Shubhkamna Buildtech Pvt. Ltd., Delhi V. DCIT, Central Circle , Noida

ITA 2860/DEL/2018

• Counselvise Citation: [2021] 107 COUNSELVISE.COM (IT) 3141 (ITAT-DELHI)
• Duration Of Justice: 3 year(s) 5 month(s) 29 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 22-10-2021
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: G
• Assessment Year: 2014-2015
• Appeal Filed On: 23-04-2018
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: YAGYASAINI KAKKAR
• Keywords: Unexplained cash credit; Document seized; Principle of natural justice; Bonafide belief; Documents seized
• Section: 142(1); 201; 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH G: NEW DELHI BEFORE SMT. DIVA SINGH, JUDICIAL MEMBER AND SHRI O.P. KANT, ACCOUNTANT MEMBER I.T.A NO. 2859/DEL/2018 (ASSESSMENT YEAR: 2013-14) SHUBHKAMNA BUILDTECH P. LTD. 197-E, POCKET-IV, MAYUR VIHAR, PHASE-I, NEW DELHI. PAN NO. AAKCS4622F VS. DCIT CENTRAL CIRCLE NOIDA. (APPELLANT) (RESPONDENT) & I.T.A NO. 2860/DEL/2018 (ASSESSMENT YEAR: 2014-15) SHUBHKAMNA BUILDTECH P. LTD. 197-E, POCKET-IV, MAYUR VIHAR, PHASE-I, NEW DELHI. PAN NO. AAKCS4622F VS. DCIT CENTRAL CIRCLE NOIDA. (APPELLANT) (RESPONDENT) APPELLANT BY NONE RESPONDENT BY MS. YAGYASAINI KAKKAR, CIT DR DATE OF HEARING 21.10.2021 DATE OF PRONOUNCEMENT 22.10.2021 HEARING CONDUCTED VIA WEBEX ORDER PER DIVA SINGH, J.M. BY T HESE TWO APPEALS FILED BY THE ASSESSEE THE CORRECTN ESS OF THE CONSOLIDATED ORDER DATED 29.12.2017 OF LD. CIT(A)-I V, KANPUR PERTAINING TO 2013-14 & 2014-15 ASSESSMENT YEARS IS ASSAILED O N VARIOUS GROUNDS. 2. THE APPEAL CAME UP FOR HEARING ON 20.10.2021 AND ON THE SAID DATE, NO ONE WAS PRESENT ON BEHALF OF THE ASSESSEE. 3. THE LD. CIT DR MS. YAGYASAINI KAKKAR SUBMITTED T HAT ON IDENTICAL FACTS AND REASONING AVAILABLE IN THE CASE OF THE ASSESSEE ITSELF THE PRESENT APPEALS MAY BE DISMISSE D ITA NOS.2859 & 2860/DEL/2018 PAGE 2 OF 6 FOLLOWING THE ORDER OF THE ITAT DATED 24.08.2021. R ELYING ON THE SAID ORDER IN ASSESSEES OWN CASE (2009-10 AND 2012-13 ASSESSMENT YEAR) IN ITA NO. 4870/DEL/2018 AND 4873/DEL/2016 THE SAID REQUEST WAS REJECTED. 4. SINCE THE COPIES OF THE ORDERS WERE NOT READILY AVAILABLE THE APPEALS WERE ADJOURNED TO THE NEXT DATE. COPY OF THE AFORESAID ORDER WAS FILED. RELYING ON THE ORDER TH E LD. CIT DR AGAIN REQUESTED FOR DISMISSAL OF THE ASSESSEES APPEALS. 5. WE HAVE HEARD THE SUBMISSIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD. IN THE FACTS OF THE PRESENT CASE, IT IS SEEN THAT THE ASSESSEE HAS RAISED THE FOLLOWI NG GROUNDS IN THE RESPECTIVE APPEALS: GROUNDS OF ITA NO. 2859/DEL/2018 : 1. THAT THE LD. CIT(A) HAS ERRED IN PASSING AN EX-PAR TE ORDER AND UPHOLDING THE ASSESSMENT ORDER WITHOUT GOING IN TO THE MERITS OF THE ADDITION AS NO PROPER OPPORTUNITY HAS BEEN GRANTED TO THE APPELLANT. 