SRP Industriesl Ltd., New Delhi V. ITO, New Delhi

ITA 1106/DEL/2010

• Counselvise Citation: [2012] 140 COUNSELVISE.COM (IT) 58972 (ITAT-DELHI)
• Duration Of Justice: 2 year(s) 12 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 23-03-2012
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: G
• Next Hearing Date: 02-02-2012
• Assessment Year: 2006-2007
• Appeal Filed On: 12-03-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: NIRANJAN KOULI
• Keywords: Unexplained cash credit; Additional evidence
• Section: 133(6); 68

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL (DELHI BENCH G NEW DELHI) BEFORE SHRI RAJPAL YADAV AND SHRI SHAMIM YAHYA ITA NO. 1106/DEL/2010 ASSESSMENT YEAR: 2006-07 SRP INDUSTRIES LTD., VS. INCOME-TAX OFFICER, B-216, GROUND FLOOR, LAJPAT NGR., WARD 9(2), PART-I, NEW DELHI. NEW DELHI. (PAN: AAACS0574J) (APPELLANT) (RESPONDENT) APPELLANT BY: SHRI KAPIL GO EL, ADV. RESPONDENT BY: SHRI NIRANJAN KO ULI, CIT(DR) DATE OF HEARING : 02.02.2012 DATE OF PRONOUNCEMENT : 23.03.2012 ORDER PER RAJPAL YADAV: JUDICIAL MEMBER THE ASSESSEE IS IN APPEAL BEFORE US AGAINST THE OR DER OF LEARNED CIT(APPEALS) DATED 13.11.2009 PASSED FOR ASSESSMENT YEAR 2006-07. THE ASSESSEE HAS TAKEN FOUR GROUNDS OF APPEAL, OUT OF W HICH GROUND NO.1 IS GENERAL IN NATURE WHEREIN, IT HAS PLEADED THAT THE LEARNED CIT(APPEALS) HAS ERRED IN AFFIRMING THE ORDER OF THE LEARNED ASSESSI NG OFFICER IN TOTO. NO SPECIFIC ARGUMENTS WERE RAISED BY THE LEARNED COUNS EL FOR THE ASSESSEE IN SUPPORT OF THIS GROUND, HENCE IT IS REJECTED. 2. IN GROUND NO.2, ASSESSEE HAS PLEADED THAT LEARNE D CIT(APPEALS) HAS ERRED IN CONFIRMING THE ADDITION OF RS.1,83,40,000 WHICH WAS ADDED BY THE 2 ASSESSING OFFICER WITH THE AID OF SECTION 68 OF THE INCOME-TAX ACT, 1961. IN GROUND NO.3, IT IS IMPUGNING CONFIRMATION OF AN ADD ITION OF RS.34,34,490 AND IN GROUND NO.4, ASSESSEE HAS SUBMITTED THAT LEA RNED CIT(APPEALS) FAILED TO ADJUDICATE ALL THE GROUNDS OF APPEAL RAIS ED BY THE ASSESSEE IN FORM NO. 35 WHICH WERE EXTRACTED BY THE LEARNED FIRST AP PELLATE AUTHORITY IN THE IMPUGNED ORDER. 3. THE LEARNED COUNSEL FOR THE ASSESSEE HAS FILED A N APPLICATION UNDER RULE 29 OF THE ITAT RULES FOR PERMISSION TO PRODUCE ADDITIONAL EVIDENCE. ALONG WITH THE APPLICATION, AN AFFIDAVIT OF AN ACCO UNTANT SHRI HIMANSHU KUMAR HAS ALSO BEEN FILED. SHRI KAPIL GOEL, LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED THAT ASSESSEE HAS FILED ITS RETURN OF INC OME ON 18.L2.2006 DECLARING LOSS OF RS.8,35,608. NOTICE UNDER SEC. 143(2) OF TH E ACT WAS ISSUED ON 10.10.2007. HE POINTED OUT THAT THEREAFTER LEARNED ASSESSING OFFICER DID NOT TAKE UP THE PROCEEDINGS AND ULTIMATELY COMMENCED TH E PROCEEDINGS AT THE FAG END OF OCTOBER, 2008. HE CONFRONTED THE ASSESSE E WITH REGARD TO THE LOANS RECEIVED BY THE ASSESSEE FROM 14 PARTIES. ON ACCOUNT OF ERRORS COMMITTED BY THE ACCOUNTANT, CORRECT DETAILS WERE N OT SUBMITTED AND THERE WAS PAUCITY OF TIME ALSO. ASSESSMENT ORDER HAS BEEN FRAMED ON 18.12.2008. DUE TO THIS PAUCITY OF TIME, PROPER DETAILS COULD N OT BE SUBMITTED BEFORE THE 3 ASSESSING OFFICER. HE PRAYED THAT THE DETAILS COMPI LED IN THE PAPER BOOK RUNNING INTO 163 PAGES BE TAKEN ON THE RECORD AND A LL THESE ISSUES BE REMITTED TO THE FILE OF THE ASSESSING OFFICER FOR R EADJUDICATION. LEARNED DR ON THE OTHER HAND OPPOSED THE PRAYER OF THE ASSESSE E. HE POINTED OUT THAT SUFFICIENT TIME WAS GRANTED TO THE ASSESSEE BY THE ASSESSING OFFICER. ASSESSEE FAILED TO SUBMIT THESE DETAILS, THEREFORE, IT CANNOT BE PERMITTED TO PRODUCE THE DETAILS AT THIS STAGE. HE FURTHER SUBMI TTED THAT THE ASSESSEE IS A NEGLIGENT ENTITY IN CONDUCTING ITS PROCEEDINGS BEFO RE THE LEARNED ASSESSING OFFICER AND FOR ITS OWN WRONG IT CANNOT BE GRANTED SECOND INNINGS. 