M/s. Tuner Recreations (P) Ltd., Meerut V. ITO, New Delhi

ITA 2057/DEL/2013

• Counselvise Citation: 205720114 RSA 2013
• Duration Of Justice: 2 year(s) 2 month(s) 10 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 19-06-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: H
• Next Hearing Date: 16-06-2015
• Assessment Year: 2004-2005
• Appeal Filed On: 09-04-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: J P CHANDREKAR
• Assessee Lawyers: V K GOEL; MRS SWATI JINDAL
• Keywords: Opportunity of being heard
• Section: 133(6); 154

Judgement Text

ITA NO. 2057/ DEL/ 2013 1 IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH H , NEW DELHI BEFORE SHRI H.S. SIDHU, JUDICIAL MEMBER AND SHRI J.S. REDDY, ACCOUNTANT MEMBER I.T.A. NO. 2057 /DEL/2013 A.Y. : 200 4 - 0 5 M/S TUNER RECREATIONS (P) LTD., C/O VINOD KUMAR GOEL, 282, BOUNDARY ROAD, CIVIL LINES, MEERUT (PAN: AABCT8709K) VS. INCOME TAX OFFICER, WARD - 16 ( 4 ), NEW DELHI (APPELLANT) (RESPONDENT) ASSESSEE BY : SH. V.K. GOEL, ADV. & MRS. SWATI JINDAL, CA DEPARTMENT BY : SH. J.P. CHANDREKAR, SR. DR DATE OF HEARING : 18 - 06 - 201 5 DATE OF ORDER : 1 9 - 06 - 201 5 ORDER PER H.S. SIDHU : J M TH IS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE O RDER OF THE LD. COMMISSIONER OF INCOME TAX (APPEALS ) - 19 , NEW DELHI DATED 17 . 12 .201 2 P ERTAINING TO ASSESSMENT YEAR 2004 - 05. 2. THE CASE WAS EARLIER FIXED ON 1 6 . 6 .2015 AND ON THAT DATE THE BENCH DIRECTED THE ASSESSEE TO GIVE CONCISE GROUNDS OF APPEAL AND ADJOURNED THE CASE FOR 18.6.2015. ON 18.6.2015 THE ASSESSEE HAS FILED THE REVISE D GROUNDS OF APPEAL WHICH READ AS UNDER: - ITA NO. 2057/ DEL/ 2013 2 1 . THAT LD. A.O. IS IN ERROR IN MAKING ADDITION OF RS. 16 LACS, DETAILS OF WHICH, GIVEN BELOW: (I) SHARE ALLOTTED TO MLS. KUBERCO SALES PVT. LTD. RS. 6,00,000 / - (II) SHARE ALLOTTED TO M/S. SPAROW MARKETING P VT. LTD. RS. 10 ,00,000 / - THE PAYMENT RECEIVED THROUGH ACCOUNT PAYEE CHEQUE ON THE BASIS OF NOTICE U/S 133(6) RECEIV ED BACK. LD. CIT(A) HAS NOT JUSTIFIED IN CONFORMING THE ORDER PASSED BY AO. 2. THAT THE ASSESSEE IS LIABLE TO ESTABLISH IDENTITY OF THE SHAREHOLDERS AND GENUINENESS OF THE TRANSACTION. IDENTITY OF SHAREHOLDERS IS PROVED BY ROC RECORD OF THE COMPANY AND THE GENUINENESS OF TRANSACTION PROVED ON THE BASIS OF BANK STATEMENT, IN WHICH ACC OUNT PAYEE CHEQUE ARE CREDITED. THEREFORE, A.O. HAS NOT JUSTIFIED IN MAKING ADDITION. 3. THAT THE LD. A.O. DISALLOW THE LOSS OF RS. 1,71,794/ - WITHOUT ANY BASIS BECAUSE LD. A.O. HAS NOT RAISED ANY QUERY TO DISALLOW THE LOSS CLAIMED BY THE ASSESSEE IN THE RETURN OF INCOME. LD. CIT(A) HAS NOT GIVEN ANY FINDING. 