M/s. Choudhary Earth Movers Pvt. Ltd., New Delhi V. DCIT, New Delhi

ITA 2986/DEL/2017

• Counselvise Citation: [2019] 112 COUNSELVISE.COM (IT) 1685 (ITAT-DELHI)
• Duration Of Justice: 2 year(s) 7 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 12-12-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2012-2013
• Appeal Filed On: 12-05-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ASHIMA NEB
• Assessee Lawyers: RAKESH GUPTA
• Keywords: Principle of natural justice; Set aside
• Section: 68

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH: B NEW DELHI BEFORE SHRI H. S. SIDHU, JUDICIAL MEMBER AND DR. B.R.R. KUMAR, ACCOUNTANT MEMBER I.T.A. NO. 2986/DEL/2017 ASSESSMENT YEAR: 2012-13 M/S CHOUDHARY EARTH MOVERS PVT. LTD., VS. DCIT, C IRCLE-6(1), 104, MUNISH PLAZA, NEW DELHI 20, ANSARI ROAD, DARYA GANJ, NEW DELHI 110 002 (PAN: AAACC5148E) (ASSESSEE) (RESPONDENT) ASSESSEE BY : SH. RAKESH GUPTA, ADV. REVENUE BY : MS. ASHIMA NEB, SR. DR. ORDER PER H.S. SIDHU, JM THIS APPEAL IS FILED BY THE ASSESSEE AGAINST THE OR DER DATED 28.2.2017 PASSED BY THE LD. CIT(A)-2, NEW DELHI REL ATING TO ASSESSMENT YEAR 2012-13 ON THE FOLLOWING GROUNDS:- 1. THAT THE IMPUGNED ORDER OF THE LD. CIT(A) DATED 28 .2.2017 IS BAD IN LAW AND ON FACTS. 2. THAT THE ORDER OF THE LD. CIT(A) DESERVES TO BE SET ASIDE AS THE ASSESSEE WAS NOT ALLOWED ADEQUATE OPPORTUNITY O F BEING HEARD. 3. THAT THE LD. CIT(A) HAS ERRED IN LAW IN SUSTAINING THE ADDITION OF RS. 1,00,000/- MADE BY THE AO. 3.1 THAT THE ABOVE SAID ADDITION HAS BEEN MADE BY THE A O AT THE TIME OF ASSESSMENT BY TREATING THE SHARE APPLICATIO NS MONEY AMOUNTING TO RS. 50 LACS EACH RECEIVED FROM M/S AMA RLAXMI DEALTRAFE PVT. LTD. AND M/S SMART FINVESTORS PVT. L TD. AS UNEXPLAINED MONEY OF THE APPELLANT COMPANY. 3.2 THAT THE ADDITION HAS BEEN SUSTAINED DESPITE THE FA CT THAT THE APPELLANT WAS ABLE TO DISCHARGE THE ONUS CASTED UPO N HIM U/S. 68 OF THE ACT TO PROVE IDENTIFY, GENUINENESS AND CREDI TWORTHINESS, BY FURNISHING CONFIRMATIONS, BANK STATEMENTS, COPY OF ITRS ETC. OF SHARE SUBSCRIBERS. 2 3.3 THAT THE LD. CIT(A) HAS ERRED IN LAW IN ENHANCING T HE INCOME BY RS. 30,00,000/- ON ACCOUNT OF SHARE APPLICATION MONEY RECEIVED FROM M/S DHANWAN MERCHANTS PVT. LTD. DESPI TE THE FACT APPARENT FROM THE RECORDS THAT ACTUAL AMOUNT OF SH ARE CAPITAL WAS RS. 5,00,000/- AND ALL THE RELEVANT DETAILS HAD BEEN FURNISHED BY THE APPELLANT AT THE TIME OF ASSESSMEN T. 4.1 THAT THE LD. CIT(A) HAS ERRED IN LAW IN MAKIN G THE ABOVE SAID ADDITION WITHOUT ISSUING SHOW CAUSE NOTICE TO THE APPELLANT COMPANY WHICH IS AGAINST THE PRINCIPLES OF NATURAL JUSTICE. 5. THAT THE LD. CIT(A) HAS ERRED IN LAW IN GIVING DIRECTIONS TO THE AO FOR REOPENING THE CASE FOR AY 2011-12 WHEREI N THE APPELLANT COMPANY HAD RECEIVED SHARE APPLICATION MO NEY. 6. THAT THE APPELLANT PRAYS THE HONBLE TRIBUNAL TO AWARD SUITABLE COST OF APPEAL UNDER SUB-SECTION 2B OF SE CTION 254 OF THE INCOME TAX ACT, 1961. 