Mrs. Vibha Goel, Noida V. ITO, Noida

ITA 3327/DEL/2015

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 97115 (ITAT-DELHI)
• Duration Of Justice: 3 month(s) 1 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 26-08-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC 2
• Next Hearing Date: 22-07-2015
• Assessment Year: 2010-2011
• Appeal Filed On: 25-05-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: YATENDRA SINGH
• Assessee Lawyers: SUR ESH MALIK
• Keywords: Opportunity of being heard

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH SMC -2, NEW DELHI BEFORE SH. N. K. SAINI, AM ITA NO. 3327/DEL./2015 : ASSTT. YEAR : 2010-11 VIBHA GOEL FLAT NO. 33C, SHATABDI VIHAR, PLOT NO. E-15, SECTOR-61 NOIDA VS ITO WARD 1 (4), NOIDA (APPELLANT) (RESPONDENT) PAN NO. ACEPG1201F APPELLANT BY : SH. SU RESH MALIK, C.A. RESPONDENT BY : SH. YATENDR A SINGH, SR. DR DATE OF HEARING : 22.07.2015 DATE OF PRONOUNCEMENT :26.08.2015 ORDER PER N.K. SAINI, A.M. THIS IS AN APPEAL BY THE ASSESSEE AGAINST THE ORDER DATED 30.01.2015 OF THE LD. CIT(A)-I, NOIDA. 2. THE ONLY GRIEVANCE OF THE ASSESSEE IN THIS AP PEAL RELATES TO THE CONFIRMATION OF ADDITION OF RS. 7,05,740/- MADE BY THE AO ON ACCOUNT OF INTEREST INCOME ACCRUED FROM M/S AEZ INF RATECH PVT. LTD. ITA NO. 3327/DEL/2015 2 3. THE FACTS OF THE CASE IN BRIEF ARE THAT THE ASSESSEE FILED THE RETURN OF INCOME DECLARING AN INCOME OF RS. 2,04,719/-. TH E SAID RETURN WAS REVISED ON 28.01.2011 DECLARING AN INCOME OF RS. 7, 69,350/-. LATER ON, THE CASE WAS SELECTED FOR SCRUTINY. 4. DURING THE COURSE OF ASSESSMENT PROCEEDINGS THE AO NOTICED THAT THE ASSESSEE HAD DECLARED INTEREST INCOME OF R S. 7,69,381/- UNDER THE HEAD INCOME FROM OTHER SOURCES, HOWEVER, THE DE TAIL OF INTEREST RECEIVED OR ACCRUED AS PER FORM NO. 26AS REVEALED T HAT THE TOTAL INTEREST AMOUNT WAS AT RS. 14,73,822/- AND THE TDS WAS DEDUCTED AT RS. 1,47,660/-. THUS, THERE WAS A DIFFERENCE OF RS. 7,05,740/-, THE AO ASKED THE ASSESSEE TO EXPLAIN THE SAME. IN RESPONSE THE ASSESSEE SUBMITTED AS UNDER :- LOAN A/C TO AEZ INFRATECH PRIVATE LIMITED : I HAVE RECEIVED THE FOLLOWING AMOUNTS FROM THE BORROWER I) RS. 2,54,066/- DEPOSITED/CREDITED INTO MY SB A /C ON 24.04.2010 VIDE CHEQUE # 1568 DRAWN ON BANK OF INDIA. II) RS. 3,81,099/- DEPOSITED/CREDITED INTO MY SB A /C ON 30.03.2011 VIDE CHEQUE # 260576 DRAWN ON HDFC BANK. III) I HAVE APPROPRIATED THE ABOVE PAYMENTS TOWARDS MY L OAN A/C TO THE COMPANY, AS THE LOAN TO THE COMPANY HAS BECOME BAD AND DOUBTFUL OF RECOVERY. 5. THE AO AFTER CONSIDERING THE SUBMISSION OF THE ASSESSEE OBSERVED THAT THE ASSESSEE DID NOT DISCLOSE INTERES T INCOME OF RS. 7,05,740/- ON ACCRUAL BASIS AS WELL AS RECEIPT BASI S I.E. NEITHER WHEN THE INTEREST WAS CREDITED NOR WHEN THE INTEREST WAS RECEIVED. THE ITA NO. 3327/DEL/2015 3 AO ACCORDINGLY MADE THE ADDITION OF RS. 7,05,740/- TO THE INCOME OF THE ASSESSEE. 6. BEING AGGRIEVED THE ASSESSEE CARRIED THE MATT ER TO THE LD. CIT(A) AND FURNISHED THE WRITTEN SUBMISSION WHICH H AS BEEN REPRODUCED BY THE LD. CIT(A) IN PARA 2 TO 5 OF THE IMPUGNED ORDER, FOR THE COST OF REPETITION THE SAME IS NOT REPRODUC ED HEREIN. 7. THE MAIN CONTENTION OF THE ASSESSEE BEFORE THE LD. C.I.T.