4. THAT THE ASSESSEE HAS RIGHT TO ADD, DELETE OR MODIFY ANY GROUNDS DURING THE APPEAL PROCEEDING. ITA NO. 2057/ DEL/ 2013 3 3 . THE BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE FILED ITS INCOME TAX RETURN DECLARING LO SS OF RS. 1,71,794/ - AND THE ASSESSMENT WAS COMPLETED ON THE TOTAL INCOME OF RS. 16 LACS BY THE AO BY MAKING THE ADDITION OF RS. 16 LACS ON ACCOUNT OF SALE OF SHARE APPLICATION MONEY FROM MLS. KUBERCO SALES PVT. LTD. AND M/S. SPAROW MARKETING PVT. LTD. THE AO IGNORED THE VARIOUS CASE LAWS AND IGNORED THE LOSS WHILE COMPUTING THE TOTAL INCOME OF THE ASSESSEE. THE ASSESSEE HAS ALSO FILED APPLICATION U/S. 154 OF THE I.T. ACT TO RECTIFY THE MISTAKE, BUT WITHOUT CONSIDERING THE EVIDENCE FILED BY THE ASS ESSEE AND THE APPLICATION U/S. 154 OF THE ACT, THE AO HAS COMPLETED THE ASSESSMENT VIDE ORDER DATED 07.12.2011 U/S. 143(3)/147 OF THE I.T. ACT, 1961. SIMILARLY, THE LD. CIT(A) HAS ALSO UPHELD THE ADDITION MADE BY THE AO WITHOUT GIVING PROPER OPPORTUNITY TO THE ASSESSEE. 4 . LD. COUNSEL FOR THE ASSESSEE FURTHER SUBMITTED THAT THE LD. CIT(A) HAS DISMISSED THE APPEAL FILED BY THE ASSESSEE BY RELYING UPON THE VARIOUS CASE LAWS WHICH HAS NOT BEEN CITED BY ANY PARTY MEANING THEREBY HE HIMSELF QUOTED ALL THESE CASES IN THE IMPUGNED ORDER WITHOUT CONFRONTING THE SAME TO THE ASSESSEE S COUNSEL. HE FURTHER STATED THAT LATE SH. RAVI KIRAN JINDAL, ADVOCATE WAS LOOKING AFTER THE ENTIRE INCOME TAX MATTERS OF THE ASSESSEE COMPANY WHO PASSED AWAY ON 19.2.2011. DUE T O DEATH OF SH. RAVI KIRAN JINDAL, ADVOCATE THE PROCEEDINGS IN THE CASE OF THE ASSESSEE BEFORE THE AO ITA NO. 2057/ DEL/ 2013 4 AS WELL AS BEFORE THE LD. CIT(A) COULD NOT BE PROPERLY PURSUED BY THE EMPLOYEE OF LATE SH. RAVI KIRAN JINDAL, ADVOCATE. THEREFORE, HE REQUESTED THAT THE ISSUE IN DISPUTE MAY BE SET ASIDE TO THE AO TO DECIDE THE SAME AFRESH UNDER THE LAW, AFTER GIVING ADEQUATE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE, AFTER PRODUCING ALL RELEVANT EVIDENCE SUPPORTING THE CLAIM OF THE ASSESSEE. IN SUPPORT OF HIS ARGUMENTS, LD. COUNSEL OF THE ASSESSEE ALSO FILED AFFIDAVIT S OF SMT. SUNITA JINDAL, W/O LATE SHRI RAVI KIRAN JINDAL AND SMT. SWATI JINDAL, CA, D AUGHTER IN LAW OF LATE SHRI RAVI KIRAN JINDAL , ADVOCATE. 5 . ON THE CONTRARY, LD. DR RELIED UPON THE ORDER PASSED BY THE REVENUE AUTHORITIES AND STATED THAT THE ASSESSEE HAS NOT PRODUCED ANY EVIDENCE BEFORE THE AO AS WELL AS BEFORE THE LD. CIT(A) AND HE OPPOSED THE REQUEST OF THE ASSESSEE FOR SETTING ASIDE THE ISSUE BEFORE THE AO. HE FURTHER STATED THAT THESE TWO COMP ANIES NAMELY M / S. KUBERCO SALES PVT. LTD. AND M/S. SPAROW MARKETING PVT. LTD. ARE THE PURCHASERS OF THE SHARES AND THESE COMPANIES HAVE ALREADY DECLARED NON - EXISTENCE I N THE VARIOUS CASES INCLUDING ONE CASE DECIDED BY THE HON BLE DELHI HIGH COURT IN THE CASE OF COMMISSIONER OF INCOME TAX VS. NAVODAYA CASTELS (P) LTD. [2014] 50 TAXMANN.COM 110 (DELHI). THIS JUDGMENT OF THE HON BLE HIGH COURT HAS ALREADY BEEN UPHELD BY THE HON BLE SUPREME COURT IN THE CASE OF NAVODAYA CASTLE (P) LTD. VS. COMMISSIONER OF INCOME TAX [2015] 56 TAXMANN.COM 18 (SC). 