DCIT, CENTRAL CIRCLE- 28, NEW DELHI V. PAM CONSTRUCTIONS PVT. LTD., NEW DELHI

ITA 1595/DEL/2021

• Counselvise Citation: [2023] 100 COUNSELVISE.COM (IT) 5833 (ITAT-DELHI)
• Duration Of Justice: 2 year(s) 2 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-10-2023
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: G
• Next Hearing Date: 02-10-2023
• Assessment Year: 2012-2013
• Appeal Filed On: 28-10-2021
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Section: 68; 133(6)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH ‘H’, NEW DELHI BEFORE SHRI SAKTIJIT DEY, VICE-PRESIDENT AND DR. BRR KUMAR, ACCOUNTANT MEMBER ITA No. 1595/Del/2021 Assessment Year: 2012-13 DCIT, Central Circle-28, New Delhi. Versus PAM constructions Pvt. Ltd., 2633-2634, Plot No. 249-250, Karol Bagh, Central Delhi, New Delhi. PAN: AAFCP4784N (Appellant) (Respondent) Assessee by : Sh. Nirbhay Mehta, Advocate & Sh. Anup Mehta, C.A. Revenue by : Ms. Sapna Bhatia, CIT-DR Date of hearing : 03.10.2023 Date of pronouncement: 31.10.2023 ORDER This is an appeal by the Revenue against order dated 10.08.2021 of learned Commissioner of Income-tax (Appeals)-29, Delhi for the assessment year 2012-13. 2. Grounds raised by the Revenue are as under : “1. That on the facts and in the circumstances of the case, the Ld.' CIT (A) has erred and on facts in deleting the addition of Rs. 4,00,00,000/- made u/s 68 of the I.T. Act by the AO ignoring the ITA No. 1595/Del/2021 2 fact that assessee has failed to produce any concrete and additional/fresh evidences in support of its version. 2. That on the facts and in the circumstances of the case, Ld. CIT (A) has relied on the decision of Hon’ble ITAT in the case of M/s SRM Securities Pvt. Ltd. is not accepted by the department and the same is pending before the Hon’ble High Court of Delhi for adjudication. 3. That the order of the CIT (A) is perverse, erroneous and is not tenable on facts and in law. 4. That the grounds of appeal are without prejudice to each other. 5. That the appellant craves leave to add, amend, alter or forgo any ground (s) of appeal either before or at the time of hearing of the appeal.” 3. As could be seen from the grounds raised, the dispute is confined to deletion of addition made under section 68 of the Income- tax Act, 1961. 4. We have considered rival submissions of the parties and perused materials on record. The issue raised in this appeal is identical to the issue raised in Revenue’s appeal No. 1594/Del/2021 in case of PAM Jewellers Pvt. Ltd. decided vide order of the even date. While deciding the issue Tribunal has held as under: “11. We have considered rival submissions and perused materials on record. We have also applied our mind to the judicial precedent cited before us. Undisputedly, based on information/material received in course of a search and seizure operation conducted in case of SRM Group of companies, it was ITA No. 1595/Del/2021 3 found that SRM group through various group entities was introducing unaccounted money to its books of account through various entities based in Delhi and Kolkata. In respect of investments received by the assessee towards share capital and share premium, the Assessing Officer initiated assessment proceedings in case of the assessee and has called upon the assessee to prove the genuineness of such investment. The assessee on its part has furnished various documentary evidences to establish identity and creditworthiness of the investors and genuineness of the transactions. 12. As discussed earlier, the assessee has furnished copies of share applications, PAN cards, Income-tax returns, audited balance sheets, bank statements of the investors. However, based on certain adverse material collected through search and seizure operation and post search enquiry, the Assessing Officer has rejected the evidences furnished by the assessee and treated the investments as unexplained cash credits under section 68 of the Act. When the matter went upto the Tribunal, the assessee pleaded that neither adverse materials such as statements recorded from the directors of the investor companies and other entities as well as the information collected through notices under section 133(6) of the Act were confronted to the assessee nor proper opportunity was given to rebut the contents of adverse materials. Considering the aforesaid factual position, which remained uncontroverted, the Tribunal restored the issue back to the Assessing Officer for fresh adjudication after complying with the requirement of Rules of Natural Justice. However, on a reading of the fresh assessment order passed in pursuance to the directions of the Tribunal, it is evident that the Assessing Officer has not complied with the directions of the Tribunal in letter and spirit. Pertinently, though in the body of assessment order, the Assessing Officer has reproduced the specific directions of the Tribunal and has also stated that the Tribunal has remanded the issue back to the file of Assessing Officer on the ground that the assessment order does not mention whether outcome of the notices under section 133(6) was ever confronted to the assessee or the copies of statements were supplied nor was the assessment record produced before the Bench, however, he did not comply with the specific directions. 