ITO, New Delhi V. M/s. West Land Properties & Industrial Ltd, New Delhi

ITA 3033/DEL/2009

• Counselvise Citation: [2010] 136 COUNSELVISE.COM (IT) 8069 (ITAT-DELHI)
• Duration Of Justice: 8 month(s) 1 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 02-03-2010
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: I
• Next Hearing Date: 02-03-2010
• Assessment Year: 2000-2001
• Appeal Filed On: 01-07-2009
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: ANUSHA KHURANA
• Keywords: Unexplained cash credit; Opportunity of being heard; Additional evidence; Set aside
• Section: 142(1); 147; 148; 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL (DELHI BENCH I : NEW DELHI) SHRI G.E. VEERABHADRAPPA, VICE PRESIDENT AND SHRI R.P. TOLANI, JUDICIAL MEMBER ITA NO.3033/DEL./2009 (ASSESSMENT YEAR : 2000-01) ITO, WARD 18 (4), VS. M/S. WEST LAND PROPERTIES & INDUSTRIES LTD., NEW DELHI. 1/7, EAST PATEL NAGAR, NEW DELHI. (PAN : AAACW1271A) (APPELLANT) (RESPONDENT) ASSESSEE BY : NONE REVENUE BY : MS. ANUSHA KHURANA, DR ORDER PER R.P. TOLANI, JUDICIAL MEMBER : THIS IS REVENUES APPEAL. BOTH THE GROUNDS ARE AS UNDER : 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE, LD. CIT (APPEAL) HAS ERRED IN DELETING THE ADDITION OF RS.9 ,50,000/- & RS.1,25,000/- MADE BY THE A.O. AS UNEXPLAINED CASH CREDITS ESPECIALLY WHEN NO DETAILS, WHATSOEVER, WERE FILED BEFORE THE A.O. 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E, LD. CIT (APPEAL) HAS ERRED IN DELETING THE DISALLOWANCE OF RS.1,04,636/- ATTRIBUTABLE TO BUSINESS RELATED EXPENSE IGNORING T HE FACT THAT NO BUSINESS ACTIVITY WAS CARRIED OUT THE ASSESSEE. 2. NONE APPEARED FOR THE ASSESSEE DESPITE VARIOUS N OTICES WERE SENT. THEREFORE, THE APPEAL IS DECIDED EX PARTE QUA THE A SSESSEE AFTER HEARING LEARNED DR. ITA NO.3033/DEL./2009 2 3. APROPOS FIRST GROUND LEARNED DR CONTENDS THAT TH E ASSESSMENT IN QUESTION WAS FRAMED EX PARTE AFTER REOPENING I.E. S ECTION 147 READ WITH SECTION 144. ATTENTION TO PARA NO.2 OF THE ASSESSM ENT ORDER IS DRAWN, WHICH IS REPRODUCED AS UNDER : 2. IN VIEW OF IT, REASONS WERE RECORDED AS REQUIRE D U/S 148(2) OF THE INCOME-TAX ACT, 1961 AND NOTICE U/S 1 48 DATED 20.3.2007 WAS ISSUED AFTER RECEIVING THE APPROVAL O F THE ADDL.CIT, RANGE-18 DATED VIDE HIS LETTER DATED 20.3 .2007 FOR RE-OPENING THE ASSESSMENT PROCEEDINGS IN THE CASE U /S 147. HOWEVER, THE NOTICE REMAINED UNCOMPLIED WITH. MEAN WHILE, THE NOTICE WAS SERVED BY AFFIXTURE ALSO ON 28.3.200 7 AS PER THE REPORT OF THE INSPECTOR, SH. UPENDER KUMAR DAS AND TAX ASSISTANT, SH. KRIPAL DUTT PANT. NOTICE U/S 143(2) DATED 4.7.2007 WAS SENT BY POST WHICH ALSO REMAINED UNCOM PLIED. THEN A NOTICE U/S 142(1) DATED 3.12.2007 ALONGWITH QUESTIONNAIRE WAS ISSUED AND SERVED THROUGH INSPECT OR SH. UPENDER KUMAR DAS ON 4.12.2007 FOR 6.12.2007 ON THE DIRECTOR OF THE ASSESSEE COMPANY, SH. RAVINDER KUMA R AT HIS RESIDENCE AT 9 K.G. MARG, NEW DELHI-110001. STILL, NONE ATTENDED. IN VIEW OF THE NON-COMPLIANCE, A SHOW-CA USE NOTICE DATED 12.12.2007 FOR 17.12.2007 WAS ISSUED TO