6 . WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE RECORDS, ESPECIALLY THE ORDERS OF THE REVENUE AUTHORITIES ON THE ISSUE IN DISPUTE . WE HAVE ALSO PERUSED THE PAPER BOOK FILED BY THE LD. COUNSEL FOR THE ASSESSEE CONTAINING PAGES 1 TO 115 CONTAINING ITA NO. 2057/ DEL/ 2013 5 WRITTEN SUBMISSIONS; PHOTOCOPY OF RETURN OF ALLOTMENT OF SHARES; PHOTOCOPY OF BANK STATEMENT 1.4.13 TO 31.3.14; PHOTOCOPY OF LETTER FILED B EFORE AO, DATED 14.10.2011 AND 25.10.2011; PHOTOCOPY OF ROC CERTIFICATED OF KUBERCO SALES (P) LTD. AND SPARROW MARKETING (P) LTD.; PHOTOCOPY OF ROC RETURN OF KUBERCO SALES (P) LTD. AND SPARROW MARKETING (P) LTD; PHOTOCOPY OF AUDITED BALANCE SHEET OF KUBE RCO SALES (P) LTD.; PHOTOCOPY OF TAN AND PAN OF SPARROW MARKETING (P) LTD; AND PHOTOCOPY OF CASE LAWS QUOTED BY THE ASSESSEE. 7. WE HAVE ALSO PERUSED THE CONTENTION RAISED BY SMT. SUNITA JINDAL, W/O LATE SH. RAVI KIRAN JINDAL AND SMT. SWATI JINDAL, CHA RTERED ACCOUNTANT, DAUGHTER IN LAW OF LATE SHRI RAVI KIRNA JINDAL MADE IN THEIR RESPECTIVE AFFIDAVITS. THE CONTENTIONS OF BOTH THE AFFIDAVITS ARE REPRODUCED HEREUNDER: - CONTENTS OF AFFIDAVIT OF SMT. SUNITA JINDAL I SUNITA JINDAL W/O LATE SHRI RAVI KIRAN JINDAL, R/O R - 2/240 RAJ NAGAR, GHAZIABAD (U.P.) DO HEREBY STATE ON OATH AS UNDER: - 1. THAT I AM DIRECTOR OF M/S TURNER RECREATION PVT. LTD. HAVING ITS REGISTERED OFFICE AT N - 101B, MUNSHI LAL BUILDING, CONNAUGHT CIRCUS, NEW DELHI 110 001. 2. THAT I N THE ABOVE CASE MY HUSBAND LATE SHRI RAVI KIRAN JINDAL, ADVOCATE WAS LOOKING AFTER THE ENTIRE INCOME TAX MATTERS OF THE COMPANY. 3. THAT MY HUSBAND PASSED AWAY ON 19TH FEBRUARY 2011, THEREAFTER ALL FAMILY MEMBERS WERE DISTURBED AND SMT. ITA NO. 2057/ DEL/ 2013 6 SWATI JINDAL (DAUGH TER IN LAW) HAD NO EXPOSURE TO THE INCOME TAX HEARINGS SO WAS UNABLE TO ARGUE THE CASE. 4. THAT ALL THE PROCEEDINGS BEFORE THE AO WAS DONE BY KSHITIJA NARWANE ADVOCATE WHO WAS THE EXISTING EMPLOYEE OF LATE SHRI. RAVI KIRAN JINDAL AND DURING THAT TIME SHE WAS DEALING IN SALES TAX MATTERS ONLY. 5. THAT MRS. KSHITIJA APPEARED BEFORE AO, BUT DUE TO LACK OF SUFFICIENT KNOWLEDGE RELATING TO INCOME TAX MATTERS SHE WAS UNABLE TO PURSUE THE PROCEEDINGS EFFICIENTLY. 6. THAT THE COMPANY WILL FEEL OBLIGED IF YOUR HN ONOR WILL ALLOW THE APPEAL CONSIDERING THE FACTS AND LAW QUOTED BY THE ASSESSEE. I, SUNITA JINDAL, DIRECTOR OF M/S TURNER RECREATIONS PRIVATE LIMITED DO HEREBY CERTIFY THAT ALL THE INFORMATION PROVIDED ABOVE ARE TRUE TO BEST OF MY KNOWLEDGE AND BELIEF. TH IS AFFIDAVIT IS MADE ON THE 17 TH DAY OF JUNE, 2015. CONTENTS OF AFFIDAVIT OF SMT. SWATI JINDAL I SWATI JINDAL (CHARTERED ACCOUNTANT) W/O SH. ABHISHEK JINDAL (DIRECTOR M/S TURNER RECREATIONS PRIVATE LIMITED) R/O R - 2/240 RAJ NAGAR, GHAZIABAD (U.P.) DO HEREBY STATE ON OATH AS UNDER: - ITA NO. 2057/ DEL/ 2013 7 1. THAT IN THE ABOVE CASE MY FATHER IN LAW LATE SHRI RAVI KIRAN JINDA L ADVOCATE WAS LOOKING AFTER THE ENTIRE INCOME TAX MATTERS OF THE COMPANY. 