M/s Complete New & Entertainment Broadcasting Pvt. Ltd., New Delhi V. ACIT, New Delhi

ITA 2654/DEL/2017

• Counselvise Citation: [2020] 111 COUNSELVISE.COM (IT) 7231 (ITAT-DELHI)
• Duration Of Justice: 2 year(s) 8 month(s) 28 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-01-2020
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2007-2008
• Appeal Filed On: 01-05-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: NIDHI SRIVASTAVA
• Keywords: Search and seizure; Set aside
• Section: 153A; 250; 132; 2

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH B, NEW DELHI BEFORE SH. H. S. SIDHU, JUDICIAL MEMBER DR. B. R. R. KUMAR, ACCOUNTANT MEMBER ITA NO. 2654/DEL/2017 : ASSTT. YEAR : 2007-08 M/S COMPLETE NEWS & ENTERTAINMENT BROADCASTING (P) LTD., 527B, 5 TH FLOOR, PLOT-D, D- MALL, DISTRICT CENTRE, PASCHIM VIHAR, NEW DELHI VS ASSISTANT COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE-29, NEW DELHI (APPELLANT) (RESPONDENT) PAN NO. AACCC8813G ASSESSEE BY : NONE REVENUE BY : MS. NIDHI SRIVASTAVA, CIT DR DATE OF HEAR ING: 19 . 12 .201 9 DATE OF PRONOUNCEMENT: 29 .01 .20 20 ORDER PER DR. B. R. R. KUMAR, ACCOUNTANT MEMBER: THE PRESENT APPEAL HAS BEEN FILED BY THE ASSESSEE A GAINST THE ORDER OF LD. CIT (A)-30, NEW DELHI DATED 23.02. 2017. 2. FOLLOWING GROUNDS HAVE BEEN RAISED BY THE ASSESS EE: 1. UNDER THE FACTS AND CIRCUMSTANCES OF THE CASE, THE ORDERS PASSED BY THE LD. CIT (A) ARE BAD AT LAW BEI NG NOT IN ACCORDANCE WITH THE STATUTORY PROVISIONS CONTAIN ED IN SECTION 250 OF THE INCOME TAX ACT, 1961. 2. UNDER THE FACTS AND CIRCUMSTANCES OF THE CASE, T HE ORDERS PASSED BY THE LD. FIRST APPELLATE AUTHORITY IS GROSSLY IN CONTRADICTION TO THE DIRECTIONS OF THE H ONBLE ITAT GIVEN VIDE ORDER DATED 19.08.2015. 3. UNDER THE FACTS AND CIRCUMSTANCES OF THE CASE, T HE ORDERS PASSED BY THE LD. FIRST APPELLATE AUTHORITY HAS GROSSLY IN DIRECTING THE AO TO VERIFY THE GENUINENE SS OF SHARE CAPITAL/PREMIUM OF RS.1,83,35,000/- RECEIVED FROM M/S HBN DAIRIES & ALLIED LIMITED & FAMILY MEMBERS O F ITA NO. 2654/DEL/2017 COMPLETE NEWS & ENTERTAINMENT BROADCASTI NG (P) LTD. 2 SHRI H. S. SRAN, INSTEAD OF DIRECTLY DELETING THE A DDITION OF THE SAID AMOUNT WHEN ALL RECORDS WERE PRODUCED BEFORE HIM, WHICH IS GROSSLY INJUDICIOUS, UNWARRANT ED, BEYOND HIS POWERS, AGAINST THE FACTS OF THE CASE AN D BAD AT LAW. 4. UNDER THE FACTS AND CIRCUMSTANCES OF THE CASE, ADDITION OF RS.1,83,35,000/- MADE BY THE LD. AO TO THE RETURNED INCOME IS INJUDICIOUS, UNWARRANTED & BAD A T LAW. 3. BRIEF FACTS OF THE CASE ARE THAT THE