M/s. G.S. Fab (P) Ltd., New Delhi V. ITO, New Delhi

ITA 1990/DEL/2012

• Counselvise Citation: [2012] 140 COUNSELVISE.COM (IT) 65281 (ITAT-DELHI)
• Duration Of Justice: 4 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-08-2012
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Next Hearing Date: 22-08-2012
• Assessment Year: 2006-2007
• Appeal Filed On: 30-04-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SATPAL SINGH
• Assessee Lawyers: S B GARG CAS
• Keywords: Additional evidence

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH: SMC NEW DELHI BEFORE SHRI S.V.MEHROTRA, ACCOUNTANT MEMBER I.T.A .NO.1990/DEL/2012 (ASSESSMENT YEAR-2006-07) M/S G.S.FAB (P) LTD. VS INCOME TAX OFFICER, M/S S.B.GARG & CO., CA, WARD 12(3), 20/17, SHAKTI NAGAR, DELHI NEW DELHI PAN-AABCG5142P ( APPELLANT) (R ESPONDENT) APPELLANT BY: SH. ACHIN GARG & S.B.GARG, CAS RESPONDENT BY: SH. SATPAL SINGH, SR. DR ORDER THIS APPEAL FILED ON 29-05-2012 BY THE ASSESSEE IS AGAINST THE ORDER DATED 16-02-2012 OF THE LD. CIT(A), NEW DELHI FOR A Y 2006-07. 2. THE FACTS OF THE CASE ARE THAT THE ASSESSEE COMP ANY, IN THE RELEVANT ASSESSMENT YEAR, WAS ENGAGED IN THE BUSINESS OF TRA DING (WHOLESALERS). IT HAD FILED ITS RETURN OF INCOME DECLARING INCOME OF RS. 58,995/-. THE ASSESSING OFFICER NOTICED THAT ASSESSEE COMPANY HAD RECEIVED UNSECURED LOANS OF RS. 1,30,91,848/-. DURING THE COURSE OF A SSESSMENT PROCEEDINGS, THE ASSESSEE WAS ASKED TO PROVE THE EXISTENCE, CREDIT-W ORTHINESS OF /IDENTITY OF THE PERSONS/CONCERNS WHO HAD ADVANCED UNSECURED LOA NS TO ASSESSEE I.T.A .NO.1990/DEL/2012 2 COMPANY DURING THE YEAR. HE HAS OBSERVED THAT ASSE SSEE DID NOT FILE ANY DOCUMENTS/EVIDENCE IN SUPPORT OF UNSECURED LOANS OF RS. 2,50,000/- RECEIVED FROM SH. VIKAS JAIN. HE HAS OBSERVED THAT VIDE OR DER SHEET ENTRY DATED 17.12.2008, THE ASSESSEE WAS ASKED TO SHOW CAUSE WH Y RS. 2,50,000/- BE NOT ADDED TO THE INCOME OF THE ASSESSEE. HE FURTHER OB SERVED THAT THE AR OF THE ASSESSEE VIDE ORDER SHEET ENTRY DATED 22.12.2008 OF FERED RS.2,50,000/- FOR TAXATION. ACCORDINGLY, RS. 2,50,000/- WAS ADDED BA CK TO THE INCOME OF THE ASSESSEE COMPANY U/S 68. HE ALSO DISALLOWED TDS CL AIMED IN PROFIT & LOSS A/C OF RS. 3506/-. 3. BEFORE LD. CIT(A) ON 16.02.2012, SH. K.G.SINGHAL , COMPANY SECRETARY ATTENDED AND FILED AN APPLICATION UNDER R ULE 46A. THE LD. CIT(A) DID NOT ADMIT THE ADDITIONAL EVIDENCE FILED BY ASSESSEE OBSERVING THAT IT WAS NOT MENTIONED IN THE APPLICATION UNDER RULE 146A AS TO WHY THE INFORMATION COULD NOT BE FURNISHED BEFORE THE ASSES SING OFFICER. LD. CIT(A) CONFIRMED THE ADDITION OBSERVING THAT ASSESS EE HAD HIMSELF SURRENDERED LOAN AMOUNT OF RS. 2,50,000/-. 4. LD. COUNSEL REFERRED TO PAGE 4 & 5 OF PAPER BOOK WHEREIN LETTER FILED ON 05.12.2008 IS CONTAINED AND POINTED OUT THAT ASS ESSEE HAD GIVEN CONFIRMATION IN RESPECT OF SH. VIKAS JAIN ALONG WIT H CONFIRMATION IN RESPECT OF OTHER UNSECURED LOANS. HE FURTHER REFERRED TO P AGE 6 WHEREIN THE I.T.A .NO.1990/DEL/2012 3 CONFIRMATION OF SH. VIKAS JAIN IS CONTAINDED AND PO INTED OUT THAT DETAILS OF PAN WERE ALSO SUBMITTED. IT WAS ALSO CLEARLY STATE D THAT AMOUNT WAS RECEIVED BY CHEQUE NO. 301931. LD. COUNSEL FURTHER REFERRED TO PAGES 7 & 8 OF THE PAPER BOOK WHEREIN THE BANK STATEMENT AND TH E CERTIFICATE