M/s. Aims Max Gardenia Developers Pvt. Ltd., Noida V. DCIT, New Delhi

ITA 2593/DEL/2014

• Counselvise Citation: [2017] 127 COUNSELVISE.COM (IT) 4209 (ITAT-DELHI)
• Duration Of Justice: 3 year(s) 5 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-09-2017
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 25-05-2017
• Assessment Year: 2011-2012
• Appeal Filed On: 29-04-2014
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: MRS APARNA KARAN
• Keywords: Bogus purchase; Unexplained investment; Unexplained expenditure; Search and seizure; Opportunity of being heard; Deemed to accrue or arise in india
• Section: 69C; 143(3); 142(1); 153A; 69; 56; 132

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH A, NEW DELHI BEFORE SHRI R. K. PANDA, ACCOUNTANT MEMBER AND MS. SUCHITRA KAMBLE, JUDICIAL MEMBER ITA NO.2593/DEL/2014 ASSESSMENT YEAR : 2011-12 AIMS MAX GARDENIA DEVELOPERS P. LTD. PLOT NO. 9, SECTOR-75 NOIDA VS. DCIT CENTRAL CIRCLE-7 NEW DELHI PAN : AAICA4047Q (APPELLANT) (RESPONDENT) ITA NO. 2622/DEL/2014 ASSESSMENT YEAR : 2011-12 DCIT CENTRAL CIRCLE-7 NEW DELHI VS. AIMS MAX GARDENIA DEVELOPERS P. LTD. PLOT NO. 9, SECTOR-75 NOIDA PAN : AAICA4047Q (APPELLANT) (RESPONDENT) ASSESSEE BY : NONE DEPARTMENT BY : MRS . APARNA KARAN, CIT(DR) DATE OF HEARING : 21-09-2017 DATE OF PRONOUNCEMENT : 29-09-2017 O R D E R PER R. K. PANDA, AM : THESE ARE CROSS APPEALS. THE FIRST ONE IS FILED BY THE ASSESSEE AND THE SECOND ONE FILED BY REVENUE AND ARE DIRECTED AGAIN ST THE ORDER DATED 17 TH FEB, 2014 OF THE CIT(A)-1, NEW DELHI RELATING TO ASSESSM ENT YEAR 2011-12. 2 ITA NO.2593/DEL/2014 ITA NO. 2622/DEL/2014 2. THIS CASE WAS LAST FIXED FOR HEARING ON 7 TH AUGUST, 2017 AND AT THE REQUEST OF THE LD. DR, THE CASE WAS ADJOURNED TO 21 ST SEPTEMBER, 2017. HOWEVER, WHEN THE NAME OF THE ASSESSEE WAS CALLED, THERE WAS NO A PPEARANCE FROM THE SIDE OF THE ASSESSEE. THEREFORE, WE PROCEED TO DECIDE THE A PPEALS ON THE BASIS OF MATERIAL AVAILABLE ON RECORD AND AFTER HEARING THE LD. DR. 3. FACTS OF THE CASE, IN BRIEF, ARE THAT THE ASSESS EE COMPANY WAS INCORPORATED ON 29.09.2009 AND IS ENGAGED IN THE BUSINESS OF BUI LDING, CONSTRUCTION & DEVELOPMENT OF RESIDENTIAL/COMMERCIAL PROJECTS. IT FILED ITS ORIGINAL RETURN OF INCOME ON 30 TH SEPTEMBER, 2011 DECLARING INCOME OF RS. 7,27,550/- . A SEARCH AND SEIZURE ACTION U/S 132 OF THE IT ACT WAS CARRIE D OUT ON 19 TH APRIL, 2010 IN GARDENIA GROUP OF CASES. THE CASE OF THE ASSESSEE W AS CENTRALIZED BY AN ORDER U/S 127 OF THE INCOME TAX ACT, 1961. IN RESPONSE TO NOTICE U/S 143(2) AND 142(1) ALONG WITH A QUESTIONNAIRE, THE ASSESSEE FIL ED THE REQUISITE DETAILS BEFORE THE AO FROM TIME TO TIME. AFTER CONSIDERING THE VAR IOUS SUBMISSIONS MADE BY THE ASSESSEE FROM TIME TO TIME, THE AO COMPLETED TH E ASSESSMENT