NIDHI BUILDERS (I) PVT. LTD., NEW DELHI V. ITO, Ward- 18(2), NEW DELHI

ITA 155/DEL/2018

• Counselvise Citation: [2021] 107 COUNSELVISE.COM (IT) 5408 (ITAT-DELHI)
• Duration Of Justice: 3 year(s) 8 month(s) 17 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 23-09-2021
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: E
• Assessment Year: 2014-2015
• Appeal Filed On: 05-01-2018
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Assessee Lawyers: AGAINST DATED PASSED
• Keywords: Principle of natural justice
• Section: 115JB

Judgement Text

1 ITA NO. 155/DEL/2018 IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH: E NEW DELHI BEFORE MS SUCHITRA KAMBLE, JUDICIAL ME MBER AND SH. PRASHANT MAHARISHI, ACCOUN TANT MEMBER I.T.A. NO. 155/DEL/201 8 (A.Y 2014-15) (THROUGH VIDEO CON FERENCING) NIDHI BUILDERS (1) PVT. LTD. B-7/92, SAFDARJUNG ENCLAVE EXTENSION, NEW DELHI AABCN4091J (APPELLANT) VS ITO WARD-18(2) NEW DELHI (RESPONDENT) ORDER PER SUCHITRA KAMBLE, JM THIS APPEAL IS FILED BY THE ASSESSEE AGAINST THE O RDER DATED 09/10/2017 PASSED BY CIT(A)-6, DELHI FOR ASSESSMENT YEAR 2014 -15. 2. THE GROUNDS OF APPEAL ARE AS UNDER: 1. THE LD. ASSESSING OFFICER IS NOT JUSTIFYING IN DISALLOWING OF RS. 33,50,000/- IN REGARD OF CASH DEPOSITED BY THE ASSE SSEE. 3. THE ASSESSEE COMPANY IS ENGAGED IN THE BUSINESS OF CONSTRUCTION OF REAL ESTATE LIKE BUILDINGS, FARM HOUSES ETC ON TURNKEY B ASIS AND ALLIED WORKS LIKE CIVIL, ENGINEERING AND PLUMBING WORKS ETC. THE ORI GINAL RETURN OF INCOME DECLARING AN INCOME OF RS. NIL WAS E-FILED ON 13/ 9/2014. THE ASSESSEE HAD APPELLANT BY NONE RESPONDENT BY SH. GAURAV PUNDIR, SR. DR DATE OF HEARING 02.09.2021 DATE OF PRONOUNCEMENT 23.09.2021 2 ITA NO. 155/DEL/2018 SHOWN A PROFIT OF RS.13,65,946/- IN THE COMPUTATION OF INCOME AFTER SETTING OFF BUSINESS LOSS OF ASSESSMENT YEAR 2011-12 AT NIL I NCOME. HOWEVER, TAX WAS PAID U/S 115JB ON AN INCOME OF RS. 13,19,107/-. TH E ASSESSING OFFICER MADE ADDITION OF RS.13,73,827/- IN RESPECT OF MISCELLANE OUS EXPENSES AND REPAIR OF JC BLOCKS. THE ASSESSING OFFICER ALSO MADE ADDITION OF RS. 33,50,000/- IN RESPECT OF CASH CREDITS. 4. BEING AGGRIEVED BY THE PENALTY ORDER, THE ASSESS EE FILED APPEAL BEFORE THE CIT(A). THE CIT (A) PARTLY ALLOWED THE APPEAL OF T HE ASSESSEE. 5. AT THE TIME OF HEARING NONE APPEARED ON BEHALF O F E DESPITE GIVING NOTICE. THE ACKNOWLEDGMENT RECEIPT OF SPEED POST IS RECEIVE D IN THE REGISTRY OF INCOME TAX APPELLATE TRIBUNAL WITH THE REMARK THAT NO SUCH PERSON AT THIS ADDRESS WAS FOUND. THERE IS NO NEW ADDRESS GIVEN BY THE AS SESSEE AT ANY POINT OF TIME. THUS, THE SERVICE IS COMPLETE, THEREFORE, WE ARE PR OCEEDING ON THE BASIS OF THE CONTENTIONS OF THE ASSESSEE BEFORE THE ASSESSING OF FICER AND BEFORE THE CIT(A) AS SET OUT IN THE ASSESSMENT ORDER AND ORDER OF THE CIT(A). 6. THE LD. DR RELIED UPON THE ASSESSMENT ORDER AND THE ORDER OF THE CIT(A). 7. WE HAVE HEARD LD. DR AND PERUSED ALL THE RELEVAN T MATERIALS AVAILABLE ON RECORD. THE ASSESSEE HAS CONTENDED BEFORE THE ASSES SING OFFICER AS WELL AS BEFORE THE CIT(A) THAT DURING THE ASSESSMENT YEAR, THE ASSESSEE HAD DEPOSITED AMOUNT OF RS. 33,50,000/- IN HIS BANK ACCOUNT. THE ASSESSEES CONTENTIONS BEFORE THE CIT(A) WAS THAT THE ASSESSEE HAD AN OPEN ING CASH BALANCE OF RS. 37,10,469/- AND HAD WITHDRAWN RS. 9,83,000/- FROM T HE BANK DURING THE PRESENT ASSESSMENT YEAR. THUS, THE CASH DEPOSITS I N THE BANK WERE MADE SOLELY OUT OF OWN FUNDS AND ARE NOT IN THE NATURE O F INCOME OF THE ASSESSEE. THE ASSESSEE HAS PRODUCED CASH FLOW STATEMENT BEFOR E THE ASSESSING OFFICER. IN PARA 3.2.2 OF THE ORDER OF THE CIT(A), IT IS CLE ARLY MENTIONED THAT THE ASSESSEE HAS FILED APPLICATION FOR FILING ADDITIONAL EVIDENC E UNDER RULE 46A IN RESPECT OF 3 ITA NO. 155/DEL/2018 FILING CASH ACCOUNT AND LEDGE OF CASH ACCOUNT, BUT THE CIT(A) HAS NOT CONSIDERED THE APPLICATION AND HAS NOT AT ALL COMME NTED WHILE CONFIRMING THE ADDITIONS. THEREFORE, IT WILL BE APPROPRIATE TO RE MAND BACK THE ISSUE CONTESTED HEREIN TO THE FILE OF THE CIT(A) FOR PROPER ADJUDIC ATION OF APPLICATION UNDER RULE 46A AND AFTER TAKING COGNIZANCE OF THE EVIDENCES DE CIDE THE MATTER ON MERIT, AS PER THE LAW. NEEDLES TO SAY, THE ASSESSEE BE GIVEN OPPORTUNITY OF HEARING BY FOLLOWING PRINCIPLES OF NATURAL JUSTICE. THE APPEA L OF THE ASSESSEE IS PARTLY ALLOWED FOR STATISTICAL PURPOSE. 8. IN RESULT, THE APPEAL OF THE ASSESSEE IS PARTLY ALLOWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 23RD DA Y OF SEPTEMBER , 2021 SD/- SD/- (PRASHANT MAHARISHI) (SUCH ITRA KAMBLE) ACCOUNTANT MEMBER JUDICIAL MEM BER DATED: 23/09/2021 R. NAHEED * COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT ASSISTANT REGISTRAR ITAT NEW DELHI 4 ITA NO. 155/DEL/2018