Raghunandan Infra Projects Pvt. Ltd., New Delhi V. ITO, Ward- 20(4), New Delhi

ITA 1712/DEL/2018

• Counselvise Citation: [2019] 118 COUNSELVISE.COM (IT) 8368 (ITAT-DELHI)
• Duration Of Justice: 9 month(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 01-01-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: F
• Assessment Year: 2009-2010
• Appeal Filed On: 12-03-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S L ANURAGI
• Assessee Lawyers: SANCHIT JAIN; VED JAIN ADV SHRI ASHISH GOEL
• Keywords: Unexplained cash credit; Document seized; Opportunity of being heard; Accommodation entries; Assessment record

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH SMC NEW DELHI BEFORE SHRI BHAVNESH SAINI, JUDICIAL MEMBER I.T.A. NO.1712/DEL/2018 ASSESSMENT YEAR: 2009-10 RAGHUNANDAN INFRA PROJECTS PVT. LTD., C/O S. JAIN & ASSOCIATE, 84, DARYA GANJ, NEW DELHI. V. ITO, WARD-20(4), NEW DELHI. TAN/PAN: AACCR 8878A (APPELLANT) (RESPONDENT) APPELLANT BY: SHRI VED JAIN, ADV., SHRI ASHISH GOEL, CA & SHRI SANCHIT JAIN, CA RESPONDENT BY: SHRI S.L. ANURAGI, SR.D.R. DATE OF HEARING: 05 12 2018 DATE OF PRONOUNCEMENT: 01 01 2019 O R D E R THIS APPEAL BY THE ASSESSEE HAS BEEN DIRECTED AGAIN ST THE ORDER OF LD. CIT(A)-XXV, DELHI DATED 29 TH SEPTEMBER, 2017 FOR THE ASSESSMENT YEAR 2009-10. 2. BRIEFLY, FACTS OF THE CASE ARE THAT THE ASSESSEE COMPANY FILED ITS RETURN OF INCOME ON 30 TH SEPTEMBER, 2009 FOR ASSESSMENT YEAR UNDER APPEAL DECLARING NIL INCOME. SUBSEQUENTLY, INFORMATION WAS RECEIVED FROM THE OFFICE OF DIT (INVESTIGATION) , NEW DELHI MENTIONING THEREIN THAT THE SEARCH OPERATION WAS CA RRIED OUT IN THE CASE OF SHRI SURENDRA KUMAR JAIN GROUP OF CASES WHEREIN AFTER INTENSIVE AND EXTENSIVE ENQUIRY AND EXAMINATI ON OF DOCUMENT SEIZED DURING THE COURSE OF SEARCH IT HAS BEEN NOTICED THAT THE SAID GROUP IS INVOLVED IN PROVIDING ACCOMM ODATION ENTRIES TO THE PERSONS WHICH WERE NAMED IN THE REPO RT. THE ITA NO.1712 /DEL/2018 2 ASSESSEE COMPANY ALSO FIGURED IN THE LIST AS ONE OF THE BENEFICIARIES OF THE ACCOMMODATION ENTRIES. THE NOT ICE U/S.148 OF THE IT ACT WAS ISSUED, THE COPY OF REASONS RECORDED U/S.148 WERE SUPPLIED TO THE ASSESSEE. THE ASSESSEE IN RESPONSE THERETO SUBMITTED THAT ORIGINAL RETURN FILED MAY BE TREATED AS RETURN FILED IN RESPONSE TO THE NOTICE U/S.148 OF THE IT ACT. TH E ASSESSING OFFICER REFERRED TO THE SEIZED DOCUMENT IN THE ASSE SSMENT ORDER AND AFTER CALLING EXPLANATION OF THE ASSESSEE MADE ADDITION OF RS.30 LAC ON ACCOUNT OF UNEXPLAINED CREDIT U/S.68 O F THE IT ACT IN RESPECT OF AMOUNT RECEIVED AS SHARE CAPITAL FROM M/ S. SHALINI HOLDINGS LTD. AND M/S. AD FIN CAPITAL SERVICES (IND IA) PVT. LTD. THE ASSESSING OFFICER ALSO MADE ADDITION OF RS.54,0 00/- ON ACCOUNT OF COMMISSION EXPENSES FOR OBTAINING ACCOMM ODATION ENTRIES. THE ASSESSEE CHALLENGED THE REOPENING OF T HE ASSESSMENT AS WELL AS ABOVE ADDITION BEFORE LD. CIT(A). 