2. THAT THE LD. CIT(A) HAS ERRED IN DISMISSING THE PRE SENT APPEAL EX-PARTE DESPITE THAT THE PRECEDINGS YEAR A PPEAL ON SIMILAR ISSUE ARE PENDING FOR ADJUDICATING THUS APPELLANT COMPANY WAS PREVENTED FROM SUFFICIENT CAU SE. 3. THAT ON FACTS AND CIRCUMSTANCES OF THE CASE THE LD. CIT(A) HAS ERRED IN DISMISSING THE APPEAL EX-PARTE IN LIMI NE DESPITE THE FACTS THAT THE ASSESSEE COUNSEL WAS APP EARING IN THE APPEAL NO. 601 TO 604 OF THE DIRECTOR ON REG ULAR BASIS UNDER THE IMPRESSION THAT THE APPEAL OF THE C OMPANY WILL BE TAKEN THEREAFTER. 4. THAT THE APPELLANT COMPANY HAS A BONAFIDE BELIEF. 5. THAT THE AUTHORITY BELOW HAS ERRED IN LAW AND FACTS IN MAKING ADDITION OF RS. 219,45,23,863/- ON THE BASIS OF BUDGETED FIGURES SEIZED DOCUMENTS WHICH HAS NO RELEVANCE AS IT IS NOT SIGNED AUDITED OR DATED AND MAKING ITS OWN ABSORBED CALCULATION WITHOUT TAKING INTO CONSIDERATION THE AUDIT REPORT BALANCE SHEET AND COMPUTATION. 6. ALSO THE CONTENTION OF THE AO THAT THE TURNOVER IS VERY LOW AS COMPARED TO THE INDUSTRY IS SUPER FLOS AND IMAGI NARY IN NATURE. SO THE ADDITION OF RS. 219,45,23,863/- IS HIGHLY ABSURD IN NATURE AND AGAINST THE NATURAL JUSTICE. IT MAY BE PRAYED THAT THE ADDITIONS OF THIS NATURE MAY BE PLEASE DELETED. ITA NOS.2859 & 2860/DEL/2018 PAGE 3 OF 6 7. THAT THE AUTHORITY BELOW HAS ERRED IN LAW AND IN FA CTS OF THE CASE IN ADDING RS. 45,96,73,461/- TO THE INCOME OF THE ASSESSEE ON THE BASIS OF BUYER BUILDER AGREEMENT AN D PAYMENT RECEIVED IN VARIOUS MODES INCLUDING CASH/NEFT/RTGS AND CHEQUES. THIS IS THE NATURE OF BUSINESS OF ASSESSEE AND ALL THE TRANSACTION DULY RECORDED IN THE BOOKS OF ASSESSEE IN THE RELEVANT A Y. THE AO HAS MADE THIS ADDITIONS IN COMPLETE DISAGREEMENT OF PRINCIPAL OF NATURAL JUSTICE AND IS ARBITRARY AND A BSURD IN NATURE. IT IS PRAYED THAT THIS ADDITION MAY BE PLE ASE DELETED. 8. THAT THE AUTHORITY BELOW HAS ERRED IN LAW AND IN FA CTS IN MAKING ADDITIONS OF RS. 129,55,52,016/- ON ACCOUNT OF UNEXPLAINED CREDIT AND LOAN ON THE BASIS OF SOME DOCUMENTS SEIZED AT THE TIME OF SURVEY OPERATION AN D ALSO STATED THAT THE TOTAL AMOUNT RECEIVED RS. 201 CR AN D SURRENDER RS. 115 CR AND SURRENDERE RS. 115 CR. TH E ASSESSEE HAS RETRACTED HIS STATEMENT ON 16.03.2016 FOR ANY SURRENDER AND THE SAID AMOUNT OF RS. 201 CR HAS ALREADY BEEN BOOKED IN BOOKS OF ACCOUNT OF THE ASSE SSEE VARIOUS COMPANIES. HENCE ADDITION OF RS. 129,55,52,016/- MADE BY AO IS ARBITRARY AND ABSURD AND MAY BE PLEASED DELETED. 