DSM Infracom Pvt. Ltd., Bulandshahr V. DCIT, Circle Bulandshahr, Bulandshahr

ITA 2790/DEL/2018

• Counselvise Citation: [2021] 107 COUNSELVISE.COM (IT) 5061 (ITAT-DELHI)
• Duration Of Justice: 3 year(s) 5 month(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 27-09-2021
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2013-2014
• Appeal Filed On: 20-04-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: DR MANINDER KAUR
• Keywords: Principle of natural justice
• Section: 143(3); 14A; 13; 68

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH B, NEW DELHI BEFORE SH. ANIL CHATURVEDI, ACCOUNTANT MEMBER AND SH. SANJAY GARG, JUDICIAL MEMBER (THROUGH VIDEO CONFERENCING) ITA NO. 2790/DEL/2018 (ASSESSMENT YEAR : 2013-14) DSM INFRACOM PVT. LTD. G-6, YAMUNAPURAM, BULANDSHAHR, UTTAR PRADESH-203001 PAN : AACCD 2925 J VS. DCIT CIRCLE BULANDSHAHR BULANDSHAHR (APPELLANT) (RESPONDENT) ASSESSEE BY SHRI AKHILESH KUMAR, ADV. SHRI VIPIN GARG, ADV. REVENUE BY DR. MANINDER KAUR, SR. D.R. DATE OF HEARING: 2 2 .0 9 .2021 DATE OF PRONOUNCEMENT: 27 .0 9 .2021 ORDER PER ANIL CHATURVEDI, AM: THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER DATED 30.10.2017 OF THE COMMISSIONER OF INCOME TAX (APPEALS)-ALIGARH RELATING TO ASSESSMENT YEAR 2013-14. 2. THE RELEVANT FACTS AS CULLED FROM THE MATERIAL ON RECORDS ARE AS UNDER : 2 3. ASSESSEE IS A COMPANY WHICH IS STATED TO BE ENGAGED IN THE BUSINESS OF REAL STATEMENT MANAGEMENT CONSULTANCY AND INFRASTRUCTURE DEVELOPMENT AND RELATED ACTIVITIES. ASSESSEE ELECTRONICALLY FILED ITS RETURN OF INCOME FOR A.Y. 2013-14 ON 30.09.2013 DECLARING TOTAL LOSS OF RS.30,36,773/-. THE CASE WAS SELECTED FOR SCRUTINY AND THEREAFTER ASSESSMENT WAS FRAMED U/S 143(3) OF THE ACT VIDE ORDER DATED 26.03.2016 AND THE TOTAL INCOME WAS DETERMINED AT RS.2,92,58,828/-. AGGRIEVED BY THE ORDER OF AO, ASSESSEE CARRIED THE MATTER BEFORE THE CIT(A) WHO VIDE ORDER DATED 30.10.2017 IN APPEAL NO.53/2016/GHAZIABAD/ALIGARH DISMISSED THE APPEAL OF THE ASSESSEE. AGGRIEVED BY THE ORDER OF CIT(A), ASSESSEE IS NOW IN APPEAL BEFORE US AND HAS RAISED THE FOLLOWING GROUNDS OF APPEAL: 1. BECAUSE THE LD. CIT(A) HAS ERRED BOTH IN LAW AND ON FACTS IN CONFIRMING THE ASSESSMENT ORDER PASSED U/S 143(3) OF THE I.T. ACT ON 26.03.2016, FOR AY 2013-14, WITHOUT APPRECIATING THAT THE IMPUGNED ASSESSMENT ORDER HAS BEEN PASSED BY THE AO ARBITRARILY, WITHOUT APPRECIATING THE EVIDENCE FILED ON RECORD, IN GROSS VIOLATION OF THE PRINCIPLES OF NATURAL JUSTICE AS PER LAW. 2. BECAUSE THE LD. CIT(A) HAS ERRED BOTH IN LAW AND ON FACTS IN CONFIRMING THE ADDITION OF RS. 2,86,74,835/- (THIS FIGURE CONSTITUTES TOTAL AND ENTIRE ADDITION TO UNSECURED LOANS FROM 19 DIFFERENT LENDERS) U/S 68 OF THE ACT WITHOUT APPRECIATING THE INDIVIDUAL FACTS AND EVIDENCE AVAILABLE ON RECORD AND THUS MAKING ARBITRARY ADDITION WITHOUT ANY APPLICATION OF MIND ON AGGREGATE BASIS WHEREAS ALL THE ADDITION TO UNSECURED LOANS ARE DULY EXPLAINED AS PER THE TERMS OF SEC 68 OF THE ACT. 3. BECAUSE THE LD. CIT(A) HAS ERRED BOTH IN LAW AND ON FACTS IN CONFIRMING THE ADDITION OF RS. 36,20,766/- U/S 14A OF THE ACT WITHOUT APPRECIATING THE FACTS AND EVIDENCE AVAILABLE ON RECORD. 4. BECAUSE THE LD. CIT(A) HAS ERRED BOTH IN LAW AND ON FACTS IN CONFIRMING THE IMPUGNED ASSESSMENT ORDER WITHOUT THE APPELLANT HAVING BEING HEARD AND THUS AGAINST THE PRINCIPLES OF NATURAL JUSTICE. 