Safety Plus Power Ltd, New Delhi V. ACIT, Circle-22(1), New Delhi

ITA 2010/DEL/2019

• Counselvise Citation: [2019] 116 COUNSELVISE.COM (IT) 3719 (ITAT-DELHI)
• Duration Of Justice: 5 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-08-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: G
• Assessment Year: 2010-2011
• Appeal Filed On: 07-03-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: N K BANSAL SR DR SHRI S S RANA
• Keywords: Opportunity of being heard; Principle of natural justice; Additional evidence
• Section: 250; 147; 68; 148; 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH: G NEW DELHI BEFORE SHRI A.D. JAIN, VICE PRESIDENT & SHRI N.K. BILLAIYA, ACCOUNTANT MEMBER ITA NO. 2010/DEL/2019 ASSESSMENT YEAR: 2010-11 SAFETY PLUS POWER LTD. A-52, 2 ND FLOOR, NIRMAN VIHAR, NEW DELHI. PAN NO. AABCE8687P VS ACIT CIRCLE 22(1) NEW DELHI. APPELLANT RESPONDENT ASSESSEE BY SHRI SALIL KAPOOR, ADVOCATE SHRI SUMIT LAL CHANDANI, ADVOCATE REVENUE BY SHRI N.K. BANSAL, SR. DR SHRI S.S. RANA, CIT (DR) ORDER PER SHRI N.K. BILLAIYA, A.M. THIS APPEAL BY THE ASSESSEE IS PREFERRED AGAINST TH E ORDER OF THE CIT(A)-8, NEW DELHI DATED 23.01.2019 PERTAINING TO AY 2010- 11. THE GRIEVANCE OF THE ASSESSEE READS AS UNDER: 1. THE LD. CIT(A) ERRED IN LAW AND ON THE FACTS OF THIS CASE BY TREATED THE SHARE APPLICATION MONEY OF RS. 6,73,30, 000/- AND UNSECURED LOAN OF RS. 1,01,50,000/- AS UNEXPLAI NED U/S 68 OF THE IT ACT AS THERE IS NO COPY OF NOTICES OR ORDER RECEIVED BY THE ASSESSEE. 2. THE LD. CIT(A) ERRED IN LAW AND ON THE FACTS OF THIS CASE BY DATE OF HEARING 14.08.2019 DATE OF PRONOUNCEMENT 29.08.2019 2 ITA NO . 2010/DEL/2019 DISALLOWING THE EXPENSES ON ESTIMATED BASIS WITHOUT CONSIDERING OUR SUBMISSION AND DOCUMENTS. 3. THE LD. CIT(A) ERRED IN LAW AND ON THE FACTS OF THIS CASE BY NOT CONSIDERING THE SUBMISSIONS OF THE APPELLANT TH AT AS PER SECTION 68 OF THE INCOME TAX ACT, 1961. 4. THE LD. CIT(A) ERRED IN LAW AND ON THE FACTS OF THI S CASE IN UPHOLDING THE ORDER OF THE LD. AO AND DECIDING THAT THE APPELLANT IS IN CONTRAVENTION OF THE PROVISIONS OF SECTION 68 OF THE INCOME TAX ACT, 1961. 5. THAT THE ORDER U/S 250 OF THE INCOME TAX ACT, 19 61 PASSED BY THE LD. CIT(A) IS BAD IN LAW AND VOID AB-INITIO. 6. WITHOUT PREJUDICE TO THE ABOVE GROUNDS OF APPEAL , THE APPELLANT CRAVES LEAVE TO ADD, AMEND, ALTER VARY AN D/OR WITHDRAW ANY OR ALL THE ABOVE GROUNDS OF APPEAL, BE FORE AND DURING THE COURSE OF HEARING OF THIS APPEAL, AS CONSIDER FIT AND NECESSARY. 