ITO, New Delhi V. M/s Nath Lamination Pvt. Ltd., New Delhi

ITA 2213/DEL/2012

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 7495 (ITAT-DELHI)
• Duration Of Justice: 4 year(s) 2 month(s) 24 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 03-08-2016
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: E
• Next Hearing Date: 26-07-2016
• Assessment Year: 2006-2007
• Appeal Filed On: 09-05-2012
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: UMESH CHANDER DUBEY
• Assessee Lawyers: NISCHAY KHANDELWAL
• Keywords: Opportunity of being heard; Principle of natural justice; Additional evidence

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH E, NEW DELHI BEFORE SHRI H.S. SIDHU, JUDICIAL MEMBER AND SHRI ANADI N. MISHRA, ACCOUNTANT MEMBER I.T.A.NO.2213/DEL/2012 A.Y. : 2006-07 INCOME TAX OFFICER, WARD 13(1) NEW DELHI ROOM NO. 219, CR BUILDING, NEW DELHI VS. M/S NATH LAMINATION PVT. LTD., BARRACK NO. 21, UPPER ANAND PARBAT NEW DELHI 110 005 (PAN: AABCN3864H) (APPELLANT) (RESPONDENT) DEPARTMENT BY : SH. UMESH CHANDER DUBEY, SR. DR ASSESSEE BY : SH. ALOKE PERIWAL, CA & SH. NISCHAY KHANDELWAL, CA DATE OF HEARING : 26-07-2016 DATE OF ORDER : 03-08-2016 ORDER PER H.S. SIDHU : JM THE REVENUE HAS FILED THE PRESENT APPEAL AGAINST T HE IMPUGNED ORDER DATED 30/12/2011 PASSED BY THE LD. COMMISSIONER OF INCOME TAX (APPEALS)-XVI, NEW DELHI RELEVANT TO ASSESSMENT YEA R 2006-07 ON THE FOLLOWING GROUNDS:- 1. WHETHER ON THE FACTS & IN THE CIRCUMSTANCES OF T HE CASE, THE LEARNED CIT(A) HAS ERRED IN ALLOWING RELI EF TO THE ASSESSEE IGNORING THE FACT THAT THE ASSESSEE HAS FAILED TO PROVE THE GENUINENESS OF THE ITA NO. 2213/DEL/2012 2 TRANSACTIONS AND CREDITWORTHINESS OF THE THREE PARTIES FROM WHOM THE UNSECURED LOANS HAVE BEEN RECEIVED, DESPITE SEVERAL OPPORTUNITIES HAVING BEEN PROVIDED TO THE ASSESSEE. 2. WHETHER ON THE FACTS & IN THE CIRCUMSTANCES OF T HE CASE, THE LEARNED CIT(A) HAS ERRED IN NOT RELYING UPON THE OF STATEMENT OF SHRI PARVEEN BEHL, DIRECTOR OF THE ASSESSEE COMPANY. THE LD. CIT(A) HAS ACCEPTED THE SUBMISSIONS OF THE ASSESSEE THAT 'UNSECURED LOANS FROM M/S REENA OIL INDUSTRIES PVT. LTD. AND M/S INSTANT TRAVELS & TOURS PVT. LTD. WAS RECEIVED UNDER AN ARRANGEMENT TO SECURE FUNDS FOR THE EXPANSION OF THE BUSINESS OF THE ASSESSEE COMPANY WITH ~N ORAL UNDERSTANDING THAT THEY WILL BE ALLOWED COMPOUNDED GROWTH/RETURN OF 12% PER ANNUM', WHICH IS TOTALLY CONTRADICTORY .TO THE STATEMENT GIVEN BY SHRI PARVEEN BEHL, DIRECTOR OF THE ASSESSEE COMPANY DURING THE COURSE OF ASSESSMENT PROCEEDINGS. 3. WHETHER ON THE FACTS & IN THE CIRCUMSTANCES OF THE CASE, THE LEARNED CIT(A) HAS ERRED IN NOT RELYING UPON THE OBSERVATIONS/FINDINGS OF HER PREDECESSOR CIT(A) CONTAINED IN PARA 3.2 AT PAGE 2-4 AND PAGE6- 7 OF APPEAL ORDER DATED 17.02.2010. ITA NO. 2213/DEL/2012 3 4. WHETHER ON THE FACTS & IN THE CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) HAS ERRED IN NOT OBEYING THE DIRECTIONS GIVEN BY THE ITAT VIDE ORDER DATED 29.06.2010 IN ITA NO.1901/DELHI 2010 THAT 'THE ASSESSEE SHALL BE AT LIBERTY TO PRODUCE/FURNISH ALL RELEVANT DETAILS AND EVIDENCES BEFORE THE LEARNED CIT(A) WHICH SHALL BE EXAMINED AND VERIFIED BY THE LD. CIT(A) AFTER