2. THAT MY FATHER IN LAW PASSED AWAY ON 19TH FEBRUARY 2011, THEREAFTER ALL FAMILY MEMBERS WERE DISTURBED AND I HAD NO EXPOSURE TO THE INCOME TAX HEARINGS SO WAS UNABLE TO ARGUE THE CA SE. 3. THAT ALL THE PROCEEDINGS BEFORE THE AO WAS DONE BY KSHITIJA NARWANE ADVOCATE WHO WAS THE EXISTING EMPLOYEE OF LATE SHRI. RAVI KIRAN JINDAL AND DURING THAT TIME SHE WAS DEALING IN SALES TAX MATTERS ONLY. 4. THAT MRS. KSHITIJA APPEARED BEFORE AO, BUT DUE TO LACK OF SUFFICIENT KNOWLEDGE RELATING TO INCOME TAX MATTERS SHE WAS UNABLE TO PURSUE THE PROCEEDINGS EFFICIENTLY. 5. THAT AFTER THE DEATH OF MY FATHER - IN - LAW NOW I AM DEALING WITH ALL THE INCOME TAX MA TTERS. 6. THAT AT THE TIME OF ASSESSMENT BEFORE AO NO PROPER OPPORTUNITY OF BEING HEARD IS GIVEN TO THE ASSESSEE WHICH IS AGAINST NATURAL - JUSTICE. 7. THAT TO MEET JUSTICE IT IS REQUIRED TO GIVE ANOTHER OPPORTUNITY OF BEING HEARD BEFORE AO. ITA NO. 2057/ DEL/ 2013 8 8. THAT THE ASSESSEE WILL FEEL OBLIGED IF THE CASE WILL SET ASIDE TO THE A.O. TO PRODUCE EVIDENCE DESIRED BY AO. SWATI JINDAL (CHARTERED ACCOUNTANT) W/O ABHISHEK JINDAL DO HEREBY CERTIFY THAT ALL THE INFORMATION PROVIDED ABOVE ARE TRUE TO BEST OF MY KNOWLEDGE AND BEL IEF. THIS AFFIDAVIT IS MADE ON THE 17 TH DAY OF JUNE, 2015. 8. NO DOUBT THE ASSESSEE REMAINED NON - COOPERATIVE BEFORE THE AO AS WELL AS LD. CIT(A), BUT AFTER THE READING OF THE AFFIDAVITS FILED BY SMT. SUNITA JINDAL, W/O LATE SHRI RAVI KIRAN JINDAL AND SMT . SWATI JINDAL, CA, DAUGHTER IN LAW OF LATE SHRI RAVI KIRAN JINDAL , ADVOCATE IN WHICH THEY HAVE STATED THAT AFTER THE DEATH OF LATE SH. RAVI KIRAN JINDAL, ADVOCATE, THE EMPLOYEE OF LATE SH. RAVI KIRAN JINDAL , HAS NOT PROPERLY PURSUED THE MATTER BEFORE THE AO AS WELL AS BEFORE THE LD. CIT(A) AND THEY HAVE DECIDED THE ISSUE IN DISPUTE AGAINST THE ASSESSEE IN SPITE OF THE FACT OF THE RELEVANT EVIDENCE ARE AVAILABLE WITH THE RECORD. WE ARE OF THE CONSIDERED VIEW THAT DUE TO FAILURE OF THE ASSESSEE S COUNSE L AND DUE TO UNAVOIDABLE CIRCUMSTANCES FOR NON - PRODUCING THE RELEVANT EVIDENCE AND NON - APPEARANCE BEFORE THE REVENUE AUTHORITIES, ASSESSEE SHOULD NOT BE SUFFERED. THEREFORE, IN THE INTEREST OF JUSTICE, THE ISSUE IN DISPUTE IS SET ASIDE DE NOVO TO THE AO TO DECIDE THE SAME AFRESH, UNDER THE LAW, AFTER GIVING FULL OPPORTUNITY TO THE ASSESSEE OF BEING HEARD FOR SUBSTANTIATING ITS CLAIM. ITA NO. 2057/ DEL/ 2013 9 9 . IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE STANDS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE O PEN C OURT ON 1 9 / 6 /20 1 5 . SD / - S D / - [ J.S. REDDY ] [ H.S. SIDHU ] ACCOUNTANT MEMBER JUDICIAL MEMBER DATE 1 9 / 6 /201 5 SRBHATNAGAR COPY FORWARDED TO: - 1. APPELLANT - 2. RESPONDENT - 3. CIT 4. CIT (A) 5. DR, ITAT TRUE COPY BY ORDER, ASSISTANT REGISTRAR, ITAT, DELHI BENCHES