Shivkala Developers Pvt. Ltd., Ghaziabad V. ITO, New Delhi

ITA 2766/DEL/2017

• Counselvise Citation: [2021] 108 COUNSELVISE.COM (IT) 0382 (ITAT-DELHI)
• Duration Of Justice: 4 year(s) 2 month(s) 12 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 16-07-2021
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: G
• Assessment Year: 2007-2008
• Appeal Filed On: 04-05-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Depreciation; Opportunity of being heard; Unabsorbed depreciation; Set aside
• Section: 68; 69; 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, DELHI BENCH: G NEW DELHI BEFORE SHRI O.P. KANT, ACCOUNTANT MEMBER AND SHRI KULDIP SINGH, JUDICIAL MEMBER [THROUGH VIDEO CONFERENCING] ITA NO.2766/DEL/2017 ASSESSMENT YEAR: 2007-08 SHIVKALA DEVELOPERS PVT. LTD., 203, TURAB NAGAR, GHAZIABAD VS. ITO, WARD-23(2), NEW DELHI PAN :AADCP7028D (APPELLANT) (RESPONDENT) ORDER PER O.P. KANT, AM: THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST OR DER DATED 15/02/2016 PASSED BY THE LEARNED COMMISSIONER OF IN COME TAX (APPEALS)-28, NEW DELHI [IN SHORT THE LEARNED CIT( A)] FOR ASSESSMENT YEAR 2007-08 RAISING FOLLOWING GROUNDS: 1. THE ORDER OF THE LEARNED CIT(APPEAL) IS BAD IN LAW AND ON THE FACTS OF THE CASE. 2. THAT THERE WAS NO SERVICE OF NOTICES ON THE ALL EGED DATES AS SPECIFIED IN THE IMPUGNED ORDER. APPELLANT BY NONE RESPONDENT BY SH. PRAKASH DUBEY, SR. DR DATE OF HEARING 08.07.2021 DATE OF PRONOUNCEMENT 16.07.2021 2 ITA NO.2766/DEL/2017 3. THAT THE HONOURABLE ITAT, DELHI BENCHES, G NEW DELHI HAS COMMUNICATED ITS APPEAL ORDER AT D-162, SECTOR 10, NOIDA-201301 AS MENTIONED THEREIN. 4. THAT THE LEARNED CIT(A) -28, HAS SENT ALL THE NO TICES AT THE OLD ADDRESS I.E. LG 1 & 3, R-23, NEHRU ENCLAVE, NEW DEL HI-110019 AND THE SAME REMAIN UNSERVED. SO NO REASONABLE OPPO RTUNITY WAS GIVEN TO THE ASSESSEE COMPANY. 5. THAT THE APPEAL HAS BEEN FILED AFTER GETTING TH E CERTIFIED COPY OF THE ORDER FROM THE LEARNED INCOME TAX OFFICER, WARD 23(2), NEW DELHI. 6. THAT THE LEARNED ASSESSING OFFICER HAS MADE AN A DDITION OF RS.8,85,13,245/- FOR INCREASE IN THE ASSETS OF THE ASSESSEE COMPANY. AS SUCH HE ERRED IN THE MAKING THE ADDITIO N U/S 68 OF THE INCOME TAX ACT, 1961 WHICH WAS CONTRARY TO LAW. 7. THAT THE ALLEGED CASH DEPOSIT OF RS.10,00,000/- HAS AUTOMATICALLY INCREASED ASSETS SIDE OF THE BALANCE SHEET. THE ADDITION OF THE SAME U/S 69 OF THE INCOME TAX ACT, 1961 WOULD AMOUNT TO TAXING THE SAME ITEM TWICE. 8. THAT THE ASSESSEE CRAVES LEAVE TO ADD, AMEND OR WITHDRAW ANY GROUNDS OF APPEAL AT THE TIME OR BEFORE THE HEARING OF APPEAL. 2. BRIEFLY STATED FACTS OF THE CASE ARE THAT THE ASSE SSEE COMPANY FILED ITS RETURN OF INCOME FOR THE YEAR UND ER CONSIDERATION ON 02/11/2007 DECLARING CURRENT YEAR LOSS OF 95,534/- AND UNABSORBED DEPRECIATION OF 2800/- WHICH WAS CARRIED FORWARD TO SUBSEQUENT YEARS. THE RETURN OF INCOME FILED BY THE ASSESSEE WAS SELECTED FOR SCRUTINY ASSESSMEN T AND STATUTORY NOTICES UNDER THE INCOME-TAX ACT, 1961 (I N SHORT THE ACT) WERE ISSUED. THOUGH THE ASSESSEE FILED COMPUT ATION OF INCOME, BALANCE SHEET