9. THE ADDITIONS ON ACCOUNT OF UNEXPLAINED CREDITS OF RS. 33,35,00,000/- FROM VARIOUS PERSONS. THE SAID AMOU NTS ALREADY ACCOUNTED FOR IN THE BOOKS OF THE ASSESSEE AND NO MATERIAL FACTS HAVE HIDDEN. HENCE IN THE SAKE OF J USTICE THIS ADDITIONS OF RS. 33,35,00,000/- MAY PLEASE BE DELETED. 10. THAT ON FACTS AND CIRCUMSTANCES OF THE CASE THE AO HAS ERRED IN LAW BY NOT ACCEPTING THE SUBMISSION OF THE ASSESSEE AND IGNORING THE SUBMISSION OF THE ASSESSE E IS AGAINST THE PRINCIPLE OF NATURAL JUSTICE. THE ASSE SSMENT COMPLETED AS EX-PARTY ASSESSMENT AS PER THE PROVISI ONS OF SECTION 144 OF THE IT ACT IS ILLEGAL AND UNLAWFUL, HENCE REQUIRED TO BE QUASHED. 11. THAT THE AUTHORITY BELOW HAS ERRED IN LAW AND IN FA CTS IN MAKING THE ASSESSMENT OF THE ASSESSEE U/S 144 OF TH E IT ACT WITHOUT GIVING PROPER OPPORTUNITY BY NOT ISSUIN G THE SHOW CAUSE NOTICE OR NOT ISSUING NOTICE U/S 142(1) FOR CONCLUDING THE CASE EX-PARTY ASSESSMENT U/S 144 WHI CH IS PRE-REQUISITE CONDITIONS FOR THE ASSESSMENT U/S 144 OF THE IT ACT, HENCE ASSESSMENT MADE ILLEGAL AND REQUIRED TO BE QUASHED. 12. THAT THE APPELLANT CRAVES TO LEAVE TO ADD/DELETE/AL TER ALL/ANY OF APPEAL BEFORE OR AT THE TIME OF HEARING OF THE APPEAL. ITA NOS.2859 & 2860/DEL/2018 PAGE 4 OF 6 GROUNDS OF ITA NO. 2860/DEL/2018 : 1. THAT THE LD. CIT(A) HAS ERRED IN PASSING AN EX-PAR TE ORDER AND UPHOLDING THE ASSESSMENT ORDER WITHOUT GOING IN TO THE MERITS OF THE ADDITION AS NO PROPER OPPORTUNITY HAS BEEN GRANTED TO THE APPELLANT. 2. THAT THE LD. CIT(A) HAS ERRED IN DISMISSING THE PRE SENT APPEAL EX-PARTE DESPITE THAT THE PRECEDINGS YEAR A PPEAL ON SIMILAR ISSUE ARE PENDING FOR ADJUDICATING THUS APPELLANT COMPANY WAS PREVENTED FROM SUFFICIENT CAU SE. 3. THAT ON FACTS AND CIRCUMSTANCES OF THE CASE THE LD. CIT(A) HAS ERRED IN DISMISSING THE APPEAL EX-PARTE IN LIMI NE DESPITE THE FACTS THAT THE ASSESSEE COUNSEL WAS APP EARING IN THE APPEAL NO. 601 TO 604 OF THE DIRECTOR ON REG ULAR BASIS UNDER THE IMPRESSION THAT THE APPEAL OF THE C OMPANY WILL BE TAKEN THEREAFTER. 4. THAT THE APPELLANT COMPANY HAS A BONAFIDE BELIEF. 5. THAT THE AUTHORITY BELOW HAS ERRED IN LAW AND FACTS IN MAKING ADDITION OF RS. 438,90,47,726/- ON THE BASIS OF BUDGETED FIGURES SEIZED DOCUMENTS WHICH HAS NO RELEVANCE AS IT IS NOT SIGNED AUDITED OR DATED AND MAKING ITS OWN ABSORBED CALCULATION WITHOUT TAKING INTO CONSIDERATION THE AUDIT REPORT BALANCE SHEET AND COMPUTATION. 