Preet Finlease (P) Ltd., New Delhi V. ITO, New Delhi

ITA 1628/DEL/2013

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 7004 (ITAT-DELHI)
• Duration Of Justice: 3 year(s) 3 month(s) 12 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 01-07-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: F
• Next Hearing Date: 04-05-2016
• Assessment Year: 2007-2008
• Appeal Filed On: 20-03-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: RAKHI BIM AL
• Assessee Lawyers: SOURABH ROHTAGI
• Keywords: Onus to prove

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH F, NEW DELHI BEFORE SRI S.V.MEHROTRA, AM AND SRI C.M.GARG, JM ITA NO. 1628/DEL./2013 : ASSTT. YEAR : 2007-08 PREET FINLEASE (P) LTD. SAURAV ROHATAGI & ASSOCIATES, CA, B-2/6, GANGA TRIVENI APARTMENTS, SECTOR-9, ROHINI NEW DELHI VS ITO WARD-14(3) NEW DELHI (APPELLANT) (RESPONDENT) PAN NO. AADCP2401N C.O. NO. 1815/DEL/2013, ASSTT. YEAR : 2007-08 ITO WARD-14(3) NEW DELHI VS PREET FINLEASE (P) LTD. SAURAV ROHATAGI & ASSOCIATES, CA, B-2/6, GANGA TRIVENI APARTMENTS, SECTOR-9, ROHINI NEW DELHI (APPELLANT) (RESPONDENT) PAN NO. AADCP2401N ITA NO. 1628/DEL/2013 PREET FINLEASE, (P) LTD., 2 ASSESSEE BY : SH. SOURABH ROHTAGI, CA REVENUE BY : MS. RAKHI BIM AL, SR. DR DATE OF HEARING : 12.05.2016 DATE OF PRONOUNCEMENT : 01.07.2016 ORDER PER C.M.GARG, J.M. THESE CROSS APPEALS HAVE BEEN FILED BY THE ASSESSE E AS WELL AS BY THE REVENUE AGAINST THE ORDER OF THE CIT(A)-XVII, N EW DELHI FOR AY 2007-08 IN FIRST APPEAL NO. 149/CIT(A)-XVII/2009-10 . GROUNDS RAISED BY THE ASSESSEE IN ITA NO. 1628/DEL /2013 READ AS FOLLOWS : 1. THAT UNDER THE FACTS AND CIRCUMSTANCES AND IN VIE W OF DOCUMENTS AND EXPLANATIONS FILED, THE SOURCE OF DEPOSIT OF RS . 8,69,375/- IN PUNJAB NATIONAL BANK OF THE ASSESSEE NEEDS TO BE AC CEPTED, CONSEQUENTIALLY THE ADDITION MADE AND SUSTAINED DES ERVES TO BE DELETED IN LAW AS WELL AS ON MERITS. 2. THAT WITHOUT PREJUDICE, WITHOUT ALLOWING PROPER AND REASONABLE OPPORTUNITY OF HEARING, ASSTT. FRAMED AND APPELLATE ORDER PASSED IN UN-SUSTAINABLE IN LAW. GROUNDS RAISED BY THE REVENUE IN ITA NO. 1815/DEL/2 013 READ AS FOLLOWS : 1. THE LD. CIT(A) HAS ERRED IN LAW AND ON FACTS IN D ELETING THE ADDITION OF RS. 1,21,54,532/- ACCEPTING THE ADDITIONAL EVIDE NCE FURNISHED BY THE ASSESSEE DURING THE APPELLATE PROCEEDINGS CONTRAVEN ING THE PROVISIONS OF RULE 46A OF THE INCOME TAX ACT, 1962. ITA NO. 1628/DEL/2013 PREET FINLEASE, (P) LTD., 3 2. THE LD. CIT(A) HAS ERRED IN LAW AND FACTS IN NOT AP PRECIATING THE FACT THAT THE ASSESSEE WAS AFFORDED AMPLE OPPORTUNITIES TO FURNISH THE REQUISITE DETAILS/ EVIDENCE S IN RESPECT OF CASH CR EDITS AND THE ASSESSEE FAILED TO DISCHARGE ITS ONUS TO PROVE THAT WHATEVER WAS BEING CLAIMED BY IT, IS TRUE. 3. THE LD. CIT(A) HAS ERRED IN LAW AND ON FACTS IN NOT APPRECIATING THE FACT THAT THE ASSESSEE COMPANY DENIED TO HAVE THE BANK ACCOUNT IN QUESTION BY FILING AN AFFIDAVIT DURING THE ASSESSME NT PROCEEDING AND IT WAS OWNED UP BY THE ASSESSEE ONLY AFTER CONFRONTED WITH IT. 2. WE HAVE HEARD ARGUMENTS OF BOTH THE SIDES AND CA REFULLY PERUSED THE MATERIALS PLACED ON THE RECORD. THE LD. ASSESSE ES REPRESENTATIVE (AR) CONTENDED THE AO PROVED ASSESSMENT ORDER WITH OUT ALLOWING PROPER AND RESONABLE APPORTUNITY OF BEING HEARD AND ONLY ON THIS COURT. THE IMPUGNED ASSESSMENT ORDER IS NOT SUSTAIN ABLE IN THE EYES OF LAW. THE LD. AR ALSO DRAWN OUR ATTENTION TOWARDS REMAND REPORT OF THE AO SUBMITTED TO CIT(A) AND CONTENDED THAT THE A O HAS NOT MADE ANY ALLEGATION IN THE REMAND REPORT ABOUT THE CONTE NTIONS AND EVIDENCE OF THE ASSESSEE, THUS, SOURCE OF DEPOSIT OF RS. 8,6 9,375/- IN PUNJAB NATIONAL BANK OF THE ASSESSEE NEEDS TO BE ACCEPTED AND ADDITION MAKE IN THIS REGARD MAY BE DELETED. 