ON A TOTAL INCOME OF RS. 16,42,6,229/- BY MAKING THE FOLLOWING ADDITIONS : RETURNED INCOME RS. 7,27,550/- ADD: INCOME ON ACCOUNT OF UNEXPLAINED RS. 3, 00,00,000/- EXPENDITURE U/S. 69 C OF THE I.T. ACT RELATED TO AMOUNT RECEIVED FROM GROMOR & KARTIKEY ADD: INCOME ON ACCOUNT OF UNEXPLAINED RS. 13 ,09,33,749/- EXPENDITURE U/S. 69C ASCRIBED TO ADVANCES TO SUPPLIERS ADD: ADDITION ON ACCOUNT OF CASH RECEIPT RS. 26 ,01,000/- TAXED AS DEEMED INCOME U/S. 69A OF THE I.T. ACT (AS DISCUSSED ABOVE) TAXABLE INCOME RS. 16,42,62,299/- 3 ITA NO.2593/DEL/2014 ITA NO. 2622/DEL/2014 4. THE ASSESSEE PREFERRED AN APPEAL BEFORE THE CIT( A) WHO SUSTAINED THE ADDITION OF RS. 26,001,000/- BUT DELETED AN AMOUNT OF 16,09,33,749/-. 5. AGGRIEVED WITH SUCH PART RELIEF THE ASSESSEE AS WELL AS REVENUE ARE IN APPEAL BEFORE THE TRIBUNAL BY RAISING THE FOLLOWING GROUNDS. GROUNDS RAISED BY THE ASSESSEE ARE AS UNDER :- 1. ON THE FACTS AND CIRCUMSTANCES OF CASE AND IN LAW, THE COMMISSIONER OF INCOME TAX (APPEAL) ERRED IN CONFIRMING THE ADDITION OF RS . 26,01,000/- AS INCOME FROM OTHER SOURCES. ON THE FACTS AND CIRCUMSTANCES OF CA SE AND IN LAW, THE ADDITION OF RS. 26,01,000/- MADE BY THE ASSESSING OFFICER IS ER RONEOUS AND CIT(A) SHOULD HAVE DELETED THE SAME. 2. ON THE FACTS AND CIRCUMSTANCES OF CASE AND IN LAW, THE ASSESSMENT ORDER PASSED BY THE ASSESSING OFFICER U/S 143(3) R.W.S 153A IS I LLEGAL AND WITHOUT JURISDICTION AND COMMISSIONER OF INCOME TAX (APPEAL) SHOULD HAVE HELD SO. GROUNDS RAISED BY THE REVENUE ARE AS UNDER :- 1. THE ORDER OF LD. CIT(A) IS NOT CORRECT IN LAW A ND FACTS. 2. ON THE FACTS AND CIRCUMSTANCES OF THE CASE THE LD.CIT(A) HAS ERRED IN ADDITION OF RS. 26,01,000/- MADE BY AO U/S 69A OF THE I.T.ACT. 3. ON THE FACTS AND CIRCUMSTANCES OF THE CASES THE LD. CIT(A) HAS ERRED IN DELETING THE ADDITION OF RS. 13,09,33,749/ - MADE BY AO ON ACCOUNT OF UNEXPLAINED EXPENDITURE. 4. ON THE FACTS AND CIRCUMSTANCES OF THE CASES THE LD. CIT(A) HAS ERRED IN DELETING THE ADDITION OF RS. 3,00,00,000/- MADE BY AO ON ACCOUNT OF UNEXPLAINED INVESTMENT. 5. ON THE FACTS AND CIRCUMSTANCES OF THE CASES THE LD. CIT(A) HAS ERRED IN DIRECTING THE AO TO CANCEL THE REDUCTION I N CLOSING WORK- IN-PROGRESS ON ACCOUNT OF BOGUS PURCHASES OF RS. 50 ,00,000/-. 6. THE LD. DR RELIED ON THE FOLLOWING DECISIONS (1.) KAHAN UDYOG VS. CIT, DELHI HIGH COURT, 2013 [2013] 38 TAXMANN. COM 261 ( DELHI) (2.) CIT VS. ARUN MALHOTRA, DELHI HIGH COURT, 2013 47 TAXMANN.COM385 (DELHI) (3.) VIJAY PROTEINS LTD. VS. ACIT, ITAT AHMEDABAD, 1996, 58 IT D 428 (AHMEDABAD) (4.) 