Vidkris India (P) Ltd., Delhi V. ITO, ward- 26(3), New Delhi

ITA 3227/DEL/2018

• Counselvise Citation: [2018] 119 COUNSELVISE.COM (IT) 5007 (ITAT-DELHI)
• Duration Of Justice: 5 month(s) 21 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 25-10-2018
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: SMC
• Assessment Year: 2012-2013
• Appeal Filed On: 04-05-2018
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: PRADEEP KUMAR MEEL
• Keywords: Opportunity of being heard; Additional evidence
• Section: 194C; 68

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL (DELHI BENCH SMC : NEW DELHI) BEFORE SHRI H.S. SIDHU, JUDICIAL MEMBER ITA NO. 3227/DEL/2018 ASSESSMENT YEAR: 2012-13 VIDKRIS INDIA (P) LTD., VS. ITO, WARD 26(3) C/O RAJ KUMAR & ASSOCIATES, NEW DELHI CHARTERED ACCOUNTANTS, L-7A, (LGF), SOUTH EXTENSION, PART-2, NEW DELHI 49 (PAN: AABCV4524C) (APPELLANT) (RESPONDENT) ASSESSEE BY : SH. RAJ KUMAR, CA REVENUE BY : SH. PRADEEP KUMAR MEEL. SR. D R. ORDER THIS APPEAL HAS BEEN FILED BY THE ASSESSEE AGAINS T THE ORDER DATED 07.3.2018 OF THE LD. COMMISSIONER OF INCOME T AX (APPEALS)-13, NEW DELHI RELEVANT TO ASSESSMENT YEAR 2012-13. 2. THE GROUNDS RAISED IN THE APPEAL READ AS UNDER:- 1. THAT UNDER THE FACTS AND CIRCUMSTANCES OF THE CA SE LD. CIT(A) ERRED IN LAW AS WELL AS ON MERITS IN NOT ADMITTING THE ADDITIONAL EVIDENCES FURNISHED UNDER RULE 46A OF THE I.T. RULES. 2. THAT UNDER THE FACTS AND CIRCUMSTANCES THE ADDITION OF RS. 10 LACS MADE U/S. 68 FOR THE SHAR E APPLICATION / SHARE CAPITAL RECEIVED FROM SH. GIYANENDER IS UNWARRANTED IN LAW AS WELL AS ON MERITS. 3. THAT UNDER THE FACTS AND CIRCUMSTANCES THE ADDITION OF RS. 10 LACS MADE U/S. 68 FOR THE SHARE 2 APPLICATION / SHARE CAPITAL RECEIVED FROM SH. PRAKASH IS UNWARRANTED IN LAW AS WELL AS ON MERITS. 4. THAT THE ADDITION OF RS. 75,000/- U/S. 40(A)(IA) FOR NON DEDUCTION OF TDS ON ADVERTISEMENT EXP. IS UNWARRANTED AND UNSUSTAINABLE IN LAW AS WELL AS ON MERITS. 3. 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. 4. DURING THE HEARING, LD. A.R. OF THE ASSESSEE, SU BMITTED THAT LD. CIT(A) ERRED IN LAW AS WELL AS ON MERITS IN NOT ADMITTING THE ADDITIONAL EVIDENCES FURNISHED UNDER RULE 46A OF T HE I.T. RULES, AS A RESULT THEREOF, THE ADDITION OF RS. 10 LACS MADE U/ S. 68 FOR THE SHARE APPLICATION / SHARE CAPITAL RECEIVED FROM SH. GIYAN ENDER IS UNWARRANTED IN LAW AS WELL AS ON MERITS. IT WAS FU RTHER SUBMITTED THAT DUE TO NOT ADMITTING OF ADDITIONAL EVIDENCES, THE ANOTHER ADDITION OF RS. 10 LACS MADE U/S. 68 FOR THE SHARE APPLICATION / SHARE CAPITAL RECEIVED FROM SH. PRAKASH IS ALSO UNWARRANT ED IN LAW AS WELL AS ON MERITS. HE FURTHER SUBMITTED THAT ADDITION O F RS. 75,000/- U/S. 40(A0(IA) FOR NON DEDUCTION OF TDS ON ADVERTISEMENT EXPENSES IS ALSO UNWARRANTED AND UNSUSTAINABLE IN LAW AS WELL A S ON MERITS. IN VIEW OF ABOVE, HE REQUESTED THAT THE ADDITIONAL EV IDENCES NOT ADMITTED BY THE LD. CIT(A) GOES TO THE ROOT OF THE MATTER AND ARE VERY ESSENTIAL IN DECIDING THE ISSUE OF ADDITIONS MADE U/S. 68 OF THE ACT, HENCE, THE SAME MAY BE ADMITTED AND ADDITIONS IN DISPUTE MAY BE DELETED. 