M/s. Nanak Ram Builders & Investors (P) Ltd., New Delhi V. ITO, New Delhi

ITA 3210/DEL/2015

• Counselvise Citation: [2018] 118 COUNSELVISE.COM (IT) 9866 (ITAT-DELHI)
• Duration Of Justice: 3 year(s) 6 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 04-12-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2009-2010
• Appeal Filed On: 20-05-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: B S RAJPUROHIT
• Assessee Lawyers: P RO Y CHAUDHARY
• Section: 2(22)(e)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL (DELHI BENCH B : NEW DELHI) BEFORE SHRI H.S. SIDHU, JUDICIAL MEMBER AND SHRI O.P. KANT, ACCOUNTANT MEMBER ITA NO. 3210/DEL/2015 ASSESSMENT YEAR: 2009-10 NANAK RAM BUILDERS & VS. ITO, WARD 13(1) INVESTORS (P) LTD., NEW DELHI C/O RAJ KUMAR & ASSOCIATES, CHARTERED ACCOUNTANTS, L-7A, SOUTH EXTENSION, PART-2 NEW DELHI - 49 (PAN: AAACN26651B) (APPELLANT) (RESPONDENT) ASSESSEE BY : SH. RAJ KUMAR, CA & SH. P. RO Y CHAUDHARY, ADV. REVENUE BY : SH. B.S. RAJPUROHIT, SR. DR ORDER PER H.S. SIDHU, JM THE ASSESSEE HAS FILED THE APPEAL AGAINST THE ORDE R DATED 24.3.2015 OF THE LD. CIT(A)-6, DELHI PERTAINING T O ASSESSMENT YEAR 2009-10 ON THE FOLLOWING GROUNDS:- 1. THAT UNDER THE FACTS AND CIRCUMSTANCES, NO REASONAB LE OPPORTUNITY OF HEARING HAS BEEN ALLOWED BY BOTH THE LOWER AUTHORITIES. 2.1 THAT LD. CIT(A) ERRED IN LAW IN LAW AS WELL AS ON MERITS, IN HOLDING THAT THE ASSESSEE HAS DECLARED RENTAL INCOM E OF RS. 23,56,000/- P.M. FROM BIRLA SUN LIFE MANAGEMENT CO. LTD. AS 2 INCOME FROM BUSINESS AGAINST CORRECTLY AS INCOME FROM HOUSE PROPERTY, WHILE THE ASSESSEE HAS HIMSELF DECLARED T HE SAME AS INCOME FROM HOUSE PROPERTY. 2.2 THAT THE BROKERAGE PAID OF RS. 23,56,000/- TO THE AGENT FOR GETTING BIRLA SUN LIFE MANAGEMENT CO. AS TENA NT SHOULD HAVE BEEN ALLOWED AS A DEDUCTION OUT OF INCOME FROM HOUSE PROPERTY. 2.3 THAT WITHOUT PREJUDICE, IN CASE OF NOT ALLOWIN G G.N. 1,1, RS. 23,56,000/- SHALL BE ALLOWED AS A DEDUCTION FRO M INCOME FROM BUSINESS AND PROFESSION. 2.4 THAT WITHOUT PREJUDICE, UNDER THE FACTS AND CI RCUMSTANCES, THE LD. CIT(A) ERRED IN HOLDING THAT BROKERAGE EXPE NDITURE OF RS. 23,56,000/- IS OF CAPITAL NATURE. 3. THAT UNDER THE FACTS AND CIRCUMSTANCES, DISALLOW ANCE OF PROFESSIONAL CHARGES TO M/S VBM & ASSOCIATES, CHART ERED ACCOUNTANTS, OF RS. 57,500 U/S. (A)(IA) IS UNSUSTAI NABLE IN LAW AS WELL AS ON MERITS. 4. THAT UNDER THE FACTS AND CIRCUMSTANCES, THE AO EXCEEDED HIS JURISDICTION IN GIVING A FINDING IN RE SPECT OF SOME AMOUNT AS ADDITION U/S. 2(22)(E) ON SOME OTHER AS SESSEE NAMELY NANAK RAM JAISINGHANI WHILE FRAMING THE ASSESSMENT OF THIS ASSESSEE WHICH SHOULD BE EXPUNGE D AND THE LD. CIT(A) ALSO ERRED IN LAW AND ON FACTS IN NOT EX PUNGING THESE REMARKS / FINDINGS FROM THE IMPUGNED ASSESSMENT OR DER. 3 2. THE FACTS NARRATED BY THE REVENUE AUTHORITIES AR E NOT DISPUTED BY BOTH THE PARTIES, HENCE, THE SAME ARE NOT REPEAT ED HERE FOR THE SAKE OF CONVENIENCE. 3. AT THE TIME OF HEARING, LD. COUNSEL FOR THE ASSE SSEE STATED THAT THE LD. FIRST APPELLATE AUTHORITY HAS NOT GIVEN SUF FICIENT OPPORTUNITY TO SUBSTANTIATE ITS CLAIM IN PRODUCING THE NECESSA RY EVIDENCES AND PASSED THE EXPARTE ORDER. HENCE, HE REQUESTED THA T THIS MATTER MAY BE SET ASIDE TO THE FILE OF THE LD. CIT(A) FOR FRESH ADJUDICATION AND DECIDE ON MERIT, AFTER GIVING ADEQUATE OPPORTUN ITY OF BEING HEARD TO THE ASSESSEE. HE ALSO UNDERTAKES THAT H E WILL NOT TAKE ANY UNNECESSARY ADJOURNMENT AND WILL APPEAR BEFORE THE LD. CIT(A) ON WHICHEVER DATE FIXED BY THE BENCH. 4. ON THE OTHER HAND, LD. DR HAS NOT RAISED OBJECTI ON TO THE REQUEST OF THE ASSESSEE. 5. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE RECORDS. AFTER PERUSING THE RELEVANT RECORDS AVAILABLE WITH US AL ONGWITH THE ORDERS OF THE REVENUE AUTHORITIES, WE ARE OF THE CONSIDERE D VIEW THAT LD. CIT(A) HAS NOT GIVEN SUFFICIENT OPPORTUNITY TO THE ASSESSEE IN SUBSTANTIATING ITS CLAIM. THEREFORE, IN THE INTER EST OF JUSTICE, WE ARE SETTING ASIDE THE ISSUES IN DISPUTE TO THE FILE OF THE LD. CIT(A) TO DECIDE THE SAME AFRESH, AFTER GIVING ADEQUATE OPPOR TUNITY OF BEING HEARD TO THE ASSESSE. THE ASSESSEE THROUGH HIS COUN SEL IS DIRECTED TO APPEAR BEFORE THE LD. CIT(A) ON 17.01.2019 AT 10.00 AM AND WILL REMAIN COOPERATIVE IN THE PROCEEDINGS AND NO T TO TAKE ANY 4 UNNECESSARY ADJOURNMENT. THERE IS NO NEED TO ISS UE NOTICE, BECAUSE THIS ORDER HAS BEEN PRONOUNCED IN THE OPEN COURT. 6. IN THE RESULT, ASSESSEES APPEAL IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED ON 04-12-2018. SD/- SD/- (O.P. KANT) (H.S. SIDHU) ACCOUNTANT MEMBER JUD ICIAL MEMBER DT. 04 TH DECEMBER, 2018 SR BHATNAGAR COPY FORWARDED TO: - 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR, ITAT - TRUE COPY - BY ORDER, ASSISTANT REGISTRAR ITAT DELHI BENCHES 5