Airwil JKM Infracon Pvt. Ltd., Delhi V. DCIT, Central Circle, Noida

ITA 283/DEL/2019

• Counselvise Citation: [2022] 105 COUNSELVISE.COM (IT) 9232 (ITAT-DELHI)
• Duration Of Justice: 3 year(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 07-02-2022
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2015-2016
• Appeal Filed On: 15-01-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SATPAL GULATI
• Keywords: Unexplained expenditure; Tax effect; Set aside
• Section: 68; 132; 144; 153A; 250; 153; 153C

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH ‘A’, NEW DELHI Before Sh. A. D. Jain, Vice-President Dr. B. R. R. Kumar, Accountant Member ITA No. 283/Del/2019 : Asstt. Year : 2015-16 Airwil JKM Infracon Pvt. Ltd., 8/20, Kalkaji Extension, New Delhi-110019 Vs DCIT, Central Circle, Noida (APPELLANT) (RESPONDENT) PAN No. AAMCA4974C Assessee by : Sh. P. C. Yadav, Adv. Revenue by : Sh. Satpal Gulati, CIT DR Date of Hearing: 07.12.2021 Date of Pronouncement: 08.02.2022 ORDER Per Dr. B. R. R. Kumar, Accountant Member: The present appeal has been filed by the assessee against the order of ld. CIT(A)-IV, Kanpur dated 15.11.2018. 2. Following grounds have been raised by the assessee: “1. That the order passed by the Ld. CIT (Appeals) under section 250 of the Income Tax Act, 1961 is bad in law and not justified because Ld. CIT (A) has dismissed the appeal simply on account of non- prosecution of the appeal by the appellant without appreciating the judgment of Hon'ble Bombay High Court in case of CIT (Central) Nagpur vs. Premkumar Arjundas Luthra (HUF), [2016] 69taxmann.com 407 (Bombay), where it has been held that law does not empower Ld. CIT (A) to dismiss the appeal for non- prosecution. 2. Both the Ld. AO and Ld. CIT(A) has erred both in law and in facts of the case in not allowing sufficient opportunity to the appellant to represent his case before himself to adjudicate on all ground of appeal. (No Tax effect) ITA No.283/Del/2019 Airwil JKM Infracon Pvt. Ltd. 2 3. The impugned assessment is invalid and without jurisdiction as the said assessment is completed without complying with legal requirements of the provisions of the Income Tax Act therefore such assessment is void ab initio and liable to be quashed. 4. The Ld. CIT(A) has erred both in law and in facts of the case in upholding the impugned assessment order which has been passed u/s 153C r.w.s 144 of IT Act as the same is illegal and against the provision of law as these proceedings have been initiated without recording satisfaction of the assessing officer of the person whose was searched u/s 153 A of IT Act. 5. The Ld. CIT(A) has erred both in law and in facts of the case in upholding the impugned assessment proceedings and consequential assessment order ignoring the fact that the no incriminating material was found in the course of search & seizure operation u/s 153A for the assessment year under consideration of the person who was search and the aggregate additions made therein of Rs.9,31,10,490/- are not based on any incriminating material. Therefore such additions and impugned assessment proceedings both are not tenable and sustainable in law and such additions made by the AO are made without having jurisdiction and are unjustified, arbitrary illegal. (Tax Affect Rs.4,17,04,489/- covering grounds Nos 5 to 8) 6. The Ld. CIT(A) has erred both in law and in facts of the case in upholding additions of Rs.96,00,000/- as unexplained credits u/s 68 of the Act on account of unsecured loans. 7. The Ld. CIT(A) has erred both in law and in facts of the case in upholding additions of Rs.4,76,16,737/- as unexplained credits u/s 68 of the Act on account of advances against booking. 8. The Ld. CIT(A) has erred both in law and in facts of the case in upholding additions of Rs.3,58,93,753/- as unexplained expenditure.” 3. The assessment u/s 153C of the Income Tax Act, 1961 has been completed on 30.12.2017 in the case of the assessee owing to the material found in the search & seizure operation ITA No.283/Del/2019 Airwil JKM Infracon Pvt. Ltd. 3 conducted u/s 132 of the Act on 30.09.2015. The assessment has been completed in determining the total income of Rs.9,31,10,400/- 4. Before us, it was submitted that against the order of the Assessing Officer, the assessee preferred appeal before the ld. CIT(A). However, due to the dispute between the CA and the assessee, the assessee changed his CA and the erstwhile CA who was handling these matters did not inform about the appellate proceedings pending before the ld. CIT(A). 5. It is submitted that the ld. CIT(A) passed ex-parte order. 6. It is submitted that the assessee vide ground no. 2 has contended that no proper opportunity was granted to the assessee. It is submitted that the assessee remain absent before the ld. CIT(A) due to the no-communication of date of hearing by the erstwhile CA and hence the appellate proceedings remain unattended. We find that no prejudice would be caused to either of the parties if the case has been set aside for adjudication denovo after affording an opportunity to the assessee after taking cognizance of the address of the assessee mentioned in Form 36 for sending the notices. The assessee shall attend the hearing before the ld. CIT(A) promptly without seeking unnecessary adjournments. 7. In the result, the appeal of the assessee is allowed for statistical purposes. Order Pronounced in the Open Court on 08/02/2022. Sd/- Sd/- (A. D. Jain) (Dr. B. R. R. Kumar) Vice President Accountant Member Dated: 08/02/2022 *Subodh Kumar, Sr. PS*