ITO, New Delhi V. M/s. Global Landcon Pvt. Ltd., Delhi

ITA 1185/DEL/2012

• Counselvise Citation: 118520114 RSA 2012
• Duration Of Justice: 3 year(s) 5 month(s) 22 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-08-2015
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: C
• Next Hearing Date: 20-07-2015
• Assessment Year: 2005-2006
• Appeal Filed On: 07-03-2012
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: T VASANTHAN
• Assessee Lawyers: DR RAKESH GUPTA
• Keywords: Opportunity of being heard; Additional evidence; Onus to prove
• Section: 142(1)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH: C NEW DELHI BEFORE SMT DIVA SINGH, JUDICIAL MEMBER AND SHRI N.K.SAINI, ACCOUNTANT MEMBER I.T.A .NO. - 1185/ DEL/201 2 (ASSESSMENT YEAR - 2005 - 06 ) ITO, WARD - 12(2), ROOM NO. - 337, C.R. BUIDLING, NEW DELHI (APPELLANT ) VS GLOBAL LANDCON PVT.LTD., 7, RAJ BLOCK, NAVEEN SHAHDARA, DELHI - 110032. PAN - AACCG0657L (RESPONDENT ) APPELLANT BY SH.T.VASANTHAN, SR.DR RESPONDENT BY SH.DR.R AK ESH GUPTA, ADV. & SH. SOMIL AGARWAL, ADV. ORDER PER DIVA SINGH, JM BY THE PRESENT APPEAL THE REVENUE ASSAILS THE CORRECTNESS OF THE ORDER DATED 30.11.2011 OF CIT(A) - IX, NEW DELHI PERTAINING TO 2005 - 06 ASSESSMENT YEAR ON THE FOLLOWING GROUNDS: - 1. LD COMMISSIONER OF INCOME TAX (APPEAL) ERRED, IN LAW AND ON THE FACTS AND CIRCUMSTANCES OF THE CASE, BY ACCEPTING THE ADDITIONAL EVIDENCES AND IGNORING THE FINDINGS OF ASSESSMENT ORDER AND REMAND REPORT. 2. LD. COMMISSIONER OF INCOME TAX (APPEAL) ERRED, IN LAW AND ON THE FACTS AND CIRCUMSTANCES OF THE CASE, IN DELETING THE ADDITION OF RS.16,17,210/ - IGNORING THE FACT THAT THE ASSESSEE HAS FAILED TO PROVE ITS CONTENTIONS ON FALL IN G.P. RATIO DURING THE ASSESSMENT PROCEEDINGS. 3. LD. COMMISSIONER OF INCOME TAX (APPEAL) ERRED, IN LAW AND ON THE FACTS AND C IRCUMSTANCES OF THE CASE, IN DELETING THE ADDITION OF RS.62,66,104/ - IGNORING THE FACT THAT THE ASSESSEE WAS NOT ABLE TO DISCHARGE ITS ONUS TO PROVE THE NECESSITY AND BUSINESS EXPEDIENCY OF THE EXPENSE. 4. LD. COMMISSIONER OF INCOME TAX (APPEAL) ERRE D, IN LAW AND ON THE FACTS AND CIRCUMSTANCES OF THE CASE, IN DELETING THE ADDITION OF DATE OF HEARING 20 .0 7 .2015 DATE OF PRONOUNCEMENT 28 .0 8 .2015 I.T.A .NO. - 1185/ DEL/201 2 PAGE 2 OF 4 RS.3,18,82,810/ - MADE U/S 68 IGNORING THE FACT THAT THE ASSESSEE HAS FAILED TO PROVE THE GENUINENESS OF TRANSACTIONS AS WELL AS CREDIT WORTHINESS OF LOAN CREDITORS. 5. THE APPELLANT CRAVES TO ADD, ALTER, AMEND, MODIFY, ADD OR FOREGO ANY GROUND OF APPEAL AT ANY TIME BEFORE OR DURING THE HEARING OF THIS APPEAL. 