Rahul Garg, New Delhi V. ITO, Ward-24(3), New Delhi

ITA 1028/DEL/2019

• Counselvise Citation: [2019] 112 COUNSELVISE.COM (IT) 2333 (ITAT-DELHI)
• Duration Of Justice: 9 month(s) 28 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 06-12-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2014-2015
• Appeal Filed On: 08-02-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SANJAY KAPOOR
• Assessee Lawyers: R K SINGAL
• Keywords: Application of stay
• Section: 143(3); 68; 2

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL, DELHI FRIDAY C BENCH, NEW DELHI BEFORE MS. SUSHMA CHOWLA, JUDICIAL MEMBER SHRI N.K. BILLAIYA, ACCOUNTANT MEMBE R SA NO. 1028/DEL/2019 A/O ITA NO. 8333/DEL/2019 [A.Y 2016-17] SMT. MEENU KAPOOR VS. THE A.C.I.T 819, KATRA NEEL, CHANDNI CHOWK CIRCLE 47(1) DELHI NEW DELHI PAN: AAJPK 6319 D (APPLICANT) (RESPONDENT) ASSESSEE BY : SHRI R.K. SIN GAL, CA DEPARTMENT BY : SHRI SANJAY KAPOO R, SR. DR DATE OF HEARING : 06.12.2019 DATE OF PRONOUNCEMENT : 06.12.2019 ORDER PER N.K. BILLAIYA, ACCOUNTANT MEMBER, WITH THIS STAY APPLICATION, THE ASSESSEE PRAYS FOR STAY OF DEMAND ARISING OUT OF THE ASSESSMENT ORDER DATED 10.12.201 8 FRAMED U/S 2 143(3) OF THE INCOME TAX ACT, 1961 [HEREINAFTER REF ERRED TO AS 'THE ACT' FOR SHORT] FOR ASSESSMENT YEAR 2016-17. 2. BEFORE US, THE LD. COUNSEL FOR THE ASSESSEE POIN TED OUT THAT OUT OF THE TOTAL DEMAND OF RS. 4.67 CRORES, WHICH INCLU DES TAX AND INTEREST, THE ASSESSEE HAS ALREADY PAID A SUM OF RS . 93.51 LAKHS, WHICH COMES TO 20% OF THE TOTAL DEMAND AND REQUESTED FOR STAY OF THE BALANCE DEMAND OF RS. 3.71 CRORES. 3. THE LD. COUNSEL FOR THE ASSESSEE EXPLAINED THE F ACTS AND CIRCUMSTANCES WHICH PROMPTED THE ASSESSING OFFICER TO MAKE THE IMPUGNED ADDITIONS AND VEHEMENTLY STATED THAT THE A SSESSEE HAS A VERY GOOD CASE BEFORE THE TRIBUNAL. 4. PER CONTRA, THE LD. DR STRONGLY OPPOSED THE STAY APPLICATION AND STATED THAT THE ASSESSEE HAS FAILED TO DISCHARGE TH E ONUS CAST UPON HER BY PROVISIONS OF SECTION 68 OF THE ACT. 5. WE HAVE GIVEN THOUGHTFUL CONSIDERATION TO THE AS SESSMENT ORDER. THE BONE OF CONTENTION IS THE ADDITION OF RS. 10.20 CRORES MADE U/S 68 OF THE ACT. WE FIND THAT THE ASSESSING OFFICER HAS MADE ADDITIONS 3 SOLELY ON THE GROUND THAT THE ASSESSEE HAS FAILED T O PROVE THE CREDIT WORTHINESS OF THE LENDERS AS THE RETURN OF INCOME O F THE LENDERS IS DISPROPORTIONATE TO THE AMOUNT OF LOAN GIVEN BY THE M RESPECTIVELY. 6. IN OUR CONSIDERED OPINION, THE ASSESSING OFFICER HAS SIMPLY CONSIDERED THE RETURN OF INCOME AND NOT THE FUND FL OW STATEMENT OF THE LENDERS. WE FURTHER FIND THAT ALL THE LENDERS ARE FAMILY MEMBERS OF THE ASSESSEE AND ARE REGULARLY ASSESSED TO TAX. IN OUR CONSIDERED OPINION, THE ASSESSEE HAS A PRIMA FACIE GOOD CASE T O DEFEND. HOWEVER, AT THE SAME TIME, WE FIND THAT THE ASSESSEE HAS PAI D ONLY 20% OF THE DEMAND. THEREFORE, WE DIRECT THE ASSESSEE TO PAY A FURTHER SUM OF RS. 50 LAKHS ON OR BEFORE 30 TH DAY OF DECEMBER 2019 AND SUBJECT TO THE PAYMENT OF THIS SUM, BALANCE DEMAND IS STAYED FOR A PERIOD OF SIX MONTHS OR TILL THE DISPOSAL OF THE APPEAL, WHICHEVE R IS EARLIER. 7. THE REGISTRY IS DIRECTED TO LIST THE CASE FOR HE ARING ON 05.02.2020 . SINCE THE DATE OF HEARING WAS ANNOUNCED IN THE OPEN COURT, WHICH IS IN THE KNOWLEDGE OF BOTH THE REPRESENTATIVES, NO NOTICE SHALL BE SERVED. NEEDLES S TO MENTION THAT THE ASSESSEE SHALL NOT SEEK ADJOURNMEN T WITHOUT ANY JUSTIFIABLE CAUSE AND SHALL FILE RELEVA NT PAPER 4 BOOKS PRIOR TO THE DATE OF HEARING, AS PER PROVISIO NS OF THE LAW. 8. IN THE RESULT, THE STAY APPLICATION OF THE ASSES SEE IN SA NO. 1028/DEL/2019 IS DISPOSED OF ACCORDINGLY. THE ORDER IS PRONOUNCED IN THE OPEN COURT ON 06.12. 2019. SD/- SD/- [SUSHMA CHOWLA ] [N.K. BILLAIYA] JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 06 TH DECEMBER, 2019 VL/ COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR ASST. REGISTRAR, ITAT, NEW DELHI 5 DATE OF DICTATION DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE OTHER MEMBER DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR.PS /PS DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE DICTATING MEMBER FOR PRONOUNCEMENT DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR.P S/PS DATE ON WHICH THE FINAL ORDER IS UPLOADED ON THE WEBSITE OF ITAT DATE ON WHICH THE FILE GOES TO THE BENCH CLERK DATE ON WHICH THE FILE GOES TO THE HEAD CLERK THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT RE GISTRAR FOR SIGNATURE ON THE ORDER DATE OF DISPATCH OF THE ORDER