ITO, New Delhi V. M/s. Samarth Fincap Services Pvt. Ltd., New Delhi

ITA 276/DEL/2013

• Counselvise Citation: [2018] 125 COUNSELVISE.COM (IT) 6714 (ITAT-DELHI)
• Duration Of Justice: 5 year(s) 5 month(s) 25 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 09-07-2018
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: G
• Next Hearing Date: 09-05-2017
• Assessment Year: 2007-2008
• Appeal Filed On: 15-01-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: K TEWARI
• Assessee Lawyers: ASHWANI TANEJA
• Keywords: Unexplained cash credit
• Section: 143(3); 68

Judgement Text

PAGE | 1 TAX APPELLATE TRIBUNAL DELHI BENCH G : NEW DELHI BEFORE SHRI H.S.SIDHU , JUDICIAL MEMBER AND SHRI PRASHANT MAHARISHI, ACCOUNTANT MEMBER ITA NO. 276/DEL/2013 (ASSESSMENT YEAR: 2007 - 08 ) ITO, WARD - 7(2), NEW DELHI VS. SAMARTH FINCAP SERVICES PVT. LTD, F - 2, GREEN PARK MAIN, NEW DELHI PAN:AABCS7132F (APPELLANT) (RESPONDENT) REVENUE BY : SHRI K TEWARI, SR. DR ASSESSEE BY: SHRI ASHWANI TANEJA, ADV DATE OF HEARING 05/07 / 2018 DATE OF PRONOUNCEMENT 0 9 / 07 / 2018 O R D E R PER PRASHANT MAHARISHI , A. M. 1 . THIS APPEAL IS FILED BY THE REVENUE AGAINST THE ORDER O F THE LD CIT(A) - X, NEW DELHI DATED 26.11.2012 FOR THE ASSESSMENT YEAR 2007 - 08. HOWEVER, LOOKING AT THE ORDER OF THE LD CIT( A), IT IS MENTIONED AT PAGE NO. 7, THAT HE HAS MENTIONED DETAILS OF ADDITION DELETED U/S 68 OF THE ACT IN ANNEXURE A TO HIS JUDGMENT. HOWEVER, THE REVENUE HAS NOT FILED THAT ANNEXURE WITH HIS APPELLATE ORDER. THEREFORE, THE ORDER OF THE LD CIT(A) FILED BY THE REVENUE IS INCOMPLETE. AS THIS APPEAL IS FILED BY THE REVENUE ON 15.01.2013 AND AFTER THAT THIS APPEAL IS FIXED CONTINUOUSLY ON VARIOUS DATE S , HOWEVER REVENUE HAS NOT CARED T O SEE THAT THIS ANNEXURE A IS FILED . THE LD COUNSEL OF THE ASSESSEE HAS STATED THAT THIS ANNEXURE A COVERS THE WHOLE ADDITION MADE BY THE LD AO , WHICH IS NOW CONTESTED BY THE REVENUE. ON READING OF THE ORDER OF THE LD CIT(A) IT IS FOUND THAT ASSESSEE HAS SUBMITTED THIS ANNEXURE - A AND LD CIT(A) HAS MADE IT PART OF HIS ORDER. 2 . FURTHER MORE, AT THE TIME OF HEARING OF THE APPEAL IT WAS FOUND THAT NEITHER PARTY HAS FILED THE PAPER BOOK BEFORE US. AS THE ISSUE INVOLVES THE ITO VS. SAMARTH FINCAP SERVICES PVT. LTD ITA NO. 276/DEL/2013 (ASSESSMENT YEAR: 2007 - 08) PAGE | 2 DETERMINATION OF FACT REGARDING ADDITION OF CASH CREDIT U/S 68 OF THE ACT, RELEVANT DOCUMENTS WHICH WERE BEFORE THE LO WER AUTHORITIES SHOULD HAVE BEEN FILED FIRSTLY BY THE REVENUE AS IT IS THE APPEAL OF THE LD AO. HOWEVER, THIS CAN ALSO BE FILED BY THE RESPONDENT ALSO. THEREFORE, WE REQUESTED THE LD AR TO FILE THE PAPER BOOK IN THIS CASE WHICH WAS FILED BEFORE THE LD CIT( A) BASED ON WHICH AFTER APPRECIATION OF THE FACT HE HAS DECIDED THE ISSUE. THIS REQUEST TO THE LD AR WAS STRONGLY OBJECTED AND STATED THAT AS IT IS THE APPEAL OF THE REVENUE , THEREFORE, PAPER BOOK SHOULD BE FILED BY THE LD AO. AS THE ISSUE BEFORE US IS THE ADDITION WITH RESPECT TO UNEXPLAINED CASH CREDIT OF RS. 2.40 CRORES U/S 68 OF THE ACT, FURTHER ADDITION OF RS. 35 LACS AS UNEXPLAINED UNSECURED LOAN, THE LD AO HAS