VK Raj Resort Pvt Ltd, New Delhi V. ITO WARD - 26(1), NEW DELHI

ITA 178/DEL/2020

• Counselvise Citation: [2021] 108 COUNSELVISE.COM (IT) 3092 (ITAT-DELHI)
• Duration Of Justice: 1 year(s) 5 month(s) 6 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 15-06-2021
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2011-2012
• Appeal Filed On: 09-01-2020
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Competent authority
• Section: 201; 148

Judgement Text

IN TH E INCOME TAX APPELLATE TRIBUNAL DELHI BENCH : SMC - 1 : NEW DELHI (THROUGH VIRTUAL HEARING) BEFORE SHRI R. K. PANDA, ACCOUNTANT MEMBER ITA NO. 178 / DEL /20 20 ASSESSMENT YEAR : 20 1 1 - 12 V.K. RAJ RESORT PVT. LTD., OFFICE NO.387, 2 ND FLOOR, ANUVRAT TOWER, NEW DELHI. PAN : A ADCV1090R VS ITO, WARD - 26 ( 1 ), NEW DELHI. (APP ELL A NT ) (RESPONDENT) A SSESSEE BY : SHRI MOHIT BANSAL, CA RE VENUE BY : SHRI R.K. GUPTA, SR. DR DATE OF HEARING : 15 .0 6 . 20 2 1 DATE OF PRONOUNCEMENT : 15 . 0 6 . 20 2 1 ORDER PER R. K. PANDA, AM : THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAINST THE EX PARTE ORDER DATED 11.11. 2019 OF THE CIT(A) - 3 6 , DELHI , RELATING TO THE ASSESSMENT YEAR 201 1 - 12 . 2. ALTHOUGH A NUMBER OF GROUNDS HAVE BEEN RAISED, T HESE ALL RELATE TO THE EX PARTE ORDER OF THE CIT(A) IN CONFIRMING THE ORDER PASSED BY THE AO DETERMINING THE TOTAL INCOME AT RS.21,21,997/ - AS AGAINST THE RETURNED LOSS OF RS.46,058/ - . 3. FACTS OF THE CASE, IN BRIEF, ARE THAT THE ASSESSEE IS A PRIVATE LIM ITED COMPANY. INFORMATION IN THIS CASE WAS RECEIVED FROM THE DDIT (INV.), UNIT II (KOLKATA), THAT ITA NO. 178 / DEL /20 20 2 THE ASSESSEE WAS A BENEFICIARY TO HUGE FUNDS AMOUNTING TO RS.45 LAKHS FROM VARIOUS SOURCES. THE CASE OF THE ASSESSEE WAS ACCORDINGLY REOPENED AFTER RECORDIN G REASONS AND NOTICE U/S 148 OF THE ACT WAS ISSUED AFTER TAKING PRIOR APPROVAL OF THE COMPETENT AUTHORITY. IN RESPONSE TO THE NOTICE U/S 148, THE ASSESSEE FILED ITS RETURN OF INCOME DECLARING LOSS OF RS.46,058/ - . THE ASSESSEE REQUESTED FOR COPY OF THE RE ASONS WHICH WE RE PROVIDED TO THE ASSESSEE. SUBSEQUENTLY, DURING THE COURSE OF ASSESSMENT PROCEEDINGS, THE AO ASKED THE ASSESSEE TO EXPLAIN AS TO WHY THE TOTAL AMOUNT RECEIVED FROM M/S BALAJI CONSTRUCTION COMPANY AMOUNTING TO RS.1,22,63,000/ - BE NOT ADDED TO THE INCOME OF THE ASSESSEE. IT WAS EXPLAINED THAT THE ASSESSEE HAD ADVANCED A LOAN OF RS.1,22,63,000/ - DURING THE F.Y. 2009 - 10 WHICH WAS RECEIVED BACK IN F.Y. 2010 - 11. IT WAS ALSO CLAIMED THAT IT HAS AGAIN ISSUED THIS LOAN BACK