DCIT, New Delhi V. M/s Suncity Hitech Projects Pvt. Ltd., New Delhi

ITA 1639/DEL/2013

• Counselvise Citation: [2015] 121 COUNSELVISE.COM (IT) 0064 (ITAT-DELHI)
• Duration Of Justice: 2 year(s) 2 month(s) 6 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 27-05-2015
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: G
• Next Hearing Date: 25-03-2015
• Assessment Year: 2008-2009
• Appeal Filed On: 21-03-2013
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: RAMESH CHANDRA
• Keywords: Document seized; Opportunity of being heard; Documents seized
• Section: 40A(3); 69; 132

Judgement Text

1 ITA NO.1639/DEL/2013 IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH: G NEW DELHI BEFORE SMT DIVA SINGH, JUDICIAL MEMBER AND SH. T.S.KAPOOR, ACCOUNTANT MEMBER I.T.A .NO. - 1639/DEL/2013 (ASSESSMENT YEAR - 2008 - 09 ) DCIT CENT . CIRCLE - 1 NEW DELHI (APPELLANT) VS SUNCITY HITECH PROJECTS PVT. LTD., N - 49, 1 ST FLOOR, C O NNAUGHT PLACE , NEW DELHI AAJCS5668Q (RESPONDENT) APPELLANT BY SH.RAMESH CHANDRA, CIT DR RESPONDENT BY SH.VED JAIN, CA ORDER PER DIVA SINGH, JM BY THE PRESENT APPEAL FILED BY THE REVENUE ASSAILS THE CORRECTNESS OF THE ORDER DATED 14/1/2013 OF CIT(A) III PERTAINING TO 2008 - 09 ASSESSMENT YEAR ON THE FOLLOWING GROUNDS: - 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE CIT(A) HAS ERRED IN DELETING THE DISALLOWANCE OF RS.49,25,016/ - MADE BY THE ASSESSING OFFICER U/S 40A(3) OF THE INCOME TAX ACT, BEING EXPENSES INCURRED OTHERWISE THAN BY CROSSED CHEQUE. 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE CIT(A) HAS ERRED IN DELETING THE ADDITION OF RS.10,00,000/ - MADE ON ACCOUNT OF UNDISCLOSED INCOME UNDER SECTION 69 OF THE INCOME TAX ACT, 1961. 3. THE ORDER OF THE LD. CIT(A) IS ERRONEOUS AND IS NOT TENABLE ON FACTS AN D IN LAW. 4. THE APPELLANT CRAVES LEAVE TO ADD, ALTER OR AMEND ANY/ALL OF THE GROUNDS OF APPEAL BEFORE OR DURING THE COURSE OF THE HEARING OF THE APPEAL. 2. IT WAS A COMMON STAND OF THE PARTIES BEFORE THE BENCH THAT THE FACTS AND CIRCUMSTANCES FOR MAKING T H E ADDITION AND DELETING THE ADDITION REMAIN THE SAME AS DATE OF HEARING 25.03.2015 DATE OF PRONOUNCEMENT 2 7 . 0 5 . 2 0 1 5 2 ITA NO.1639/DEL/2013 SUCH THE ARGUMENTS ADVANCED IN ITA 1604/DEL/2013 WOULD ADDRESS THE ISSUES IN THE PRESENT APPEAL ALSO. IN THE ABOVE MENTIONED ACCEPTED POSITION WE DEEM IT A PROPER TO REFER TO THE MATERIAL AVAILABLE ON RECORD IN ORDER TO ADDRESS THE GRIEVANCE POSED BY THE REVENUE. A PERUSAL OF THE RECORD SHOWS THAT THE ASSESSEE RETURNED AN INCOME OF RS.21,13,630/ - ORIGINALLY. SUBSEQUENT