M/s. AVJ Developers P. Ltd., New Delhi V. DCIT, New Delhi

ITA 2519/DEL/2016

• Counselvise Citation: [2019] 115 COUNSELVISE.COM (IT) 8977 (ITAT-DELHI)
• Duration Of Justice: 3 year(s) 4 month(s) 26 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 01-10-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: D
• Assessment Year: 2011-2012
• Appeal Filed On: 05-05-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: NAINA SOIN KAPIL SENIOR
• Keywords: Unexplained cash credit; Opportunity of being heard; Capital expenditure; Set aside
• Section: 68

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL (DELHI BENCH D : NEW DELHI) BEFORE SHRI R.K. PANDA, ACCOUNTANT MEMBER AND SHRI KULDIP SINGH, JUDICIAL MEMBER ITA NO.2519/DEL./2016 (ASSESSMENT YEAR : 2011-12) M/S. A V J DEVELOPERS P. LTD., VS. DCIT, CIRCLE 1 (1), B 260, VIVEK VIHAR PHAS I, NEW DELHI. DELHI 110 095. (PAN : AAHCA0322K) (APPELLANT) (RESPONDENT) ASSESSEE BY : NONE REVENUE BY : SMT. NAINA SOIN KAPIL, SENIOR DR DATE OF HEARING : 04.09.2019 DATE OF ORDER : 01.10.2019 O R D E R PER KULDIP SINGH, JUDICIAL MEMBER : APPELLANT, M/S. A V J DEVELOPERS P. LTD. (HEREINAF TER REFERRED TO AS THE ASSESSEE) BY FILING THE PRESENT APPEAL SOU GHT TO SET ASIDE THE IMPUGNED ORDER DATED 09.01.2016 PASSED BY THE COMMI SSIONER OF INCOME-TAX (APPEALS)-I, NEW DELHI QUA THE ASSESSME NT YEAR 2011-12 ON THE GROUNDS INTER ALIA THAT :- 1. THE LD. CIT(A) HAS ERRED BOTH IN LAW AND ON FAC TS IN PASSING THE IMPUGNED ORDER OF APPEAL DISMISSING THE APPEAL IN LIMINE WITHOUT PROVIDING SUFFICIENT OPPORTUNITY TO THE APPELLANT TO PRESENT HIS SUBMISSION IN SUPPORT OF THE GROUNDS OF APPEAL RAISED BEFORE HIM. ITA NO.2519/DEL./2016 2 2. THE LD CIT (A) HAS ERRED BOTH ON FACTS AND IN LA W IN UPHOLDING THE ACTION OF THE AO MAKING ADDITION OF RS.1,50,00,000/- U/S 68 OF THE I T ACT HOLDING THE SHARE CAPITAL OF THE ABOVE AMOUNT AS UNEXPLAINED CASH CREDIT. 3. THE LD CIT (A) HAS ERRED BOTH ON FACTS AND IN LA W IN UPHOLDING DISALLOWANCE OF RS.193000/- HOLDING THE S AME AS CAPITAL EXPENDITURE BEING THE AMOUNT INCURRED FOR ANNOUNCEMENT OF AUTHORIZED SHARE CAPITAL. 2. BRIEFLY STATED THE FACTS NECESSARY FOR ADJUDICAT ION OF THE ISSUE AT HAND ARE : THE ASSESSEE IS INTO THE BUSINESS OF PUR CHASE AND SALE OF COMMERCIAL PROPERTY AND DEVELOPMENT OF GROUP HOUSIN G RESIDENTIAL SOCIETY. ASSESSING OFFICER (AO) MADE ADDITION OF R S.1,50,00,000/- UNDER SECTION 68 OF THE INCOME-TAX ACT, 1961 (FOR S HORT THE ACT) ON THE GROUND THAT THE SHARE CAPITAL OF THE AFORESAID AMOUNT IS UNEXPLAINED CASH CREDIT. AO ALSO MADE DISALLOWANCE OF RS.1,93, 000/- TREATING THE SAME AS CAPITAL EXPENDITURE BEING THE AMOUNT INCURR ED FOR ANNOUNCEMENT OF AUTHORIZED SHARE CAPITAL AND ASSESS ED THE TOTAL INCOME AT RS.2,54,20,570/-. 3. ASSESSEE CARRIED THE MATTER BY WAY OF AN APPEAL BEFORE THE LD. CIT (A) WHO HAS CONFIRMED THE ADDITION BY DISMISSIN G THE APPEAL. FEELING AGGRIEVED, THE ASSESSEE HAS COME UP BEFORE THE TRIBUNAL BY WAY OF FILING THE PRESENT APPEAL. 4. ASSESSEE HAS NOT PREFERRED TO PUT IN APPEARANCE DES PITE ISSUANCE OF THE NOTICE AND CONSEQUENTLY, WE PROCEED ED TO DECIDE THE PRESENT APPEAL WITH THE ASSISTANCE OF THE LD. S ENIOR DR AS WELL AS ON THE BASIS OF DOCUMENTS AVAILABLE ON THE FILE. ITA NO.2519/DEL./2016 3 5. WE HAVE HEARD THE LD. SENIOR DEPARTMENTAL REPRES ENTATIVE FOR THE REVENUE TO THE APPEAL, GONE THROUGH THE DOC UMENTS RELIED UPON AND ORDERS PASSED BY THE REVENUE AUTHORITIES B ELOW IN THE LIGHT OF THE FACTS AND CIRCUMSTANCES OF THE CASE. 6. BARE PERUSAL OF THE IMPUGNED ORDER PASSED BY THE LD. CIT (A) GOES TO PROVE THAT THE LD. CIT (A) THOUGH DECIDED T HE APPEAL ON MERIT BUT IN THE ABSENCE OF THE ASSESSEE WHO STATED TO HA VE NOT APPEARED DESPITE NUMEROUS OPPORTUNITIES. WE ARE OF THE CONS IDERED VIEW THAT IN THE ABSENCE OF THE ASSESSEE, THE LD. CIT (A) HAS ME RELY RATIFIED THE ORDER PASSED BY THE AO WITHOUT DECIDING THE VALIDITY AND LEGALITY OF THE ASSESSMENT ORDER. TO DECIDE THE CONTROVERSY AT HAN D ONCE FOR ALL, WE ARE OF THE CONSIDERED VIEW THAT THE ASSESSEE IS REQUIRE D TO BE PROVIDED WITH ONE MORE OPPORTUNITY OF BEING HEARD. SO, THE PRESE NT CASE IS REMANDED BACK TO THE LD. CIT (A) TO DECIDE AFRESH AFTER PROV IDING AN OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. CONSEQUENTLY, THE APP EAL FILED BY THE ASSESSEE IS HEREBY ALLOWED FOR STATISTICAL PURPOSES . ORDER PRONOUNCED IN OPEN COURT ON THIS 1 ST DAY OF OCTOBER, 2019. SD/- SD/- (R.K. PANDA) (KULDIP SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED THE 1 ST DAY OF OCTOBER, 2019 TS ITA NO.2519/DEL./2016 4 COPY FORWARDED TO: 1.APPELLANT 2.RESPONDENT 3.CIT 4.CIT(A)- I , NEW DELHI. 5.CIT(ITAT), NEW DELHI. AR, ITAT NEW DELHI.