2. THE PARTIES WERE HEARD ONLY IN REGARD TO GROUND NO. - 1. ADDRESSING THE RELEVANT FACTS QUA THE SAID ISSUE THE LD. SR. DR INVITED ATTENTION TO THE ASSESSMENT ORDER SO AS TO CONTENT THAT DESPITE TAKING VARIOUS ADJOURNMENTS, THE ASSESSEE DID NOT CO - OPERATE IN THE ASSESSMENT PROCEEDINGS AND THIS FACT IS BORNE OUT FROM PARA 3 OF THE ASSESSMENT ORDER. IN THESE CIR CUMSTANCES, INVITING ATTENTION TO PARA 4 OF THE IMPUGNED ORDER IT WAS HIS SUBMISSION THAT DESPITE THE OBJECTION OF THE AO THAT REMAND ON FACTS WAS NOT WARRANTED , T HE CIT(A) HAS ACCEPTED THE FRESH EVIDENCE AND WITHOUT CON FRONTING THE SAME TO THE AO HAS PROCEEDED TO ALLOW RELIEF TO THE ASSESSEE. THE PROCEDURE FOLLOWED BY THE LD.CIT(A), IT WAS SUBMITTED IS CONTRARY TO THE SETTLED LEGAL POSITION. ACCORDINGLY IT WAS HIS PRAYER THAT ON FACTS THE VERACITY OF THE EVIDENCE S HAVE NOT BEEN CONSIDERED AND THE ISSUE MAY BE RESTORED FOR VERIFICATION ON FACTS TO THE AO AS THE CIT(A) HAS BLINDLY ACCEPTED THE EVIDENCE FILED WITHOUT EITHER CARRYING OUT ANY ENQUIRY AND WITHOUT FOLLOWING THE PROCEDURE. 3. THE LD.AR, DR. RAKESH GUPTA RELYING UPON THE IMPUGNED ORDER S UBMITTED THAT THE EVIDENCE ADMITTED GO ES TO THE ROOT OF THE MATTER AND IS RELEVANT AND CRUCIAL FOR DECIDING THE ISSUE . HOWEVER, IN THE FACE OF THE PROCEDURAL DEFECT POINTED OUT BY THE LD. SR. DR WHERE ADMITTEDLY THE EVIDENCE WAS NOT CONFRONTED TO THE AO H E DID NOT CITE ANY CONTRARY DECISION TO CONTROVERT TH E PRAYER OF THE LD. SR. DR FOR RESTORING THE ISSUE BACK TO THE AO. 4. WE HAVE HEARD THE RIVAL SUBMISSION AND PERUSED THE MATERIAL AVAILABLE ON RECORD. A PERUSAL OF THE RECORD SHOWS THAT THE ASSESSEE DEC LARED AN INCOME OF RS.2,19,580/ - BY WAY OF FILING ITS RETURN. THE SAID RETURN WAS SELECTED FOR SCRUTINY ASSESSMENT THROUGH CASS AND ASSESSMENT ORDER U/S 143 (3) WAS PASSED ASSESSING THE TOTAL INCOME OF THE ASSESSEE AT AN INCOME OF RS.3,99,85,704/ - . A PER USAL OF THE RECORD SHOWS THAT THE ASSESSEE IS ENGAGED IN THE BUSINESS OF PURCHASING SICK INDUSTRIAL UNITS OR PLANT & MACHINERY THEREOF FROM VARIOUS COURTS/GOVERNMENT/PRIVATE PARTIES. THE ASSESSEE PURCHASED SUCH UNITS ON ITS BASIS AND S OLD VARIOUS BUILDING SHEDS AND MACHINERY ETC. AFTER I.T.A .NO. - 1185/ DEL/201 2 PAGE 3 OF 4 DISMANTLING THE SAME AND ITS SCRAP/OLD MACHINERY PART. THE COMPANY WA S THEREFORE CONSIDERED TO BE ENGAGED IN THE BUSINESS OF DEALING IN SCRAPS OF ALL TYPES. 5. CONSIDERING THE DETAILS FILED THE AO REQUIRED THE ASSESSEE TO EXPLAIN ITS CLAIM . A PERUSAL OF THE PARA 3 OF THE AO TO WHICH OU R ATTENTION WAS INVITED SHOWS THAT VARIOUS OPPORTUNITIES WERE GIVEN IN THE ASSESSMENT PROCEEDINGS: - 3. DURING THE ASSESSMENT PROCEEDINGS THE ASSESSEE FILED PART DETAILS ON VARIOUS DATES AND THE CASE WAS ADJOURNED FROM TIME TO TIME. IN RESPONSE TO NOTICE U/S 142(1) FOR COMPLIANCE ON 10/9/07, THE REQUEST FOR ADJOURNED WAS MADE ON 10/9/07 AND THE CASE WAS ADJOURNED TO 17/9/07. AGAIN THE CASE WAS ADJOURNED TO 24/9/07 ON REQUEST. ON 24/9/07 ONLY PART DETAILS WERE FILED AND THE CASE WAS ADJOURNED TO 28/9/07 AND AGAIN ON 28/9/07 PART DETAILS WERE FILED AND THE CASE WAS ADJOURNED TO 15/10/07. ON 15/10/07 THE ASSESSEE AGAIN FILED ONLY PART DETAILS WHICH WERE CALLED FOR EARLIER AND THE CASE