M/s Suman Embroidery Pvt. Ltd., New Delhi V. ITO, New Delhi

ITA 2729/DEL/2013

• Counselvise Citation: [2017] 130 COUNSELVISE.COM (IT) 6519 (ITAT-DELHI)
• Duration Of Justice: 3 year(s) 9 month(s) 28 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 03-03-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: G
• Next Hearing Date: 17-01-2017
• Assessment Year: 2004-2005
• Appeal Filed On: 06-05-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: V RAJ KUMAR
• Keywords: Opportunity of being heard; Additional evidence
• Section: 68

Judgement Text

PAGE 1 OF 5 IN THE INCOME TAX APPELATE TRIBUNAL DELHI BENCH G: NEW DELHI BEFORE SHRI H.S. SIDHU, JUDICIAL MEMBER AND SHRI PRASHANT MAHARISHI, ACCOUNTANT MEMBER ITA NO. 2729/DEL/2013 A.Y. : 2004-05 M/S SUMAN EMBROIDERY PVT. LTD. VS. INCOME TAX OFFIC ER, WARD-9(3) 20/8, SHAKTI NAGAR, NEW DELHI NEW DELHI 110037 (PAN:AAHCS6820L) (APPELLANT) (RESPONDENT) ASSESSEE BY : SH. K. SAMPATH, SR. ADV. & SH. V. RAJ KUMAR, ADV. DEPARTMENT BY : SH. N.K. BANSAL, SR. DR O R D E R PER H.S. SIDHU, JM THIS APPEAL IS FILED BY THE ASSESSEE IS DIRECTED A GAINST THE ORDER DATED 25.3.2013 OF THE LD. CIT(A)-XII, NEW DELHI RELEVANT TO ASSESSMENT YEAR 2004-05. PAGE 2 OF 5 2. THE FACTS NARRATED BY THE REVENUE AUTHORITIES ARE NOT DISPUTED BY BOTH THE PARTIES, THEREFORE, NO NEED TO REPEAT HERE FOR THE SAKE OF CONVENIENCE. 3. AT THE TIME OF HEARING, LD. COUNSEL OF THE ASSESSE E DRAW OUR ATTENTION TOWARDS THE ORDER PASSED BY THE AO AS WELL AS LD. CIT(A) AND STATED THAT BOTH THE AUTHORITIES HAVE NOT GIVEN SUFFICIENT OPPORTUNITY FOR SUBSTANTIATING ITS CLAIM. HE FURTHER D RAW OUR ATTENTION TO THE IMPUGNED ORDER AND STATED THAT ADDIT IONAL EVIDENCES FILED BEFORE THE LD. FIRST APPELLATE AUTHORITY UNDER R ULE 46A OF THE INCOME TAX RULES, 1962 WAS ACCEPTED BUT WAS NOT CON SIDERED AT ALL. HE FURTHER STATED THAT THE LD. CIT(A) ONLY MENTIONED THAT ADDITIONAL EVIDENCE FILED BY THE ASSESSEE IS ACCEPTED HOWEVER MERE FILING OF CONFIRMATION FROM PARTIES I.E. PAN NO., ITR AND BANK ST ATEMENT AND OTHER DETAILS ARE NOT SUFFICIENT TO PROVE THAT CONDIT ION OF SECTION 68 HAS BEEN FULFILL BY RELYING UPON THE DECISION OF THE HONBLE HIGH COURT OF DELHI IN THE CASE OF NIPUN BUILDERS & DEVELOPERS PVT. LTD. IN ITA NO. 120/2012 VIDE ITS ORDER DATED 7 TH JANUARY, 2013. WE ALSO NOTE THAT AO IN HIS REMAND REPORT HAS REQUESTED THE LD. CI T(A) NOT TO ACCEPT THE ADDITIONAL EVIDENCE AS THE SAME IS NOT R ESULTING ANY RESULTS AND GENUINENESS OF THE TRANSACTION COULD NOT BE VERIF IED AT THIS STAGE PAGE 3 OF 5 ALSO AND THE SAME WERE NOT SUBMITTED AT THE TIME OF ASSESSMENT PROCEEDINGS. WE FURTHER NOTE THAT IN RESPONSE TO REMAND REPORT, THE ASSESSEE HAS SUBMITTED THAT NEITHER PROPER TIME NOR OPP ORTUNITY WAS PROVIDED FOR FILING THE ADDITIONAL DOCUMENTS ORIGINALL Y AT THE TIME OF ASSESSMENT AND ALSO THAT THESE DOCUMENTS ARE CRUCIA L TO THE DISPENSATION OF JUSTICE SO AS TO CONSTRAIN THE ADMIS SION AND CONSIDERATION IN THE INTEREST OF SUBSTANTIVE JUSTICE . HENCE, LD. COUNSEL OF THE ASSESSEE HAS REQUESTED THAT THE ISSUE IN DISP UTE MAY BE SENT BACK TO THE AO FOR DECIDING THE SAME AFRESH UNDER TH E LAW, AFTER GIVING ADEQUATE OPPORTUNITY OF BEING HEARD TO THE ASS ESSEE. 