7. THAT THE APPELLANT CRAVES LEAVE TO ADD, ALTER, A MEND, SUBSTITUTE, DELETE AND MODIFY ANY OR ALL THE GROUND S OF APPEAL, WHICH ARE WITHOUT PREJUDICE TO ONE ANOTHER, BEFORE OR AT THE TIME OF HEARING OF THE APPEAL. 2. AT THE TIME OF HEARING, SH. RAKESH GUPTA, ADVOCA TE/ LD. COUNSEL FOR THE ASSESSEE STATED THAT LD. CIT(A) HAS PASSED THE EXPARTE IMPUGNED ORDER WITHOUT GIVING SUFFICIENT OPPORTUNITY TO THE ASSESSEE AND TO SUPPORT THIS CONTENTION, HE DRAW OUR ATTENTION TOWARDS PAG E NO. 3 OF THE IMPUGNED ORDER. HE REQUESTED THAT THE ASSESSEE IS HAVING ALL THE SUFFICIENT EVIDENCES AND HE HAS ALSO FILED THE PAPE R BOOK PAGE NO. 1-211 IN WHICH HE HAS ATTACHED VARIOUS DOCUMENTARY EVIDEN CES FOR SUBSTANTIATING ITS CLAIM AND REQUESTED THAT THE ISS UES IN DISPUTE MAY BE SET ASIDE TO THE FILE OF THE LD. CIT(A) WITH THE DIRECTIONS TO DECIDE THE SAME AFRESH, AFTER GIVING ADEQUATE OPPORTUNITY OF B EING HEARD TO THE ASSESSEE. 3. ON THE CONTRARY, LD. DR OPPOSED THE REQUEST OF T HE LD. COUNSEL FOR THE ASSESSEE AND RELIED UPON THE ORDER PASSED BY TH E LD. CIT(A). 4. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE R ECORDS ESPECIALLY THE IMPUGNED ORDER ALONGWITH THE DOCUMENTARY EVIDEN CES FILED BY THE ASSESSEE IN THE SHAPE OF PAPER BOOK CONTAINING PAG ES 1-211 AND CERTIFIED THAT ITEM NO. 1-32 WERE BEFORE THE AO AND ITEM NO. 33-35 WERE FILED 3 BEFORE THE LD. CIT(A). WE HAVE ALSO PERUSED THESE DOCUMENTARY EVIDENCES FILED BY THE ASSESSEE IN THE SHAPE OF PAP ER BOOK AND WE ARE OF THE VIEW THAT LD. CIT(A) HAS DECIDED THE ISSUES IN DISPUTE AGAINST THE ASSESSEE WITHOUT GIVING SUFFICIENT OPPORTUNITY TO THE ASSESSEE. THEREFORE, IN THE INTEREST OF JUSTICE, WE ARE SETTING ASIDE T HE ISSUES IN DISPUTE TO THE FILE OF THE LD. CIT(A) WITH THE DIRECTIONS TO DECI DE THE SAME AFRESH, AS PER LAW, AFTER GIVING ADEQUATE OPPORTUNITY OF HEAR ING AND ASSESSEE IS DIRECTED TO PRODUCE THE DOCUMENTARY EVIDENCES FOR S UBSTANTIATING ITS CLAIM. KEEPING IN VIEW OF THE NON-APPEARANCE OF T HE ASSESSEE ON SOME DATES AND SOUGHT ADJOURNMENT, WE ARE OF THE VIEW TH AT NO DOUBT THAT THE ASSESSEE REMAINED NON-COOPERATIVE BEFORE THE LD. CI T(A), THEREFORE, WE ARE DIRECTING THE ASSESSEE THROUGH HIS COUNSEL TO A PPEAR BEFORE THE LD. CIT(A) ON 30.01.2020 AT 10.00 AM. SINCE THERE IS NO NEED TO ISSUE THE NOTICE FOR 30.01.2020, BECAUSE THIS ORDER HAS BEEN PRONOUNCED IN THE OPEN COURT IN THE PRESENCE OF BOTH THE PARTIES. 5. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE STANDS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED ON 12/12/2019. SD/- SD/- [DR. B.R.R. KUMAR] [H.S. SIDHU] ACCOUNTANT MEMBER JUDICIAL MEMBER DATE: 12/12/2019 SRB COPY FORWARDED TO: - 1. APPELLANT - 2. RESPONDENT - 3. CIT 4. CIT (A) 5. DR, ITAT TRUE COPY BY ORDER, ASSISTANT REGISTRAR, ITAT, DELHI BENCHES 4