HEMANT DHAWAN,DELHI V. INCOME TAX OFFICER, WARD-58(3), DELHI, DELHI

ITA 5625/DEL/2024

• Counselvise Citation: [2025] 140 COUNSELVISE.COM (IT) 775965 (ITAT-DELHI)
• Duration Of Justice: 9 month(s) 4 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 10-09-2025
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2018-2019
• Appeal Filed On: 06-12-2024
• Other Referred Cases: Goetze (India) Ltd. vs. CIT, Jai Parabolic Springs Ltd., Pruthvi Brokers of show holding
• Laws Referred To: Goetze (India) Ltd. vs. CIT 284 ITR 323 (SC), Jai Parabolic Springs Ltd. (306 ITR 42), Pruthvi Brokers of show holding 349 ITR 336
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: RAJESH KUMAR DHANESTA
• Assessee Lawyers: C. S. ANAND
• Keywords: Revised return; TDS; FORM 26AS

Judgement Text

" IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCHES ‘B’, NEW DELHI. BEFORE SHRI S.RIFAUR RAHMAN, ACCOUNTANT MEMBER and SHRI VIMAL KUMAR, JUDICIAL MEMBER ITA No.5625/DEL/2024 (Assessment Year: 2018-19) Shri Hemant Dhawan, vs. ITO, Ward 58 (3), D-371, Second Floor, Anand Vihar, Delhi. Delhi – 110 092. (PAN : AFPPD1587F) (APPELLANT) (RESPONDENT) ASSESSEE BY : Shri C.S. Anand, Advocate REVENUE BY : Shri Rajesh Kumar Dhanesta, Sr. SR Date of Hearing : 26.08.2025 Date of Order : 10.09.2025 O R D E R PER S.RIFAUR RAHMAN,AM: 1. The assessee has filed appeal against the order of the Learned Commissioner of Income-Tax (Appeals)/National Faceless Appeal Centre (NFAC), Delhi [“Ld. CIT(A)”, for short] dated 11.11.2024 for the Assessment Year 2018-19. 2. At the time of hearing, ld. AR of the assessee submitted that ld. CIT (A) rejected the plea of the assessee that assessee has claimed certain legal claim in revised return of income filed before the Assessing Officer. However, as per the decision of Hon’ble Apex Court in Goetze (India) Printed from counselvise.com 2 ITA No.5625/DEL/2024 Ltd. vs. CIT 284 ITR 323 (SC), the Assessing Officer may not have power to entertain new claim, however appellate authorities have power. Therefore, we find force in the contention of the assessee that ld. CIT (A) should have entertain the claim of the assessee. Therefore, we find force in the contention of the assessee to proceed to take up the other grounds of appeal on merits. 3. At the time of hearing, ld. AR of the assessee brought to our notice the facts emerges from the records are that :- (a) Assessee made booking of few units in the upcoming project 'Oh my God' in Sector 129 Noida with M/s Alisa Infratech Pvt. Ltd. (Developer) and paid amount of Rs. 5 Crores (in FY 2013-14 Amount of Rs. 3 Crore and in FY 2014-15 amount of Rs. 2 crore) ; (b) Developer failed to keep its commitment which forced Assessee to took legal-recourse against Developer; (c) thereafter Developer entered into a M.O.U. with Assessee on 04.04.2016 and issued four cheques for amount of Rs. 6.50 Crores (towards principal booking amount Rs. 5 Crores and towards compensation amount of RS.1.50 Crores) in FY 2016-17 ; Printed from counselvise.com 3 ITA No.5625/DEL/2024 (d) one cheque of Rs. 1.50 Crore got cleared but other three cheques of Rs. 5 Crore got bounced; (e) Assessee again took legal recourse against Developer and thereafter Developer gave DD of Rs. 2 Crores to the Assessee on 22.01.2018 ; (f) Developer filed its TDS Return, showing TDS of Rs.36 Lakh, out of interest of Rs. 3.60 Crores ; (g) without making any further payment thereafter to Assessee, Developer fled away, as is seen from the National News paper Cutting of Feb 2020 ; (h) Assessee filed his ITR for AY 2018-19 on 30.03.2019, thereby including such reported income of Rs.3.60 Crores and claiming credit of TDS of Rs. 36 Lakhs on the basis Form 26AS ; (i) during assessment proceedings, Assessee filed Revised Computation of Income, wherein he did not include such income of Rs.3.60 Crores while clarifying that such unreal income was inadvertently included by him while filing the original ITR ; (j) AO refused to entertain Revised Computation of Income, on the ground that time for filing Revised ITR is over and he Printed from counselvise.com 4 ITA No.5625/DEL/2024 cannot entertain the Revised Computation of Income, without having Revised ITR on record ; (k) accordingly AO assessed Total Income of Rs.35864682/-. 