TO SOME OTHER ENTITIES DURING THE YEAR. HOWEVER, THE AO OBSERVED FROM THE BANK STATEMENT THAT THE ASSESSEE HAD HUGE CREDITS AMOUNTING TO RS.21,68,05,597/ - FROM VARIOUS ENTITIES DURING THE YEAR. ON PERUSAL OF MOVEMENT OF FUNDS IN ASSESSEE S ACCOUNT, HE NOTED THAT PEAK VOLUME OF CREDIT ARE IMMEDIATELY DEBITED FROM THE ACCOUNT KEEPING A NOMINAL BALANCE. AFTER EXAMINING THE DETAILS, THE AO CAME TO THE CONCLUSION THAT THE AMOUNT OF RS.21,68,05,597/ - IS BOGUS AND MERE ENTRIES TO ROUTE UNACCOUNTED MONEY OF THE BENEFICIARIES THROUGH B ANKING CHANNEL GIVING THEM A COLOUR OF GENUINENESS. THE AO, THEREFORE, ESTIMATED 1% OF TOTAL RECEIPT AS REASONABLE RATE OF COMMISSION TREATING THE ASSESSEE AS AN ENTRY OPERATOR AND ACCORDINGLY MADE ADDITION OF RS.21,68,055/ - TO THE TOTAL INCOME OF THE ASS ESSEE. SINCE THE ASSESSEE DID NOT APPEAR BEFORE THE CIT(A) DESPITE GRANTING ITA NO. 178 / DEL /20 20 3 OF SEVERAL OPPORTUNITIES, THE LD.CIT(A), IN THE EX PARTE ORDER PASSED BY HIM, DISMISSED THE APPEAL FILED BY THE ASSESSEE. 4. AGGRIEVED WITH SUCH ORDER OF THE CIT(A), THE ASSESSEE IS IN APPEAL BEFORE THE TRIBUNAL. 5. I HAVE HEARD THE RIVAL ARGUMENTS MADE BY BOTH THE SIDES AND PERUSED THE RECORD. IT IS AN ADMITTED FACT THAT DESPITE NUMBER OF OPPORTUNITIES GRANTED BY THE CIT(A), THE ASSESSEE DID NOT APPEAR BEFORE HIM FOR WHICH THE LD.CIT(A) WAS CONSTRAINED TO PASS THE EX PARTE ORDER. IT IS THE SUBMISSION OF THE LD. COUNSEL FOR THE ASSESSEE THAT GIVEN AN OPPORTUNITY THE ASSESSEE IS IN A POSITION TO EXPLAIN HIS CASE BEFORE THE LD.CIT(A). CONSIDERING THE TOTALITY OF THE FACTS OF THE C ASE AND IN THE INTEREST OF JUSTICE, I DEEM IT PROPER TO RESTORE THE ISSUE BACK TO THE FILE OF THE CIT(A) WITH A DIRECTION TO GRANT ONE FINAL OPPORTUNITY TO THE ASSESSEE TO SUBSTANTIATE ITS CASE AND DECIDE THE ISSUE AS PER FACT AND LAW. THE ASSESSEE IS ALS O HEREBY DIRECTED TO APPEAR BEFORE THE CIT(A) AND EXPLAIN ITS CASE WITHOUT SEEKING ANY ADJOURNMENT UNDER ANY PRETEXT FAILING WHICH, THE LD.CIT(A) IS AT LIBERTY TO PASS APPROPRIATE ORDER AS PER LAW. I HOLD AND DIRECT ACCORDINGLY. THE GROUNDS RAISED BY THE ASSESSEE ARE ACCORDINGLY ALLOWED FOR STATISTICAL PURPOSES. ITA NO. 178 / DEL /20 20 4 6 . IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. THE ORDER WAS PRO NOUNCED IN THE OPEN COURT ON CONCLUSION OF THE HEARING ITSELF, I.E., ON 15 TH JUNE, 2021 . SD/ - ( R. K. PANDA ) ACCOUNTANT MEMBER DATED: 15 TH JUNE, 2021. DK COPY FORWARDED TO : 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR ASSTT. REGISTRAR, ITAT, NEW DELHI