ITO, New Delhi V. M/s Jajodia Trade Invest (P) Ltd., New Delhi

ITA 1134/DEL/2011

• Counselvise Citation: 113420114 RSA 2011
• Duration Of Justice: 4 year(s) 6 month(s) 2 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 03-09-2015
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: D
• Next Hearing Date: 12-08-2015
• Assessment Year: 2002-2003
• Appeal Filed On: 01-03-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: KESANG Y SHERPR
• Keywords: Unexplained cash credit; Opportunity of being heard; Accommodation entries
• Section: 80IB; 68

Judgement Text

ITA NO. 1134 /DEL/201 1 & CO NO. 109 /DEL/201 1 1 IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH D , NEW DELHI BEFORE SHRI N.K. SAINI, ACCOUNTANT MEMBER AND SHRI H .S. SIDHU , JUDICIAL MEMBER I.T.A. NO. 1134 /DEL/201 1 A.Y. : 200 2 - 0 3 INCOME TAX OFFICER, WARD - 4 ( 1 ), NEW DELHI ROOM NO. 418, C.R. BUILDING, I.P. ESTATE, NEW DELHI VS. M/S JAJODIA TRADE INVEST (P) LTD., 2/25, WHS KIRTI NAGAR, NEW DELHI 110 015 (PAN: AAACJ7973N) (APPELLANT) (RESPONDENT) AND C.O. NO. 109 /DEL/201 1 (IN ITA NO. 1134 / DEL/201 1 ) A.Y. : 200 2 - 0 3 M/S JAJODIA TRADE INVEST (P) LTD., 2/25, WHS KIRTI NAGAR, NEW DELHI 110 015 (PAN: AAACJ7973N) VS. INCOME TAX OFFICER, WARD - 4 ( 1 ), NEW DELHI ROOM NO. 418, C.R. BUILDING, I.P. ESTATE, NEW DELHI (APPELLANT) (RESPONDENT) DEPARTMENT BY : SH. MS. KESANG Y. SHERPR, SR. DR ASSESSEE BY : SH. RANJAN CHOPRA, CA DATE OF HEARING : 12 - 8 - 201 5 DATE OF ORDER : 0 3 - 9 - 201 5 ORDER PER H.S. SIDHU, JM: - TH ESE ARE THE APPEAL FILED BY THE REVENUE AND CROSS OBJECTIONS FILED BY THE ASSESSEE EMANATE OUT OF THE COMMON O RDER DATED 03 .1 2 .201 0 PASSED BY THE LD. CIT(A) - VII, NEW DELHI PERTAINING TO ASSESSMENT YEAR 200 2 - 0 3 . ITA NO. 1134 /DEL/201 1 & CO NO. 109 /DEL/201 1 2 2. THE GROUNDS RAISED IN THE REVENUE S APPEAL READ AS UNDER: - 1. THE ORDER OF THE LD. CIT(A) IS ERRONEOUS AND CONTRARY TO FACTS AND LAW. 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD. CIT(A) HAS ERRED IN DELETING THE ADDITION OF RS. 17,50,000/ - MADE U/S. 68 OF THE I.T. ACT AND RS. 35,000 / - BEING THE UNACCOUNTED CASH PAID FOR OBTAINING THE ACCOMMODATION ENTRIES. 2.1 THE LD. CIT(A) IGNORED THE FINDING RECORDED BY THE AO AND THE FACT THAT THE ASSESSEE DID NOT DISCHARGED THE ONUS OF PROVING THE CREDITWORTHINESS OF THE CREDITORS AND GENUINE NESS OF THE TRANSACTIONS 3. THE APPELLANT CRAVES LEAVE TO ADD, TO ALTER, OR AMEND ANY GROUND OF THE APPEAL RAISED ABOVE AT THE TIME OF THE HEARING. 