FROM THE TAMILNAD MERCANTILE BANK LTD. IS CONTAINED TO DEMON STRATE THAT AMOUNT WAS RECEIVED THROUGH CHEQUE AND CREDITED TO ASSESSEES ACCOUNT. HE SUBMITTED THAT ALL THESE DOCUMENTS WERE FILED BEFORE ASSESSIN G OFFICER AND, THEREFORE, IT IS NOT CORRECT TO ALLEGE THAT ASSESSEE HAD NOT F ILED ANY DOCUMENTS IN RESPECT OF SH. VIKAS JAIN. LD. COUNSEL FURTHER SUBMITTED T HAT ASSESSMENT ORDER WAS PASSED ON 22.12.2008 AND, THEREAFTER, THE ASSESSING OFFICER HAD OBTAINED DETAILS FROM SH. VIKAS JAIN VIDE HIS LETTER DATED 2 2.08.2009 CONTAINED AT PAGE 11 OF PAPER BOOK. HE FURTHER REFERRED TO THE DETAILS FURNISHED BY SH. VIKAS JAIN BEFORE THE ASSESSING OFFICER CONTAINED A T PAGE 12 ONWARDS. LD. COUNSEL SUBMITTED THAT SINCE THESE DETAILS WERE NOT AVAILABLE BEFORE THE ASSESSING OFFICER, AND, THEREFORE, THE ASSESSEE HAD MOVED AN APPLICATION UNDER RULE 46A FOR ADMISSION OF THESE DOCUMENTS. 4. LD. COUNSEL FURTHER REFERRED TO PAGE 3 OF PAPER BOOK WHEREIN THE ORDER SHEET 22.12.2008 IS CONTAINED WHICH READS AS UNDER :- SH. S.K.GARG, CA, THE AR OF THE A CO ATTENDED AND HAS NOT FILED ANY REPLY AS NEEDED VIDE ORDER SHEET ENTR Y DATED THE AR HAS AGREED THAT THE INCOME MAY BE BROUGHT TO TAX AS PER LAW (RS. 2,50,000). THE CASE IS DISCUSSED. I.T.A .NO.1990/DEL/2012 4 WITH REFERENCE TO AFOREMENTIONED NOTING, LD. COUNSE L SUBMITTED THAT ASSESSEE HAD NOT AGREED FOR THE ADDITION BUT REQUES TED THAT THE INCOME TO BE BROUGHT TO TAX AS PER LAW. 5. LD. DR SUBMITTED THAT ASSESSEE HAD AGREED FOR AD DITION AND, THEREFORE, NOW HE CANNOT TAKE A CONTRARY STAND. 6. I HAVE CONSIDERED THE SUBMISSIONS OF BOTH THE PA RTIES AND HAVE PERUSED THE RECORDS OF THE CASE. ADMITTEDLY, THE A SSESSEE HAD SUBMITTED CONFIRMATION OF SH. VIKAS JAIN BEFORE THE ASSESSING OFFICER AND, THEREFORE, OBSERVATION OF ASSESSING OFFICER THAT ASSESSEE HAD NOT SUBMITTED ANY DOCUMENT IS CONTRARY TO RECORDS. THE MAIN THRUST O F THE DEPARTMENT FOR MAKING THIS ADDITION IS BASED ON ORDER SHEET DATED 22.12.2008 REPRODUCED EARLIER. THE ASSESSEE HAD AGREED THAT THE INCOME MAY BE BROUGHT TO TAX AS PER LAW. EVEN IF, IT IS CONSIDERED AS SURRENDER BY ASSESSEES REPRESENTATIVE, THE SAME CANNOT BE BINDING ON ASSESSEE, IF THE SAME IS NOT IN ACCORDANCE WITH LAW. THERE CANNOT BE ANY ADDITION ON THE BASI S OF AGREEMENT. MOREOVER, THE LD. AR HAD AGREED FOR MAKING THE ADDI TION AS PER LAW. THE ASSESSEE HAD ASSAILED THE ADDITION BEFORE LD. CIT(A ) WHICH CLEARLY SHOWS THAT ASSESSEE HAD NOT AGREED FOR THIS ADDITION. BE FORE LD. CIT(A), THE ASSESSEE HAD FILED A PETITION UNDER RULE 46A IN RES PECT OF THOSE DOCUMENTS WHICH WERE NOT AVAILABLE AT THE TIME OF ASSESSMENT. THEREFORE, IN MY I.T.A .NO.1990/DEL/2012 5 OPINION, THE DOCUMENTS, AS FILED BY THE ASSESSEE, W ERE REQUIRED TO BE CONSIDERED BEFORE ARRIVING AT ANY CONCLUSION. KEEP ING IN VIEW THE ENTIRELY OF FACTS AND CIRCUMSTANCES, I SET ASIDE THE ORDER O F LD. CIT(A) AND RESTORE THE MATTER TO THE FILE OF LD. CIT(A) FOR DECIDING THE APPEAL DENOVO AFTER TAKING INTO CONSIDERATION THE DOCUMENTS FILED BY T HE ASSESSEE UNDER RULE 46A. 6. IN THE RESULT, THE ASSESSEES APPEAL IS ALLOWED FOR STATISTICAL PURPOSES. SD/- (S.V.MEHROTRA) ACCOUNTANT MEMBER DATED: 30/08/2012 *AMIT KUMAR* COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT ASSISTANT REGISTRAR ITAT, NEW DELHI