WAS ADJOURN ED FOR 23/10/07, 05/11/07 AND 07/11/07. ON 7/11/07 THE ASSESSEE FILED ONLY PART OF THE DETAILS CALLED FOR AND THE CASE WAS ADJOURNED TO 14/11/07. ON 14/11/07 NOBODY ATTENDED AND THE NOTICE U/S 142(1) WAS ISSUED FOR COMPLIANCE FOR 22/11/07. ON 22/11/07 A RE QUEST WAS RECEIVED FROM THE ASSESSEE AND THE CASE WAS ADJOURNED TO 26/11/07. ON 26/11/07 THE ASSESSEE FURNISHED PART DETAILS AND THE CASE WAS ADJOURNED TO 3/12/07. ON 3/12/07 PART DETAILS WERE FILED AND THE CASE WAS ADJOURNED FOR 7/12/07. ON 7/12/07 AGAIN PART OF DETAILS WERE FILED AND THE CASE WAS ADJOURNED FOR 14/12/07. THUS THE ASSESSEE HAS TAKEN ADJOURNMENT ON MOST OF THE DATES FIXED FOR HEARING AND ALSO RESTRAINED ITSELF FROM FURNISHING COMPLETE DETAILS CALLED FOR. THUS IT IS WELL EVIDENT FACT THAT THE ASSESSEE WAS PROVIDED NUMEROUS OPPORTUNITIES FROM TIME TO TIME TO FURNISH REQUIRED DETAILS AND DOCUMENTS TO SUBSTANTIATE ITS CLAIM BUT COMPLETE DETAILS HAVE NOT BEEN FILED. 6. A PERUSAL OF THE IMPUGNED ORDER (SPECIFIC PARAS 4 TO 4.3 ) DEMONSTRATE THAT THE A SSESSING O FFICER OBJECT ED TO THE ADMISSION OF ADDITIONAL EVIDENCE FILED UNDER RULE 46A . THIS OBJECTION WAS NOT ACCEPTED BY THE LD. COMMISSIONER IN PARA 4.2 & 4 .3 AND FRESH EVIDENCES WERE ADMITTED. IN JUSTIFICATION FOR THE SAID DE CISION IT IS SEEN THAT THE LD.CIT(A) TOOK INTO CONSIDERATION THE FACT THAT THE AO AS PER RECORD HAD ONLY ASKED FOR THE BANK STATEMENTS OF THE PARTIES AND NOTHING ELSE. THUS, ON CONSIDERATION OF TH I S MATERIAL FINDING REMAINING UNREBUTTED ON RECORD, WE FIN D THAT THE ADMISSION OF FRESH EVIDENCE ON FACTS WAS JUSTIFIED. ACCORDINGLY IN THE FACTS AS THEY STAND WE FIND NO FAULT WITH THE SAID DECISION OF THE LD.CIT(A). HOWEVER WHILE SO HOLDING WE FIND THAT THE LD. CIT(A) THEREAFTER WAS REQUIRED TO CONFRONT. T H E EVIDENCE TO THE AO IN TERMS OF SUB - RULE (3) OF I.T.A .NO. - 1185/ DEL/201 2 PAGE 4 OF 4 RULE 46A AS PER SETTLED LEGAL PRECEDENT AS HELD IN MANISH BUILDWELL . THIS SPECIFIC EXERCISE ON FACTS I S FOUND TO BE MISSING. ACCORDINGLY W E SET ASIDE THE ORDER AND RESTORE THE ISSUE BACK TO THE FILE TO THE A O WITH THE DIRECTION TO CONSIDER THE FRESH EVIDENCE S FILED BY THE ASSESSEE IN SUPPORT OF I TS CLAIM AND THEREAFTER PASS A SPEAKING ORDER IN ACCORDANCE WITH LAW AFTER GIVING THE ASSESSEE A REASONABLE OPPORTUNITY OF BEING HEARD. IN THE EVENTUALITY THE EVIDEN CES FILED ARE CONSIDERED TO BE NOT SUFFICIENT BY THE AO THE ASSESSEE WOULD BE AT LIBERTY TO FILE FRESH EVIDENCES IN SUPPORT OF THE CLAIM. THE SAID ORDER WAS PRONOUNCED IN THE OPEN COURT ON THE DAY OF HEARING ITSELF. 7. IN THE RESULT THE APPEAL OF THE REV ENUE IS ALLOWED. THE ORDER IS PRONOUNCED IN THE OPEN COURT ON 2 8 T H OF AUGUST , 2015. S D / - S D / - (N.K.SAINI) (DIVA SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 2 8 /08 /2015 * AMIT KUMAR * COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT ASSISTANT REGISTRAR ITAT NEW DELHI