13. It is also relevant to observe, in paragraph No. 6 of the assessment order, the Assessing Officer himself has noted that in course of fresh assessment proceedings, the assessee had again requested for copies of statements/enquiries and adverse materials. However, the Assessing Officer has brushed aside such request of ITA No. 1595/Del/2021 4 the assessee by merely stating that such argument of the assessee is not relevant, as the main reason for addition was assessee’s failure to satisfactorily prove the identity and creditworthiness of the alleged share holders and the genuineness of the transactions. He also declined to share the information of any enquiry conducted through notices issued under section 133(6) of the Act with the assessee. This act on the part of the Assessing Officer, in our view, is in clear violation of the directions of the Tribunal. 14. It is to be noted that while considering assessee’s appeal arising out of the original assessment proceedings, the Tribunal in ITA No. 6191/Del/2017 has passed order on 22.01.2018 restoring the issue to the Assessing Officer. The reason being, before the Tribunal, the assessee specifically pleaded that the assessment order was passed without allowing adequate opportunity and without confronting the adverse materials collected behind the back of the assessee. It was also pleaded that the result of discrete enquiry conducted by the Assessing Officer was never confronted to the assessee. The Tribunal has also noted the fact that though the Bench wanted to verify the relevant facts by examining the assessment record, however, learned Departmental Representative expressed his inability to produce the assessment record, which compelled the Bench to restore the issue back to the Assessing Officer with specific directions. 15. It is also relevant to observe that it is not a case where in the second round, learned first appellate authority has not conducted any enquiry. On the contrary, learned first appellate authority had again called upon the Assessing Officer to verify the evidences furnished by the assessee and furnish a remand report. However, on a perusal of the remand report dated 21.02.2020 furnished by the Assessing Officer, a copy of which is placed in the paper book, it is observed, instead of doing any fresh enquiry, the Assessing Officer has called upon the assessee to furnish further information. Thus, in our view, the Assessing Officer has acted in a totally irresponsible manner in complying with the directions of the Tribunal. Therefore, in our view, case law cited by learned Departmental Representative will not fit into the facts of the present appeal, hence, would be of no help to the Revenue. 16. As regards the submission of learned Departmental Representative that the issue may be restored back to the Assessing Officer for conducting proper enquiry, we are unable to accept such submission. While deciding assessee’s appeal arising out of original assessment order, the Tribunal has clearly expressed ITA No. 1595/Del/2021 5 its helplessness in deciding the issue on merits considering the fact that the Revenue expressed its inability to furnish the assessment records for enabling the Tribunal to examine the facts as a final fact finding authority. Thus, when the Revenue has failed to furnish even the assessment records, in our view, no fruitful result will come out in restoring back the issue and giving a third inning to the Assessing Officer. Thus, given the factual position emerging on record, in our view, the decision of learned Commissioner (Appeals) in deleting the addition cannot be interfered with. Accordingly, we uphold the order of learned first appellate authority by dismissing the grounds raised.” 5. The facts, being identical, the decision taken in ITA No. 1594/Del/2021 would apply mutatis mutandis in this appeal as well. Accordingly, we uphold the decision of learned first appellate authority by dismissing the grounds raised. 6. In the result, appeal is dismissed. Order pronounced in the open court on 31/10/2023. Sd/- Sd/- (DR. BRR KUMAR) (SAKTIJIT DEY) ACCOUNTANT MEMBER VICE-PRESIDENT Dated: 31.10.2023 *aks/-