3. THE GROUNDS RAISED IN THE ASSESSEE S CROSS OBJECTION READ AS UNDER: - 1. THAT THE LD. CIT(A) HAS ERRED IN LAW AND ON FACTS, TO THE EXTENT, IN TREATING THE INTEREST EARNED ON MARGIN MONEY DEPOSITS OF RS. 7,77,656/ - AS INCOME FROM OTHER SOURCES AND THEREFORE DENYING DEDUCTION U/S. 80 - IB THEREON. 2. THAT THE LD. CIT(A) HAS EARNED IN LAW AND ON FACTS, TO THE EXTENT, IN CONFIRMING THE WITHDRAWAL OF DEDUCTION U/S. 80IB ON THE NOTIONAL PROFITS OF RS. 36,673/ - COMPUTED ON THE SALE OF RS. 33,66,570/ - CONSIDERING IT AS TRADING ACTIVITY CARRIED ON BY THE RESPONDENT. 3. YOUR RESPONDENT CRAVES LEAVE TO ADD, ALTER, AMEND OR FORGO ANY GROUNDS OF CROSS OBJECTION AT THE TIME OF HEARING. ITA NO. 1134 /DEL/201 1 & CO NO. 109 /DEL/201 1 3 REVENUE S APPEAL 4. THE FACTS NARRATED BY THE REVENUE AUTHORITIES ARE NOT DISPUTED BY BOTH THE PARTIES, THEREFORE, NO NEED TO REPEAT HERE FOR THE SAK E OF BREVITY. 5 . LD. DR RELIED UPON THE ORDER PASSED BY THE AO. 6. ON THE OTHER HAND LD. COUNSEL FOR THE ASSESSEE RELIED UPON ORDER OF THE LD. CIT(A) AND STATED THAT THE SAME MAY BE UPHELD. 7. WE HAVE HEARD BOTH THE COUNSEL AND PERUSED THE RECORDS AVAILABLE WITH US, ESPECIALLY THE ORDERS OF THE REVENUE AUTHORITIES , WE ARE OF THE VIEW THAT LD. CIT(A) HAS ADJUDICATED THE ISSUE IN DISPUTE VIDE PARA NO. 6.4 TO 6.7. THE SAME ARE REPRODUCED HEREUNDER TO FACILITATE READY REFERENCE: - 6.4 I HAVE CAREFULLY CONSIDERED THE WRITTEN SUBMISSION MADE ON BEHALF OF THE APPELLANT, THE FINDINGS OF THE AO IN THE ASSESSMENT ORDER AS WELL AS IN THE REMAND REPORT AND THE FACTS AND CIRCUMSTANCES UNDER WHICH THE SAID ADDITION WAS MADE BY THE AO. IT IS OBSE RVED THAT THE ADDITION ON ACCOUNT OF UNEXPLAINED CASH CREDITS HAS BEEN MADE WITHOUT ANY MATERIAL AVAILABLE ON RECORD. NO MATERIAL FACTS HA VE BEEN BROUGHT ON RECORD IN THIS REGARD BY THE A.O. SINCE THE ADDITION HAS BEEN MADE AS UNEXPLAINED CASH CREDIT, IT I S CONSIDERED NECESSARY TO EXAMINE THE CASE IN THE LIGHT OF T HE PROVISIONS OF SECTION 68 OF THE ACT. SECTION 68 OF THE ACT PROVIDES THAT WHERE ANY SUM IS FOUND CREDITED IN THE BOOKS OF ACCOUNTS OF THE ASSESSEE FOR ANY PREVIOUS YEAR ITA NO. 1134 /DEL/201 1 & CO NO. 109 /DEL/201 1 4 THE SAME MAY BE CHARGED T O INCOME TAX AS THE INCOME OF THE ASSESSEE OF THE PREVIOUS YEAR IF HE OFFERS NO EXPLANATION ABOUT THE NATURE & SOURCE THEREOF OR THE EXPLANATION OFFERED BY HIM IS NOT SATISFACTORY IN THE OPINION OF THE ASSESSING OFFICER, THE SUM SO CREDITED MAY BE CHARGED TO INCOME TAX AS THE INCOME OF THE