Swabhiman Trading Co. Pvt. Ltd, New Delhi V. ITO, New Delhi

ITA 1339/DEL/2009

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 6466 (ITAT-DELHI)
• Duration Of Justice: 6 year(s) 11 month(s) 2 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 11-03-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: F
• Next Hearing Date: 10-03-2016
• Assessment Year: 2000-2001
• Appeal Filed On: 08-04-2009
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: KARTAR SINGH
• Assessee Lawyers: ROSHNI CHOPRA

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH : F : NEW DELHI BEFORE SHRI J.S. REDDY, ACCOUNTANT MEMBER AND S HRI LALIET KUMAR , JUDICIAL MEMBER ITA NO. 1 339 /DEL /20 09 [ ASSESSMENT YEAR : 20 0 0 - 01 ] M/S SWABHIMAN TRADING CO. P. LTD VS. THE I.T.O 195, SAINIK VIHAR, PITAM PURA WARD 7(4 ) NEW DELHI NEW DELHI P AN : AAGCS 3358 E [APPELLANT] [ RESPONDENT] DEPARTMENT BY : SHRI KARTAR SINGH, CIT - DR ASSESSEE BY : SMT. ROSHNI CHOPRA , A DV DATE OF HEARING : 1 0.0 3 .2016 DATE OF PRONOUNCEMENT : 11 .0 3 .2016 ORDER PER LALIET KUMAR, JM : - THIS IS A RECALLED MATTER WHICH WAS DISMISSED IN LIMINE ON 16.6.2009 FOR NON PROSECUTION. HOWEVER, THE MA FILED BY THE ASSESSEE FOR RECALLING THE APPEAL WAS ALLOWED VIDE ORDER DATED 9 TH OCTOBER, 2013 AND THE APPEAL HAS NOW COME UP FOR HEARING IN REGULAR COURSE. 2 2. THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF THE LD. CIT(A) - X , NEW DELHI DATED 28 .0 1 .20 09 PERTAINING TO A.Y 200 0 - 01 . 3 . THE GROUNDS RAISED IN THIS APPEAL BY THE ASSESSEE READ AS UNDER: 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E, THE LD. CIT(A) HAS ERRED IN UPHOLDING THE ADDITIONS OF RS. 24,50,000/ - U/S 68 OF THE ACT AND ALSO UPHOLDING THE ADDITION OF RS. 1,74,493/ - FOR INTEREST. 2. THE LD. CIT(A) ERRED IN NOT ADMITTING THE CLAIM OF APPELLANT THAT THE SHARE MONEY FROM M/S PARIV ARTAN CAPITAL AND FINANCIAL SERVICES P. LTD WAS WRONGLY ENTERED INTO THE BOOKS OF ACCOUNTS AS R. 10,00,000/ - INSTEAD OF RS. 1,00,000/ - AS ACTUALLY RECEIVED FROM THAT PARTY . 4 . AT THE TIME OF HEARING, AT THE VERY OUTSET, IT WAS PRAYED BY THE LD. AR THAT THE ISSUE OF UPHOLDING THE ADDITION OF RS. 24,50,000/ - U/S 68 OF THE INCOME - TAX ACT, 1961 ['THE ACT' FOR SHORT] AND OF RS. 1,74,493 FOR INTEREST AND THE SECOND ISSUE REGARDING THE LD. CIT(A) NOT ADMITTING THE CLAIM OF THE ASSES SEE THAT THE SHARE MONEY WAS WRONGLY ENTERED INTO THE BOOKS OF ACCOUNT AS RS. 10 LAKHS INSTEAD OF RS. 1 LAKHS HAVE 3 NOT BEEN DEALT WITH BY THE LD. CIT(A) IN CORRECT PERSPECTIVE AND THE