M/s. Galgotia (HUF), New Delhi V. ACIT, Uttar Pradesh

ITA 1860/DEL/2015

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 97385 (ITAT-DELHI)
• Duration Of Justice: 5 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 23-09-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC 1
• Next Hearing Date: 09-09-2015
• Assessment Year: 2006-2007
• Appeal Filed On: 31-03-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: DR B R R KUMAR
• Assessee Lawyers: P K MISRA
• Keywords: Opportunity of being heard; Earning of tax free income
• Section: 153A; 14A

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH: SMC - I NEW DELHI BEFORE SMT DIVA SINGH, JUDICIAL MEMBER I.T.A .NO. - 1860 & 1861 /DEL/201 5 (ASSESSMENT YEAR - 20 06 - 07 & 2007 - 08) GALGOTIA (HUF), 4405/6, PRAKASH APARTMENTS - II, 5, ANSARI ROAD, DARYAGANJ, NEW DELHI - 110092. PAN - AACHG0635D ( APPELLANT) VS ACIT, CENTRAL CIRCLE, NOIDA, UTTAR PRADESH (RESPONDENT ) APPELLANT BY SH.P.K.MISRA, CA RESPONDENT BY DR.B.R.R.KUMAR, SR.DR ORDER BOTH THESE TWO APPEALS HAVE BEEN FILED BY THE ASSESSEE ASSAILING THE CORRECTNESS OF THE SEPARATE ORDERS DATED 29.01.2015 OF CIT(A) - I, NOIDA PERTAINING TO 2006 - 07 AND 2007 - 08 ASSESSMENT YEAR S ON IDENTICAL GROUNDS. FOR READY - REFERENCE, THE GROUNDS FROM ITA NO.1860/DEL/2015 ARE BEING REPRODUCED HEREUNDER : - ITA NO. - 1860/DEL/2015 1. THAT THE ORDER OF LEARNED COMMISSIONER OF INCOME TAX (APPEALS) IS BAD IN LAW AND ON FACTS AND IN THE CIRCUMSTANCES OF THE CASE. 2. THAT THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) HAS ERRED IN TREATING THE GROUND NO. 2 AGITATING THE ISSUING OF NOTICE UNDER SECTION 153A AS GENERAL AND THEREBY NOT ADJUDICATING UPON THE SAME. 3. (I) THAT THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) HAS ERRED IN SUSTAINING THE ADDITION OF RS. 58,717 / - ON ACCOUNT OF DISALLOWANCE UNDE R SECTION 14A OF THE INCOME TAX ACT, 1961 READ WITH RULE 8D OF INCOME TAX RULES. (II) THAT THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) HAS ERRED IN CONSIDERING THE SHARE APPLICATION MONEY OF RS. 7 , 00 ,000/ - FOR THE PURPOSE OF CALCULATION OF DISALLOWANC E UNDER SECTION 14A OF THE INCOME TAX ACT, 1961 IGNORING THE FACT THAT SHARE APPLICATION MONEY IS NOT CAPABLE OF EARNING EXEMPT INCOME. 4. THE ABOVE GROUNDS OF APPEAL ARE WITHOUT PREJUDICE TO EACH OTHER. 5. THE APPELLANT CRAVES LEAVE TO ADD, ALTER, AMEN D AND/OR MODIFY THE ABOVE GROUNDS OF APPEAL. DATE OF HEARING 09 .0 9 .2015 DATE OF PRONOUNCEMENT 23 . 0 9 .2015 I.T.A .NO. - 18 60 & 18 61 / DEL/201 5 PAGE 2 OF 3 2. IT WAS A COMMON STAND OF THE PARTIES BEFORE THE BENCH THAT GROUND NO.2 RAISED IN BOTH THE APPEALS IS IDENTICAL AND THE PARTIES WERE HEARD ONLY IN RESPECT TO THE SAME. IN VIEW OF THE SAME IT WAS A COMMON ST AND THAT THE ARGUMENTS OF THE PARTIES CONSEQUENTLY ALSO REMAINED, THE SAME AS IN BOTH THE APPEALS THE SAID GROUND THOUGH RAISED BEFORE THE CIT(A) HAS NOT BEEN ADJUDICATED UPON. ASSAILING THE SAID ORDER, IT WAS SUBMITTED BY THE LD.AR THAT THE ISSUE IS COV ERED IN FAVOUR OF THE ASSESSEE BY THE JUDGMENT OF THE DELHI HIGH COURT IN THE CASE OF KABUL CHAWLA IN ITA NO.707, 709, 713/2014 (COPY FILED) . SIMILARLY ON THE GROUNDS RAISED ON MERIT, THE STAND TAKEN WAS THAT THE DECISION OF THE MUMBAI BENCH OF THE TRIBUNA L IN THE CASE OF RAINY INVESTMENTS PVT. LTD. VS ACIT (2013) 30 TAXMANN.COM 169 [MUM. TRIB.] HAS DECIDED THE ISSUE IN FAOVUR OF THE ASSESSEE . A CCORDINGLY A PRAYER WAS MADE THAT THE GROUND NO.2 MAY BE ALLOWED AND IN THE ALTERNATE THE ISSUE MAY BE RESTORED TO THE CIT(A). 3. THE LD. SR. DR, MR. B. R. R. KUMAR CONSIDERING THE GROUND NO.2 AND THE JUDGEMENT OF THE DELHI HIGH COURT SUBMITTED THAT IN THE PECULIAR FACTS AND CIRCUMSTANCES OF THE CASE, IT WOULD BE APPROPRIATE TO FIRST ADDRESS THE ISSUES ON FACTS BEFORE THE CIT(A) AND THUS HE HAD NO OBJECTION THAT EVEN ON MERIT THE ORDER MAY BE SET ASIDE. 4. HAVING HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD, I AM OF THE VIEW THAT IN THE PECULIAR FACTS AND CIRCUMSTANCES IT WOULD BE APPR OPRIATE TO FIRST ADDRESS THE JURISDICTIONAL ISSUE WHICH ADMITTEDLY WAS RAISED BEFORE THE CIT(A) AND HAS NOT ADJUDICATED UPON IN BOTH THE APPEALS . THE FINDINGS ON MERIT ACCORDING ARE SET ASIDE. 5. IN ITA NO. - 1861/DEL/2015, IT IS SEEN THAT APART FROM TH E DISALLOWANCE U/S 14A ANOTHER ISSUE HAS ALSO BEEN AGITATED BY THE ASSESSEE ON MERIT. SINCE IN THE FACTS OF THE PRESENT CASE, THE VERY JURISDICTION OF THE A SSESSING O FFICER IS IN QUESTION, IT WOULD NOT BE APPROPRIATE TO ADDRESS THE MERITS OF THE ADDITIONS . ACCORDINGLY THE ENTIRE ORDER IS SET ASIDE IN BOTH THE YEARS AND THE LD. CIT(A) IS DIRECTED TO PASS A SPEAKING ORDER IN ACCORDANCE WITH LAW AFTER GIVING THE ASSESSEE A REASONABLE OPPORTUNITY OF BEING HEARD. I.T.A .NO. - 18 60 & 18 61 / DEL/201 5 PAGE 3 OF 3 6 . IN THE RESULT, THE APPEALS OF THE ASSESS EE ARE ALLOWED. THE ORDER IS PRONOUNCED IN THE OPEN COURT ON 2 3 R D OF SEPTEMBER, 2015. S D / - (DIVA SINGH) JUDICIAL MEMBER DATED: 2 3 /09 /2015 * AMIT KUMAR * COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT ASSISTANT REGISTRAR ITAT NEW DELHI