Hilltop Marketing (P) Ltd., New Delhi V. DCIT, New Delhi

ITA 2879/DEL/2016

• Counselvise Citation: [2017] 130 COUNSELVISE.COM (IT) 6917 (ITAT-DELHI)
• Duration Of Justice: 8 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 20-01-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC 2
• Next Hearing Date: 21-11-2016
• Assessment Year: 2012-2013
• Appeal Filed On: 20-05-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: MANOJ KR ANAND
• Keywords: Opportunity of being heard

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH: SMC-II NEW DELHI BEFORE SHRI H. S. SIDHU, JUDICIAL MEMBER I.T.A. NO. 2879/DEL/2016 ASSESSMENT YEAR: 2012-13 M/S HILLTOP MARKETING (P) LTD., VS. DCIT-CC-3 1, X-45/3, OKHLA INDUSTRIAL AREA, ROOM NO. 319, E-2 , PHASE-II, NEW DELHI 110 020 ARA CENTER, JHANDEWALAN, (PAN: AAACH1970M) NEW DELHI 55 (ASSESSEE) (RESPONDENT) ASSESSEE BY : SH. MANOJ KR. ANAND, CA REVENUE BY : SH. ANIL SHARMA, SR. DR ORDER THIS APPEAL IS FILED BY ASSESSEE AGAINST THE ORDER DATED 31.3.2016 PASSED BY THE LD. CIT(A)-30, NEW DELHI RE LATING TO ASSESSMENT YEAR 2012-13 ON THE FOLLOWING GROUNDS:- 1. THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) -30 (HEREIN AFTER CIT (A)) HAS ERRED, BOTH ON FACTS AND IN LAW BY SUSTAINING THE ADDITION OF BANK INTEREST OF RS 12,0 4,172/- WITHOUT CONSIDERING THE SUBMISSIONS OF THE ASSESSEE & STATED - CASE LAWS INCLUDING OF JURISDICTIONAL HONO RABLE DELHI HIGH COURT AS FOLLOWS AND ACCORDINGLY PRAYED FOR ITS DELETION. 1.1. ASSESSEE SUBMITTED & DULY ACCEPTED BY THE LD I TO & CIT (A) ALSO OF ASSESSEE HAVING RS 2.53 CRORES AS I NTEREST FREE FUNDS AGAINST WHICH ALLEGED RS 1.97 CRORES HAV E BEEN PAID & UNDER THESE CIRCUMSTANCES NO DISALLOWANCE SH OULD BE MADE AS ASSESSEE IS HAVING MORE FUNDS IN COMPARI SON TO ALLEGED FUNDS GIVEN. HONOURABLE DHC HAS ALSO SIM ILARLY 2 HELD IN THE STATED CASE LAWS BUT LD CIT(A) IGNORED THIS VITAL ASPECT AND CONFIRMED ADDITIONS. 1.2. ASSESSEE SUBMITTED & DULY ACCEPTED BY THE LD I TO & CIT (A) THAT OUT OF RS 1.97 CRORES, RS 1.07 CRORES HAVE BEEN GIVEN TO UNRELATED PARTIES FOR BUSINESS PURPOS E & UNDER THESE CIRCUMSTANCES NO DISALLOWANCE SHOULD BE MADE AS PER STATED CASE LAWS OF JURISDICTIONAL DHC BUT LD CIT(A) IGNORED THIS VITAL ASPECT AND CONFIRMED ADDI TIONS. 1.3. ASSESSEE PROVED THROUGH BANK STATEMENT & OTHER EVIDENCES THAT BANK FUNDS HAVE BEEN USED ONLY FOR BUSINESS PURPOSE, THE FACT NEVER CONTRAVENED BY THE A.O. & CIT(A) EXCEPT IN GENERAL THAT ASSESSEE DOESN'T REQU IRE BANK FUNDS & UNDER THESE CIRCUMSTANCES NO DISALLOWANCE SHOULD BE MADE AS PER STATED CASE LAWS OF JURISDICT IONAL DHC BUT LD CIT (A) IGNORED THIS VITAL ASPECT AND CO NFIRMED ADDITIONS. 1.4. ASSESSEE SUBMITTED & DULY ACCEPTED BY THE LD I TO & CIT (A) ALSO THAT EVEN IN CASE OF TOTAL RS 3.45 CRO RES MIXED FUNDS (NON INTEREST BEARING RS 2.53 CRORE + BANK FU NDS OF RS 0.92 CRORES), PRESUMPTION SHOULD BE MADE THAT NO N- INTEREST BEARING FUNDS HAVE BEEN USED FOR ALLEGED A DVANCES TO ASSOCIATE CONCERNS OF RS 1.97 CRORES & NO DISALL OWANCE SHOULD BE MADE AS PER STATED CASE LAWS OF JURISDICT IONAL DHC BUT LD CIT (A) IGNORED THIS VITAL ASPECT AND CO NFIRMED ADDITIONS. 