3 5. BECAUSE THE LD. CIT(A) HAS ERRED BOTH IN LAW AND ON FACTS IN CONFIRMING THE ASSESSMENT ORDER PASSED U/S 143(3) OF THE I.T. ACT, ON 26.03.2016, IN CONFIRMING INTEREST U/S 234A, 234B, 234C & 234D OF THE I.T. ACT. 6. BECAUSE THE LD. CIT(A) HAS ERRED BOTH IN LAW AND ON FACTS IN CONFIRMING THE ASSESSMENT ORDER PASSED U/S 143(3) OF THE I.T. ACT, ON 26.03.2016, IN CONFIRMING THE INITIATION OF PENALTY U/S 271(L)(C) OF THE I.T. ACT. 4. BEFORE US, AT THE OUTSET, LEARNED AR SUBMITTED THAT ASSESSEE HAD FILED ONLINE APPEAL BEFORE THE CIT(A), GHAZIABAD ON 24.04.2016 AND THE ASSESSEE NEVER RECEIVED ANY INTIMATION ABOUT THE TRANSFER OF ITS APPEAL FROM CIT(A), GHAZIABAD TO CIT(A), ALIGARH AND ASSESSEE ALSO NEVER RECEIVED ANY NOTICE OF HEARING FROM CIT(A), ALIGARH. HE FURTHER SUBMITTED THAT THE CONCERNED DIRECTOR OF THE ASSESSEE WHO WAS LOOKING AFTER THE TAXATION MATTERS WAS ALSO HAVING MEDICAL ISSUES AND DUE TO WHICH HE COULD NOT ATTEND THE AFFAIRS OF THE COMPANY AND WAS NOT AWARE ABOUT THE APPEALS PENDING BEFORE THE CIT(A), ALIGARH. HE SUBMITTED THAT CIT(A) HAS PASSED AN EX PARTE ORDER. HE FURTHER SUBMITTED THAT BEFORE THE CIT(A), ASSESSEE HAD ALSO TAKEN A GROUND ABOUT THE VIOLATION OF PRINCIPLE OF NATURAL JUSTICE BY AO. HE FURTHER SUBMITTED THAT AO HAD RELIED UPON VARIOUS MATERIAL WITHOUT CONFRONTING THE SAME TO THE ASSESSEE AND THEREFORE THE ORDER PASSED BY THE AO IS ALSO NOT SUSTAINABLE IN LAW. LEARNED AR ALSO POINTED TO THE COPY OF AFFIDAVIT FILED AND PLACED AT PAGE 13 & 14 OF THE PAPER BOOK. HE THEREFORE SUBMITTED THAT THE MATTER BE REMITTED TO AO AND FURTHER UNDERTAKES THAT THERE WILL BE REPRESENTATION ON BEHALF OF THE ASSESSEE BEFORE THE AUTHORITIES AND THAT THE NECESSARY DETAILS CALLED FOR BY THE AUTHORITIES WILL BE FURNISHED BY THE ASSESSEE. 4 5. LEARNED DR ON THE OTHER HAND SUPPORTED THE ORDER OF CIT(A) AND SUBMITTED THAT VARIOUS OPPORTUNITIES WAS GRANTED TO THE ASSESSEE BUT IN THE ABSENCE OF ANY SUBMISSIONS BY THE ASSESSEE, CIT(A) HAD NO ALTERNATIVE BUT TO PASS IMPUGNED THE ORDER. 6. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIALS AVAILABLE ON RECORD. BEFORE US, IT IS ASSESSEES CONTENTION THAT NO PROPER OPPORTUNITY WAS GIVEN BY THE AO TO EXPLAIN THE ASSESSEES STAND AND HE HAS USED THE MATERIAL AT THE BACK OF THE ASSESSEE AND THEREBY AO HAS VIOLATED THE PRINCIPLES OF NATURAL JUSTICE. IT IS ALSO ASSESSEES CONTENTION THAT CIT(A) HAS ALSO PASSED AN EX PARTE ORDER AND REASONS FOR NON-APPEARANCE BEFORE THE CIT(A) HAS BEEN STATED IN THE AFFIDAVIT FILED BY THE ASSESSEE. THE CONTENTS OF THE AFFIDAVIT HAVE NOT BEEN CONTROVERTED BY THE REVENUE. BEFORE US, LEARNED AR ALSO GIVEN AN UNDERTAKING THAT THERE WILL BE REPRESENTATION BEFORE THE AUTHORITIES BY THE ASSESSEE AND ALL THE NECESSARY DOCUMENTS CALLED FOR SHALL ALSO BE FILED. CONSIDERING THE TOTALITY OF THE AFORESAID FACTS, WE ARE OF THE VIEW THAT ONE MORE OPPORTUNITY BE GRANTED TO THE ASSESSEE TO SUBSTANTIATE ITS CASE. WE THEREFORE RESTORE THE ISSUE BACK TO THE FILE OF THE AO AND DIRECT HIM TO DECIDE THE ISSUE AFRESH IN ACCORDANCE WITH LAW AFTER CONSIDERING THE SUBMISSIONS OF THE ASSESSEE. THUS THE GROUND OF THE ASSESSEE IS ALLOWED. 7. SINCE WE HAVE RESTORED THE MATTER TO THE FILE OF THE AO, GROUND ON MERITS ARE NOT ADJUDICATED. 5 8. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 27.09.2021 SD/- SD/- (SANJAY GARG) (ANIL CHATURVEDI) JUDICIAL MEMBER ACCOUNTANT MEMBER DATE:- 27.09.2021 PY* COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT ASSISTANT REGISTRAR ITAT NEW DELHI