Jasmine Builtech Pvt. Ltd., New Delhi V. Deputy Commissioner of Income-tax, New Delhi

ITA 1352/DEL/2015

• Counselvise Citation: [2018] 126 COUNSELVISE.COM (IT) 4274 (ITAT-DELHI)
• Duration Of Justice: 2 year(s) 9 month(s) 26 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 05-01-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: D
• Assessment Year: 2007-2008
• Appeal Filed On: 09-03-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: AJAY BHAGWANI
• Section: 40A(3); 143(3); 153A

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH D NEW DLEHI BEFORE SHRI G.D. AGRAWAL, PRESIDENT AND SHRI K. NARSIMHA CHARY, JUDICIAL MEMBER I.T.A. NO. 1352/DEL/2015 ASSESSMENT YEAR: 2007-08 M/S JASMINE BUILDTECH P. LTD. VS DY. COMMISSIONER OF INCOME-TAX M-11, MIDDLE CIRCLE, CENTRAL CIRCLE -32, NEW DE LHI CONNAUGHT CIRCUS, NEW DELHI. (APPELLANT) (RESPONDENT) APPELLANT BY: SHRI AJAY BHAGWANI RESPONDENT BY: SMT. RITU SHARMA ORDER PER K. NARSIMHA CHARY, JM AGGRIEVED BY THE ORDER DATED 24.11.2014 IN APPEAL N O.325/13-14 FOR ASSESSMENT YEAR 2007-08 PASSED BY THE LEARNED CIT(A)- XXX, NEW DELHI (FOR SHORT HEREINAFTER CALLED AS THE LD. CIT(A)), THE ASSESS EE PREFERRED THIS APPEAL. 2. FACTS IN BRIEF ARE THAT FOR ASSESSMENT YEAR 2007 -08, THE ASSESSEE FILED THEIR RETURN OF INCOME ON 22.10.2007 DECLARING A LOSS OF RS.9050/-, AND THE ASSESSMENT WAS COMPLETE U/S 143(3) OF THE ACT BY ORDER DATED 2 9.12.2009 AT AN INCOME OF RS.1,45,70,902/- AFTER MAKING ADDITIONS ON ACCOUNT OF DISALLOWANCE U/S 40A(3) TO THE TUNE OF RS.4,46,502/- IN RESPECT OF CASH PAYMENT FOR PURCHASE OF LAND, DISALLOWANCE OF RS.97,45,249/- ON ACCOUNT OF ADDITI ONAL PAYMENT, AND AN ADDITION 2 ON ACCOUNT OF THE INTEREST PAID IN CASH ON POST DAT ED CHEQUES OF RS.43,88,201/-. APPEAL WAS PREFERRED AGAINST THIS QUANTUM ADDITION AND THE FIRST APPELLATE AUTHORITY DELETED THE ADDITION OF RS. 97,45,249/- ON ACCOUNT OF ADDITIONAL PAYMENT AND DID NOT DELETE THE OTHER ADDITIONS. SEA RCH AND SEIZURE OPERATION TOOK PLACE ON 7.12.2010 ON BPTP GROUP AND SUCH GROU P INCLUDES THE ASSESSEE ALSO. PURSUANT TO THE NOTICE ISSUED U/S 153A OF TH E ACT, ASSESSEE FILED THEIR RETURN OF INCOME AND THE ASSESSMENT WAS COMPLETE BY WAY OF A N ORDER DATED 25.3.2013 AT AN INCOME OF RS.4,55,580/-. THE REASON STATED B Y THE LEARNED AO FOR MAKING ADDITION OF RS.4,46,502/- BY MAKING A DISALLOWANCE U /S 40A(3) AND A SUM OF RS.18,125/- ON ACCOUNT OF ADDITIONAL PAYMENT IS THA T IN THE APPEAL, LEARNED CIT(A) CONFIRMED THESE TWO ADDITIONS. HENCE, THE ASSESSEE IS BEFORE US IN THIS APPEAL. 