M/s. Goldenland Developers, New Delhi V. ITO, New Delhi

ITA 2249/DEL/2013

• Counselvise Citation: [2014] 120 COUNSELVISE.COM (IT) 7542 (ITAT-DELHI)
• Duration Of Justice: 1 year(s) 7 month(s) 25 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 12-12-2014
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Next Hearing Date: 10-12-2014
• Assessment Year: 2006-2007
• Appeal Filed On: 17-04-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: B R R KUMAR
• Assessee Lawyers: ASHWANI TANEJA; RAKESH GUPTA
• Keywords: Principle of natural justice
• Section: 40A(3); 133(6); 68

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH C, NEW DELHI BEFORE SHRI G.D. AGARWAL, VICE PRESIDENT & SHRI H.S. SIDHU, JUDICIAL MEMBER ITA NOS. 2249 & 2250/DEL/2013 ASSESSMENT YEARS: 2006-07 & 2007-08 GOLDENLAND DEVELOPERS, VS. ITO, 3-B, LIG FLATS, WARD 12(2), RAJOURI GARDEN EXTN., NEW DELHI. NEW DELHI. AABCG5825B (APPELLANT) (RESPONDENT) APPELLANT BY : SH. RAKESH GUPTA, ADV. & SH. AS HWANI TANEJA, FCA RESPONDENT BY : SH. B.R.R. KUMAR, SR. DR ORDER PER H.S. SIDHU, J.M. THE ASSESSEE HAS FILED THE PRESENT APPEALS AGAINS T THE IMPUGNED ORDERS DATED 11.03.2013 & 15.03.2013 PASSED BY THE COMMISSIONER OF INCOME TAX (APPEALS)-XVIII, NEW DELHI FOR A.YS. 200 6-07 & 2007-08 ON THE FOLLOWING GROUNDS: GROUNDS OF ITA NO. 2249/D/2013 : 1. THAT HAVING REGARD TO THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) HAS ERRED IN LAW AND ON FACTS IN CONFIRM ING THE ADDITION OF RS. 2,96,12,210/- OUT OF TOTAL ADDITION OF RS. 3,04 ,40,210/- MADE BY LD. AO U/S 68 OF THE INCOME TAX ACT, 1961, HOLDING IT AS INCOME FROM UNEXPLAINED SOURCES. 2. THAT IN ANY VIEW OF THE MATTER AND IN ANY CASE, ACT ION OF LD. CIT(A) IN CONFIRMING THE ADDITION OF RS. 2,96,12,210/- U/S 68 OF THE INCOME TAX ACT, 1961 IS BAD IN LAW AND AGAINST THE FACTS AND C IRCUMSTANCES OF THE CASE. 3. THAT HAVING REGARD TO FACTS AND CIRCUMSTANCES OF TH E CASE, LD. CIT(A) HAS ERRED IN LAW AND ON FACTS IN PASSING THE IMPUGN ED ORDER CONTRARY TO LAW AND FACTS AND WITHOUT PROVIDING ADEQUATE OPP ORTUNITY OF ITA NO. 2249/D/2013 GOLDENLAND DEVELOPERS 2 HEARING AND WITHOUT CONSIDERING THE PRINCIPLES OF N ATURAL JUSTICE AND WITHOUT AFFORDING THE OPPORTUNITY OF CROSS EXAMINAT ION. 4. THAT THE APPELLANT CRAVES THE LEAVE TO ADD, MODIFY, AMEND OR DELETE ANY OF THE GROUNDS OF APPEAL AT THE TIME OF HEARING AND ALL THE ABOVE GROUNDS ARE WITHOUT PREJUDICE TO EACH OTHER. GROUNDS OF ITA NO. 2250/D/2013 : 1. THAT HAVING REGARD TO THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) HAS ERRED IN LAW AND ON FACTS IN CON FIRMING THE ADDITION OF RS. 2,70,01,863/- MADE BY LD. AO U/S 68 OF THE INCOME TAX ACT, 1961, HOLDING IT AS INCOME FROM UNEXPLAINE D SOURCES. 2. THAT IN ANY VIEW OF THE MATTER AND IN ANY CASE, ACT ION OF LD. CIT(A) IN CONFIRMING THE ADDITION OF RS. 2,70,01,86 3/- U/S 68 OF THE INCOME TAX ACT, 1961 IS BAD IN LAW AND AGAINST THE FACTS AND CIRCUMSTANCES OF THE CASE. 3. THAT HAVING REGARD TO FACTS AND CIRCUMSTANCES OF TH E CASE, LD. CIT(A) HAS ERRED IN LAW AND ON FACTS IN CONFIRMING THE ACTION OF LD. AO IN MAKING AN DISALLOWANCE/ADDITION OF RS. 46 ,31,453/- U/S 40A(3) OF THE INCOME TAX ACT, 1961, ON THE BASIS OF INCORRECT FACTUAL AND LEGAL FINDINGS. 