(A) WAS THAT THE IMPUGNED AMOUNT WAS NOT ACTUALLY RECEI VED DURING THE YEAR UNDER CONSIDERATION AND WHATEVER INTEREST WAS RECEIVED THE SAME WAS DISCLOSED IN THE RETURN OF INCOME. THE LD. CIT(A) AFTER CONSIDERING THE SUBMISSIONS OF THE ASSESSEE OBSERVE D THAT THE ASSESSEE CHANGED THE SYSTEM OF ACOUNTING DURING THE YEAR UNDER CONSIDERATION FROM ACCRUAL TO CASH BASIS, IN DECIDI NG THE TAXABILITY OF INTEREST INCOME FROM LOAN TO M/S. AEZ INFRATECH PVT. LTD. AND WITH RESPECT TO INTEREST INCOME FROM DIFFERENT SOUR CES, THE SAME WERE BEING ACCOUNTED FOR FOLLOWING DIFFERENT SYSTEM S. HE ALSO OBSERVED THAT THE ASSESSEE HAD TREATED A PART OF TO TAL INTEREST INCOME AMOUNTING TO RS. 5,64,592/- ON CASH BASIS WHEREAS R EMAINING PART OF INTEREST INCOME AMOUNTING TO RS. 7,05,740/- HAD BEEN TREATED ON ACCRUAL BASIS. HE, THEREFORE, CONFIRMED THE ADDITIO N MADE BY THE AO. NOW THE ASSESSEE IS IN APPEAL. 8. THE LD. COUNSEL FOR THE ASSESSEE REITERATED T HE SUBMISSIONS MADE BEFORE THE AUTHORITIES BELOW AND FURTHER SUBMI TTED THAT THE ITA NO. 3327/DEL/2015 4 EVIDENCES FURNISHED DURING THE COURSE OF ASSESSMENT PROCEEDINGS BY THE ASSESSEE WERE NOT CONSIDERED BY THE AO. IT WAS FURTHER STATED THAT THE IMPUGNED AMOUNT COULD NOT BE RECOVERED FRO M M/S AEZ INFRATECH PVT. LTD. AND EVEN THE ASSESSEE FILED A PETITION BEFORE THE HONBLE HIGH COURT IN OMP NO. 1112 OF 2012. THEREF ORE, THE AMOUNT IN QUESTION WAS NOT AN INCOME OF THE ASSESSE E AS THE SAME WAS NOT RECEIVED. IT WAS SUBMITTED THAT THE ANOTHE R INTEREST INCOME WHICH WAS RECEIVED DURING THE YEAR UNDER CONSIDERAT ION BY THE ASSESSEE WAS DULY SHOWN AS AN INCOME. IT WAS FURTHE R SUBMITTED THAT THE LD. CIT(A) HAD ALSO NOT CONSIDERED THE DOC UMENTS FURNISHED BY THE ASSESSEE BEFORE THE AO AS WELL AS BEFORE HIM, THEREFORE, THE ADDITION CONFIRMED BY THE LD. CIT(A) WAS NOT JUSTIFIED. IN HIS RIVAL SUBMISSIONS, THE LD. DR SUP PORTED THE ORDERS OF THE AUTHORITIES BELOW. 9. I HAVE CONSIDERED THE SUBMISSIONS OF BOTH THE PARTIES AND CAREFULLY GONE THROUGH THE MATERIAL AVAILABLE ON TH E RECORD. IN THE PRESENT CASE, IT APPEARS THAT THE ASSESSEE FURNISHE D CERTAIN DOCUMENTS RELATING TO THE DISPUTE WITH M/S AEZ INFR ATECH PVT. LTD. BEFORE THE AO AS WELL AS LD. CIT(A) BUT NO COMMENT HAS BEEN MADE BY EITHER OF THEM ON THE SAID DOCUMENTS. IN TH E PRESENT CASE IT IS ALSO NOT CLEAR AS TO WHETHER THE ASSESSEE FOR TH E YEAR UNDER CONSIDERATION WAS SHOWING THE INCOME ON CASH BASIS OR ON ACCRUAL BASIS. THEREFORE, IN THE ABSENCE OF THE CLEAR FACTS , ON THE RECORD AND ITA NO. 3327/DEL/2015 5 BY KEEPING IN VIEW THIS FACT THAT NEITHER THE AO NO R THE LD. CIT(A) COMMENTED ON THE EVIDENCES FURNISHED BY THE ASSESSE E, I DEEM IT APPROPRIATE TO SET ASIDE THIS CASE BACK TO THE FILE OF THE AO TO BE ADJUDICATED AFRESH IN ACCORDANCE WITH LAW, AFTER PR OVIDING DUE AND REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESS EE. 10. IN THE RESULT THE APPEAL IS ALLOWED FOR STAT ISTICAL PURPOSES. (ORDER PRONOUNCED IN THE COURT ON 26/08/2015 ). SD/- (N. K. SAINI) ACCOUNT ANT MEMBER DATED: 26/ 08/2015 *BINITA* COPY FORWARDED TO: 1.APPELLANT 2.RESPONDENT 3.CIT 4.CIT(APPEALS) 5.DR: ITAT ASSISTANT REGISTRAR ITA NO. 3327/DEL/2015 6 DATE INITIAL 1. DRAFT DICTATED ON 25.08.2015 2. DRAFT PLACED BEFORE AUTHOR 26.08.2015 3. DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER JM/AM 4. DRAFT DISCUSSED/APPROVED BY SECOND MEMBER. JM/AM 5. APPROVED DRAFT COMES TO THE SR.PS/PS PS/PS 6. KEPT FOR PRONOUNCEMENT ON 26.8.2015 PS 7. FILE SENT TO THE BENCH CLERK PS 8. DATE ON WHICH FILE GOES TO THE AR 9. DATE ON WHICH FILE GOES TO THE HEAD CLERK. 10. DATE OF DISPATCH OF ORDER.