AND PROFIT AND LOSS ACCOUNT F OR THE YEAR UNDER CONSIDERATION, HOWEVER, THEREAFTER THERE WAS NO COMPLIANCE ON THE PART OF THE ASSESSEE AND THEREFORE THE ASSES SING OFFICER ISSUED A FINAL SO-CALLED NOTICE ASKING THE ASSESSEE TO EXPLAIN SOURCE OF INCREASE OF ASSETS OF 8,85,13,245/- AND DEPOSIT OF 10 LAKH IN M/S. BHAGYODYA URBAN CO-OPERATIVE BANK A ND FAILURE TO DO SO, SAME MIGHT BE TREATED AS INCOME OF THE AS SESSEE. THERE 3 ITA NO.2766/DEL/2017 WAS NO COMPLIANCE ON THE PART OF THE ASSESSEE, AND THEREFORE, THE LEARNED ASSESSING OFFICER COMPLETED ASSESSMENT IN T ERMS OF SECTION 144 OF THE ACT (BEST JUDGMENT ASSESSMENT) A FTER MAKING ADDITION OF 8,95,13,245/- AGGRIEVED, THE ASSESSEE FILED APPEAL BEFORE THE LEARNED CIT(A), HOWEVER, SAME HAS BEEN D ISMISSED DUE TO NON-REPRESENTATION BY THE ASSESSEE. 3. NONE APPEARED ON BEHALF OF THE ASSESSEE BEFORE US ALSO. BUT A WRITTEN REQUEST HAS BEEN FILED BY SH. ANUP KUMAR CLAIMING TO BE INSOLVENCY PROFESSIONAL OF SHIVKALA DEVELOPERS P RIVATE LIMITED, WHEREIN HE REQUESTED FOR ADJOURNMENT OF THE APPEAL. HOWEVER, LOOKING TO EX PARTE ORDER OF THE LEARNED CIT(A), WE HAVE HEARD THE LEARNED DEPARTMENTAL REPRESENTATIVE AND PERUSED THE RELEVANT MATERIAL ON RECORD AND PROCEEDED TO ADJUDICATE THE APPEAL. 4. WE FIND THAT THE LD. CIT(A) HAS DISMISSED THE APPE AL OF THE ASSESSEE OBSERVING AS UNDER: 4. I HAVE CONSIDERED THE GROUNDS RAISED IN APPEAL AND THE FACTS OF THE CASE. DURING THE APPELLATE PROCEEDINGS, AS S TATED AFTER ISSUANCE NOTICED DATED 24.09.2015 NO APPEARANCE AND NO SUBMISSION WAS MADE BY THE APPELLANT, AFTER THAT TH E FOLLOWING NOTICES ALSO ISSUED THROUGH SPEED POST ON THE ADDRE SS (SHIVKALA DEVELOPERS PVT. LTD., LG-1 & 3, R-23, NEHRU ENCLAVE , NEW DELHI- 110019) GIVEN BY THE APPELLANT. DATE OF ISSUE OF NOTICE FIXED FOR REMARKS 24.09.2015 09.10.2015 NONE ATTENDED NOR FILED ANY ADJOURNMENT. 26.11.2015 09.12.2015 NONE ATTENDED NOR FILED ANY ADJOURNMENT. 21.12.2015 19.01.2016 NONE ATTENDED NOR FILED ANY ADJOURNMENT. 4.1 IN VIEW OF THE FACTS STATED ABOVE, IT IS OBSERV ED THAT THE ASSESSEE WAS GIVEN SUFFICIENT AND REASONABLE OPPORT UNITIES TO REPRESENT HIS CASE BEFORE THE APPELLATE AUTHORITY B UT NOBODY ATTENDED THE PROCEEDINGS NOR FILED ADJOURNMENT APPL ICATION. THE NOTICES WERE SENT BY SPEED POST FOR WHICH IT IS PRE SUMED THAT 4 ITA NO.2766/DEL/2017 ASSESSEE MUST HAVE RECEIVED THEM WITHIN 3 DAYS. BUT HE NEVER FILED ANY WRITTEN SUBMISSION NOR APPLICATION FOR ADJOURNM ENT. IN VIEW OF THE INDIFFERENT APPROACH, I FIND THAT NO USEFUL PUR POSE WOULD BE SERVED BY KEEPING THE APPEAL PROCEEDINGS PENDING IN DEFINITELY. THEREFORE, IT IS PRESUMED THAT THE ASSESSEE HAS NOT HING TO APPEAL AGAINST THE ADDITIONS MADE BY THE ASSESSING OFFICER . 4.2 FURTHER, IN VIEW OF THE PROVISIONS OF SECTION 2 51(1)(C), THE COMMISSIONER OF INCOME TAX APPEALS HAS THE POWER TO DISPOSE OF AN APPEAL 'IN ANY OTHER CASE, HE MAY PASS SUCH ORDERS IN THE APPEAL AS HE THINKS FIT'. IN THE INSTANT CASE THERE IS ENOUGH GROUND OF NON APPEARANCE OF THE APPELLANT TO DECIDE THE MATTER EX -PARTE, THE APPEAL IS DECIDED ON THE. BASIS OF MATERIAL AVAILAB LE ON RECORD. 