LD. CIT(A) WAS NOT JUSTIFIED IN UPHOLDING THE ABOVE ADDITIONS SIMPLY BY RELYING ON THE ORDER OF THE AO WHICH WAS MADE ON SURMISES AND CONJECTURES AND WITHOUT ANY BASIS. THE LD. AR FURTHER CONTENDED THAT THE ASSESSEE HAS NOT BEEN GRANTED SUFFICIENT OPPORTUNITY TO FURNISH EVIDENCE AND DOCUMENTS TO SUPPORT HIS CLAIM BEFORE THE LD. CIT(A) ON ACCOUNT OF ILLNESS OF THE ASSESSEE. THEREFORE, THE LD. AR CONTENDED THAT THE ISSUE MAY BE SET ASIDE TO THE FILE OF THE LD. CIT(A) FOR FRESH VERIFICATION AND RE ADJUDICATION ON THE ISSUES IN HAND. 5. PER CONTRA, THE LD. D.R SUBMITTED THAT THE DEPARTMENT HAS NO SERIOUS OBJECTION IF THE MATTER IS SET ASIDE TO THE FILE OF THE LD. CIT(A) FOR VERIFICATION AND EXAMINATION OF THE CLAIM OF THE ASSESSEE AFRESH. 6. ON A CAREFUL CONSIDERATION OF THE ABOVE SUBMISSIONS OF BOTH TH E SIDES AND FROM PARAS 9 AN D 10 OF THE IMPUGNED ORDER, WE FIND THAT THE ASSESSEE COMPANY WAS ASKED TO FILE CERTAIN INFORMATION VIDE LETTER D ATED 14.1.2009. HOWEVER, THE ASSESSEE HAD NOT APPEARED DUE TO ILLNESS AND FURNISHED A LETTER SEEKING ADJOURNMENT. THE LD. CIT(A) DID 4 NOT ACCEPT THE REQUEST AND DECIDED THE ISSUE ON THE BASIS OF INFORMATION AVAILABLE ON RECORD. THE RELEVANT PARAS ARE REPRODUCED HEREINBELOW FOR READY REFERENCE: 9. VIDE LETTER NO.CIT(A) - X/2008 - 09/207 DT. 14 - 01 - 2009 THE ASSESSEE COMPANY WAS ASKED TO FILE THE FOLLOWING INFORMATION: 'REGARDING SHARE CAPITAL OF RS. 2,50,000/ - EACH RECEIVED FROM M/S VIMKA IMPEX PVT LTD, M/S NEELANCHAL PHARMACEUTICAL & MARKETING PVT LTD AND M/S SADHAVI PROPERTIES PVT LTD, CONFIRMATION FROM THE SHARE APPLICANTS, PAN / TA.N NUMBER; CIN, PHOTOCOPY OF CHEQUE ISSUED TO THE ASSESSEE COMPANY; PHOTOCOPY OF ACKNOWLEDGEMENT OF INCOME TAX RETURN FOR AY 2000 - 01; PHOTOCOPY OF BANK STATEMENT OF THE ASSESSEE COMPANY SHOWING THE CLEARING OF THESE CHEQUES; SHARE APPLICATION FORM ALONGWITH AUTHORIZING RESOLUTION; IDENTITY PROOF; ALLOTMENT ADVICE AND BANK ENTRIES PROVING PAYMENT OF MONEY OF SHARE APPLICANTS MAY BE FILED AS MERE FILING OF COPY OF MEMORANDUM OF ARTICLES OF ASSOCIATION AND PHOTOCOPY OF ACKNOWLEDGEMENT OF INCOME TAX RETURN OF EAR LIER YEAR IS NOT SUFFICIENT TO ESTABLISH THE IDENTITY AND CREDITWORTHINESS OF THE SHARE APPLICANTS. (II) IT HAS BEEN SUBMITTED THAT CHEQUE OF RS.ONE LAKH RECEIVED FROM M/S PARIVARTAN CAPITAL AND FINANCIAL SERVICES PVT LTD WAS ACTUALLY RS. ONE LAKH BUT ERRO NEOUSLY ENTERED INTO THE BOOKS AS RS.10 LACS CAUSING THE DIFFERENCE OF RS.9 LACS. HOWEVER, THE DETAILS FILED SO FAR ONLY GIVE A PHOTOCOPY OF BANK ACCOUNT WITH