CONSISTENTLY STATED THAT THE BOOK S OF ACCOUNT WERE NOT PRODUCED INITIALLY BUT WERE PRODUCED ONLY ON 30.12.2009, WHEREAS THE ORDER WAS PASSED U/S 143(3) OF THE ACT ON 31.12.2009. THEREFORE, IT IS APPARENT THAT THE BOOKS OF ACCOUNT WERE NOT PRODUCED BEFORE THE LD AO IN PROPER TIME AND ONLY ON ONE DAY BEFORE COMPLETION OF THE ASSESSMENT. FURTHERMORE, THE ANNEXURE - A WHICH IS UNVERIFIED AND IS SUPPLIED BY THE LD AR SHOWS THAT THERE ARE SEVERAL REFERENCE OF THE PAPER BOOK IN ANNEXURE A WHICH IS PURPORTEDLY PART OF THE ORDER OF THE LD CIT(A). THE LD AR ALSO RELYIN G HEAVILY ON THE ANNEXURE - A TO THE ORDER OF THE LD CIT(A). IN THE WRITTEN SUBMISSION BY THE LD AR HE IS ALSO RELYING HEAVILY ON VARIOUS PAGES OF THE ORDER OF THE LD CIT(A). IT IS ALSO PRESSED TO CONSIDER THE ASSESSEES SUBMISSION BEFORE THE LD CIT(A) VIDE PAGE NO. 10 TO 34 OF HIS ORDER WITH RESPECT TO GROUND NO. 1 AND PAGE 57 TO 68 WITH RESPECT TO GROUND NO. 2. ON ALL THESE SUBMISSIONS THERE IS REFERENCE OF VARIOUS PAGE NOS OF THE PAPER BOOK SUBMITTED BY THE ASSESSEE BEFORE THE LD CIT(A). DESPITE THIS FACT THE LD AR WAS NOT WILLING TO ACCEDE TO OUR REQUEST FOR FILING OF THE PAPER BOOK. AS IT CANNOT BE DISPUTED THAT THE TRIBUNAL IS THE FINAL FACT FINDING AUTHORITY AND IT IS DUTY BOUND TO EXAMINE THE FACTS IN ITS ENTIRETY AND CANNOT RESTRICT ITS DECISION ONLY ON THE ORDERS OF THE LOWER AUTHORITIES. IT IS DUTY OF THE TRIBUNAL TO ALSO APPRECIATE THE FACTS PRESENTED BEFORE THE ITO VS. SAMARTH FINCAP SERVICES PVT. LTD ITA NO. 276/DEL/2013 (ASSESSMENT YEAR: 2007 - 08) PAGE | 3 LOWER AUTHORITIES AND GIVE ITS FINDING THAT ON APPRECIATION OF SUCH EVIDENCE , LOWER AUTHORITIES HAVE CORRECTLY REACHED THE CORRECT DECISIO N OR NOT. IN THE ANNEXURE - A SUBMITTED THERE ARE ALSO REFERENCE OF SUBMISSION OF THE ADDITIONAL INFORMATION BY THE ASSESSEE WHICH HIS EVIDENT AT SL NO. 1 TO 4 OF ANNEXURE - A AND IN SUBSEQUENT MATTERS ALSO THERE IS FILING OF ADDITIONAL INFORMATION BY THE ASS ESSEE BEFORE THE LD CIT(A). THEREFORE, IN ABSENCE OF PAPER BOOK IT IS NOT POSSIBLE TO DECIDE THIS APPEAL. THEREFORE, AS SUPPORTED BY RULE 18(2) OF ITAT RULES, 1963 , WE DIRECT THE RESPONDENT TO FILE A PAPER BOOK AT ITS COST WHICH WAS FILED BEFORE THE LD CIT (A) BEFORE THE COORDINATE BENCH. THEREFORE, IF AND WHEN, THE APPEAL OF THE REVENUE IS HEARD AFTER RECALLING OF THE APPEAL AFTER THIS ORDER THE RESPONDENT MUST FILE THE PAPER BOOK. 3 . HOWEVER, IN THE PRESENT CASE AS THE APPEAL FILED BY THE LD AO IS DEFECTIVE AS IT DOES NOT CONTAIN THE COMPLETE ORDER OF THE LD CIT(A) WE DISMISS THE APPEAL OF THE REVENUE AS DEFECTIVE. THE REVENUE IS AT LIBERTY TO FILE MISCELLANEOUS APPLICATION IN PROPER T IME LIMIT ALONG WITH COMPLETE ORDER OF THE LD CIT(A) IF IT WANTS TO PROSECUTE THE PRESENT LIMIT. 4 . IN THE RESULT APPEAL OF THE REVENUE IS DISMISSED AS DEFECTIVE. ORDER PRONOUNCED IN THE OPEN COURT ON 0 9 / 07 / 2018 . - S D / - - S D / - ( H.S.SIDHU ) (PRASHANT MAHARISHI) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 0 9 / 07 / 2018 A K KEOT COPY FORWARDED TO 1 . APPLICANT 2 . RESPONDENT 3 . CIT 4 . CIT (A) 5 . DR:ITAT ASSISTANT REGISTRAR ITAT, NEW DELHI