M/s Hi- Tech Amusement & Recreations (India) Pvt. Ltd., New Delhi V. DCIT, New Delhi

ITA 1208/DEL/2011

• Counselvise Citation: [2011] 134 COUNSELVISE.COM (IT) 4196 (ITAT-DELHI)
• Duration Of Justice: 1 month(s) 28 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 05-05-2011
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Next Hearing Date: 05-05-2011
• Assessment Year: 2005-2006
• Appeal Filed On: 08-03-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: MONA MOHANTY
• Keywords: Unexplained cash credit
• Section: 115JB; 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH C, NEW DELHI BEFORE SHRI I.P. BANSAL, JUDICIAL MEMBER & SHRI K.D. RANJAN, ACCOUNTANT MEMBER ITA NO. 1208/DEL/2011 ASSESSMENT YEAR: 2005-06 M/S HI-TECH AMUSEMENT & RECREATIONS (INDIA) PVT. LTD., VS. DCIT, 121, GURU HARKISHAN NAGAR, CIRCLE 12(1), PASCHIM VIHAR, NEW DELHI. NEW DELHI. AABCH0599R (APPELLANT) (RESPONDENT) APPELLANT BY : SH. R.S. SINGHVI, CA RESPONDENT BY : SMT. MONA MOHANTY, SR. DR ORDER PER I.P. BANSAL, J.M. THIS IS AN APPEAL FILED BY THE ASSESSEE. IT IS DI RECTED AGAINST THE ORDER PASSED BY LD. CIT(A) DATED 4 TH JANUARY, 2011 FOR A.Y. 2005-06. GROUNDS OF APPEAL READ AS UNDER: - 1. THAT ON THE FACTS AND CIRCUMSTANCES OF THE CAS E, THE ORDER OF THE LD. CIT(A) IS BAD IN LAW AND ON THE FACTS OF THE CASE A S NO PROPER AND EFFECTIVE OPPORTUNITY WAS PROVIDED. 2. THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE , THE LD. CIT(A) IS NOT JUSTIFIED IN SUSTAINING THE ADDITION OF RS. 10,00,0 00/- MADE U/S 68 OF THE INCOME TAX ACT BY THE AO. 3. THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE , THE LD. CIT(A) IS NOT JUSTIFIED IN SUSTAINING THE ADDITION OF RS. 2,00,00 0/- ON ACCOUNT OF UNEXPLAINED CASH CREDIT IN RESPECT OF SHARE CAPITAL . 4. THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE , THE LD. CIT(A) IS NOT JUSTIFIED IN SUSTAINING THE DISALLOWANCE OF RS. 1,1 5,015/- OUT OF ELECTRICITY EXPENSES. 5. THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE , THE LD. CIT(A) IS NOT JUSTIFIED IN SUSTAINING THE DISALLOWANCE OF RS. 9,1 0,520/- OUT OF ITA NO. 1208/D/11 2 ADVERTISEMENT EXPENSES AND RS. 1,38,757/- OUT OF SE CURITY EXPENSES U/S 40(A)(IA) OF THE INCOME TAX ACT. 6. THAT THE APPELLANT CRAVE LEAVE TO TAKE ADDITION AL GROUND OR GROUNDS OF APPEAL OR TO ALTER OR VARY ANY OR ALL THE GROUNDS O F APPEAL BEFORE OR AT THE TIME OF BEARING OF THE APPEAL. 