TO THE SEARCH U/S 132 CONDUCTED ON THE GROUP ON 25/9/2008 NOTICE U/S 153 HAD BEEN ISSUED AND IN RESPONSE THERETO AN IDENTICAL RETURN WAS FILED ON 2/6/2010 AGAIN DISCLOSING THE SAME INCOME I.E. RS. 21,13,630/ - . HEREIN ALSO, ON A PERUSAL OF THE SEIZED DOCUMENTS THE ASSESSEE WAS FOUND TO HAVE MADE PAYMENTS OF RS.49,25,016/ - IN CONTRAVEN TION TO THE PROVISIONS OF SECTION 40A (3) OF THE ACT AND CONSIDERING THE REPLY OF THE ASSESSEE AS NOT SATISFACTORY ADDITION OF THE ENTIRE AMOUNT WAS MADE. AS IN THE EARLIER YEAR BEFORE THE CIT(A) THE ASSESSEE APART FROM VARIOUS OTHER ARGUMENTS ALSO CONTEN DED THAT THE FACTS HAD NOT BEEN CORRECTLY C O N S I D E R E D BY THE AO AS THE CASH PAYMENT IN EXCESS OF RS.20,000/ - WAS RS.31,37,000/ - ONLY. OUT OF THIS, RS.17,00,000/ - WAS CLAIMED TO HAVE BEEN PAID IN FINANCIAL YEAR 2006 - 07 AND RS.14,37,000/ - WAS CLAIMED TO HAVE BEEN PAID IN FINANCIAL YEAR 2007 - 08. THE EXPLANATION AGAIN WAS THAT I T W A S B A Y A N A ON ACCOUNT OF BUSINESS COMPULSIONS AFTER BANKING HOURS TO THE PARTIES TO WHOM MAJOR PAYMENTS (98%) WERE BY WAY OF CHEQUES RECORDED IN THE REGISTERED SALE DEEDS WITH SUB - REGISTRAR. APART F ROM THAT CURIOUSLY VANSIDHAR PROJECTS DECISION OF THE ITAT WAS ALSO RELIED UPON. CONSIDERING THE FINDING ARRIVED AT IN ITA NO. - 1604/DEL/2013 FOR SIMILAR REASON AND FACTS THE IMPUGNED ORDER ON THIS GROUND IS A L S O SET ASIDE AND WITH SIMILAR DIRECTION, THE ISSUE IS RESTORED TO THE AO. 3. THE FACTS QUA THE SECOND I S S U E IN THE PRESENT APPEAL SHOW THAT ON A COMPARISON OF THE SEIZED DOCUMENT IN REGARD TO THE DEPOSITS IN CASH IN THE ORIENTAL BANK OF COMMERCE THE ASSESSEE CLAIMED THE SAME TO BE FROM THE AND DEPOSITS AND 3 ITA NO.1639/DEL/2013 WITHDRAWALS OF THE HDFC BANK. THE EXPLANATION HEREIN ALSO WAS NOT ACCEPTED BY THE AO AND I N A P P E A L W A S DELETED BY THE CIT(A). 4. SINCE THE ARGUMENTS O F THE PARTIES REMAIN THE SAME HEREIN ALSO FOLLOWING THE VIEW TAKEN IN ITA NO. - 1604/DEL/2013, THE IMPUGNED ORDE R IS SET ASIDE AND T H E ISSUE IS RESTORED BACK TO THE FILE OF THE AO WITH THE IDENTICAL DIRECTION TO DECIDE THE SAME IN ACCORDANCE WITH LAW AFTER GIVING THE ASSESSEE A REASONABLE OPPORTUNITY OF BEING HEARD. 5. IN THE RESULT, THE APPEAL OF THE REVENUE IS ALLO WED FOR STATISTICAL PURPOSES. THE ORDER IS PRONOUNCED IN THE OPEN COURT ON 2 7 T H OF MAY , 2015. S D / - S D / - (T. S. KAPOOR) (DIVA SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 2 7 /05/2015 *R. NAHEED /AMIT KUMAR* COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT ASSISTANT REGISTRAR ITAT NEW DELHI