5. ON THE OTHER HAND, LD. DR STRONGLY RELIED UPON THE ORDERS OF THE AUTHORITIES BELOW. 6. I HAVE HEARD BOTH THE PARTIES AND PERUSED THE RECORDS. I FIND THAT IT IS UNDISPUTED FACT THAT LD. CIT(A) WHILE D ECIDING THE APPEAL 3 OF THE ASSESSEE HAS NOT ADMITTED THE ADDITIONAL EVI DENCES FILED U/R 46A BY THE ASSESSEE, WHICH IS REPRODUCED IN PARA NO . 5.1.1. AT PAGE NO. 11 IN HIS IMPUGNED. AFTER PERUSING THE SAME, I AM OF THE CONSIDERED OPINION THAT IN THE INTEREST OF JUSTICE, THE ADDITIONAL EVIDENCES FILED BY THE ASSESSEE WHICH IS REPRODUCED AT PAGE NO. 11 OF HIS IMPUGNED ORDER ARE VERY ESSENTIAL TO ADJUDI CATE THE ADDITIONS MADE U/S. 68 OF THE ACT, BUT THE SAME WAS NOT ADMIT TED. THEREFORE, WE ADMIT THE ADDITIONAL EVIDENCES AS DISCUSSED ABOV E AND ALLOW THE GROUND NO. 1 RAISED BY THE ASSESSEE. IN VIEW OF A BOVE, I REMIT BACK THE GROUND NO. 2 & 3, AS MENTIONED IN THE GR OUNDS OF APPEAL, AS AFORESAID, TO THE FILE OF THE AO TO DECIDE THE SAME AFRESH, AS PER LAW, AFTER CONSIDERING ALL THE ADDITIONAL EVIDENCES FILED BEFORE THE LD. CIT(A), WHICH WERE DISCUSSED IN PARA NO. 5.1.1 AT P AGE NO. 11 OF THE LD. CIT(A)S ORDER. NEEDLESS TO SAY THAT THE ASSES SEE SHOULD BE GRANTED ADEQUATE OPPORTUNITY OF BEING HEARD. AS A R ESULT, THE GROUND NO. 2 & 3 ARE ALLOWED FOR STATISTICAL PURPOSES. 7. AS REGARDS GROUND NO. 4 RELATING TO ADDITION OF RS. 75,000/- U/S. 40(A)(IA) OF THE ACT FOR NON DEDUCTION OF TDS ON ADVERTISEMENT EXPENSES IS CONCERNED, I FIND THAT THE AO HAS ASKE D THE DETAILS OF TDS DEDUCTED IN RESPECT OF ADVERTISEMENT EXPENSES A ND FOUND THAT THE ASSESSEE MADE PAYMENTS OF RS. 50,000 AND RS. 25 000 ON 12.7.2011 AND 29.8.2011 RESPECTIVELY, WITHOUT DEDUC TION OF TDS. THEREFORE, AO APPLIED PROVISIONS OF SECTION 40(A)(I A) AND DISALLOWED THE DEDUCTION IN RESPECT OF THESE EXPENSES. WE FURT HER FIND THAT LD. CIT(A) HAS OBSERVED THAT SINCE THE PAYMENTS HAVE BE EN MADE FOR ADVERTISEMENT EXPENSES WHICH ARE APPARENTLY COVERED UNDER THE PROVISIONS OF TDS DEDUCTION, THEREFORE, HE UPHELD T HE ACTION OF THE AO. KEEPING IN VIEW OF THE FACTS AND CIRCUMSTANCES OF THE CASE, IT IS UNDISPUTED THAT ASSESSEE HAS MADE THE PAYMENTS OF R S. 50,000 AND RS. 25,000/- BUT NOT DEDUCTED THE TDS, WHICH IS A M ISTAKE ON THE PART OF THE ASSESSEE. HOWEVER, IN MY CONSIDERED OP INION, AS PER SECTION 194C OF THE I.T. ACT, EXPENSES OF RS. 25,00 0/- SHOULD BE 4 ALLOWED, AS THIS SUM DOES NOT EXCEED RS. 30,000/- A S PRESCRIBED IN SECTION 194C OF THE ACT AND EXPENSES RS. 50,000/- M AY BE DISALLOWED. I HOLD AND DIRECT ACCORDINGLY. ACCOR DINGLY, THIS GROUND IS PARTLY ALLOWED. 8. IN THE RESULT, THE ASSESSEES APPEAL IS PARTLY ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED ON 25-10-2018. SD/- (H.S. SIDHU) JUDICIAL MEMBER DATED : 25-10-2018 SR BHATANGAR COPY FORWARDED TO: 1.APPELLANT 2.RESPONDENT 3.CIT 4.CIT(A), NEW DELHI. 5.CIT(ITAT), NEW DELHI. AR, ITAT NEW DELHI.