Combined Securities (P) Ltd., Delhi V. ITO, New Delhi

ITA 3/DEL/2015

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 97289 (ITAT-DELHI)
• Duration Of Justice: 8 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 16-09-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2005-2006
• Appeal Filed On: 01-01-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Section: 133A; 133(6); 148

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH SMC - 2 , NEW DELHI BEFORE SHRI J. SUDHAKAR REDDY, ACCOUNTANT MEMBER ITA NO. 0 3 /DEL/201 5 AY: 200 5 - 06 COMBINED SECURITIES (P) LTD. VS. ITO, WARD 3(4) C/O SHRI KAPIL GOEL, ADV. NEW DELHI . F - 26/124, SECTOR 7 ROHINI DELHI 110 085 PAN: AAACC 3471 C (APPELLANT) (RESPONDENT) APPELLANT BY : SH. KAPIL GOEL , ADV. RESPONDENT BY : S MT. RAKHI VIMAL, JCIT ORDER THIS IS AN APPEAL FILED BY THE ASSESSEE DIRECTED AGAINST THE ORDER OF THE LD.CIT(A) - VI, NEW DELHI DATED 12.11.2014 PERTAINING TO THE A.Y. 2005 - 06 ON THE FOLLOWING GROUNDS. INVALID RE - OPENING PROCEEDINGS U/S 148 - 1. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, LEARNED CIT - A ERRED IN NOT QUASHING THE INSTANT REOPENING ACTION OF THE LD.A.O. ON THE BASIS OF APPARENT MATERIAL AVAILABLE ON RECORDS, REOPENING BEING MADE IN VIOLATION OF MANDATORY J URISDICTIONAL CONDITIONS STIPULATED UNDER THE LAW. 2. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, LEARNED CIT - A ERRED IN NOT QUASHING THE INSTANT REOPENING ACTION OF THE LD.A.O. WHICH SUFFERS FROM FOLLOWING ERRORS OF FACT AND LAW. A) VAGUE REOPENING NOTICE U/S 148 DT. 29.3.2012; 2 B) NO ANNEXURE/STATEMENT/REPORT (IF ANY) IS ANNEXED/ENCLOSED WITH REASONS RECORDED AND COMMUNICATED TO APPELLANT AS ALLEGED TO HAVE BEEN RECEIVED FROM INVESTIGATION WING; C) NATURE OF TRANSACTION IS THOROUGH LY UNSPECIFIED IN REASONS RECORDED; D) MANDATORY APPROVAL IS CONSPICUOUSLY MISSING ON THE FACE OF REASONS COMMUNICATED TO APPELLANT; E) REASONS RECORDED WERE BASED ON STATEMENT OF ASEEM KR.GUPTA BEING RECORDED DURING SURVEY U/S 133A WHICH INHERENTLY LACKS EVIDENTIARY VALUE AND DO NOT MENTION ANYTHING ABOUT INSTANT TRANSACTION AND FOR M/S MODERATE CREDIT CORPORATION (P) LTD. (COMPANY IN CONSIDERATION) WHICH SHOWS GLARING NON APPLICATION OF MIND; F) AU CONTAIRE TO ABOVE, IN FINAL RODER AS A SURPRISE AND GUEST ENTRY, LD.AO FOR THE FIRST TIME TOOK THE NAME OF MR.MANOJ KUMAR TO SUPPORT THE ALLEGATION WHICH HAS NEVER FORM PART OF (I) REASONS RECORDED, (II) SOLE SHOW CAUSE NOTICE GIVEN TO APPELLANT DURING ASSESSMENT, (III) STATEMENT PROVIDED TO APPELLANT WHICH VIT IATES THE REOPENING ACTION OF LD.AO; G) NEITHER MR.ASEEM KUMAR NOR MR.MANOJ KUMAR ARE CROSS EXAMINED TO APPELLANT AT ANY STAGE DEBILITATING REASONS RECORDED. WRONGFUL ADDITION OF RS.15,00,000/ - : 3) THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, LEARNED CIT - A ERRED IN NOT DELETING THE UNLAWFUL ADDITION OF RS.15,00,000/ - WITHOUT MAKING MEANINGFUL ENQUIRY TO DISCREDIT THE EXPLANATION OF APPELLANT. 4) THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, LEARNED CIT - A ERRED IN NOT DELETING THE UNLAWFUL ADDITION OF RS.15,00,000/ - WHICH IS BAD FOR SELF SAME REASONS MENTIONED IN IMPUGNED ORDER AS I) LD.AO HAS NOT DISCREDITED OUR PRINCIPAL REPLY DT. 28.3.2013 AND II) RATHER HAS ACCEPTED THAT MODERATE CREDIT HAS PROVIDED FROM ITS OW N SOURCES FUNDS TO APPELLANT COMPANY AT PAGE 3 OF IMPUGNED ORDER AND III) SIDELINING THE POSITIVE CONFIRMATORY REPLY RECEIVED DURING ASSESSMENT U/S 133(6) OF THE ACT. 5) THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, LEARNED CIT - A ERRE D IN NOT PASSING SPEAKING ORDER ON OUR APPEAL GROUNDS AND PERFUNCTORILY DISMISSING OUR APPEAL ON TENUOUS AND PERVERSE GROUNDS. 3 6). THAT THE APPELLANT CRAVES LEAVE TO ADD, TO, AMEND, MODIFY, RESCIND, SUPPLEMENT OR ALTER ANY OF THE GROUNDS STATED HEREIN ABOVE, EITHER BEFORE OR AT THE TIME OF HEARING OF THIS APPEAL. 2. AFTER HEARING RIVAL CONTENTIONS I SET ASIDE THIS APPEAL TO THE FILE OF THE LD.CIT(A) FOR THE REASON THAT THE LD.CIT(A) HAS NOT DISPOSED OF THE APPEAL ON MERITS. THE FIRST APPELLATE AUTHORITY IS NOT AUTHORISED TO DISMISS AN APPEAL FOR NON PROSECUTION. 3. IN THE RESULT THE APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTIC AL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 1 6 T H S EPTEMBER, 2015. S D / - ( J. SUDHAKAR REDDY) ACCOUNTANT MEMBER DATED: THE 1 6 T H SEPTEMBER, 2015 *MANGA COPY OF THE ORDER FORWARDED TO: 1. APPELLANT; 2.RESPONDENT; 3.CIT; 4.CIT(A); 5.DR; 6.GUARD FILE BY ORDER ASST.REGISTRAR, ITAT