M/s. Global Minetec Ltd., New Delhi V. ACIT, New Delhi

ITA 2711/DEL/2017

• Counselvise Citation: [2020] 111 COUNSELVISE.COM (IT) 3908 (ITAT-DELHI)
• Duration Of Justice: 2 year(s) 9 month(s) 17 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 19-02-2020
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Assessment Year: 2007-2008
• Appeal Filed On: 02-05-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S N MEENA SENIOR
• Keywords: Search and seizure; Set aside
• Section: 143(3); 153A

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL (DELHI BENCH C : NEW DELHI) BEFORE SHRI N.K. BILLAIYA, ACCOUNTANT MEMBER AND SHRI KULDIP SINGH, JUDICIAL MEMBER ITA NO.2711/DEL./2017 (ASSESSMENT YEAR : 2007-08) M/S. GLOBAL MINETEC LIMITED, VS. ACIT, CENTRAL CIR CLE 17, 2, FIRST FLOOR, SECTOR 8 MARKET, NEW DELHI. R.K. PURAM, NEW DELHI. (PAN : AABCG3859N) (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI KARAN KUMAR, CA REVENUE BY : SHRI S.N. MEENA, SENIOR DR DATE OF HEARING : 03.02.2020 DATE OF ORDER : 19.02.2020 O R D E R PER KULDIP SINGH, JUDICIAL MEMBER APPELLANT, M/S. GLOBAL MINETEE LIMITED (HEREINAFTER REFERRED TO AS THE ASSESSEE) BY FILING THE PRESENT APPEAL SOUGHT TO SET ASIDE THE IMPUGNED ORDER DATED 27.02.2017 PASSED BY THE C OMMISSIONER OF INCOME-TAX (APPEALS)-27, NEW DELHI QUA THE ASSES SMENT YEAR 2007-08 ON THE GROUNDS INTER ALIA THAT :- 1. THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE OF THE APPELLANT AND IN LAW, THE LD. COMMISSIONER OF INCOM E TAX-27 [HEREINAFTER REFERRED TO AS THE 'CIT(A)-27')] HAS G ROSSLY ERRED IN CONSTRUING THE FACTS OF THE CASE WHILE PASSING THE IMPUGNED ORDER U/S 250(6) OF THE ACT. ITA NO.2711/DEL./2017 2 2. THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE OF THE APPELLANT AND IN LAW, THE LD. CIT(A)-27 HAS GROSSLY ERRED BY CONFIRMING THE AD-HOC AND ARBITRARY DISALLOWANCE OF 2% OF VARIOUS EXPENSES I.E. RS.23,49,294/- MADE BY THE ASSESSING OFFICER, WITHOUT APPRECIATING THE ARGUMENTS AND EVIDENCE SUBMITTED B Y THE APPELLANT. 3. THAT THE IMPUGNED ADDITION SHOULD BE DELETED AS THE APPELLANT'S MATTER AFTER BEING REMANDED BY HON'BLE IT AT TO CIT(A)-4 WAS HEARD ON MERITS, AND ADDITION OF RS. 23,49,294/ - MADE BY THE ASSESSING OFFICER WAS DELETED BY HON'BLE CIT(A)-4 V IDE ORDER DATED 21.02.2017. 4. THAT THE ORDER OF THE LD. CIT(A)-27 BEING FACTUA LLY INCORRECT, CONTRARY TO LAW, AND CONTRARY TO FINDINGS ON MERIT OF HON'BLE CIT(A)-4 SHOULD BE QUASHED AND IMPUGNED ADDITION MADE IN THE ASSESSMENT ORDER AND CONFIRMED BY HON'BLE CIT(A)-27 BE DELETED . 