7. THAT THE AO/CIT(A) ACTED IN CONTRAVENTION TO TH E PRINCIPLES OF NATURAL JUSTICE BY PASSING AN ORDER, WITHOUT PRO VIDING THE APPELLANT A REASONABLE OPPORTUNITY OF BEING HEA RD. 8. THAT THE NOTICE ISSUED U/S 148 AND THE ASSESSMEN T ORDER PASSED U/S 147/143(3) ON 20.12.2017 OF THE INCOME T AX ACT, 1961 ARE ILLEGAL, BAD IN LAW AND WITHOUT JURIS DICTION. 9. THAT THE PROCEEDINGS INITIATED U/S 147/148 OF TH E ACT ARE INVALID FOR WANT OF JURISDICTION AS THE PRE-CONDITI ONS FOR INITIATION OF THE SAID PROCEEDINGS AS STIPULATED IN SECTION 147 OF THE ACT ARE NOT SATISFIED. 10. THAT THE NOTICE U/S 148 IS ISSUED ONLY ON THE B ASIS OF INFORMATION FROM INVESTIGATION WING WITHOUT ANY INDEPENDENT APPLICATION OF MIND. THERE IS NO INDEP ENDENT APPLICATION OF MIND AND REASONS RECORDED ARE IN ROU TINE MANNER. 3 ITA NO . 2010/DEL/2019 11. THAT THE ALLEGED APPROVAL U/S 151 OF THE ACT IS ILLEGAL, BAD IN LAW AS SAME IS GIVEN WITHOUT APPLICATION OF MIND . 2. AT THE VERY OUTSET, THE COUNSEL FOR THE ASSESSEE DREW OUR ATTENTION TO THE GRIEVANCE RAISED VIDE GROUND NO. 7 AND POINTED OUT THAT THE ASSESSEE COULD NOT FILE CERTAIN DIRECT EVIDENCES DURING THE COURSE OF THE ASSESSMENT PROCEEDINGS AND THE SA ME EVIDENCES WHEN FILED BEFORE THE CIT(A) WERE NOT ACCEPTED BY T HE CIT(A). THE COUNSEL PRAYED THAT THE MATTER SHOULD BE REMITTED B ACK FOR FRESH ADJUDICATION ON THE BASIS OF THE DIRECT EVIDENCES A VAILABLE WITH THE ASSESSEE. 3. THE DR VEHEMENTLY OPPOSED THIS SUBMISSION OF THE ASSESSEE AND STATED THAT SUFFICIENT OPPORTUNITIES WERE GIVEN TO THE ASSESSEE DURING THE COURSE OF THE SCRUTINY ASSESSMENT PROCEE DINGS AND THE ASSESSEE SHOULD NOT BE ALLOWED TO REFER TO THE EVID ENCES WHICH HE COULD HAVE FILED BEFORE THE AO. REFERRING TO THE F INDINGS OF THE CIT(A), THE DR POINTED OUT THAT EVEN BEFORE THE CIT (A) NO PROPER APPLICATION WAS MADE FOR THE ADMISSION OF ADDITIONA L EVIDENCES UNDER RULE 46A OF THE IT RULES. THE DR CONCLUDED B Y SAYING THAT THE MATTER SHOULD NOT BE REMITTED BACK. 4. WE HAVE GIVEN A THOUGHTFUL CONSIDERATION TO THE ORDERS OF THE AUTHORITIES BELOW. THE ASSESSMENT ORDER DATED 20.1 2.2017 IS FRAMED U/S 147 READ WITH SECTION 144 OF THE ACT. A PERUSAL OF THE ASSESSMENT ORDER SHOWS THAT THOUGH THE AO HAS GIVEN A COUPLE OF 4 ITA NO . 2010/DEL/2019 OPPORTUNITIES BUT NONE ATTENDED THE ASSESSMENT PROC EEDINGS WHICH PROMPTED THE AO TO FRAME THE ASSESSMENT EX-PA RTE. 5. WHEN THE MATTER WAS REITERATED BEFORE THE CIT(A) IN ITS GROUNDS OF APPEAL AS MENTIONED IN FORM NO. 35 THE A SSESSEE HAD RAISED A SPECIFIC GROUND THAT IT IS WILLING AND REA DY TO PROVIDE ALL THE REQUIRED DOCUMENTS AS REQUIRED BY THE ACIT ON 2 4.11.2017. WE FIND THAT THE AO HAS NOT GIVEN ANY OPPORTUNITY A FTER 24.11.2017 AND HAS FRAMED THE ASSESSMENT ORDER EX-P ARTE. 6. WE FURTHER FIND THAT THOUGH THE ASSESSEE HAD FIL ED THE DOCUMENTS BEFORE THE CIT(A) BUT THE SAME WERE NOT A CCOMPANIED BY ANY APPLICATION FOR THE ADMISSION OF ADDITIONAL EVIDENCES UNDER RULE 46A OF IT RULES. 