4 ITA NO.2593/DEL/2014 ITA NO. 2622/DEL/2014 N K PROTEINS LTD. VS. DCIT, SUPREME COURT, 2017, [2 017] 84 TAXMANN.COM 195(SC). HE SUBMITTED THAT IN THE LIGHT OF THE ABOVE DECISIO NS, THE ORDER PASSED BY LD. CIT(A) IS ERRONEOUS AND LIABLE TO BE SET ASI DE. 7. WE HAVE CONSIDERED THE ARGUMENTS ADVANCED BY TH E LD. DR AND PERUSED THE MATERIAL AVAILABLE ON RECORD. WE FIND THE LD. C IT(A) WHILE DELETING THE ADDITIONS MADE BY THE AO HAS PASSED A VERY CRYPTIC ORDER AND DELETED THE ADDITION OF RS. 26,01,000/- MADE BY THE AO WHICH, I N OUR OPINION, IS NOT JUST AND PROPER. HE SHOULD HAVE PASSED AN ELABORATE ORDER WHILE DELE TING THE ADDITIONS. IN OUR OPINION, THE MATTER REQUIRES A RE -VISIT TO THE FILE OF THE CIT(A) TO ADJUDICATE THE ISSUE AFRESH AND IN ACCORDANCE WI TH LAW AND KEEPING IN MIND THE DECISIONS OF THE HONBLE DELHI HIGH COURT AND O F THE HONBLE SUPREME COURT AS RELIED ON BY THE LD. DR CITED SUPRA. WE, T HEREFORE, DEEM IT PROPER TO RESTORE THE ISSUE TO THE FILE OF THE CIT(A) WITH A DIRECTION TO ADJUDICATE THE ISSUE AFRESH AND IN ACCORDANCE WITH LAW AFTER GIVING DUE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. GROUNDS RAISED BY THE REVENUE ARE ACC ORDINGLY ALLOWED FOR STATISTICAL PURPOSES. 8. A PERUSAL OF THE GROUNDS RAISED BY THE ASSESSEE BEFORE THE CIT(A) IN FORM NO. 35 SHOWS THAT THE ASSESSEE HAS NOT RAISED THE V ALIDITY OF THE ASSESSMENT PROCEEDINGS BEFORE HIM. THEREFORE, GROUND OF APPEAL NO. 2 OF THE ASSESSEE IS DISMISSED. SO FAR AS GROUND OF APPEAL NO. 1 IS CONC ERNED, WE FIND THE LD. CIT(A) 5 ITA NO.2593/DEL/2014 ITA NO. 2622/DEL/2014 IN HIS ORDER HAS GIVEN JUSTIFIABLE REASONS FOR TREA TING THE AMOUNT OF RS. 26,01,000/- AS TAXABLE U/S 56 OF THE INCOME TAX ACT UNDER THE HEAD OTHER SOURCES . THEREFORE, WE DO NOT FIND ANY INFIRMITY IN THE ORDER OF THE CIT(A) CONFIRMING THE ADDITION OF RS. 26,01,000/- AS INCO ME FROM OTHER SOURCES. THE GROUND OF APPEAL NO. 1 OF ASSESSEE IS THEREFORE DIS MISSED. 9. IN THE RESULT THE APPEAL FILED BY THE ASSESSEE I S DISMISSED AND THE APPEAL FILED BY THE REVENUE IS ALLOWED FOR STATISTICAL PUR POSES. ORDER PRONOUNCED IN THE OPEN ON THIS 29 TH DAY OF SEPTEMBER, 2017. SD/- SD/- S (SUCHITRA KAMBLE) (R. K. P ANDA) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 29-09-2017. * BINITA* COPY OF ORDER TO: - 1) THE APPELLANT 2) THE RESPONDENT 3) THE CIT 4) THE CIT(A) 5) THE DR, I.T.A.T., ALLAHABAD. BY ORDER //TRUE COPY// ASSISTANT REGISTRAR ITAT, ALLAHABAD 6 ITA NO.2593/DEL/2014 ITA NO. 2622/DEL/2014 S.NO. DETAILS DATE INITIALS DESIGNATION 1 DRAFT DICTATED ON 29.09.2017 SR. PS/PS 2 DRAFT PLACED BEFORE AUTHOR 29.09.2017 SR. PS/PS 3 DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER JM/AM 4 DRAFT DISCUSSED/APPROVED BY SECOND MEMBER AM/AM 5 APPROVED DRAFT COMES TO THE SR. PS/PS SR. PS/PS 6 KEPT FOR PRONOUNCEMENT ON SR. PS/PS 7 DATE OF UPLOADING OF ORDER SR. PS/PS 8 FILE SENT TO BENCH CLERK SR. PS/PS 9 DATE ON WHICH THE FILE GOES TO THE HEAD CLERK 10 DATE ON WHICH FILE GOES TO THE A.R. 11 DATE OF DISPATCH OF ORDER