5. THAT WITHOUT PREJUDICE TO THE OTHER GROUNDS OF A PPEAL, SINCE THE BASIS OF DISALLOWANCE HAS NOW BEEN DELETED BY H ON'BLE CIT(A)-4, AND NO OTHER OBJECTIONS WERE RAISED BY THE AO OR HO N'BLE CIT(A)-27, THE IMPUGNED DISALLOWANCE OF RS. 23,49,294 SHOULD N OW BE DELETED. 2. BRIEFLY STATED THE FACTS NECESSARY FOR ADJUDICAT ION OF THE CONTROVERSY AT HAND ARE : ASSESSEE IS INTO THE BUSI NESS OF EXCAVATION OF COAL THROUGH SURFACE MINOR IN COAL MINES IN ORIS SA SINCE ITS INCORPORATION IN 1999 TILL 2009. THE CONTRACT FOR MINING OF COAL HAS BEEN AWARDED BY DIFFERENT PRINCIPALS AT DIFFERE NT COAL MINING PROJECTS. THE COMPANY HAS BEEN MINING COAL AT 8 DI FFERENT PROJECTS SPREAD IN THE COAL MINES OF MAHANADI COALFIELDS AND SINGARENI COLLIERIES COMPANY LTD.. 3. ON THE BASIS OF SEARCH AND SEIZURE AND SURVEY OP ERATION CONDUCTED UNDER SECTION 132/133A OF THE INCOME-TAX ACT, 1961 (FOR SHORT THE ACT) ALONG WITH QUESTIONNAIRE IN CASE OF ASSESSEE AND OTHER CASES OF ARYAN SAINIK GROUP AT VARIOUS RE SIDENTIAL AND BUSINESS PREMISES ON 12.04.2012, A NOTICE U/S 153A WAS ISSUED ON ITA NO.2711/DEL./2017 3 23.10.2013 AND IN RESPONSE THEREOF, ASSESSEE FILED RETURN DECLARING INCOME OF RS.3,78,34,538/- ON 09.06.2014. THEN STA TUTORY NOTICE U/S 143 (2) WAS ISSUED ON 15.09.2014. DURING THE Y EAR UNDER ASSESSMENT, THE ASSESSEE HAS DECLARED ITS INCOME UN DER THE HEAD INCOME FROM BUSINESS. ASSESSING OFFICER (AO) PRO CEEDED TO MAKE THE ADDITION OF RS.23,49,294/- BY WAY OF MAKIN G DISALLOWANCE OUT OF THE REPAIR, MAINTENANCE AND SPA RE PARTS EXPENSES ON THE BASIS OF ASSESSMENT FRAMED U/S 143 (3) OF THE ACT VIDE ORDER DATED 17.12.2009 AND THE ADDITION WAS SO CONFIRMED BY THE LD. CIT (A) AND THE APPEAL FILED BY THE ASSESSE E COMPANY WAS DISMISSED. 4. ASSESSEE CARRIED THE MATTER BEFORE THE LD. CIT ( A) BY WAY OF FILING THE APPEAL WHO HAS CONFIRMED THE ADDITION BY DISMISSING THE APPEAL. FEELING AGGRIEVED BY THE ORDER PASSED BY T HE LD. CIT (A), THE ASSESSEE HAS COME UP BEFORE THE TRIBUNAL BY WAY OF FILING THE PRESENT APPEAL. 5. WE HAVE HEARD THE LD. AUTHORIZED REPRESENTATIVES OF THE PARTIES TO THE APPEAL, GONE THROUGH THE DOCUMENTS R ELIED UPON AND ORDERS PASSED BY THE REVENUE AUTHORITIES BELOW IN T HE LIGHT OF THE FACTS AND CIRCUMSTANCES OF THE CASE. 6. BARE PERUSAL OF THE IMPUGNED ORDER PASSED BY THE LD. CIT(A) AS WELL AS ASSESSMENT ORDER GOES TO PROVE THAT DURI NG THE SEARCH ITA NO.2711/DEL./2017 4 AND SEIZURE AND SURVEY OPERATION CONDUCTED IN CASE OF THE ASSESSEE AND ARYAN SAINIK GROUP OF CASES, NO INCRIMINATING M ATERIAL WAS SEIZED. IT IS ALSO NOT IN DISPUTE THAT INITIAL ASS ESSMENT WAS FRAMED IN THIS CASE U/S 143 (3) OF THE ACT BY MAKING ADDIT ION OF RS.23,49,294/- BY WAY OF MAKING DISALLOWANCE OF 2% OF THE REPAIR AND MAINTENANCE EXPENSES AND SPARE PARTS & TYRE EXP ENSES. 