6. ALSO THE CONTENTION OF THE AO THAT THE TURNOVER IS VERY LOW AS COMPARED TO THE INDUSTRY IS SUPER FLOS AND IMAGI NARY IN NATURE. SO THE ADDITION OF RS. 438,90,47,726/- IS HIGHLY ABSURD IN NATURE AND AGAINST THE NATURAL JUSTICE. IT MAY BE PRAYED THAT THE ADDITIONS OF THIS NATURE MAY BE PLEASE DELETED. 7. THAT THE AUTHORITY BELOW HAS ERRED IN LAW AND IN FA CTS OF THE CASE IN ADDING RS. 86,45,45,000/- ON ACCOUNT OF UNEXPLAINED CREDIT ON THE BASIS OF SOME DOCUMENTS S EIZED AT THE TIME OF SURVEY OPERATION. THE AMOUNT HAS AL READY BEEN BOOKED IN BOOKS OF ACCOUNT OF THE ASSESSEE VAR IOUS COMPANIES. HENCE ADDITION OF RS. 86,45,45,000/- MA DE BY AO IS ARBITRARY AND ABSURD AND MAY PLEASE BE DEL ETED. 8. THAT ON FACTS AND CIRCUMSTANCES OF THE CASE THE AO HAS ERRED IN LAW BY NOT ACCEPTING THE SUBMISSIONS OF TH E ASSESSEE AND IGNORING THE SUBMISSIONS OF THE ASSESS EE IS AGAINST THE PRINCIPAL OF NATURAL JUSTICE. THE ASSE SSMENT COMPLETED AS EX-PARTY ASSESSMENT AS PER PROVISIONS OF SECTION 144 OF THE IT ACT IS ILLEGAL AND UNLAWFUL, HENCE REQUIRED TO BE QUASHED. 9. THAT THE AUTHORITY BELOW HAS ERRED IN LAW AND IN FA CTS IN MAKING THE ASSESSMENT OF THE ASSESSEE U/S 144 OF TH E IT ACT WITHOUT GIVING PROPER OPPORTUNITY BY NOT ISSUIN G THE SHOW CAUSE NOTICE OR NOT ISSUING NOTICE U/S 142(1) FOR CONCLUDING THE CASE EX-PARTY ASSESSMENT U/S 144 WHI CH IS PRE-REQUISITE CONDITIONS FOR THE ASSESSMENT U/S 144 OF THE IT ACT, HENCE ASSESSMENT MADE ILLEGAL AND REQUIRED TO BE QUASHED. ITA NOS.2859 & 2860/DEL/2018 PAGE 5 OF 6 10. THAT THE APPELLANT CRAVES TO LEAVE TO ADD/DELETE/AL TER ALL/ANY OF APPEAL BEFORE OR AT THE TIME OF HEARING OF THE APPEAL. 6. IT IS SEEN THAT THE COORDINATE BENCH IN ITS AFOR ESAID ORDER DATED 24.08.2021 HAD AN OCCASION TO CONSIDER THE ISSUE IN THE FOLLOWING MANNER: - 4. AT THE TIME OF HEARING, THE REGISTRY PLACED BEF ORE US THAT THE NOTICE WAS ISSUED TO THE ABOVE PARTY AT THE ADD RESS GIVEN IN FORM NUMBER 36 FILED BY THE ASSESSEE BY SP EED POST TRACKING NUMBER ED 978388171IN. THE ABOVE APP EAL POST HAS BEEN RETURNED TO THIS TENDER ON 28.07.2021 WITH THE REMARKS LEFT WITHOUT ADDRESSES. ON OUR VERIF ICATION WE FIND THAT THE ADDRESSES CORRECTLY MENTIONED AND ALSO DEPOSITED STAMPS WERE APPROPRIATELY PAID, DESPITE T HIS THE NOTICE IS SENT TO THE APPELLANT RETURNED BACK F OR THE REASON THAT APPELLANT ASSESSEE HAS LEFT THE PLACE W HICH WAS GIVEN IN FORM NUMBER 36 WITHOUT INTIMATING ANY OTHER ALTERNATIVE ADDRESS. AS THE APPELLANT HAS NOT INFO RMED ANY CHANGE IN THE ADDRESS, WE DO NOT HAVE ANY OTHER OPTION TO FIND OUT THE CORRECT ADDRESS OF THE ASSES SEE AND, THEREFORE, THE ONLY ALTERNATIVE LEFT IS TO DISMISS THESE APPEALS. 