LD. CIT (A) -30, NEW DELHI PASSED THE ORDER IN APPEAL NO. 280/11-12/965, VIDE ORDER D ATED 01.04.2013 AND THE LD. CIT (A) HAS PARTLY ALLOWED THE APPEAL OF TH E ASSESSEE. THE ASSESSEE HAS CONTESTED THE FURTHER APPEAL BEFORE TH E ITAT, DELHI B BENCH, NEW DELHI AGAINST THE LD. CIT (A)S ORDER DA TED 01.04.2013, IN APPEAL NO. 280/11-12/965, THE ITAT HAS DECIDED THE APPEAL IN ITA NO. 4731/DEL/2013, VIDE ORDER DATED 19.08.2015. THE REL EVANT PORTION IS REPRODUCED AS UNDER: A PERUSAL OF THE ABOVE DEMONSTRATES THAT THE LD. C IT (A) INSTEAD OF OBTAINING A REMAND REPORT FROM THE ASSESSING OFFICE R AS PER THE STATUTORY MANDATE IN ORDER TO CONCLUSIVELY DECIDE T HE ISSUE INSTEAD RESTORED THE ISSUE TO THE ASSESSING OFFICER CONTRAR Y TO THE STATUTORY MANDATE. IN VIEW OF THIS OBVIOUS STATUTORY VIOLATIO N, THE IMPUGNED ORDER CANNOT BE UPHELD. THE ISSUES ARE INTERLINKED AND THE FINDINGS ARRIVED AT IT IS SEEN IS WITHOUT CONSIDERING THE RE LEVANT MATERIAL ON RECORD. ACCORDINGLY, IN VIEW OF THE AFORE-MENTIONED FACTUAL POSITION, LEGAL MANDATE AND CONSIDERING THE SUBMISSIONS OF TH E PARTIES BEFORE THE BENCH, WE DEEM IT APPROPRIATE TO SET ASIDE THE IMPUGNED ORDER AND RESTORE THE ISSUES BACK TO THE FILE OF THE LD. CIT (A) WITH THE DIRECTION TO PASS A SPEAKING ORDER IN ACCORDANCE WI TH THE LAW AFTER GIVING THE ASSESSEE A REASONABLE OPPORTUNITY OF BEI NG HEARD. IN VIEW OF THE ABOVE, THE GROUNDS RAISED BY THE ASSESSEE AN D THE DEPARTMENT BOTH STAND ALLOWED FOR STATISTICAL PURPOSES AS PER THE PRONOUNCEMENT MADE IN THE OPEN COURT AT THE TIME OF HEARING. 4. A SEARCH AND SEIZURE OPERATION U/S 132 OF THE IN COME TAX ACT, 1961 WAS CARRIED OUT IN THE CASES OF HBN GROUP ON 20.11. 2009 INCLUDING THE ASSESSEE COMPANY. THEREAFTER, THE ASSESSMENT OF THE ASSESSEE COMPANY WAS CONCLUDED VIDE ORDER DATED 30.12.2011 PASSED U/ S 153A OF THE ACT, ITA NO. 2654/DEL/2017 COMPLETE NEWS & ENTERTAINMENT BROADCASTI NG (P) LTD. 3 WHEREIN THE ASSESSING OFFICER MADE ADDITION OF RS. 3,08,00,000/-. THE SAID AMOUNT CONSISTS OF MONIES RECEIVED AS UNDER: A) HBN DAIRIES & ALLIED LTD. 1,51,40,000 B) FAMILY MEMBERS OF MR. H.S. SRAN 31,95,000 C) OTHER OUTSIDE PARTIES 1,24,65,000 5. BEFORE THE LD. CIT (A), THE ASSESSEE SUBMITTED T HE FOLLOWING DOCUMENTS PERTAINING TO THE AMOUNT RECEIVED FROM HB N DAIRIES & ALLIED LTD. OF RS.1,51,40,000 A) CONFIRMATION FROM M/S HBN DAIRIES & ALLIED LTD. B) COPY OF ITR OF M/S HBN DAIRIES & ALLIED LTD. FOR TH E A.Y. 2007-08 C) LEDGER ACCOUNT OF INVESTMENT IN CNEB IN BOOKS OF HB N DAIRIES & ALLIED LTD. D) BANK STATEMENT OF HBN DAIRIES & ALLIED LTD. E) COPY OF BALANCE SHEET OF HBN DAIRIES & ALLIED LTD. F) ASSESSMENT ORDER OF HBN DAIRIES & ALLIED LTD. 6. THE ASSESSEE SUBMITTED THE FOLLOWING DOCUMENTS W ITH REGARD TO RS.31,95,000/-: A) CONFIRMATION FROM AFORESAID FAMILY MEMBER OF MR. H. S. SRAN B) COPY OF ITR C) BANK STATEMENT REFLECTING RELEVANT TRANSACTION D) ASSESSMENT ORDER PASSED U/S 153A OF THE ACT 7. THE ASSESSEE HAS NOT SUBMITTED ANY DOCUMENTS WIT H REGARD TO MONIES RECEIVED FROM OTHER PARTIES OF RS.RS.1,24,65 ,000/-. 8. THE LD. CIT (A) HAS DIRECTED THE ASSESSING OFFIC ER TO EXAMINE THE CLAIM OF THE ASSESSEE TO VERIFY GENUINENESS OF THE CLAIM OF THE RECEIPT OF MONEY OF RS.1,83,35,000/- (RS.1,51,40,000 + RS.31,9 5,000) AND CONFIRMED THE ADDITION OF RS.1,24,65,000/- FOR WHIC H NO DETAILS HAVE BEEN FILED BEFORE THE LD. CIT (A). 9. BEFORE US, DURING THE ARGUMENTS, THE LD. CIT DR SUPPORTED THE ORDER OF THE LD. CIT (A) AND SINCE NOBODY REPRESENTED ON BEHALF OF THE ASSESSEE, THE ORDER IS BEING PASSED BASED ON THE FACTS AVAILA BLE ON RECORD. ITA NO. 2654/DEL/2017 COMPLETE NEWS & ENTERTAINMENT BROADCASTI NG (P) LTD. 4 10. WE FIND THAT THE LD. CIT (A) HAS REMANDED THE M ATTER TO THE FILE OF THE ASSESSING OFFICER FOR VERIFICATION OF THE GENUI NENESS OF THE SHARE CAPITAL WHICH IS IN CONTRAVENTION WITH DIRECTION GI VEN BY THIS TRIBUNAL. THE TRIBUNAL IN THE EARLIER ORDER HAS DIRECTED THE LD. CIT (A) TO OBTAIN THE REMAND REPORT FROM THE ASSESSING OFFICER AND PASS A SPEAKING ORDER WHICH HAS NOT BEEN FOLLOWED BY THE LD. CIT (A). THE LD. C IT (A) HAS RESTORED THE MATTER TO THE FILE OF THE ASSESSING OFFICER WHICH I S IN CONTRAVENTION WITH THE STATUTORY POSITION AS WELL AS THE DIRECTIONS OF THE TRIBUNAL. HENCE, THE ACTION OF THE LD. CIT (A) ON THIS ACCOUNT CANNOT BE UPHELD AND THE MATTER IS REMANDED BACK TO THE LD. CIT (A) TO DECIDE THE I SSUE AFTER OBTAINING THE REMAND REPORT. 11. REGARDING THE AMOUNTS RECEIVED FROM OTHER PARTI ES OF RS.1,24,65,000/-, SINCE NO DETAILS HAS BEEN FILED B Y THE ASSESSEE BEFORE THE LD. CIT (A) AS PER THE RECORDS, WE HOLD THAT SI NCE THE ASSESSEE HAS NOT DISCHARGED EVEN THE PRIMARY ONUS AND FAILED TO PROV E THE IDENTITY, GENUINITY AND CREDITWORTHINESS, THE ACTION OF THE L D. CIT (A) IS NOT INTERFERED WITH. 12. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS AL LOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 29/01/2020. SD/- SD/- (H. S. SIDHU) (DR . B. R. R. KUMAR) JUDICIAL MEMBER ACCOUNT ANT MEMBER DATED: 29/01/2020 *SUBODH* COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT ASSISTANT REGISTRAR