2. THE LD. CIT(A) HAS DISPOSED OFF THE APPEALS FILE D BY THE ASSESSEE IN LIMNE AFTER NOTING THE FAILURE OF THE ASSESSEE T O REPRESENT BEFORE HIM. HE HAS ALSO UPHELD THE ORDER OF AO WHICH IS ALSO AN EX-PARTE ORDER FRAMED U/S 144 OF THE ACT, WHEREBY INCOME OF THE AS SESSEE HAS BEEN ASSESSED AS INCOME ASSESSABLE U/S 115JB FOR A SUM O F RS. 2,66,610/- AGAINST THE RETURNED LOSS OF RS. 25,74,113/-. 3. IT IS THE CASE OF THE ASSESSEE THAT ASSESSEE HAS NOT BEEN AFFORDED REASONABLE OPPORTUNITY OF HEARING EITHER A T THE LEVEL OF AO OR AT THE LEVEL OF CIT(A). IT IS ALSO THE CASE OF THE LD . COUNSEL OF THE ASSESSEE THAT FOR PROPER APPRECIATION OF THE ADDITIONS WHICH HAVE BEEN MADE IN THE IMPUGNED ASSESSMENT ORDER, IT WILL SERVE THE IN TEREST OF JUSTICE IF THE MATTER IS RESTORED BACK TO THE FILE OF AO FOR FRAMI NG DENOVO ASSESSMENT. IT WAS SUBMITTED BY LD. AR THAT ASSESSEE WILL EXTEN D FULL COOPERATION IF THE APPEAL IS RESTORED BACK TO THE AO FOR MAKING DE NOVO ASSESSMENT. 4. ON THE OTHER HAND, IT HAS BEEN THE CASE OF LD. D R THAT PROPER OPPORTUNITIES HAVE ALREADY BEEN GIVEN TO THE ASSESS EE BY THE AO AS WELL AS BY CIT(A). THE ASSESSEE DID NOT AVAIL THOSE OPP ORTUNITIES. THEREFORE, THE ORDER OF CIT(A) SHOULD BE UPHELD. ITA NO. 1208/D/11 3 5. WE HAVE CAREFULLY CONSIDERED THE RIVAL SUBMISSIO NS IN THE LIGHT OF MATERIAL PLACED BEFORE US. IN THE INTEREST OF JUST ICE, WE CONSIDER IT JUST AND PROPER TO ACCEPT THE REQUEST OF THE ASSESSEE TO RESTORE THIS APPEAL TO THE FILE OF AO WITH A DIRECTION TO FRAME DENOVO ASSESSMENT AFTER GIVING ASSESSEE A REASONABLE OPPORTUNITY OF HEARING. HERE , WE MAY MENTION THAT LD. CIT(A) CANNOT DECIDE THE APPEAL IN LIMNE A S HE IS REQUIRED TO DISPOSE OFF THE APPEAL ON MERITS. LD. COUNSEL OF T HE ASSESSEE HAS AGREED TO APPEAR BEFORE AO ON 5 TH SEPTEMBER, 2011 TO REPRESENT THE CASE OF THE ASSESSEE AND IT WAS MADE CLEAR TO HIM T HAT NO FURTHER NOTICE WILL BE REQUIRED TO BE GIVEN TO THE ASSESSEE FOR TH AT DATE. IN THIS MANNER THE APPEAL WAS DISPOSED OFF. AS WE ARE RESTORING T HIS APPEAL TO THE FILE OF AO, WE DO NOT CONSIDER IT NECESSARY TO ADJUDICAT E THE MERITS OF THE ADDITIONS WHICH HAVE ALSO BEEN AGITATED IN THE PRES ENT APPEAL. WITH THESE OBSERVATIONS, WE DISPOSE OFF THE PRESENT APPE AL WHICH WILL BE CONSIDERED TO BE ALLOWED FOR STATISTICAL PURPOSES. 6. IN THE RESULT, THE APPEAL IS ALLOWED FOR STATIST ICAL PURPOSES IN THE MANNER AFORESAID. ORDER WAS PRONOUNCED IN THE OPEN COURT ON 05.05.201 1 SD/- SD/- (K.D. RANJAN) (I.P. BANSAL) ACCOUNTANT MEMBER JUDI CIAL MEMBER DATED: 5.5.11 *KAVITA CHOPRA ITA NO. 1208/D/11 4 COPY FORWARDED TO: - 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR, ITAT TRUE COPY BY ORDER, DEPUTY REGISTRAR