Poonam Promoters and Developers Pvt. Ltd., New Delhi V. Deputy Commissioner of Income-tax, New Delhi

ITA 1355/DEL/2015

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 2474 (ITAT-DELHI)
• Duration Of Justice: 4 year(s) 3 month(s) 12 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 20-06-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: F
• Assessment Year: 2006-2007
• Appeal Filed On: 09-03-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SURENDER PAL
• Assessee Lawyers: AJAY BHAGWANI
• Keywords: Search and seizure; Set aside
• Section: 40A(3); 153A

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH F, NEW DELHI BEFORE SH. H. S. SIDHU, JUDICIAL MEMBER AND SH. R. K. PANDA, ACCOUNTANT MEMBER ITA NO.1355/DEL/2015 ASSESSMENT YEAR: 2006-07 POONAM PROMOTERS AND DEVELOPERS PVT. LTD, M-11, MIDDLE CIRCLE, CONNAUGHT CIRCUS, NEW DELHI-110001 PAN AAACP6882G VS DY. COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE 32 NEW DELHI-1100055 (APPELLANT) (RESPONDENT) APPELLANT BY SH. AJAY BHAGWANI, CA RESPONDENT BY SH. SURENDER PAL, SR. DR DATE OF HEARING: 28/05/2019 DATE OF PRONOUNCEMENT: 20/06/2019 ORDER PER R.K. PANDA, AM: THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAIN ST THE ORDER DATED 24.11.2014 OF THE CIT(A)-30, NEW DELHI RELATING TO A. Y. 2006-07. 2. THE GROUNDS RAISED BY THE ASSESSEE ARE READ AS U NDER :- 1. THAT THE ORDER PASSED BY THE ASSESSING OFFICER AND COMMISSIONER OF INCOME TAX (APPEALS)-XXX, NEW DELHI ARE BAD IN LAW AND VOID AB-INITIO 2. THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW THE CIT(A) ERRED IN SUSTAINING THE DISALLOWANCE OF RS.13,45,626/- U/S 40A(3) OF THE IT ACT DESPITE THE FACT THAT NO PAGE | 2 DEDUCTION IN RESPECT OF SAID SUM WAS CLAIMED IN THE COMPUTATION OF INCOME FROM BUSINESS. 3. THE APPELLANT CRAVES PERMISSION TO ADD, AMEND, ALTER OR VARY ALL OR ANY GROUNDS OF APPEAL ON OR BEFORE THE DATE OF HEARING OF THE APPEAL. 3. FACTS OF THE CASE, IN BRIEF, ARE THAT THE ASSESS EE IS A COMPANY. THE ORIGINAL ASSESSMENT IN THIS CASE WAS COMPLETED U/S. 143 (3) ON 03.12.2009 AT AN INCOME OF RS.2,16, 33,051/- AFTER MAKING VARIOUS ADDITIONS INCLUDING THE ADDITI ON OF RS.13,45,626/- ON ACCOUNT OF DISALLOWANCE U/S.40A(3 ). SUBSEQUENTLY A SEARCH AND SEIZURE OPERATION WAS CAR RIED OUT AT VARIOUS PREMISES OF M/S. BPTP LIMITED AND ITS GROUP CONCERNS AND ASSOCIATED PERSONS ON 07.12.2010 WHICH WAS FINA LLY CONCLUDED ON 05.02.2011. THE CASE OF THE ASSESSEE WAS ALSO COVERED. IN RESPONSE TO NOTICE U/S. 153 A THE ASSE SSEE FILED ITS RETURN OF INCOME ON 30.01.2012 DECLARING TOTAL INCO ME OF RS.NIL. SINCE THE DISALLOWANCE OF RS.13,45,626/- MADE BY TH E ASSESSING OFFICER IN THE ORIGINAL ASSESSMENT ORDER WAS UPHELD BY THE CIT(A), THE ASSESSING OFFICER IN THE ORDER PASSED ON 28.03. 