DCIT, New Delhi V. M/s. Daksh Buildwell Pvt. Ltd., New Delhi

ITA 1420/DEL/2013

• Counselvise Citation: [2018] 121 COUNSELVISE.COM (IT) 5430 (ITAT-DELHI)
• Duration Of Justice: 5 year(s) 1 month(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 26-04-2018
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 19-06-2017
• Assessment Year: 2006-2007
• Appeal Filed On: 08-03-2013
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Keywords: Search and seizure; Opportunity of being heard
• Section: 143(3); 68; 132

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCHES : B : NEW DELHI BEFORE SHRI R.S. SYAL, VICE PRESIDENT AND SHRI K. NARASIMHA CHARY, JUDICIAL MEMBER ITA NO.1420/DEL/2013 ASSESSMENT YEAR : 2006-07 DCIT, CENTRAL CIRCLE-12, ROOM NO.330, ARA CENTRE, JHANDEWALAN EXTN., NEW DELHI. VS. DAKSH BUILDWELL PVT. LTD., 12, RING ROAD, LAJPAT NAGAR-IV, NEW DELHI. PAN: AABCD9085C ITA NO.4734/DEL/2011 ASSESSMENT YEAR : 2006-07 CO NO.51/DEL/2014 (ITA NO.1420/DEL/2013 ASSESSMENT YEAR : 2006-07 DAKSH BUILDWELL PVT. LTD., 12, RING ROAD, LAJPAT NAGAR-IV, NEW DELHI. PAN: AABCD9085C VS. DCIT, CENTRAL CIRCLE-12, ROOM NO.330, ARA CENTRE, JHANDEWALAN EXTN., NEW DELHI. (APPELLANT) (RESPONDENT) ITA NOS.1420/DEL/2013 & 4734/DEL/2011 CO NO.51/DEL/2014 2 ASSESSEE BY : SHRI SUDESH GARG, ADVOCATE DEPARTMENT BY : MS RACHNA SINGH, CIT, DR DATE OF HEARING : 25.04.2018 DATE OF PRONOUNCEMENT : 26.04.2018 ORDER PER R.S. SYAL, VP: ONE APPEAL BY THE ASSESSEE AND ANOTHER BY THE REVE NUE FROM DIFFERENT PROCEEDINGS AND ONE CROSS OBJECTION BY THE ASSESSEE RELATE TO ASSESSMENT YEAR 2006-07. SINCE COMMON ISSUE IS RAISED IN THESE APPEALS, WE ARE, THEREFORE, PROCEEDING TO DISPOSE THEM OFF BY THIS C ONSOLIDATED ORDER FOR THE SAKE OF CONVENIENCE. 2. BEFORE PROCEEDING WITH THE MATTER, IT IS RELEV ANT TO MENTION THAT THE APPEAL OF THE ASSESSEE IS A RECALLED MATTER INASMUC H AS THE EARLIER ORDER PASSED BY THE BENCH WAS SUBSEQUENTLY RECALLED. 3. BRIEFLY STATED, THE FACTS OF THE CASE ARE THAT T HE ASSESSEE FILED RETURN DECLARING INCOME OF RS.8,536/-. DURING THE COURSE O F ASSESSMENT PROCEEDINGS, IT WAS OBSERVED BY THE AO THAT THE ASS ESSEE HAD SHOWN TO HAVE RECEIVED AN UNSECURED LOAN OF RS.2 CRORE FROM M/S VIPUL INFRASTRUCTURE DEVELOPER LTD. THE ASSESSING OFFICE R CALLED UPON THE ITA NOS.1420/DEL/2013 & 4734/DEL/2011 CO NO.51/DEL/2014 3 ASSESSEE TO FURNISH COPY OF THE INCOME-TAX RETURN, BALANCE SHEET, AUDIT REPORT, CONFIRMATION AND BANK STATEMENT OF THE LEND ER, NAMELY, M/S VIPUL INFRASTRUCTURE DEVELOPER LTD. THE ASSESSEE FILED C ONFIRMATION FROM VIPUL LTD. ALONG WITH A COPY OF BANK ACCOUNT. IN THE ABS ENCE OF ANY FURTHER DETAILS, THE ASSESSING OFFICER MADE ADDITION OF RS. 2 CRORE. THE ASSESSEE REMAINED UNREPRESENTED BEFORE THE LD. CIT(A), AS A RESULT OF WHICH ITS APPEAL CAME TO BE DISMISSED. THE ASSESSEE IS AGGRIE VED AGAINST SUCH CONFIRMATION OF ADDITION. 4. IN THE OTHER APPEAL, THE REVENUE IS AGGRIEVE D AGAINST THE ORDER PASSED BY THE LD. CIT(A) DELETING THE ADDITION OF RS.2.00 CRORE. THE FACTUAL MATRIX OF THE OTHER APPEAL IS THAT AFTER THE CONCLUSION OF THE ORIGINAL ASSESSMENT, AS DISCUSSED SUPRA, SEARCH AND SEIZURE OPERATIONS WERE CARRIED OUT U/S 132 IN RAJ DARBAR GROUP OF CASES ON 31.07.2008. IN SUCH S EARCH OPERATION, CERTAIN DOCUMENTS BELONGING TO THE ASSESSEE COMPANY WERE FO UND. NOTICE U/S 153C WAS ISSUED. THE ASSESSING OFFICER RECORDED A SUMMARY OF EARLIER PROCEEDINGS U/S 143(3) IN HIS FRESH ORDER PASSED U/ S 153C AND, AGAIN, REPEATED THE ADDITION OF RS.2 CRORE. THE LD. CIT(A ) CALLED FOR THE REMAND REPORT FROM THE ASSESSING OFFICER. HE GOT CONVINCE D WITH THE ASSESSEES ITA NOS.1420/DEL/2013 & 4734/DEL/2011 CO NO.51/DEL/2014 4 SUBMISSIONS AND DELETED THE ADDITION VIDE HIS ORDER DATED 24.12.2012. THE REVENUE HAS COME UP IN APPEAL AGAINST THE ORDER OF THE LD. CIT(A). 