DCIT, New Delhi V. M/s. Trikal Foods & Agro Products Pvt. Ltd., New Delhi

ITA 2007/DEL/2010

• Counselvise Citation: [2012] 140 COUNSELVISE.COM (IT) 58816 (ITAT-DELHI)
• Duration Of Justice: 1 year(s) 9 month(s) 26 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-02-2012
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: H
• Next Hearing Date: 28-02-2012
• Assessment Year: 2007-2008
• Appeal Filed On: 03-05-2010
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: RENU JAUHRI CIT OSD
• Assessee Lawyers: H P SINGH
• Section: 133(6); 68

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL (DELHI BENCH H : NEW DELHI) BEFORE SHRI U.B.S. BEDI, JUDICIAL MEMBER AND SHRI B.C. MEENA, ACCOUNTANT MEMBER ITA NO.2007/DEL./2010 (ASSESSMENT YEAR : 2007-08) DCIT, CIRCLE 16 (1), VS. M/S. TRIKAL FOODS & AGRO PRODUCTS PVT. LTD., NEW DELHI. 6652/7, BLOCK NO.9, DEV NAGAR, DELHI 110 005. (PAN : AACCT1331J) (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI H.P. SINGH, ADVOCATE REVENUE BY : SMT. RENU JAUHRI, CIT (OSD) ORDER PER B.C. MEENA, ACCOUNTANT MEMBER : THIS APPEAL FILED BY THE ASSESSEE EMANATES FROM THE ORDER OF CIT (APPEALS)-XIX, NEW DELHI DATED 26.02.2010 FOR THE A SSESSMENT YEAR 2007- 08. 2. THE ASSESSEE IS ENGAGED IN THE BUSINESS OF INVES TMENT AND MANUFACTURING AND DISTRIBUTION OF FOOD PRODUCTS. 3. THE GROUNDS OF APPEAL READ AS UNDER :- 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE, LD CIT(A) HAS ERRED IN DELETING THE ADDITION OF RS.L,9 6,50,000/- (RS.82,20,000/- + RS.1,14,30,000/-) MADE AS UNEXPLA INED CASH CREDITS ESPECIALLY WHEN IDENTITY OF THE PARTIES AND GENUINENESS OF TRANSACTIONS COULD NOT BE ESTABLISHED. ITA NO.2007/DEL./2010 2 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E, LD.CIT(A) HAS ERRED IN HOLDING THAT THE ASSESSEE HA D DISCHARGED ITS ONUS IGNORING THE FACT THAT MERE FILING OF ADDR ESS, PAN ETC DOES NOT TANTAMOUNT TO DISCHARGE OF ONUS U/S 68 ESP ECIALLY WHEN THE LETTERS ISSUED U/S 133(6) WERE RECEIVED BACK UN SERVED WITH THE REMARKS BY POSTAL AUTHORITIES 'NO SUCH PERSON, INCOMPLETE ADDRESS, REFUSED AND NOT AVAILABLE'. 3. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E, LD. CIT(A) HAS ERRED IN SETTING ASIDE THE ISSUE REGARDI NG ADDITION OF CASH CREDITS OF RS.40,50,000/- EXPLAINED TO HAVE BE EN INTRODUCED DURING THE YEAR RELEVANT TO THE ASSESSMENT YEAR UND ER REFERENCE ESPECIALLY WHEN THE PROVISION OF SECTION 251(1)(A) DOES NOT EMPOWER THE CIT(A) TO SET ASIDE AN ISSUE. 4. WITHOUT PREJUDICE TO THE GROUND NO. 3 ABOVE, PRE SUMING THAT LD. CIT(A) IS EMPOWERED TO SET ASIDE AN ISSUE TO AO, ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, LD. CIT (A) HAS ERRED IN NOT SETTING ASIDE THE ISSUE RELATING TO AMOUNT O F RS.L,60,00,000/- INTRODUCED AS SHARE PREMIUM DURING THE YEAR RELEVANT TO ASSESSMENT YEAR UNDER REFERENCE. 4. THE REVENUE HAS CHALLENGED THAT CIT (A) HAS NO P OWER TO SET ASIDE THE ISSUE. FURTHER, THE REVENUE HAS ALSO CHALLENGED TH E DELETION OF ADDITION OF RS.1,60,00,000/- INTRODUCED AS SHARE PREMIUM DURING THE RELEVANT ASSESSMENT YEAR. THE REVENUE HAS ALSO SUBMITTED THAT THE ASSE SSEE HAS FAILED TO DISCHARGE THE ONUS U/S 68 SPECIALLY WHEN LETTERS ISSUED U/S 1 33(6) WERE RECEIVED BACK UNDELIVERED WITH REMARKS OF THE POSTAL AUTHORITIES, I.E., NO SUCH PERSON, INCOMPLETE ADDRESS, REFUSED OR NOT AVAILABLE. THE IDENTITY OF THE PARTIES AND GENUINENESS OF THE TRANSACTION AND CREDITWORTHINESS OF THESE PERSONS HAVE NOT BEEN ESTABLISHED. ITA NO.2007/DEL./2010 3 5. WE HAVE HEARD BOTH THE SIDES ON THE ISSUES INVOL VED IN THE APPEAL IN DETAIL AND BOTH THE SIDES PLEADED THAT THE APPEAL M AY BE SET ASIDE TO THE FILE OF THE CIT (A) FOR DECIDING DE NOVO AS PER LAW. LOOKI NG TO THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN THE INTEREST OF JU STICE AND EQUITY, WE RESTORE THE APPEAL TO THE FILE OF THE CIT (A) FOR DECIDING DE NOVO AS PER LAW. 6. IN THE RESULT, THE APPEAL OF THE REVENUE IS ALLO WED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN OPEN COURT ON THIS 29 TH DAY OF FEBRUARY, 2012. SD/- SD/- (U.B.S. BEDI) (B.C. MEENA) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED THE 29 TH DAY OF FEBRUARY, 2012 TS COPY FORWARDED TO: 1.APPELLANT 2.RESPONDENT 3.CIT 4.CIT(A)-XIX, NEW DELHI. 5.CIT(ITAT), NEW DELHI AR, ITAT NEW DELHI.