2013 U/S. 153A OF THE IT ACT, 1961 MADE THE ADDITION OF RS.13 ,45,626/- U/S.40A(3). HE ALSO MADE ANOTHER ADDITION OF RS.16, 85,489/- U/S 2 (22) (E) WHICH WAS DELETED BY THE CIT(A) FOR WHIC H THE REVENUE IS NOT IN APPEAL AND THEREFORE, WE ARE NOT CONCERNED W ITH THE SAME. 4. SO FAR AS THE ADDITION OF RS. 13,45,626/- MADE B Y THE ASSESSING OFFICER U/S. 40A (3) IS CONCERNED THE LD. CIT(A) UPHELD THE ACTION OF THE ASSESSING OFFICER. 5. AGGRIEVED WITH THE ORDER OF THE CIT(A), THE ASSE SSEE IS IN APPEAL BEFORE THE TRIBUNAL. PAGE | 3 6. THE LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE TRIBUNAL VIDE ITA NO.4082/DEL/2013 ORDER DATED 13.0 6.2015 HAS DECIDED THE ISSUE OF ADDITION MADE U/S. 40A(3) AND DELETED THE ADDITION. THEREFORE, SINCE THE AMOUNT HAS ALREADY BEEN DELETE BY THE TRIBUNAL IN ASSESSEES OWN CASE, THEREFORE, THE SAME CANNOT BE ADDED AGAIN BY THE ASSESSING OFFICER. EVEN OTHE RWISE ALSO SINCE NO INCRIMINATING MATERIAL WAS FOUND DURING TH E SEARCH, THEREFORE, IN VIEW OF THE DECISION OF HONBLE DELHI HIGH COURT IN THE CASE OF KABUL CHAWLA REPORTED IN 380 ITR 573 T HE ADDITION IS NOT SUSTAINABLE. 7. THE LD. DR ON THE OTHER HAND TRIED TO DISTINGUIS HING THE DECISION OF THE TRIBUNAL IN ASSESSEES OWN CASE WHE REIN THE ADDITION WAS DELETED ON MERIT. 8. RELYING ON VARIOUS DECISIONS HE SUBMITTED THAT D ECISION OF THE TRIBUNAL DELETING THE ADDITION ON MERIT WHICH W AS MADE BY THE ASSESSING OFFICER U/S. 40A(3) IS NOT CORRECT AN D THE SAME IS TO BE UPHELD. HE ACCORDINGLY SUBMITTED THAT THE ORDER OF THE CIT(A) SUSTAINING THE ADDITION MADE BY THE ASSESSING OFFIC ER SHOULD BE UPHELD. 9. WE HAVE CONSIDERED THE RIVAL ARGUMENTS MADE BY B OTH THE SIDES AND PERUSED THE ORDERS OF THE LOWER AUTHORITI ES. WE FIND THE ONLY ISSUE TO BE DECIDED IN THE IMPUGNED APPEAL IS REGARDING THE ADDITION OF RS.13,45,626/- MADE BY THE ASSESSIN G OFFICER U/S. 40A(3). WE FIND, THE ASSESSING OFFICER WHILE M AKING THE ADDITION AT PARA 6 OF THE ORDER HAS STATED AS UNDER :- 6. AS FAR AS ADDITION OF RS.13,45,626/- MADE ON AC COUNT OF DISALLOWANCE U/S. 40A93) IS CONCERNED, THE SAME HAS BEEN PAGE | 4 CONFIRMED BY THE CIT(A), HENCE THIS ADDITION ON THI S ACCOUNT IS AGAIN MADE TO THE INCOME OF THE ASSESSEE FOR REASON DISCU SSED IN DETAIL IN THE PREVIOUS ASSESSMENT ORDER AS WELL AS IN THE ORD ER OF THE CIT(A). 