5. WE HAVE HEARD BOTH THE SIDES AND PERUSED THE REL EVANT MATERIAL ON RECORD. IT IS OBSERVED THAT THE ASSESSEE DECLARED A LOAN OF RS.2 CRORE FROM M/S VIPUL INFRASTRUCTURE DEVELOPER LTD. ON BEING C ALLED UPON TO PROVE THE GENUINENESS OF THE LOAN TRANSACTION, THE ASSESSEE F ILED CONFIRMATION FROM M/S VIPUL LTD. IT WAS SO BECAUSE THE NAME OF THE LE NDER COMPANY GOT CHANGED FROM M/S VIPUL INFRASTRUCTURE DEVELOPER LTD TO VIPUL LTD. APART FROM THAT, THE ASSESSEE DID NOT FURNISH OTHER DETAI LS OF THE LENDER, SUCH AS, ANNUAL ACCOUNTS ALONG WITH AUDIT REPORT ETC., AS CA LLED FOR BY THE ASSESSING OFFICER. IT IS CLEAR FROM THE IMPUGNED ORDER THAT THE NAME OF THE LENDER COMPANY GOT CHANGED FROM VIPUL INFRASTRUCTURE DEVEL OPER LTD. TO VIPUL LTD. FILING OF CONFIRMATION BY VIPUL LTD., THUS, E STABLISHES THE IDENTITY OF THE CREDITOR. ON A SPECIFIC QUERY FROM THE BENCH, THE LD. AR SUBMITTED THAT THE LOAN TAKEN IN THE FINANCIAL YEAR 2005-06 WAS RE PAID SOME TIME IN 2011. NO COMMERCIAL REASONS COULD BE PUT FORTH BY HIM FOR RECEIPT OF SUCH A LOAN FROM AN UNRELATED PARTY. THE LD. CIT(A) HAS DELETE D THE ADDITION SIMPLY ON THE PREMISE THAT THE ASSESSING OFFICER OUGHT TO HAV E CONDUCTED FURTHER ITA NOS.1420/DEL/2013 & 4734/DEL/2011 CO NO.51/DEL/2014 5 ENQUIRIES, WHICH HE FAILED TO DO. IT IS FOUND THAT THE ASSESSING OFFICER DID ENQUIRE FROM THE ASSESSEE ABOUT THE ASPECTS OF GENU INENESS OF THE TRANSACTION AND CREDIT WORTHINESS OF THE LENDER. T HE ASSESSEE COULD NOT FILE THE ANNUAL ACCOUNTS ETC. OF THE LENDER COMPANY, SHO WING REFLECTION OF LOAN GIVEN TO THE ASSESSEE. THE LD. AR SUBMITTED THAT T HE LENDER IS A LISTED COMPANY WHOSE GENUINENESS CANNOT BE DISPUTED. IN OU R CONSIDERED OPINION, THE MERE FACT THAT THE LENDER IS A LISTED COMPANY D OES NOT ABSOLVE THE ASSESSEE FROM PROVING ALL THE INGREDIENTS IN RESPEC T OF THE TRANSACTION OF LOAN TAKEN BY IT. SINCE THE NECESSARY DOCUMENTS TO PROVE THE GENUINENESS OF THE TRANSACTION AND THE CAPACITY OF THE CREDITOR WERE NOT READILY AVAILABLE WITH THE ASSESSEE, WE ARE SATISFIED THAT THE ENDS O F JUSTICE WOULD MEET ADEQUATELY IF THE IMPUGNED ORDERS ARE SET ASIDE AND THE MATTER IS RESTORED TO THE FILE OF ASSESSING OFFICER FOR DECIDING THE ISSU E AFRESH AS PER LAW, AFTER GIVING ADEQUATE OPPORTUNITY OF BEING HEARD TO THE A SSESSEE. IN SUCH FRESH PROCEEDINGS, THE ASSESSEE WILL BE UNDER OBLIGATION TO SATISFY THE ASSESSING OFFICER ON ALL THE NECESSARY INGREDIENTS OF SECTION 68 IN THIS CASE. 6. THE CROSS OBJECTION FILED BY THE ASSESSEE WAS NO T PRESSED. ITA NOS.1420/DEL/2013 & 4734/DEL/2011 CO NO.51/DEL/2014 6 7. IN THE RESULT, BOTH THE APPEALS ARE ALLOWED FOR STATISTICAL PURPOSES AND THE C.O. IS DISMISSED AS NOT PRESSED. THE ORDER PRONOUNCED IN THE OPEN COURT ON 26.04.201 8. SD/- SD/- [K. NARASIMHA CHARY] [R.S. SYAL] JUDICIAL MEMBER VICE PRESIDENT DATED, 26 TH APRIL, 2018. DK COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT (A) 5. DR, ITAT AR, ITAT, NEW DELHI.