ASSESSEE OF THE RELEVANT PREVIOUS YEAR. THEREFORE, WHAT HAS TO BE ENQUIRED INTO BY THE ASSESSING OFFICER IS THE NATURE & SOURCE OF THE SUM OR DEPOSIT. SUCH OPINION FORMED ITSELF CONSTITUTES A PRIMA FACIE EVIDENCE AGAINST THE ASSESSEE RELATING TO THE RECEIPT OF MONEY AND IF THE ASSESSEE FAILS TO REBUT THE SAID EVIDENCE THE SAME CAN BE USED AGAINST HIM BY HOLDING THAT IT WAS A RECEIPT OF INCOME AS HELD IN THE CASE OF SUMATI DAYAL VS. CIT (1995) 214 ITR 801 (SC). IT WAS HELD BY THE HON'BLE APEX C OURT: 'IT IS NO DOUBT TRUE THAT IN ALL CASES IN WHICH A RECEIPT IS SOUGHT TO BE TAXED AS INCOME, THE BURDEN LIES ON THE DEPARTMENT TO PROVE THAT IT IS WITHIN THE TAXING PROVISION AND IF A RECEIPT IS IN THE NATURE OF INCOME, THE BURDEN OF PROVING THAT IT IS NOT TAXABLE BECAUSE IT FALLS WITHIN THE EXEMPTION PROVIDED BY THE ACT LIES UPON THE ASSESSE . BUT IN VIEW OF SECTION 68 OF THE INCOME - TAX ACT, 1961, WHERE ANY SUM IS FOUND CREDITED IN THE BOOKS OF THE ASSESSEE FOR ANY PREVIOUS YEAR IT MAY BE CHARGED TO INCOME - TAX AS THE INCOME OF THE ASSESSEE OF THAT PREVIOUS YEAR I F THE EXPLANATION OFFERED BY THE ASSESSEE ABOUT THE NA TU RE AND SOURCE THEREOF IS, IN THE ITA NO. 1134 /DEL/201 1 & CO NO. 109 /DEL/201 1 5 OPINION OF THE ASSESSING OFFICER, NOT SATISFACTORY. IN SUCH A CASE THERE IS, PRIMA FACIE, EVIDENCE AGAINST THE ASSESSEE, VIZ., THE RECEIPT OF MONEY, AND IF HE FAILS TO REBUT THE SAID EVIDENCE, IT CAN BE USED AGAINST HIM BY HOLDING THAT IT WAS A RECEIPT OF AN INCOME NATURE.' 6.5 IN A. GOVINDARAJULU MUDALIAR V. CIT [1958] 34 ITR 807, TH E HON'BLE SUPREME COURT HAS HELD THAT IT IS FOR THE ASSESSEE TO PROVE THE SOURCES AND THE NATURE OF THE RECEIPTS APPEARING IN ITS BOOKS OF ACCOUNT. THE DEPARTMENT HAS TO PROVE NEITHER THE SOURCE NOR THE NATURE OF THE RECEIPTS, AS HAS BEEN HELD BY THE MADHY A PRADESH HIGH COURT IN SETH KALEKHAN MD HANIF V. CIT [1958] 34 ITR 669 WHICH DECISION HAS BEEN AFFIRMED BY THE HON'BLE SUPREME COURT IN KALEKHAN MOHAMMAD HANIF V. CIT [1963] 50 ITR 1. THE SAME PRINCIPLE HAS BEEN REITERATED BY THE HON'BLE SUPREME COURT IN CIT V. DEVI PRASAD VISHWANATH PRASAD [1969] 72 ITR 194, BY CALCUTTA HIGH COURT IN SHANKAR INDUSTRIES LTD. V. CIT [1978] 114 ITR 689, C. KANT & CO. V. CIT [1980] 126 ITR 63, ORIENTAL WIRE INDUSTRIES (P.) LTD. V. CIT [1981] 131 ITR 688, PRAKASH TEXTILE AGENC Y VS. CIT (1980) 121 ITR 890 & CIT VS. KORLAY TRADING COMPANY LTD. (1999) 232 ITR 820 BY ORISSA HIGH COURT IN CIT VS. B.C. MOHANTY (1995) 212 ITR 199 AND BY GAUHATI HIGH