THE D IRECTOR OF THE COMPANY, SH. RAVINDER KUMAR, 9 K.G. MARG, NEW D ELHI- 110001 TO EXPLAIN WHY THE ASSESSMENT PROCEEDINGS IN THE CASE SHOULD NOT BE COMPLETED EX-PARTE U/S 144 ON THE BAS IS OF MATERIAL AVAILABLE ON RECORD. HOWEVER, NONE ATTEND ED ON 17.12.2007 OR THEREAFTER TILL 19.12.2007. THEREFOR E, I AM CONSTRAINED TO COMPLETE THE ASSESSMENT PROCEEDING E X-PARTE U/S 144 OF THE INCOME-TAX ACT, 1961 ON THE BASIS OF THE MATERIAL AVAILABLE ON RECORD. LEARNED DR EMPHASIZED THAT ASSESSEE DESPITE NOTICES NEITHER APPEARED BEFORE THE A.O. NOR ANY EVIDENCE WAS FILED IN RESPE CT OF SHARE APPLICATION MONIES RECEIVED BY IT. ITA NO.3033/DEL./2009 3 4. CIT (APPEALS), HOWEVER, HAS NOT GIVEN ANY FINDIN G ABOUT ADMISSION OF ADDITIONAL EVIDENCE ON THIS EX PARTE ASSESSMENT NOR ANY REMAINED REPORT WAS CALLED FROM THE A.O. IN PARA 2 OF THE APPELLATE OR DER, IT HAS BEEN OBSERVED THAT A WRITTEN SUBMISSION HAS ALSO BEEN FILED BY TH E ASSESSEE, WHICH IS TAKEN INTO CONSIDERATION. THERE IS NO FINDING ABOUT THIS WRITTEN SUBMISSION HAVING BEEN FORWARDED TO A.O. FOR HIS COMMENTS, MORE SO WH EN THE ASSESSMENT ORDER IN QUESTION WAS AN EX PARTE ORDER. WITHOUT T HERE BEING ANY FINDING OF ADMISSION OF ADDITIONAL EVIDENCE OR ANY COMMENT OF A.O. ON BEHALF OF THE FACTS OR THE WRITTEN SUBMISSIONS, STRAIGHTWAY RELIE F HAS BEEN GIVEN DELETING THE ADDITION IN RESPECT OF SHARE APPLICATION. 5. APROPOS GROUND NO.2 ALSO, CIT (APPEALS) HAS NOT DECIDED ON PROPER FACTS ABOUT THE EXISTENCE OF BUSINESS ACTIVITIES OF THE ASSESSEE DURING THE YEAR AND THE BUSINESS RELATED EXPENSES HAS BEEN ALLOWED. IT WAS PLEADED THAT THE ORDER OF LEARNED CIT (A) MAY BE REVERSED OR SET ASI DE BACK TO THE FILE OF A.O. 6. WE HAVE HEARD LEARNED DR AND HAVE PERUSED THE MA TERIAL ON RECORD. THE IMPUGNED ASSESSMENT IS FRAMED EX PARTE AND IT A PPEARS THAT NO COMPLIANCE HAS BEEN MADE BY THE ASSESSEE BEFORE THE A.O. THERE IS NEITHER A FINDING ABOUT ADMISSION OF ADDITIONAL EVIDENCE BY CIT (A) NOR ANY COMMENTS OF A.O. ARE CALLED. CIT (A) AGAINST AN EX PARTE ASSESSMENT HAS ITA NO.3033/DEL./2009 4 PROCEEDED TO GIVE RELIEF WITHOUT PUTTING THE MATERI AL OR WRITTEN SUBMISSIONS TO THE A.O. FOR COMMENTS. IN VIEW THEREOF, THE IN TEREST OF JUSTICE WOULD BE SERVED IF BOTH THE ADDITIONS ARE SET ASIDE AND THE MATTER IS RESTORED BACK TO THE A.O. TO DECIDE THE SAME AFRESH, THIS IS BEING D ONE SO AS THE CIT (A) DOES NOT HAVE THE POWER TO SET ASIDE AND PROPER ENQUIRIE S AT THE END OF A.O. WILL BE NECESSARY IN THIS CASE. IN VIEW THEREOF, THE A. O. WILL DECIDE THESE ISSUES AFRESH AFTER GIVING THE ASSESSEE AN OPPORTUNITY OF BEING HEARD. ASSESSEE IS EXPECTED TO RENDER PROPER COOPERATION IN THE ASSESS MENT PROCEEDINGS. 7. IN THE RESULT, REVENUES APPEAL IS ALLOWED FOR S TATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 2 ND DAY OF MARCH, 2010. SD/- SD/- (G.E. VEERABHADRAPPA) (R.P. TOLANI) VICE PRESIDENT JUDICIAL MEMBER DATED THE 2 ND DAY OF MARCH, 2010 TS COPY FORWARDED TO: 1.APPELLANT 2.RESPONDENT 3.CIT 4.CIT (A)-XXI, NEW DELHI. 5.CIT(ITAT), NEW DELHI. AR, ITAT NEW DELHI.