5 GROUND NO 1 AND 2 TAKEN BY THE APPELLANT IS GENER AL IN NATURE . DURING THE COURSE OF THE APPELLATE PROCEEDING EVEN AFTER BEEN GIVEN REASONABLE OPPORTUNITY THE APPELLANT HAS FAILED TO EXPLAIN HOW THE ORDER PASSED WAS WITHOUT JURISDICTION, CONTRARY TO LAW . THEREFORE GROUND NO 1 AND 2 TAKEN BY THE APPELLANT IS DISMISS ED. 6. GROUND NO 3 TAKEN BY THE APPELLANT IS AGAINST (1 ) ADDITION OF RS. 8,85,13,425/ MADE BY THE ASSESSING OFFICER UNDER SE CTION 68 OF THE ACT AND (II) ADDITION OF RS. 10,00,000 MADE BY THE ASSESSING OFFICER UNDER SECTION 69 OF THE ACT. IN THE CASE UNDER CONS IDERATION THE ASSESSING OFFICER HAS MADE ADDITION OF RS. 8,85,13, 425/ UNDER SECTION 68 OF THE ACT AS THE ASSESSEE FAILED TO EXP LAIN THE SOURCE OF SHARE CAPITAL AND LOAN RECEIVED DURING THE YEAR UND ER CONSIDERATION. FURTHER ADDITION RS. 10,00000/- HAS BEEN UNDER SECT ION 69 OF THE ACT AS THE ASSESSEE FAILED TO EXPLAIN THE SOURCE OF CASH OF RS. 10,000,00/- DEPOSITED IN BANK ACCOUNT OF THE ASSESS EE COMPANY HELD ON 06.07,2006 . DURING THE COURSE OF THE APPEL LATE PROCEEDING EVEN AFTER BEEN GIVEN REASONABLE OPPORTUNITY THE AP PELLANT HAS FAILED TO EXPLAIN THE SOURCE OF SHARE CAPITAL AND L OAN RECEIVED DURING THE YEAR AND CASH DEPOSITED IN THE BANK ACCOUNT . H ENCE, THE ACTION OF THE AO IS UPHELD AND THE GROUND NO 3 TAKEN BY TH E APPELLANT IS DISMISSED. 4.1 IN THE GROUNDS RAISED BEFORE US, THE ASSESSEE HAS SUBMITTED THAT THERE WAS A CHANGE OF ADDRESS WHEREAS THE LD. CIT(A) SENT ALL THE NOTICES AT THE OLD ADDRESS AND THEREFORE, NO CO MPLIANCE COULD BE MADE BEFORE THE LEARNED CIT(A). LOOKING TO THE R EASONABLE CAUSE IN PUTTING NON-APPEARANCE BEFORE THE LD. CIT( A), WE ARE OF THE OPINION THAT ASSESSEE MUST BE PROVIDED ONE OPPO RTUNITY TO 5 ITA NO.2766/DEL/2017 EXPLAIN ITS AFFAIRS. IN VIEW OF THE ABOVE FACTS AND CIRCUMSTANCES AND IN THE INTEREST OF THE JUSTICE, WE SET ASIDE TH E ORDER OF THE LD. CIT(A) AND RESTORE THE MATTER BACK TO HIM FOR DECID ING AFRESH. BOTH THE ASSESSEE AND THE ASSESSING OFFICER SHALL B E PROVIDED ADEQUATE OPPORTUNITY OF BEING HEARD. IN THE FORM NO . 36 FILED BEFORE THE TRIBUNAL, THE ASSESSEE HAS PROVIDED ITS ADDRESS AS 203, TURAB NAGAR, GHAZIABAD (UP) -201001. IN THE CASE OF THE ASSESSEE, INSOLVENCY PROCEEDINGS HAVE BEEN INITIATE D AND SH. ANUP KUMAR HAS BEEN APPOINTED AS INTERIM RESOLUTION PROFESSIONAL (IRP) AND HIS DETAILS ARE AS UNDER: (I) REGN. NO. IBBI/IPA-002/IP-N00333/2017-18/10911 (II) ADDRESS: LAWYERS CHAMBER NO. 734, WESTERN WIN G, TIS HAZARI COURT, DELHI; (III) EMAIL: [e-mail] (IV) MOBILE NO. 9811622913 4.2 THE LD. CIT(A) MAY SERVE NOTICE ACCORDINGLY. THE GROUNDS RAISED BY THE ASSESSEE ARE ACCORDINGLY ALLOWED FOR STATISTICAL PURPOSES. 5. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLOW ED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 16 TH JULY, 2021. SD/- SD/- (KULDIP SINGH) (O.P. KANT) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 16 TH JULY, 2021. RK/- (DTDC) 6 ITA NO.2766/DEL/2017 COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR ASST. REGISTRAR, ITAT, NEW DELHI