COURT IN J ALAN TIMBERS VS. CIT (1997) 223 ITR 11 (GAU.).IN VIEW OF ABOVE, THE ENTIRE B URDEN IS UPON THE ASSESSEE AND THE ASSESSEE HAS TO PROVE THE FOLLOWING THREE CONDITIONS: - ITA NO. 1134 /DEL/201 1 & CO NO. 109 /DEL/201 1 6 (I) IDENTITY OF THE CREDITOR; (II) CAPACITY OF SUCH CREDITOR TO ADVANCE MONEY & (III) GENUINENESS OF THE TRANSACTION. IF ALL THE AFORESAID THREE CONDITIONS AR E PROVED THE BURDEN SHIFTS ON THE REVENUE TO PROVE THAT THE AMOUNT BELONGED TO THE ASSESSEE. [CIT VS. UNITED COMMERCIAL & INDUSTRIAL CO. (P) LTD. (1991) 187 ITR 596 (CAL.); M.A. UNNEERI KUTTY VS. CIT (1992) 1 98 ITR 1 47 (KER.); CIT VS. PRECISION FINANCE P. LTD. (1994) 208 ITR 495(CAL.). 6.6 THUS, SEEN IN THE CONTEXT OF SUCH OVERWHELMING EVIDENCES, AND IN. THE LIGHT OF THE CASE LAWS MENTIONED ABOVE, I DO NOT FIND ANY MERIT IN THE ACTION OF THE ASSESSING OFFICER, IN COMING TO THE CONCLUSION THAT THE IMPUG NED SUM WAS LIABLE TO BE TAXED AS UNEX PLAINED CASH CREDIT IN THE HANDS OF THE APPELLANT. THE APPELLANT HAD PROVIDED THE PAN OF THE LOAN CREDITORS BUT NO EFFORT SEEMS TO HAVE BEEN MADE TO OBTAIN RELEVANT INFORMATION FROM THE RESPECTIVE AOS, THOUGH ALL LOAN CREDITORS ARE BEING ASSESSED AT DELHI ITSELF. EVEN, IN THE REMAND PROCEEDINGS, THE ASSESSING OFFICER PREFERRED TO SIT OVER THE MATTER WITHOUT MAKING ANY SUCH EFFORT FOR MORE THAN EIGHT MONTHS. THERE IS ABSOLUTELY NO SUBSTANCE IN THE ADDITION MADE AS THE AP PELLANT HAS DULY DISCHARGED ITS ONUS OF PROVING THE IDENTITY AND CREDITWORTHINESS OF THE PERSONS AND GENUINENESS OF THE TRANSACTIONS BY FURNISHING THE CONFIRMATION LETTERS, ASSESSMENT PARTICULARS INCLUDING PAN AND COPY OF . T. RETURN, BALANCE - SHEET & P&L A CCOUNT, BANK STATEMENT TO SHOW THAT THE PAYMENTS HAVE BEEN MADE THROUGH BANKING CHANNELS IN ITA NO. 1134 /DEL/201 1 & CO NO. 109 /DEL/201 1 7 RESPECT OF THE LOAN CREDITORS. IT IS NOTED THAT THE IDENTITY OF THE AFOREMENTIONED LOAN CREDITORS HAS BEEN ESTABLISHED BY SUBMITTING THEIR PERMANENT ACCOUNT NUMBER( PAN) AND INCOME TAX RETURNS; IT IS ALSO OBSERV ED THAT THE LOAN CREDITORS OR LENDERS, NAMELY M / S INNOBYTE SYSTEMS PVT. LTD. AND MLS CHARM INVESTMENT PVT. LTD. ARE CORPORATE ASSESSEES, INCORPORATED UNDER INDIAN COMPANIES ACT; GENUINENESS HAS BEEN PROVED BY THE FACT THAT THE TRANSACTIONS HAVE TAKEN PLACE THROUGH BANKING CHANNELS WHICH IS REFLECTED IN THE BANK STATEMENTS OF THE BANK ACCOUNTS OF THE RESPECTIVE LOAN CREDITORS AND THE CREDITWORTHINESS HAS BEEN ESTABLISHED THROUGH SUBMISSION OF THEIR BALANCE SHEET AND