GIVING AN OPPORTUNITY TO EXAMINE AND VERIFY THEM TO THE ASSESSING OFFICER'. NO SUCH OPPORTUNITY HAS BEEN GRANTED TO THE A.O. 5. WHETHER ON THE FACTS & IN THE CIRCUMSTANCES -OF THE CASE, THE LD. CIT(A) HAS ERRED IN ADMITTING THE ADDITIONAL EVIDENCE WITHOUT PROVIDING AN OPPORTUNITY TO THE A.O. TO EXAMINE THE SAME, IN THE FORM OF (I) ALLEGED AFFIDAVITS STATED TO HAVE BEEN FILED BY M/S INSTANT TOURS & TRAVELS PVT. LTD., M/S SOLENDRA DISTRIBUTORS PVT. LTD., M/S REENA OIL INDUSTRIES PVT. LTD.; (II) ALLEGED FORM NO.2 FOR HAVING ALLOTTED SHARES ON 15.09.2009 TO THE SAID TWO PARTIES; (III) BOOKS .OF ACCOUNT OF ALL THE THREE PARTIES, AND IV) ALLEGED COPIES OF BALANCE SHEET OF M/S LAKSHMI INSURANCE AGENTS SERVICES PVT. LTD. 6. THE APPELLANT CRAVES TO BE ALLOWED TO ADD ANY FR ESH GROUNDS OF APPEAL AND / OR DELETE OR AMEND ANY OF THE GROUNDS OF APPEAL. 2. THE FACTS NARRATED BY THE REVENUE AUTHORITIES ARE NOT DISPUTED BY BOTH THE PARTIES, HENCE, THE SAME ARE NOT REPEATED HERE FOR THE SAKE OF BREVITY. ITA NO. 2213/DEL/2012 4 3. AT THE TIME OF HEARING, SH. UMESH CHANDER DUBEY, LD. SR. DR STATED THAT THE LD. CIT(A) HAS DELETED THE ADDITION IN DIS PUTE ON THE BASIS OF THE ADDITIONAL EVIDENCE FILED BY THE ASSESSEE DURING TH E APPELLATE PROCEEDINGS, BUT NO OPPORTUNITY OF HEARING HAS BEEN GIVEN TO THE AO, WHICH IS CONTRARY TO RULE 46A OF THE INCOME TAX RULES, 1962. HE ALSO DR AW OUR ATTENTION TOWARDS PARA NO. 3 TO 3.4 OF THE IMPUGNED ORDER IN WHICH LD. CIT(A) HAS DELETED THE ADDITION IN DISPUTE ON THE BASIS OF THE ADDITIONAL EVIDENCE. HE ALSO DRAW OUR ATTENTION TOWARDS THE AOS ORDER AND STATED THAT THE ASSESSEE HAS NOT FILED ANY EVIDENCES BEFORE THE AO AND LD. C IT(A) HAS WRONGLY DELETED THE ADDITION WHICH IS CONTRARY TO PRINCIPLES OF NAT URAL JUSTICE AS WELL AS RULE 46A OF THE INCOME TAX RULES, 1962. 4. ON THE CONTRARY, LD. AUTHORISED REPRESENTATIVE O F THE ASSESSEE HAS RELIED UPON THE ORDER PASSED BY THE LD. CIT(A) AND STATED THAT THE ASSESSEE HAS FILED ALL THE EVIDENCES BEFORE THE AO AS WELL A S BEFORE THE LD. CIT(A) AND REQUESTED TO UPHOLD THE IMPUGNED ORDER PASSED BY TH E LD. CIT(A). 5. AFTER HEARING BOTH THE PARTIES AND PERUSING THE RECORDS AVAILABLE WITH US, ESPECIALLY THE PARA NOS. 3 TO 3.4 OF THE IMPUGN ED ORDER PASSED BY THE LD. CIT(A), WE ARE OF THE CONSIDERED VIEW THAT ASSESSEE HAS FILED THE ADDITIONAL EVIDENCES ONLY BEFORE THE LD. CIT(A) AND THE LD. CI T(A) HAS NOT AFFORDED ANY OPPORTUNITY TO THE AO FOR VERIFICATION AND REBUTTAL THE SAME WHICH IS CONTRARY TO PRINCIPLES OF NATURAL JUSTICE AS WELL A S RULE 46A OF THE I.T. RULES, 1062. BUT, IN THE INTEREST OF JUSTICE, WE ARE SETTI NG ASIDE THE ISSUES IN DISPUTE TO THE FILE OF THE AO FOR FRE SH CONSIDERATION, AS PER LAW, ITA NO. 2213/DEL/2012 5 AFTER GIVING ADEQUATE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. THE ASSESSEE IS AT LIBERTY TO PRODUCE ANY EVIDENCE FOR SUBSTANTIATING ITS CLAIM BEFORE THE ASSESSING OFFICER. 6. IN THE RESULT, THE APPEAL OF THE REVENUE IS ALL OWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 03/8/2016. SD/- SD/- [ANADI N. MISHRA] [H.S. SIDHU] ACCOUNTANT MEMBER JUDICIAL MEMBER DATE 03/8/2016 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