10. WE FIND THE LD. CIT(A) UPHELD THE ADDITION MADE BY THE ASSESSING OFFICER. IN OUR OPINION THE ADDITION SO UPHELD BY THE CIT(A) CANNOT BE SUSTAINED FOR TWO REASONS. FIRSTLY , THE TRIBUNAL IN ASSESSEES OWN CASE VIDE ITA NO.4082/DEL/2013 OR DER DATED 16.06.2015 HAS DELETED THE ADDITION. SINCE THE ORDE R OF THE TRIBUNAL WAS SUBSEQUENT TO THE ORDER OF THE CIT(A), THEREFORE, THE LD. CIT(A) DID NOT HAVE THE BENEFIT OF THIS ORDER. THEREFORE, ONCE THE ISSUE HAS BEEN DECIDED BY THE TRIBUNAL IN ASSES SEES OWN CASE FOR THE SAME ASSESSMENT YEAR IN AN ISSUE, THE SAME CANNOT BE MADE AGAIN IN THE ORDER PASSED U/S. 153A. THE V ARIOUS DECISIONS RELIED BY THE LD. DR CANNOT BE APPLIED TO THE FACTS OF THE PRESENT CASE SINCE THE TRIBUNAL HAS TAKEN A CON SCIOUS DECISION ON THE VERY ISSUE AND AFTER ELABORATELY DI SCUSSING HAS DELETED THE ADDITION MADE BY THE ASSESSING OFFICER U/S. 40A(3) WHICH WAS UPHELD BY THE CIT(A). THEREFORE, THE ADD ITION MADE BY THE ASSESSING OFFICER AND UPHELD BY THE CIT(A) CANN OT BE SUSTAINED. 11. EVEN OTHERWISE ALSO IT IS AN ADMITTED FACT THAT NO INCRIMINATING MATERIAL WAS FOUND DURING THE COURSE OF SEARCH WHICH IS EVIDENT FROM THE ASSESSMENT ORDER. THE VE RY BASIS OF THE ADDITION MADE BY THE ASSESSING OFFICER AS REPRODUCE D IN THE PRECEDING PARAGRAPHS SHOWS THAT THE ADDITION IS MAD E ON THE BASIS OF THE ORIGINAL ASSESSMENT ORDER WHICH WAS UP HELD BY THE PAGE | 5 CIT(A). SINCE THE ADDITION IS NOT BASED ON ANY INC RIMINATING MATERIAL FOUND DURING THE COURSE OF SEARCH, THEREFO RE, RELYING ON THE DECISION OF HONBLE DELHI HIGH COURT IN THE CAS E OF KABUL CHAWLA (SUPRA) WE ARE OF THE CONSIDERED OPINION THA T THE ADDITION CANNOT BE SUSTAINED. WE ACCORDINGLY SET ASIDE THE ORDER OF THE CIT(A) AND DIRECT THE ASSESSING OFFICER TO DELETE T HE ADDITION. THE GROUNDS RAISED BY THE ASSESSEE ARE ACCORDINGLY ALLO WED. 12. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 20.06.2019. SD/- SD/- (H.S. SIDHU) (R.K PANDA) JUDICIAL MEMBER ACCOUNTANT MEMB ER *NEHA* DATE:- 20.06.2019 COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT ASSISTANT REGISTRAR ITAT NEW DELHI DATE OF DICTATION DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR.PS /PS DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE D ICTATING MEMBER FOR PRONOUNCEMENT DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR. PS/ PS DATE ON WHICH THE FINAL ORDER IS UPLOADED ON THE WE BSITE OF ITAT 20.06.2019 DATE ON WHICH THE FILE GOES TO THE BENCH CLERK DATE ON WHICH FILE GOES TO THE HEAD CLERK. THE DATE ON WHICH FILE GOES TO THE ASSISTANT REGIST RAR FOR SIGNATURE ON THE ORDER DATE OF DISPATCH OF THE ORDER