PNB, ROHINI WHILE THIS CHEQUE IS SUPPOSED TO HAVE BEEN 5 DEPOSITED WITH J & K BANK, SOUTH EXTN. BRA NCH. NO CERTIFICATE HAS BEEN FILED FROM THE J & K BANK INDICATING THE EXISTING FDRS E BANK AS ON 31 - 03 - 2000. THE CERTIFICATE FROM J & K BANK ALONGWITH PHOTOCOPY OF THE FDRS AND THE BANK STATEMENT FOR THE FY 99 - 2000 MAY BE FURNISHED. YOUR APPEAL IS NOW FIX ED FOR HEARING ON 27 - 01 - 2009 AT 11.30 AM.' 10. NONE APPEARED ON 27 - 01 - 09 AND ONLY A LETTER SEEKING ADJOURNMENT ON THE GROUND THAT CA IS ADMITTED IN TH E HOSPITAL AND CANNOT ATTEND THE CASE AND THE CASE MAY BE ADJOURNED FOR 4 WEEKS WAS FILED. THIS LETTER WAS NOT ACCOMPANIED WITH ANY CERTIFICATE FROM THE DOCTOR / HOSPITAL INDICATING THE NATURE OF AILMENT AND PERIOD OF REST REQUIRED. HENCE, THE REQUEST FOR ADJOURNMENT IS NOT BEING ACCEPTED AND THE CASE IS BEING DECIDED ON MERITS ON THE BASIS OF INFORMATION AVAI LABLE ON RECORD. IN THAT VIEW OF THE MATTER, W E ARE OF THE CONSIDERED OPINION THAT THE ASSESSEE S CLAIM OF ILLNESS SEEMS TO BE GENUINE AND HAS NOT BEEN GRANTED SUFFICIENT OPPORTUNITY TO FURNISH FURTHER EVIDENCE A ND DOCUMENTS. HENCE THE ISSUES DESERVE TO BE CONSIDERED AFRESH AT THE LEVEL OF THE LD. CIT(A) AND ESPECIALLY WHEN THE LD. D.R. HAS SUBMITTED THAT THE DEPARTMENT HAS NO SERIOUS OBJECTION IF THE ISSUE IS RESTORED BACK TO THE FILE OF THE LD. CIT(A) FOR A FRESH ADJUDICATION, WE ARE OF THE CONSIDERED OPINION THAT THE ENDS OF JUSTICE WOULD MEET IF THE ISSUE 6 IS RESTORED TO THE FILE OF THE LD. CIT(A) FOR DE NOVO ADJUDICATION AFTER AFFORDING DUE OPPORTUNITY OF HEARING TO THE ASSESSEE. NEEDLESS TO SAY, THE LD. CIT(A) SHALL ADJUDICATE THE ISSUE AS PER THE RELEVANT PROVISIONS OF THE ACT AND THE RATIO OF THE JUDGMENTS OF THE HON BLE HIGH COURT AND CO - ORDINATE BENCH OF THE TRIBUNAL AND WITHOUT BEING PREJUDICED FROM THE EARLIER ASSESSMENT AND APPELLATE ORDER. ACCORDINGLY, GROUNDS RAISED BY THE ASSE SSEE ARE RESTORED BACK TO THE FILE OF THE LD. CIT(A) FOR A FRESH ADJUDICATION AFTER AFFORDING SUFFICIENT OPPORTUNITY TO THE ASSESSEE TO FURNISH EVIDENCE AND DOCUMENTS AND HENCE THE GROUND S OF APPEAL RAISED BY THE ASSESSEE ARE DEEMED TO BE ALLOWED FOR STAT ISTICAL PURPOSES. 7 . IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. THE ORDER IS PRONOUNCED IN THE OPEN COURT ON 1 1 . 0 3 .201 6 . S D / - S D / - ( J.S.REDDY ) ( LALIET KUMAR ) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 1 1 T H MARCH, 201 6 VL/ 7 COPY FORWARDED TO: 1 . APPELLANT 2 . RESPONDENT 3 . CIT 4 . CIT(A) 5 . DR ASST. REGISTRAR, ITAT, NEW DELHI