5. AS THE APPEALS HAVE BEEN FILED BY THE APPELLANT, DIRECTION TO THE RESPONDENT WAS SERVE NOTICE ON THE APPELLANT WOULD BE UNFAIR, AS IT WOULD BE CASTING AN ADDITIONAL BUR DEN ON INCOME TAX DEPARTMENT TO FIND OUT THE APPELLANT. 6. EVEN OTHERWISE, WE FIND THAT THE ABOVE COMPANY H AS BEEN REFERRED FOR INSOLVENCY PROCEEDINGS IN COMPANY PETI TION NUMBER IB1059/ND/2018 U/S 9 OF IBC 2016 BY THE ORDE R PASSED ON 26.11.2018. ACCORDINGLY, THE INSOLVENCY RESOLUTION PROFESSIONAL HAS BEEN APPOINTED. THE BO ARD OF THE COMPANY HAS BEEN SUSPENDED. THESE ALL APPEALS ARE FILED BY ONE MR. PIYUSH TIWARI, WHO IS PART OF THE SUSPENDED BOARD OF DIRECTORS. AS THE PERSON NAMED WHO FILED THE APPEAL DOES NOT HAVE NOW ANY LOCUS STANDI TO FILE THE APPEAL OR PURSUE MATTER ON BEHALF OF THE APPELL ANT COMPANY, THESE APPEALS ARE DESERVES TO BE DISMISSED AS NOT MAINTAINABLE. 7. ACCORDINGLY, WE DISMISS ALL THESE FOUR APPEALS F ILED BY THE APPELLANT, HOWEVER, WE ALSO GIVE LIBERTY TO THE INS OLVENCY RESOLUTION PROFESSIONAL SO APPOINTED TO FILE THESE APPEALS IF AUTHORIZED BY THE COMMITTEE OF CREDITORS. ITA NOS.2859 & 2860/DEL/2018 PAGE 6 OF 6 7. WE HAVE SEEN THAT IN THE FACTS OF THE PRESENT CA SE REPEATEDLY THE ASSESSEE HAS REMAINED UNREPRESENTED BEFORE THE ITAT ON EACH OF THE DATES THE APPEAL CAME UP FO R HEARING. WE HAVE NOTICED THAT THE ADDRESS GIVEN BY THE ASSES SEE BEFORE THE ITAT IN THE PRESENT PROCEEDINGS IS ALSO THE SAM E AS NOTICED BY THE COORDINATE BENCH. IT IS SEEN THAT I N THE FACTS OF THE PRESENT CASE ALSO THE APPEALS HAVE BEEN FILE D AND SIGNED BY MR. PIYUSH TIWARI AND CONSIDERING THE FAC T THAT THE COORDINATE BENCH HAS HELD IN PARA 6 OF THE AFOREQUO TED ORDER THAT HE LACKED THE L OCUS STANDI TO FILED APPEALS WE HOLD THAT THESE APPEALS ALSO HAVE TO BE DISMISSED. THUS, FOL LOWING THE REASONING TAKEN IN PARAS 5 TO 7 WE DISMISS THE APPE ALS AS NON-MAINTAINABLE. WHILE SO DISMISSING THE PROFESSIO NAL SO APPOINTED BY THE INSOLVENCY RESOLUTION IS GRANTING LIBERTY TO FILE THE APPEALS IF SO AUTHORIZED BY THE COMMITTEE OF CREDITORS. SAID ORDER WAS PRONOUNCED IN THE OPEN C OURT AT THE TIME OF HEARING ITSELF. 8. IN THE RESULT, THE APPEALS OF THE ASSESSEE ARE D ISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 22/10/2021 SD/- SD/- (O.P. KANT) (DIVA SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER *KAVITA ARORA, SPS COPY TO 1. THE APPELLANT 2. THE RESPONDENT 3. CIT(A) CONCERNED 4. CIT CONCERNED 5. D.R. ITAT CONCERNED BENCH, DELHI 6. GUARD FILE. // BY ORDER // ASSISTANT REGISTRAR, ITAT DELHI BENCHES: DELHI.