3. AT THE OUTSET, IT IS THE ARGUMENT OF THE LEARNED AR THAT INASMUCH AS THE ADDITIONS MADE IN THE ORIGINAL ASSESSMENT, THE APPE AL WAS PREFERRED AND THE LEARNED CIT(A) CONFIRMED TWO ADDITIONS WHILE DELETI NG THE OTHER. PRECISELY, THESE TWO ADDITIONS ARE AGAIN MADE IN THE ASSESSMENT U/S 153A ALSO ON THE GROUND THAT THE LEARNED CIT(A) CONFIRMED THE ADDITIONS. HE BRO UGHT IT TO OUR NOTICE THAT SUCH ADDITIONS AS WERE CONFIRMED BY THE LEARNED CIT(A) AR E DELETED BY THIS TRIBUNAL IN ITA NO.1767/DEL/2013 IN THE APPEAL PREFERRED BY THE ASSESSEE. HE FILED A COPY OF THE ORDER DATED 21.11.2017. HE, THEREFORE, SUBMITS THAT ONCE THE VERY BASIS OF THE ADDITIONS IS REMOVED, THESE ADDITIONS HAVE NO L EGS TO STAND. PER CONTRA, LEARNED DR PLACED RELIANCE ON THE ORDERS OF THE AUT HORITIES BELOW. 4. WE HAVE PERUSED THE ORDERS OF THE AUTHORITIES BE LOW AND ALSO THE COPY OF THE ORDER DATED 21.11.2017 IN ITA NOS.1679 & 1767/D EL/2013 PASSED IN ASSESSEES OWN CASE FOR THE ASSESSMENT YEAR 2007-08 BY A COORDINATE BENCH OF 3 THIS TRIBUNAL. IN THE ASSESSMENT ORDER, VIDE PARAGR APHS 2 TO 5, LEARNED AO DISCUSSED THE BACKGROUND OF THE ADDITIONS. ONLY REAS ON MENTIONED IS THAT INASMUCH AS OUT OF THREE ADDITIONS MADE IN THE ORIG INAL ASSESSMENT U/S 143(3), THE LEARNED CIT(A), IN APPEAL, DELETED ONE ADDITION AND CONFIRMED TWO ADDITIONS, AS SUCH, SUCH TWO CONFIRMED ADDITIONS ARE REPEATED IN THE ASSESSMENT U/S 153A OF THE ACT. NOW THAT THE APPEAL PREFERRED BY THE ASSES SEE AGAINST THE ADDITIONS SUSTAINED BY THE LEARNED CIT(A) IN APPEAL NO.459/09- 10, AND A COORDINATE BENCH OF THIS TRIBUNAL DELETED THOSE ADDITIONS IN ITA NO. 1767/DEL/2013. THIS FACT IS ESTABLISHED BY THE COPY OF THE ORDER OF THE TRIBUNAL PRODUCED BEFORE US FOR OUR PERUSAL. IN OUR OPINION THE VERY BASIS FOR MAKING TH E ADDITIONS IN THE PRESENT ASSESSMENT U/S 153A STANDS REMOVED, THEREFORE, THEY CANNOT BE SUSTAINED. WE, THEREFORE, WHILE RESPECTFULLY FOLLOWING THE ORDER OF THE COORDINATE BENCH OF THE TRIBUNAL IN ITA NO.1767/DEL/2013, ALLOW THE GROUNDS OF APPEAL. 5. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED . ORDER PRONOUNCED IN THE OPEN COURT ON THIS THE 5 TH DAY OF JANUARY, 2018. (G.D. AGRAWAL) (K. NARSIMHA CHARY) PRESIDENT JUDICIAL MEMBER DATED: 5 TH JANUARY, 2018 VJ COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR, ITAT BY ORDER ASSTT. REGISTRAR