3. REPLYING TO THE ABOVE THE LD. DEPARTMENTAL REP RESENTATIVE (DR) VEHEMENTLY CONTENDED THAT THE CIT(A) HAS NOT GIVEN ANY FINDING ON ITA NO. 1628/DEL/2013 PREET FINLEASE, (P) LTD., 4 THE ALLEGATIONS AND COMMENTS OF THE AO MADE IN THE REMAND REPORT. THE LD. DR, SUPPORTING THE ACTION OF THE AO AND PRE SSING IN TO SERVICE GROUNDS NO. 1 , 2 & 3 OF THE REVENUE STRENU OUSLY CONTENDED THAT THE CIT(A) GROSSLY ERRED IN ACCEPTING THE ADDI TIONAL EVIDENCE FURNISHED BY THE ASSESSEE DURING APPELLATE PROCEEDI NGS CONTRAVENING THE PROVISIONS OF RULE 46A OF IT RULES, 1962. THE L D. DR VEHEMENTLY POINTED OUT THAT THE CIT(A) WAS NOT CORR ECT AND NOT APPRECIATING THE FACT THAT THE ASSESSEE WAS AFFORDE D AMPLE OPPORTUNITIES TO FURNISH THE REQUISITE DETAILS AND EVIDENCES IN RESPECT OF THE CASE CREDITS AND THE ASSESSEE FAILED TO DISC HARGE ITS ONUS TO PROVE THAT WHATEVER WAS CLAIMED BY IT, WAS TRUE. TH E LD. DR ALSO CONTENDED THAT THE CIT(A) ALSO IGNORED THIS IMPORTA NT FACT THAT THE ASSESSEE COMPANY DENIED TO HAVE THE BANK ACCOUNT IN QUESTION BY FILING AN AFFIDAVIT DURING THE ASSESSMENT PROCEEDIN GS AND IT WAS OWNED UP BY THE ASSESSEE ONLY AFTER CONFRONTED WITH IT. T HE LD. DR LASTLY PRAYED THAT THE DEPARTMENT HAS NO SERIOUS OBJECTION IF THE CASE IS RESTORED TO AO TO ASSESSMENT STAGE. ITA NO. 1628/DEL/2013 PREET FINLEASE, (P) LTD., 5 4. THE LD. AR ALSO PLACED REJOINDER TO THE ABOVE SUBMISSIONS OF LD. DR AND POINTED OUT THAT EVEN REMAND REPORT OF THE A O SUBMITTED DRUING FIRST APPELLATE PROCEEDINGS SUPPORTS THE CAS E OF THE ASSESSEE. HOWEVER, HE FAIRLY ACCEPTED THE ASSESSEE HAS NO OBJ ECTION IF CASE IS RESTORED TO THE FILE OF THE AO FOR AFRESH ADJUDICAT ION. 5. ON CAREFUL CONSIDERATION OF ABOVE RIVAL SUB MISSIONS AND PERUSAL OF ASSESSMENT ORDER AS WELL AS ORDER OF THE CIT(A), WE CLEARLY OBSERVE THAT ASSESSEE FILED UNAUDITED BALANCE SHEET AT THE FEGEND OF THE ASSESSMENT PROCEEDINGS. ALL OTHER RELEVANT EVIDENCE WAS SUBMITTED UNDER RULE 46 A OF THE RULES AS AN ADDITIONAL WHICH WAS ADMITTED AND CONSIDERED BY THE CIT(A) AFTER CALLING REMAND REPOR T FROM THE AO. HOWEVER, WE ARE AGREE WITH THE CONTENTION OF THE LD . DR THAT THE REMAND REPORT WAS NOT PROPERTY CONSIDERED BY THE FI RST APPELLATE AUTHORITY AS THE CIT(A) HAS NOT GIVEN ANY FINDINGS ABOUT THE COMMENTS AND STAND OF THE AO IN THE REMAND REPORT. IN THESE CIRCUMSTANCES, WE ARE INCLINED TO ACCEPT SUBMISSION S OF THE LD. DR, WHICH ARE ALSO EXPRESSLY ACCEPTED BY THE LD. AR, TH AT THE CASE DESERVES TO BE RESTORED TO THE FILE OF THE AO FOR A FRESH AND DENOVO ITA NO. 1628/DEL/2013 PREET FINLEASE, (P) LTD., 6 REASSESSMENT AFTER PROVIDING DUE OPPORTUNITY OF BEI NG HEARD TO THE ASSESSEE. WE ORDER ACCORDINGLY. 6. IN THE RESULT, APPEAL OF THE ASSESSEE AS WELL AS OF THE REVENUE ARE ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE COURT ON 01/07/2016. SD/- SD/- ( S.V.MEHROTRA ) (C.M.GARG) ACCOUNTANT MEMBER JUDICIAL MEM BER DATED:01/ 07/2016 *BINITA* COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) ITA NO. 1628/DEL/2013 PREET FINLEASE, (P) LTD., 7 DATE INITIAL 1. DRAFT DICTATED ON (HAND WRITTEN) 1 3.06.2016 2. DRAFT PLACED BEFORE AUTHOR 13.06.2016 3. DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER JM/AM 4. DRAFT DISCUSSED/APPROVED BY SECOND MEMBER. JM/AM 5. APPROVED DRAFT COMES TO THE SR.PS/PS PS/PS 6. KEPT FOR PRONOUNCEMENT ON PS 7. FILE SENT TO THE BENCH CLERK PS 8. DATE ON WHICH FILE GOES TO THE AR 9. DATE ON WHICH FILE GOES TO THE HEAD CLERK. 10. DATE OF DISPATCH OF ORDER.