4. Before us, ld. AR of assessee pleaded that Hon'ble Apex Court in Goetz India Ltd. (284 ITR 323) clarified that though the AO was not empowered to entertain Revised Computation of Income in the absence of Revised ITR yet there is no prohibition on the power of the Tribunal. Ld. AR also relied upon Hon'ble Delhi High Court judgement in Jai Parabolic Springs Ltd. (306 ITR 42) and Hon'ble Bombay High Court in Pruthvi Brokers of show holding 349 ITR 336, for such proposition. We find force in such arrangement advanced by the ld. AR of the assessee and accordingly admit the Revised Computation of Income (which was filed by assessee alongwith his letter as Appendix-5, during the course of assessment proceedings on 20.01.2021). 5. Further ld. AR of then assessee pleaded that the assessee be not taxed on unreal interest income of Rs.3.60 Crores because no amount was ever lended by assessee to Developer and such amount of Rs.3.60 Crores cannot be the 'interest' income in the hands of assessee. Thereafter the AR of assessee pleaded that the conduct of Developer shows that in order to save it from legal consequences arising out of its failure to keep its commitment and to honor the cheques issued by it on earlier occasions, Printed from counselvise.com 5 ITA No.5625/DEL/2024 Developer played such trick. Ld. AR of Assessee pleaded that total amount received by assessee i.e. Rs.3.50 (Rs.1.50 Crores plus Rs. 2 Crores) was nothing but the part repayment of his principal booking amount of Rs.5 Crores. He further pleaded that even TDS amount of Rs.36 Lakhs should be treated towards repayment of his principal booking amount of Rs. 5 Crores. We find that the total receipts of Rs.3.86 Crores (Rs.3.50 Crores + Rs.0.36 Crores TDS) are far less than Rs.5 Crores advanced by assessee to Developer. Therefore we find force in such pleadings made by AR of assessee. After carefully considering the facts of the matter, we have reached to conclusion that charging income tax on unreal income of Rs.3.60 Crores will not be justified particularly when the AO has not brought on record any material to show that Assessee received such amount. 6. On the other hand, ld. DR relied on the orders of the lower authorities. 7. Considered the rival submissions and material placed on record. We are of the view that Developer mischievously filed its TDS Return, just to cover up its follies and to save it from rigors of the law. Hence we delete the addition of Rs.3.60 Crores while clarifying that deduction claimed by assessee at Rs.1,41,38,774/- on account of interest paid or borrowed funds will not be allowable under such circumstances. No argument was advanced by ld. AR of the assessee, relating to loss on Commodity Printed from counselvise.com 6 ITA No.5625/DEL/2024 Trading. Therefore, we do not incline to allow such claim of Rs.1,10,79,358/-. Before parting, we wish to clear that credit of TDS of Rs.36 Lakhs be allowed to Assessee, as according to us the same amount is to be treated as repayment towards principle booking of Rs.5 Crores because even after this, an amount of Rs.1.14 Crores (differentia of Rs. 5 Crores and Rs.3.86 Crores) remained payable by Developer to assessee. The surplus amount (over & above Rs.5 Crores), if ever actually received by Assessee in future from Developer, may be brought to tax as per the provisions of the Act. 8. In the result, the appeal filed by the assessee is allowed. Order pronounced in the open court on this 10TH day of September , 2025 SD/- SD/- (VIMAL KUMAR) (S.RIFAUR RAHMAN) JUDICIAL MEMBER ACCOUNTANT MEMBER Dated: 10.09.2025 TS Copy forwarded to: 1. Appellant 2. Respondent 3. CIT 4. CIT(Appeals). 5. DR: ITAT ASSISTANT REGISTRAR ITAT, NEW DELHI Printed from counselvise.com "