7. THE CIT(A) REFERRING TO VARIOUS JUDICIAL DECISIO NS CAME TO THE CONCLUSION THAT SINCE SUFFICIENT OPPORTUNITIES WERE GIVEN TO THE ASSESSEE THE EVIDENCES CANNOT BE ADMITTED. THEREAF TER, THE CIT(A) CONFIRMED THE ADDITIONS ON THE BASIS OF THE FINDING S OF THE AO. 8. WE ARE OF THE CONSIDERED VIEW THAT TECHNICALITIE S SHOULD NOT COME IN THE WAY OF ADMINISTRATION OF JUSTICE. THER E MAY BE MANY REASONS BECAUSE OF WHICH THE ASSESSEE COULD NOT ATT END THE ASSESSMENT PROCEEDINGS AND TO MITIGATE THE LAPSES, THE ASSESSEE DID FILE THE EVIDENCES BEFORE THE CIT(A) BUT WITHOU T ANY APPLICATION FOR THE ADMISSION OF ADDITIONAL EVIDENCES. SUCH TE CHNICAL LAPSES SHOULD NOT COME IN WAY OF JUSTICE AND, THEREFORE, I N THE INTEREST OF JUSTICE AND FAIR PLAY, WE REMIT THE ISSUES TO THE F ILES OF THE CIT(A). 5 ITA NO . 2010/DEL/2019 THE ASSESSEE IS DIRECTED TO FURNISH ALL THE EVIDENC ES BEFORE THE CIT(A) AND THE CIT(A) IS DIRECTED TO ADMIT ALL THE EVIDENCES AND DECIDE THE ISSUE AFRESH AFTER GIVING A REASONABLE A ND SUFFICIENT OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. SINCE, WE HAVE REMITTED THE MATTER BEFORE THE CIT(A) FOR FRESH ADJ UDICATION, WE DO NOT FIND IT NECESSARY TO DWELL INTO THE OTHER GROUN DS RAISED BY THE ASSESSEE. 9. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS TREATED AS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT. SD/- SD/- (A.D. JAIN) ( N.K. BILLAIYA) VICE PRESIDENT ACCOUNTANT M EMBER DATED: 29/08/2019 *KAVITA ARORA COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT TRUE COPY ASSISTANT REGISTRAR ITAT NEW DELHI 6 ITA NO . 2010/DEL/2019 DATE OF DICTATION 19.08.2019 DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER 19.08.2019 DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE OTHER MEMBER DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR. P S/PS 29.08.19 DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE D ICTATING MEMBER FOR PRONOUNCEMENT 29.08.19 DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR. PS/PS 29.08.19 DATE ON WHICH THE FINAL ORDER IS UPLOADED ON THE WE BSITE OF ITAT 29.08.19 DATE ON WHICH THE FILE GOES TO THE BENCH CLERK 29.0 8.19 DATE ON WHICH THE FILE GOES TO THE HEAD CLERK THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT RE GISTRAR FOR SIGNATURE ON THE ORDER DATE OF DISPATCH OF THE ORDER