3. LD. CIT(A) NOTED IN THE IMPUGNED ORDER THAT NOTI CES HAVE BEEN ISSUED TO THE ASSESSEE AT THE ADDRESS GIVEN IN THE APPEAL PAPERS. HOWEVER, THE SAME NOTICES HAVE BEEN RECEIVE D BACK UNSERVED WITH THE COMMENTS THAT NO SUCH FIRM AT THE ADDRESS. LD. CIT(A) THEREFORE OBSERVED THAT THE NOTICES HAVE BEEN RECEIVED BACK UNSERVED EITHER THE ASSESSEE HAD LEFT THE PREM ISES OR HAD GIVEN A WRONG ADDRESS, THEREFORE, ASSESSEE COULD NO T BE SERVED AT THE ADDRESS. LD. CIT(A), THEREFORE, DECIDED THE APP EAL OF THE ASSESSEE ON MERITS. LD. CIT(A) NOTED THAT ASSESSEE HAD NEITHER GIVEN ANY EVIDENCE NOR ANY REASONING IN SUPPORT OF SUCH CLAIM AND ILLEGALITY HAVE BEEN POINTED OUT IN REOPENING O F THE ASSESSMENT. SIMILARLY, IT WAS NOTED THAT NO EVIDENC E AND MATERIAL ITA NO.1712 /DEL/2018 3 HAVE BEEN GIVEN TO CHALLENGE THE ADDITION ON MERITS , THEREFORE, APPEAL OF THE ASSESSEE HAS BEEN DISMISSED. 4. THE ASSESSEE IN THE PRESENT APPEAL HAS CHALLENGE D THE ORDER OF THE LD. CIT(A) IN PASSING THE EX-PARTE ORDER WIT HOUT GIVING OPPORTUNITY OF BEING HEARD, THE REOPENING OF THE AS SESSMENT AND MAKING THE ADDITIONS ON MERIT. 5. I HAVE HEARD LEARNED REPRESENTATIVE OF BOTH THE PARTIES AND PERUSED THE MATERIAL ON RECORD. LD. COUNSEL FOR THE ASSESSEE REITERATED THE SUBMISSIONS MADE BEFORE THE ASSESSIN G OFFICER AS WELL AS FILED THE WRITTEN SUBMISSION TO HIGHLIGHT T HAT REOPENING OF THE ASSESSMENT IS BAD IN LAW AND THAT ADDITION ON M ERIT IS WITHOUT ANY BASIS. DETAILED PAPER BOOK IS ALSO FILE D IN WHICH CERTIFICATE HAVE BEEN GIVEN THAT ALL THE DOCUMENTAR Y EVIDENCES ARE AVAILABLE ON RECORD BY THE ASSESSING OFFICER. ON TH E OTHER HAND, LEARNED DEPARTMENT REPRESENTATIVE HAS STRONGLY RELI ED UPON THE ORDER OF THE ASSESSING OFFICER. 6. AFTER CONSIDERING THE RIVAL SUBMISSIONS, I AM OF THE VIEW THAT MATTER REQUIRES RECONSIDERATION. THE ASSESSEE HAS GIVEN THE SAME ADDRESS FOR THE PURPOSE OF SERVICE IN THE APPE AL PAPERS AS WAS GIVEN BEFORE THE LD. CIT(A). THE OBSERVATIONS O F THE LD. CIT(A) CLEARLY SHOW THAT THE NOTICES ISSUED FOR HEARING OF THE APPEAL BEFORE THE LD. CIT(A) HAVE NOT BEEN SERVED UPON ASS ESSEE. NO ATTEMPT HAS BEEN MADE TO SERVE THE ASSESSEE PERSONA LLY THROUGH THE PROCESS SERVER OF THE DEPARTMENT. THEREFORE, TH