2. THAT THE APPELLANT CRAVES LEAVE TO ADD, AMEND OR ALTER ANY OF THE GROUNDS OF APPEAL. 3 2. FACTS NARRATED BY THE REVENUE AUTHORITIES ARE NO T DISPUTED BY BOTH THE PARTIES, HENCE, THE SAME ARE NOT REPEATED HERE FOR THE SAKE OF BREVITY. 3. DURING THE COURSE OF HEARING, LD. COUNSEL OF THE ASSESSEE STATED THAT ASSESSEE HAS FILED ALL THE NECESSARY DOCUMENTA RY EVIDENCES BEFORE THE AO AS WELL AS BEFORE THE LD. CIT(A) WHICH HAS N OT BEEN CONSIDERED BY THE AO AS WELL AS LD. CIT(A). HE REQUESTED THAT THE ISSUE IN DISPUTE MAY BE SET ASIDE TO THE AO TO DECIDE THE SAME AFRES H, AS PER LAW AFTER CONSIDERING THE EVIDENCES FILED BY THE ASSESSEE. H E HAS FILED THE PAPER BOOK CONTAINING PAGES 1 TO 66 HAVING THE CO PY OF PAPER BOOK SUBMITTED TO LD. CIT; COPY OF LETTER DATED 23.3.201 6 SUBMITTED TO LD. CIT(A) AND THE COPY OF LETTER DATED 30.3.2016 SUBMI TTED TO LD. CIT(A). HE HAS ALSO ATTACHED A CERTIFICATE THAT ALL THE AFO RESAID PAPERS, THE ASSESSEE HAS FILED BEFORE THE AO AND REQUESTED THAT IN THE INTEREST OF JUSTICE MATTER MAY BE SET ASIDE TO THE AO FOR FRESH ADJUDICATION. HENCE, HE REQUESTED THAT THE ISSUES INVOLVED IN THE PRESENT APPEAL MAY BE SET ASIDE TO THE FILE OF THE LD. AO TO DECI DE THE SAME AFRESH UNDER THE LAW, AFTER GIVING ADEQUATE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. 4. ON THE CONTRARY, LD. DR OPPOSED THE REQUEST OF T HE LD. COUNSEL OF THE ASSESSEE AND RELIED UPON THE ORDERS OF THE A UTHORITIES BELOW. . 5. I HAVE HEARD BOTH THE PARTIES AND PERUSED THE RE CORDS. I HAVE GONE THROUGH THE ORDER PASSED BY THE REVENUE AUTHOR ITIES ESPECIALLY THE IMPUGNED ORDER AS WELL AS THE PAPER BOOK CONTA INING 1 TO 66 PAGES HAVING THE COPY OF COMPUTATION OF INCOME; NOT ICE & DIRECTOR REPORT; AUDITOR REPORT; BALANCE SHEET; PROFIT AND L OSS ACCOUNT; SCHEDULE OF BALANCE SHEET & P&L; LETTERS DATED 8.12 .2014, 17.12.2014, 22.1.2015, 28.1.2015, (2 ND LETTER) DATED 28.1.2015, 11.2.2015, 24.2.2015, 20.11.2014, COPY OF LETTER DA TED 23.3.2016 & 30.3.2016 TO CIT(A)-XXX. IN MY VIEW, THE SAID DOCU MENTS NEEDS TO BE 4 EXAMINED AT THE LEVEL OF THE AO IN ORDER TO DECIDE THE ISSUES IN DISPUTE WHICH HE HAS NOT CONSIDERED, AS STATED BY T HE LD. COUNSEL OF THE ASSESSEE. 6. KEEPING IN VIEW OF THE FACTS AND CIRCUMSTANCES OF THE CASE, THE ISSUES ARE REMITTED BACK TO THE FILE OF THE AO TO D ECIDE THE SAME AFRESH, AS PER LAW. THE AO IS DIRECTED TO CONSIDER THE ISSUES IN DISPUTE AFRESH AFTER GIVING ADEQUATE OPPORTUNITY OF BEING H EARD TO THE ASSESSEE. THE ASSESSEE IS ALSO DIRECTED TO FULLY C OOPERATE WITH THE AO AND DID NOT TAKE ANY UNNECESSARY ADJOURNMENT AND FI LE ALL THE NECESSARY PAPERS BEFORE HIM TO SUBSTANTIATE ITS CA SE. 7. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE STANDS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 20/01/2017 . SD/- [H.S. SIDHU] JUDICIAL MEMBER DATE 20/01/2017 SRBHATNAGAR COPY FORWARDED TO: - 1. APPELLANT - 2. RESPONDENT - 3. CIT 4. CIT (A) 5. DR, ITAT TRUE COPY BY ORDER, ASSISTANT REGISTRAR, ITAT, DELHI BENCHES