PROFIT & LOSS ACCOUNT. NEEDLESS TO MENTION THAT THE CREDITWORTHINESS IS REFLECTED THROUGH SOURCES OF FUNDS IN THE BALANCE SHEET, THE DETAILS OF WHICH WERE MADE AVAILABLE BY THE ASSESSEE DURING THE ASSESSMENT! REMAND AND APPELLATE PROCEEDINGS, ON THE B ASIS OF WHICH IT CAN BE CONCLUDED THAT THE LENDERS HAD SUFFICIENT FUNDS TO MAKE THE INVESTMENT AND TO ADVANCE LOANS AND THOSE INVESTMENTS / LOANS HAVE B EEN DULY DISCLOSED IN ITS BALANCE SHEET. IT IS ALSO NOTED THAT IN THE REMAND REPORT THE AO HAS CONFIR MED THAT HE HAD EXAMINED THE DIRECTOR OF CHARM INVESTMENTS PVT. LTD. AND ALSO RECORDED HIS STATEMENT ON 19 - 08 - 2009. 6.7 IN VIEW OF THE DISCUSSION MADE ABOVE, I AM OF THE CONSIDERED VIEW THAT THE A.O. WAS NOT JUSTIFIED IN MAKING ADDITION ON ACCOUNT OF UNSE CURED LOANS TO THE EXTENT OF RS. 17,50,000 / - FROM THE THREE (3) LOAN CREDITORS LISTED IN PARA 6 ABOVE. THEREFORE, THE ADDITION OF RS. 17,50,000 / - ITA NO. 1134 /DEL/201 1 & CO NO. 109 /DEL/201 1 8 MADE ON ACCOUNT OF UNSECURED LOANS FROM THE LOAN CREDITORS IS DELETED. AS A NATURAL CONSEQUENCE, THE ADDITIONS ON ACCOUNT OF (A) COMMISSION TO THE EXTENT OF RS. 35,000 / - AND (B) INTEREST AMOUNTING TO RS.77,269/ - ON THE LOAN AMOUNT ARE ALSO DELETED. AS A RESULT, GROUNDS NO. 4,5 & 7 ARE ALLOWED. 8. IN THE BACKGROUND OF THE AFORESAID DISCUSSIONS AND PRECEDENT RELI ED UPON BY THE LD. CIT(A) IN HIS IMPUGNED, WE DO NOT FIND ANY MERIT IN THE ACTION OF THE ASSESSING OFFICER, IN COMING TO THE CONCLUSION THAT THE IMPUGNED SUM WAS LIABLE TO BE TAXED AS UNEXPLAINED CASH CREDIT IN THE HANDS OF THE ASSESSEE. WE FURTHER NOTE THAT THE ASSESSEE HAD PROVIDED THE PAN OF THE LOAN CREDITORS BUT NO EFFORT SEEMS TO HAVE BEEN MADE TO OBTAIN RELEVANT INFORMATION FROM THE RESPECTIVE AOS, THOUGH ALL LOAN CREDITORS ARE BEING ASSESSED AT DELHI ITSELF. EVEN, IN THE REMAND PROCEEDINGS, THE ASSESSING OFFICER PREFERRED TO SIT OVER THE MATTER WITHOUT MAKING ANY SUCH EFFORT FOR MORE THAN EIGHT MONTHS. THERE IS ABSOLUTELY NO SUBSTANCE IN THE ADDITION MADE AS THE ASSESSEE HAS DULY DISCHARGED ITS ONUS OF PROVING THE IDENTITY AND CREDITWORTHINESS O F THE PERSONS AND GENUINENESS OF THE TRANSACTIONS BY FURNISHING THE CONFIRMATION LETTERS, ASSESSMENT PARTICULARS INCLUDING PAN AND COPY OF I.T. RETURN, BALANCE - SHEET & P&L ACCOUNT, BANK STATEMENT TO SHOW THAT THE PAYMENTS HAVE BEEN MADE THROUGH BANKING CHA NNELS IN RESPECT OF THE LOAN CREDITORS. IT IS NOTED THAT THE IDENTITY OF THE AFOREMENTIONED LOAN CREDITORS HAS BEEN ESTABLISHED BY SUBMITTING