7. AO WHILE FRAMING ASSESSMENT U/S 143 (3) READ WIT H SECTION 153A HAS AGAIN MADE ADDITION OF RS.23,49,294/- WHIC H WAS MADE BY THE AO WHILE FRAMING ASSESSMENT U/S 143(3) OF TH E ACT WITHOUT GIVING ANY REASON WHATSOEVER. FIRSTLY, WHEN NO INC RIMINATING MATERIAL HAS BEEN SEIZED DURING THE SEARCH AND SEIZ URE OPERATION ON THE BASIS OF WHICH NOTICE U/S 153A AND SECTION 143 (2) WERE ISSUED TO THE ASSESSEE, NO ADDITION IS WARRANTED. 8. FURTHERMORE, LD. AR FOR THE ASSESSEE BROUGHT ON RECORD THE FACT THAT THE ADDITION MADE BY THE AO OF RS.23,49,2 94/-, NO DOUBT, WAS CONFIRMED BY THE LD. CIT (A) IN EX-PARTE PROCEE DINGS AND THEREAFTER THE TRIBUNAL HAS ALSO CONFIRMED THE ADDI TION IN EX-PARTE ORDER WHICH WAS SUBSEQUENTLY RECALLED BY THE TRIBUN AL AND ULTIMATELY, CASE WAS REMITTED BACK TO THE LD. CIT ( A) TO DECIDE AFRESH ON MERITS. LD. CIT (A) VIDE ORDER DATED 21. 02.2017 DELETED THE ADDITION OF RS.23,49,294/-. ITA NO.2711/DEL./2017 5 9. WITHOUT ENTERING INTO THE MERITS OF THE DELETION OF ADDITION MADE BY THE LD. CIT (A) MADE BY THE AO U/S 143(3) O F THE ACT, WE ARE OF THE CONSIDERED VIEW THAT WHEN ADDITION OF RS .23,49,294/- MADE BY THE AO ON ACCOUNT OF DISALLOWANCES OF REPAI R & MAINTENANCE EXPENSES AND SPARE PARTS & TYRE EXPENSE S HAS ALREADY BEEN DEALT WITH BY THE LD. CIT (A), THE SAME CANNOT BE MADE SUBJECT MATTER OF THE ASSESSMENT FRAMED U/S 153A OF THE ACT. 10. MOREOVER, WHEN NO INCRIMINATING MATERIAL HAS BE EN SEIZED DURING SEARCH AND SEIZURE OPERATION, NO ADDITION CA N BE MADE. IN CASE, REVENUE AUTHORITIES ARE HAVING ANY GRIEVANCE AGAINST THE DELETION OF ADDITION OF RS.23,49,294/- MADE BY THE LD. CIT (A) VIDE ORDER DATED 21.02.2017, AVAILABLE AT PAGES 6 TO 11 OF THE PAPER BOOK, THEY CAN AVAIL OF THE REMEDY AVAILABLE UNDER THE ACT BUT ARE NOT ENTITLED TO REITERATE THE SAME ADDITION WHILE F RAMING ASSESSMENT U/S 143(3)/153A, HENCE ADDITION MADE BY THE AO AND CONFIRMED BY THE LD. CIT (A) IS ORDERED TO BE DELETED. CONSEQUE NTLY, THE APPEAL FILED BY THE ASSESSEE IS ALLOWED. ORDER PRONOUNCED IN OPEN COURT ON THIS 19 TH DAY OF FEBRUARY, 2020. SD/- SD/- (N.K. BILLAIYA) (KULDIP SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED THE 19 TH DAY OF FEBRUARY , 2020 TS ITA NO.2711/DEL./2017 6 COPY FORWARDED TO: 1.APPELLANT 2.RESPONDENT 3.CIT 4.CIT(A)-27, NEW DELHI 5.CIT(ITAT), NEW DELHI. AR, ITAT NEW DELHI.