DCIT, New Delhi V. M/s Falcon Business Resources Pvt. Ltd, New Delhi

ITA 2764/DEL/2010

• Counselvise Citation: [2011] 140 COUNSELVISE.COM (IT) 53421 (ITAT-DELHI)
• Duration Of Justice: 1 year(s) 6 month(s) 8 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 13-12-2011
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 13-12-2011
• Assessment Year: 2007-2008
• Appeal Filed On: 04-06-2010
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Assessee Lawyers: HARDIPENDER SI NGH
• Keywords: Depreciation; Additional evidence
• Section: 2

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH B: NEW DELHI BEFORE SHRI U.B.S. BEDI, JUDICIAL MEMBER AND SHRI A.N. PAHUJA, ACCOUNTANT MEMBER I.T.A.NO. 2764/DEL/2010 ASSESSMENT YEAR : 2007-08 DCIT, VS. M/S. FALCON BUSINESS RESOUR CES PVT. CIRCLE-11 (1), D-158 B, OKHLA INDUSTRIAL AREA, NEW DELHI. PHASE 1, NEW DELHI 20. (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI ROHIT GARG , SR. DR RESPONDENT BY : SHRI HARDIPENDER SI NGH, ADVOCATE ORDER ORDER ORDER ORDER PER U.B.S. BEDI, J.M. PER U.B.S. BEDI, J.M. PER U.B.S. BEDI, J.M. PER U.B.S. BEDI, J.M. THIS APPEAL OF THE DEPARTMENT IS DIRECTED AGAINST THE ORDER PASSED BY LD. CIT(A) XIII, NEW DELHI DATED 29 TH MARCH, 2010 RELEVANT TO ASSTT. YEAR 2007-08 WHEREIN FOLLOWING TWO EFFECTIV E GROUNDS HAVE BEEN RAISED :- 2. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LA W, THE LD. CIT(A) HAS ERRED IN DELETING THE DISALLOWANCE OF `. 5,45,677/- ON THE FACE VALUE OF ADDITIONAL EVIDENCE PRODUCED BY THE ASSESSEE COMPANY WITHOUT VERIFICATION AND WITHOU T ALLOWING A REASONABLE OPPORTUNITY TO AO AND THUS VIOL ATED THE PROCEDURE AS PER RULE 46A OF THE I.T. ACT, 1961 DEPRECIATION ON LEASED ASSETS OF `. 59,16,075/-. 3. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE A ND IN LAW, THE CIT(A) ERRED IN DELETING THE ADDITION MADE BY THE AO ITA NO. 2764/DEL/10 ASSTT. YEAR 2007-08 2 U/S 2(22)(E) WITHOUT APPRECIATING THAT ALL THE CONDI TIONS WERE SATISFIED TO TREAT THIS AMOUNT OF `. 30 LACS AS DEE MED DIVIDEND AND THE CONTENTION OF THE ASSESSEE THAT M/S. SHIVALIK DAIRY PVT. LTD. WERE MAINLY ENGAGED IN MON EY LENDING BUSINESS WAS FACTUALLY INCORRECT AND FURTHER TH AT CIT(A) DRAW THIS CONCLUSION WITHOUT CALLING FOR THE MEMORANDUM AND OBJECTS OF M/S. SHIVALIK DIARIES PVT. L TD. 2. LD. DR AT THE VERY OUTSET SUBMITTED THAT WITH REGA RD TO BOTH THE ISSUES CERTAIN FRESH DOCUMENTS WERE FILED BEFORE THE LD. CIT(A) IN APPEAL WHO CALLED FOR THE REMAND REPORT OF THE AO A ND AFTER CONFRONTING THE ASSESSEE WITH THE REMAND REPORT OF THE AO AND OBTAINING OBJECTION, FURTHER DOCUMENTS WERE ALSO RECE IVED DURING THE HEARING OF THE APPEAL WHICH DOCUMENTS WERE NOT PUT T O THE AO. LD. CIT(A) WHILE CONSIDERING SUCH FURTHER DOCUMENTS OBTAIN ED DURING THE HEARING AFTER RECEIPT OF THE REMAND REPORT HAS CONCL UDED TO DECIDE BOTH THE ISSUES IN FAVOUR OF THE ASSESSEE. THEREFORE, ACTI ON OF LD. CIT(A) IS IN CONTRAVENTION OF RULE 46A OF INCOME TAX RULES. THUS HE SUBMITTED THAT IN ALL FAIRNESS, THE ORDERS OF LD. CIT(A ) SHOULD BE SET ASIDE AND MATTER MAY BE RESTORED BACK ON THE FILE OF THE AO FOR RE CONSIDERATION OF THE ISSUES INVOLVED IN THIS APPEAL AFRE SH AND LD. COUNSEL FOR THE ASSESSEE DID NOT RAISE ANY SERIOUS OBJECTIO N IN THE CASE THE MATTER IS RESTORED BACK ON THE FILE OF THE AO FOR CONSIDERATION OF THE ISSUE AFRESH. 3. AFTER HEARING BOTH THE SIDES AND PERUSING THE MATER IAL ON RECORD, WE FIND THAT LD. CIT(A) WHILE CONSIDERING AN D DECIDING THE ISSUES RAISED IN THIS APPEAL HAS OBTAINED CERTAIN FRESH MA TERIAL AND ITA NO. 2764/DEL/10 ASSTT. YEAR 2007-08 3 EVIDENCE EVEN AFTER RECEIPT OF THE REMAND REPORT F ROM THE AO ON DOCUMENTS EARLIER FILED AND CONSIDERED SUCH FURTHER DO CUMENTS TO GRANT RELIEF TO THE ASSESSEE BY LD. CIT(A) SO THERE IS A VIOLATION OF RULE 46A OF INCOME TAX RULES, AS SUCH, WHILE CONSIDERIN G THE FACTS, CIRCUMSTANCES AND MATERIAL ON RECORD, WE FIND IT JUST AND APPROPRIATE TO SET ASIDE THE ORDER OF LD. CIT(A) AND RESTORE THE M ATTER BACK ON THE FILE OF THE AO WITH THE DIRECTION TO REDECIDE BOTH THE ISSUES AFRESH AFTER GIVING DUE OPPORTUNITY OF THE ASSESSEE. WE HOLD A ND DIRECT ACCORDINGLY. 4. IN THE RESULT, APPEAL OF THE DEPARTMENT SHALL BE T REATED TO HAVE BEEN ALLOWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED SOON AFTER THE CONCLUSION OF HEARIN G ON 13.12.2011. SD/- SD/- (A.N. PAHUJA) ACCOUNTANT MEMBER (U.B.S. BEDI) JUDICIAL MEMBER DATED : 13.12.2011 VEENA COPY OF THE ORDER FORWARDED TO:- 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR BY ORDER DEPUTY REGISTRAR, ITAT