THEIR PERMANENT ACCOUNT NUMBER (PAN) AND INCOME TAX RETURNS; IT IS ALSO OBSERVED THAT THE LOAN CREDITORS OR LENDE RS, NAMELY M/S INNOBYTE SYSTEMS PVT. LTD. AND MLS CHARM INVESTMENT PVT. LTD. ARE CORPORATE ASSESSEES, INCORPORATED UNDER INDIAN COMPANIES ACT; GENUINENESS HAS BEEN PROVED BY THE FACT THAT THE TRANSACTIONS HAVE ITA NO. 1134 /DEL/201 1 & CO NO. 109 /DEL/201 1 9 TAKEN PLACE THROUGH BANKING CHANNELS WHICH IS REFLECTED IN THE BANK STATEMENTS OF THE BANK ACCOUNTS OF THE RESPECTIVE LOAN CREDITORS AND THE CREDITWORTHINESS HAS BEEN ESTABLISHED THROUGH SUBMISSION OF THEIR BALANCE SHEET AND PROFIT & LOSS ACCOUNT. NEEDLESS TO MENTION THAT THE CREDITWORTHINESS IS REFLE CTED THROUGH SOURCES OF FUNDS IN THE BALANCE SHEET, THE DETAILS OF WHICH WERE MADE AVAILABLE BY THE ASSESSEE DURING THE ASSESSMENT/ REMAND AND APPELLATE PROCEEDINGS, ON THE BASIS OF WHICH IT CAN BE CONCLUDED THAT THE LENDERS HAD SUFFICIENT FUNDS TO MAKE TH E INVESTMENT AND TO ADVANCE LOANS AND THOSE INVESTMENTS / LOANS HAVE BEEN DULY DISCLOSED IN ITS BALANCE SHEET. WE FURTHER NOTE THAT IN THE REMAND REPORT THE AO HAS CONFIRMED THAT HE HAD EXAMINED THE DIRECTOR OF CHARM INVESTMENTS PVT. LTD. AND ALSO RECORD ED HIS STATEMENT ON 19 - 08 - 2009. 8.1 IN VIEW OF THE ABOVE, WE ARE OF THE CONSIDERED VIEW THAT THE A.O. WAS NOT JUSTIFIED IN MAKING ADDITION ON ACCOUNT OF UNSECURED LOANS TO THE EXTENT OF RS. 17,50,000/ - FROM THE LOAN CREDITORS. THEREFORE, THE LD. CIT(A) HAS RIGHTLY DELETED THE ADDITION OF RS. 17,50,000/ - MADE ON ACCOUNT OF UNSECURED LOANS FROM THE LOAN CREDITORS AND A S A NATURAL CONSEQUENCE, THE ADDITIONS ON ACCOUNT OF COMMISSION TO THE EXTENT OF RS. 35,000/ - WAS ALSO RIGHTLY DELETED. SINCE THE LD. C IT(A) HAS PASSED A WELL REASONED ORDER AND THEREFORE, NO INTERFERENCE IS CALLED FOR IN THE IMPUGNED ORDER ON OUR PART, HENCE, WE UPHOLD THE IMPUGNED ORDER DATED 03 .1 2 .201 0 PASSED BY THE LD. CIT(A) AND ACCORDINGLY DISMISS THE APPEAL OF THE REVENUE. ASSESSEE S CROSS OBJECTION 9. WITH REGARD TO GROUND NO. 2 RELATING TO CONFIRMING OF WITHDRAWAL OF DEDUCTION U/S. 80IB RAISED IN THE CROSS OBJECTION IS CONCERNED, THE SAME WAS NOT PRESSED BY THE LD. COUNSEL OF THE ITA NO. 1134 /DEL/201 1 & CO NO. 109 /DEL/201 1 10 ASSESSEE DURING THE HEARING, HENCE, THE SA ME IS DISMISSED AS NOT PRESSED. 