCUMSTANCES OF THE CASE, IT IS SEEN THAT THE GROUNDS RAISED BY THE REVENUE I N THE PRESENT PROCEEDINGS IS MISPLACED. CONSIDERING THE OBJECTIONS OF THE LD.AR IT IS SEEN THAT THE APPEAL CAME UP FOR HEARING ON 23.07.2015 ON WHICH DATE IT WAS ADJOURNED. IN THESE CIRCUMSTANCES, I AM OF THE VIEW THAT IN THE PECULIAR FACTS AND CIRCUMSTA NCES, THE REQUEST OF THE REVENUE SEEKING TIME TO MODIFY THE GROUNDS CANNOT BE ACCEPTED. ACCORDINGLY, THE SAME IS REJECTED. HOWEVER, LIBERTY IS GIVEN TO THE REVENUE TO PRAY FOR A RECALL OF THIS ORDER IN THE EVENTUALITY THE REVENUE IN THE PECULIAR FACTS AN D CIRCUMSTANCES OF THE CASE IS STILL OF THE OPINION THAT FILING OF A MODIFIED GROUND WAS JUSTIFIED AND NECESSARY. IN THE SAID EVENTUALITY THE REJECTION HEREIN WOULD NOT STAND IN THE WAY OF THE REVENUE TO AGITATE THE ISSUE BEFORE THE CO - ORDINATE BENCH . IN TERMS OF THE ABOVE, THE APPEAL OF THE REVENUE AND THE CO FILED BY THE ASSESSEE ARE DISMISSED. 5 . IN THE RESULT, THE APPEAL OF THE REVENUE AND THE CO FILED BY THE ASSESSEE ARE DISMISSED. THE ORDER IS PRONOUNCED IN THE OPEN COURT ON 2 3 R D OF SEPTEMBER, 2015. S D / - (DIVA SINGH) JUDICIAL MEMBER DATED: 2 3 /09 /2015 * AMIT KUMAR * COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT ASSISTANT REGISTRAR ITAT NEW DELHI