4. THAT IN ANY VIEW OF THE MATTER AND IN ANY CASE, ACT ION OF LD. CIT(A) IN CONFIRMING THE DISALLOWANCE/ADDITION OF R S. 46,31,453/- U/S 40A(3) OF THE INCOME TAX ACT, 1961 IS BAD IN LA W AND AGAINST THE FACTS AND CIRCUMSTANCES OF THE CASE. 2. THE FACTS NARRATED BY THE REVENUE AUTHORITIES AR E NOT DISPUTED BY THE BOTH PARTIES, THEREFORE, NO NEED TO REPEAT THE SAME FOR THE SAKE OF CONVENIENCE. THE ISSUES RAISED BY THE ASSESSEE IN BOTH THE APPEALS ARE IDENTICAL. THEREFORE, WE ARE DISPOSING THE BOTH AP PEALS TOGETHER BY PASSING ONE CONSOLIDATED ORDER. 3. AT THE TIME OF HEARING, LD. COUNSEL FOR THE ASSE SSEE CONTENDED THAT REVENUE AUTHORITY HAS MADE THE ADDITION IN DISPUTE AGAINST THE ASSESSEE WITHOUT PROVIDING ADEQUATE OPPORTUNITY OF HEARING T O THE ASSESSEE WHICH IS CONTRARY TO THE OPPORTUNITY OF NATURAL JUSTICE. LD . COUNSEL FOR THE ASSESSEE REQUESTED THAT ISSUES IN DISPUTE MAY BE SENT BACK T O THE AO TO EXAMINE IN DETAIL AFTER PROVIDING SUFFICIENT OPPORTUNITY TO TH E ASSESSEE FOR SUBSTANTIATING ITS CLAIM BY PRODUCING CONFIRMATIONS /EVIDENCES ABOUT AUTHENTICITY OF THE ADVANCES RECEIVED BY THE ASSESS EE FROM THE CUSTOMERS. ITA NO. 2249/D/2013 GOLDENLAND DEVELOPERS 3 4. LD. DR HAS NOT RAISED ANY SERIOUS OBJECTION ON T HE REQUEST OF THE ASSESSEES COUNSEL AND HE RELIED UPON THE IMPUGNED ORDER OF THE CIT(A). 5. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE R ECORD AVAILABLE WITH US SPECIALLY THE ORDERS PASSED BY THE REVENUE AUTHO RITIES AND WE ARE OF THE CONSIDERED VIEW THAT THE AO HAVE ISSUED NOTICES U/S 133(6) TO SOME OF THE CUSTOMERS ON THE RANDOM. THE ASSESSEE COMPANY ENGA GED IN THE BUSINESS OF REAL ESTATE AND LAND DEVELOPING AND DUR ING THE YEAR UNDER CONSIDERATION IT HAD AN OWN GOING PROJECT OF DEVELO PING LOW COST HOUSING AT KENDRAPARA, ORISSA WITH THE APPROVAL OF KENDRAPARA REGIONAL TRUST, ORISSA TOWARDS WHICH THE ASSESSEE HAS RECEIVED ADVANCES FR OM THE CUSTOMERS RANGING FROM RS. 2,000/- TO RS. 5 LAKHS ALL IN CASH . THESE ADVANCES WERE UTILIZED FOR THE PURCHASE OF LAND. SINCE THE ADVAN CES FROM CUSTOMERS WERE IN THE NATURE OF CASH CREDITS, THE ASSESSEE COMPANY WAS ASKED TO FURNISH THE CONFIRMATION/EVIDENCES ABOUT THE AUTHENTICITY O F THE ADVANCES RECEIVED. IN RESPONSE TO THE SAME ASSESSEE FILED SOME CONFIRM ATIONS FROM THE CUSTOMERS AND THE BALANCE COULD NOT FILED DUE TO TH E SHORTEST OF TIME GIVEN BY THE AO. THE AO HAS ALSO ISSUED NOTICED U/S 133( 6) OF THE INCOME TAX ACT TO SOME OF THE CUSTOMERS WHICH RECEIVED BACK UN -SERVED BUT SOME CONFIRMATIONS HAVE BEEN SENT DIRECTLY TO THE AO BY THE CUSTOMERS WHICH WERE PRODUCED BY THE ASSESSEE BEFORE THE REVENUE AU THORITY. 6. KEEPING IN VIEW THE FACTS AND CIRCUMSTANCES OF T HE PRESENT CASES AND THE STATEMENT OF THE LD. COUNSEL FOR THE ASSESS EE REQUESTING FOR GRANTING OPPORTUNITY TO THE ASSESSEE FOR PRODUCTION OF CONFIRMATIONS AND OTHER RELEVANT EVIDENCES FOR SUBSTANTIATING THE CLA IM OF THE ASSESSEE. WE ARE OF THE VIEW THAT IN THE INTEREST OF JUSTICE THE REQUEST OF THE ASSESSEE DESERVES TO BE ACCEPTED AND WE ACCEPT THE SAME AND SETTING ASIDE THE ISSUES IN DISPUTE TO THE AO TO DECIDE THE SAME AS P ER LAW AFTER PROVIDING FULL OPPORTUNITY TO THE ASSESSEE FOR PRODUCING THE CONFIRMATIONS/EVIDENCES BEFORE THE AO FOR SUBSTANTIATING ITS CLAIMS. ITA NO. 2249/D/2013 GOLDENLAND DEVELOPERS 4 7. IN THE RESULT, THE APPEALS FILED BY THE ASSESSEE ARE ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 12/12/2014 SD/- SD/- (G.D. AGARWAL) (H.S. SIDHU ) VICE PRESIDENT JUD ICIAL MEMBER DATED: 12/12/2014 *KAVITA, P.S. COPY FORWARDED TO: - 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR, ITAT TRUE COPY BY ORDER, ASSISTANT REGISTRAR ITA NO. 2249/D/2013 GOLDENLAND DEVELOPERS 5 ITA NO. 2249/D/2013 GOLDENLAND DEVELOPERS 6