10. AS REGARDS THE GROUND NO. 1 RELATING TO TREATING THE INTEREST EARNED ON MARGIN MONEY DEPOSITS OF RS. 7,77,656/ - AS INCOME FROM OTHER SOURCES AND THEREFORE DENYING THE DEDUCTION U/S. 80IB THEREON IS CONCERNED, LD. COUNS EL FOR THE ASSESSEE STATED THAT THE ISSUE IN DISPUTE IS SQUARELY COVERED IN FAVOUR OF THE ASSESSEE BY THE DECISION OF THE HON BLE DELHI HIGH COURT IN THE CASE OF CIT VS. JAYPEE DSC VENTURES LTD. (2011) 335 ITR 132 (DEL). HE REQUESTED THAT THE ISSUE IN DIS PUTE MAY BE DECIDED IN FAVOR OF THE ASSESSEE, IN VIEW OF THE DECISION OF THE AFORESAID DECISION OF THE HON BLE DELHI HIGH COURT. 11. LD. DR STATED THAT THIS DECISION OF THE HON BLE DELHI HIGH COURT IN THE CASE OF CIT VS. JAYPEE DSC VENTURES LTD. (2 011) 335 ITR 132 (DEL) HAS NOT BEEN BEFORE THE LD. CIT(A) DURING THE APPELLATE PROCEEDINGS, THEREFORE, THE ISSUE IN DISPUTE MAY BE SENT BACK TO THE FILE OF THE LD. CIT(A) TO ADJUDICATE THE SAME AFRESH, AFTER GOING THROUGH THE DECISION OF THE HON BLE DELHI HIGH COURT, AS AFORESAID. 12. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE RECORDS. WE HAVE SEEN THAT THE DECISION OF THE HON BLE DELHI HIGH COURT CITED BY THE LD. COUNSEL FOR THE ASSESSEE IN THE CASE CIT VS. JAYPEE DSC VENTURES LTD. (2011) 335 ITR 132 (DEL) HAS NOT BEEN CONSIDERED BY THE LD. CIT(A) WHILE DECIDING THE ISSUE INVOLVED IN GROUND NO. 1, THEREFORE, WE ARE OF THE VIEW THAT THE HON BLE DELHI HIGH COURT HAS CONSIDERED ALL THE DECISIONS MENTIONED BY THE LD. CIT(A) IN THE IMPUGNED ORDER AND D ECIDE THE ISSUE IN FAVOR OF THE ASSESSEE. AS SUBMITTED BY THE LD. DR THAT THE ISSUE MAY BE SET ASIDE TO THE FILE OF THE LD. CIT(A) TO DECIDE THE SAME AFRESH, AFTER CONSIDERING THE DECISION OF THE HON BLE DELHI HIGH COURT. IN VIEW OF THE ABOVE, WE THINK I T PROPER THAT REQUEST OF THE LD. DR SEEMS TO BE GENUINE AND ITA NO. 1134 /DEL/201 1 & CO NO. 109 /DEL/201 1 11 SHOULD BE ACCEPTED, THEREFORE, WE SET ASIDE THE ISSUE INVOLVED IN GROUND NO. 1 TO THE FILE OF THE LD. CIT(A) TO DECIDE THE SAME AFRESH, UNDER THE LAW, AFTER CONSIDERING THE DECISION OF THE HON BLE DELHI HIGH COURT DECISION IN THE CASE OF CIT VS. JAYPEE DSC VENTURES LTD. (2011) 335 ITR 132 (DEL). NEEDLESS TO ADD THAT THE ASSESSEE SHOULD BE GIVEN ADEQUATE OPPORTUNITY OF BEING HEARD. 1 3 . IN THE RESULT, THE APPEAL FILED BY THE REVENUE IS DISMISSED AND C ROSS O BJECTION FILED BY THE ASSESSEE IS PARTLY ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT 0 3 - 9 - 201 5 . SD / - S D / - [ N.K. SAINI ] [ H.S. SIDHU ] ACCOUNTANT MEMBER JUDICIAL MEMBER DATE 0 3 / 9 /201 5 SRBHATNAGAR COPY FORWARDED TO: - 1. APPELLANT - 2. RESPONDENT - 3. CIT 4. CIT (A) 5. DR, ITAT TRUE COPY BY ORDER, ASSISTANT REGISTRAR, ITAT, DELHI BENCHES