E APPELLATE ORDER IS PASSED WITHOUT GIVING OPPORTUNITY OF BEING HEARD TO THE ASSESSEE IN VIOLATION OF PRINCIPLE OF NATURAL JUSTIC E. THE LD. CIT(A) ITA NO.1712 /DEL/2018 4 THEN DECIDED THE APPEAL ON MERIT MERELY BY OBSERVIN G THAT THE ASSESSEE HAS NEITHER GIVEN ANY EVIDENCE OR MATERIAL OR REASONING AS TO HOW REOPENING OF THE ASSESSMENT IS BAD IN LAW AND AS TO HOW ADDITIONS ON MERIT ARE UNJUSTIFIED. LD. CIT(A) DID NOT VERIFY FROM THE ASSESSMENT RECORD THAT ALL THE EVIDENCES A RE PART OF THE RECORD OF THE ASSESSING OFFICER. THEREFORE, EVEN IF LD. CIT(A) WANTED TO DECIDE THE APPEAL OF THE ASSESSEE EX PARTE ON MERIT, IN SUCH CIRCUMSTANCES, THE ASSESSMENT RECORD COULD HAV E BEEN SUMMONED FOR DECIDING THE APPEAL OF THE ASSESSEE ON MERITS. LD. CIT(A) NOTED THAT NEITHER THE ASSESSEE NOR THE DEPA RTMENTAL OFFICER APPEARED AT THE TIME OF HEARING OF APPEAL, THEREFORE, NONE OF THE DOCUMENTARY EVIDENCES ON RECORD HAVE BEEN CO NSIDERED BY HIM AT APPELLATE STAGE WHILE DISMISSING THE APPEAL OF THE ASSESSEE WITHOUT GIVING OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. THE GIST OF THE SUBMISSION OF THE LD. COU NSEL FOR THE ASSESSEE HAD BEEN THAT THE RE-ASSESSMENT ORDER IS P ASSED COMPLETELY WITHOUT APPLICATION OF MIND BY THE ASSES SING OFFICER AND THAT ALL THE DOCUMENTARY EVIDENCES HAVE BEEN FI LED ON RECORD TO PROVE THAT ASSESSEE ENTERED INTO GENUINE TRANSAC TIONS WITH THE PARTIES. WHATEVER STATEMENTS WERE RECORDED BY THE D EPARTMENT WERE NOT SUBJECTED TO CROSS-EXAMINATION ON BEHALF O F THE ASSESSEE. ALL THESE ISSUES RAISED IN THE WRITTEN SU BMISSION HAVE NOT BEEN DEALT EITHER BY THE ASSESSING OFFICER OR B Y THE LD. CIT(A). SINCE NO FINDINGS OF FACT HAVE BEEN RECORDED BY THE AUTHORITIES BELOW ON MERIT ON ALL THE ISSUES AND THAT, NO OPPOR TUNITY HAVE BEEN GIVEN TO THE ASSESSEE TO ARGUE THE APPEAL ON M ERIT AT APPELLATE STAGE, THEREFORE, THE ENTIRE MATTER REQUI RES RECONSIDERATION. I, THEREFORE, WITHOUT GOING INTO T HE MERITS OF THE ITA NO.1712 /DEL/2018 5 CLAIM OF THE ASSESSEE, SET ASIDE THE IMPUGNED ORDER AND RESTORE THE ENTIRE MATTER TO LD. CIT(A) WITH THE DIRECTION TO RE-DECIDE THE APPEAL STRICTLY ON MERIT AS PER LAW BY GIVING REASO NABLE/SUFFICIENT OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. THE ASS ESSEE IS DIRECTED TO FILE COPY OF THE WRITTEN SUBMISSION AND THE COPY OF THE PAPER BOOK FILED BEFORE THE ASSESSING OFFICER FOR H IS PERUSAL AND DECISION AS PER LAW. 7. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 1 ST JANUARY, 2019. SD/- [BHAVNESH SAINI] JUDICIAL MEMBER DATED: 1 ST JANUARY, 2019