4. ON THE OTHER HAND, LD. DR OPPOSED THE REQUEST OF T HE LD. COUNSEL OF THE ASSESSEE AND STATED THAT THE LD. FIRST APPELLATE AUTHORITY HAS RIGHTLY CONFIRMED THE ORDER OF THE AO, AF TER CALLING THE REMAND REPORT FROM THE AO. 5. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE RELE VANT RECORDS AVAILABLE WITH US ESPECIALLY THE EVIDENCES F ILED BEFORE THE LD. CIT(A) WITH THE APPLICATION UNDER RULE 46A OF THE INCOME TAX RULES, 1962. WE NOTE THAT AO AS WELL AS LD.CIT(A) HAVE NOT GIVEN SUFFICIENT OPPORTUNITY FOR SUBSTANTIATING ITS CLAIM. WE FURTHER N OTE FROM THE IMPUGNED ORDER THAT LD. CIT(A) ONLY MENTIONED THAT ADD ITIONAL PAGE 4 OF 5 EVIDENCE FILED BY THE ASSESSEE IS ACCEPTED HOWEVER MERE FILING OF CONFIRMATION FROM PARTIES I.E. PAN NO., ITR AND BANK ST ATEMENT AND OTHER DETAILS ARE NOT SUFFICIENT TO PROVE THAT CONDIT ION OF SECTION 68 HAS BEEN FULFILL BY RELYING UPON THE DECISION OF THE HONBLE HIGH COURT OF DELHI IN THE CASE OF NIPUN BUILDERS & DEVELOPERS P VT. LTED. IN ITA NO. 120/2012 VIDE ITS ORDER DATED 7 TH JANUARY, 2013. WE ALSO NOTE THAT AO IN HIS REMAND REPORT HAS REQUESTED THE LD. CI T(A) NOT TO ACCEPT THE ADDITIONAL EVIDENCE AS THE SAME IS NOT R ESULTING ANY RESULTS AND GENUINENESS OF THE TRANSACTION COULD NOT BE VERIF IED AT THIS STAGE ALSO AND THE SAME WERE NOT SUBMITTED AT THE TIME OF ASSESSMENT PROCEEDINGS. WE FURTHER NOTE THAT IN RESPONSE TO REMAND REPORT, THE ASSESSEE HAS SUBMITTED THAT NEITHER PROPER TIME NOR OPP ORTUNITY WAS PROVIDED FOR FILING THE ADDITIONAL DOCUMENTS ORIGINALL Y AT THE TIME OF ASSESSMENT AND ALSO THAT THESE DOCUMENTS ARE CRUCIA L TO THE DISPENSATION OF JUSTICE SO AS TO CONSTRAIN THE ADMIS SION AND CONSIDERATION IN THE INTEREST OF SUBSTANTIVE JUSTICE . HENCE, IN OUR CONSIDERED OPINION, THE ISSUE INVOLVED IN THE PRESE NT APPEAL NEEDS TO BE ADJUDICATED AFRESH UNDER THE LAW AT THE LEVEL OF THE ASSESSING OFFICER. ACCORDINGLY, WE DIRECT THE AO TO EXAMINE AL L THE DOCUMENTS INCLUDING THE APPLICATION FILED U/R 46A AND DECIDE T HE ISSUES IN DISPUTE PAGE 5 OF 5 AFRESH UNDER THE LAW, AFTER GIVING ADEQUATE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. 6. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLO WED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 03-03-2017. SD/- SD/- [PRASHANT MAHARISHI] [H.S. SIDHU] ACCOUNTANT MEMBER JUDICIAL MEMBER DATE: 03/03/2017 SRBHATNAGAR COPY FORWARDED TO: - 1. APPELLANT 2. RESPONDENT 3. CIT 4.CIT (A) 5. DR , ITAT TRUE COPY BY ORDER, ASSISTANT REGISTRAR, ITAT, DELHI BENCHES