4. WE HAVE DULY CONSIDERED THE RIVAL CONTENTIONS AN D GONE THROUGH THE RECORD CAREFULLY. FROM THE ASSESSMENT ORDER, WE FIN D THAT THE ASSESSING OFFICER HAD ISSUED NOTICES UNDER SEC. 133(6) TO SEV EN PARTIES OUT OF THE FOURTEEN PARTIES. NOTICES RETURNED UNSERVED IN RESP ECT OF THREE PARTIES. LEARNED ASSESSING OFFICER CONFRONTED THIS DETAIL TO THE ASSESSEE ON 5 TH NOVEMBER, 2008. THE ACCOUNTANT SHRI HIMANSHU KUMAR APPEARED BEFORE THE ASSESSING OFFICER ON 2 ND DECEMBER 2008 BUT ACCORDING TO THE LEARNED ASSESSING OFFICER REQUISITE DETAILS WERE NOT SUBMIT TED. THESE ASPECTS HAVE BEEN DISCUSSED ON PAGE 2 OF THE ASSESSMENT ORDER A ND THEREAFTER THERE IS NO DISCUSSION ABOUT THE NATURE OF MATERIAL SUBMITTED B Y THE ASSESSEE. IN THE REST 4 OF ASSESSMENT ORDER, ASSESSING OFFICER SIMPLY DISCU SSED THE POSITION OF LAW FOR MAKING ADDITION UNDER SEC. 68 OF THE ACT. ON AP PEAL, LEARNED FIRST APPELLATE AUTHORITY HAS REPRODUCED THE GROUNDS OF A PPEAL RAISED BY THE ASSESSEE ON PAGES 1 AND 2. IN PARAGRAPH NO.3, SHE N ARRATED THE DATES ON WHICH HEARING WAS FIXED AND FROM PARAGRAPH 4 ON PAG E 3, UP TO PAGE 8 SHE REPRODUCED THE ASSESSMENT ORDER. HER OWN CONTRIBUTI ON IS NOT MORE THAN A HALF PAGE IN THE ORDER. FROM THIS RECORD, IT REVEAL S THAT NEITHER THE ASSESSEE NOR THE REVENUE AUTHORITIES APPEAR TO BE SERIOUS IN CONDUCTING THE PROCEEDINGS. THE LEARNED ASSESSING OFFICER ISSUED N OTICE UNDER SEC. 143(2) ON 10.10.2007 AND THEREAFTER TAKE UP THE PROCEEDING S AFTER ONE YEAR. HE PASSED THE ASSESSMENT ORDER WITHIN ONE MONTH. IN OU R OPINION, THE PUNISHMENT IN THE SHAPE OF TAX LIABILITY IS DISPROP ORTIONATE TO THE NEGLIGENCE COMMITTED BY THE ASSESSEE, THEREFORE, IN THE INTERE ST OF JUSTICE, WE PERMIT THE ASSESSEE TO PRODUCE ADDITIONAL EVIDENCE, HOWEVER, W E DO NOT ABSOLVE THE ASSESSEE FROM THE LAPSES COMMITTED BY IT IN CONDUCT ING THE PROCEEDINGS. WE PROPOSE A COST OF RS.20,000 FOR THE LAPSES. LEARNED COUNSEL DID GIVE EXPLANATION, RATHER HE ACCEPTED THE COST, THEREFORE , WE IMPOSE A COST OF RS. 20,000 UPON THE ASSESSEE ALSO. THE APPEAL OF THE AS SESSEE IS ALLOWED FOR STATISTICAL PURPOSES, IMPUGNED ORDERS ARE SET ASIDE AND THE ISSUES ARE REMITTED TO THE FILE OF THE ASSESSING OFFICER FOR READJUDICA TION. THE ASSESSEE WILL BE 5 AT LIBERTY TO PRODUCE NECESSARY EVIDENCE IN SUPPORT OF ITS EXPLANATION IN ORDER TO EXPLAIN THE LOAN/UNEXPLAINED CREDITS. IN C ASE, ASSESSEE FAILS TO PAY THE COST OF RS. 20,000 WITHIN THREE MONTHS FROM THE DATE OF RECEIPT OF THIS ORDER, THEN THIS APPEAL WILL BE DEEMED TO HAVE BEEN DISMISSED AND ASSESSING OFFICER WILL NOT READJUDICATE THE ISSUE. THE ASSESS EE SHALL FURNISH EVIDENCE OF PAYMENT OF COST TO THE ASSESSING OFFICER, ONLY THER EAFTER, HE WILL TAKE UP THE PROCEEDINGS AND READJUDICATE THE ISSUES. IT IS NEED LESS TO SAY THAT THE OBSERVATIONS MADE BY US WILL NOT IMPAIR OR INJURE T HE CASE OF A.O. OR WOULD NOT CAUSE ANY PREJUDICE TO THE DEFENCE/EXPLANATION OF THE ASSESSEE. 5. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED FOR STATISTICAL PURPOSES. DECISION PRONOUNCED IN THE OPEN COURT ON 23.03.2 012 SD/- SD/- ( SHAMIM YAHYA ) ( RAJPAL YADAV ) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 23/03/2012 MOHAN LAL COPY FORWARDED TO: 1) APPELLANT 2) RESPONDENT 3) CIT 4) CIT(APPEALS) 5) DR:ITAT ASSISTANT REGISTRAR