M/s S.S.L. Energy Ltd., New Delhi V. ITO, New Delhi

ITA 3387/DEL/2009

• Counselvise Citation: [2010] 119 COUNSELVISE.COM (IT) 5666 (ITAT-DELHI)
• Duration Of Justice: 7 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 22-03-2010
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: G
• Next Hearing Date: 22-03-2010
• Assessment Year: 2005-2006
• Appeal Filed On: 30-07-2009
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: GAJANAND MEENA
• Assessee Lawyers: RAJIV BANSAL
• Keywords: Principle of natural justice
• Section: 68; 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL (DELHI BENCH `G : NEW DELHI) BEFORE SHRI A.D. JAIN, JUDICIAL MEMBER AND SHRI SHAMIM YAHYA, ACCOUNTANT MEMBER ITA NO.3387/DEL./2009 (ASSESSMENT YEAR : 2005-06) M/S S.S. L. ENERGY LTD., VS. ITO, WARD 9(2), C/O M/S RAJIV BANSAL & ASSOCIATES, NEW DELHI. 506, PRABHAT KIRAN, 17, RAJENDRA PLACE, NEW DELHI. (PAN/GIR NO.AAGCS9959R) (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI RAJIV BANSAL, CA REVENUE BY : SHRI GAJANAND MEENA, CIT(DR) ORDER PER A.D. JAIN: JM THE ASSESSEE HAS RAISED THE FOLLOWING THREE GROUNDS IN THIS APPEAL: 1. THAT THE LD.ITO, WARD 9(2) NEW DELHI HAS ERRED B OTH ON FACTS AND IN LAW WHILE FRAMING ASSESSMENT U/S 144 OF THE ACT. ADDITIONS MADE U/S 68 OF THE ACT ARE WHOLLY ARBITRARY MERE ON SURMISE PRESUMPTION BASIS BY BRUSHING ASIDE THE EVIDENCES F ILED BY THE ASSESSEE. 2. THAT PROPER AND MEANINGFUL OPPORTUNITY WERE NOT PROVIDED TO THE ASSESSEE WHILE FRAMING ASSESSMENT U/S 144 OF THE AC T THUS HAS VIOLATED THE PRINCIPLE OF NATURAL JUSTICE. 3. THAT THE ADDITION RS.2,50,00,000/- MADE U/S 68 O F THE ACT IS IN CONTRAVENTION TO THE PROVISION OF THE ACT THUS ILLE GAL AND VOID. 2. THE AO, INTER ALIA, MADE ADDITION OF RS.2.50 CRO RE U/S 68 OF THE ACT ON THE BASIS THAT THE ASSESSEE FAILED TO FURNISH COPY OF CONTRAC T ENTERED INTO WITH M/S AGROWEB ONLINE (P) LTD., THE CREDITOR OF THE ASSESSEE. DURING TH E FIRST APPELLATE PROCEEDINGS BEFORE THE CIT(A), THE CIT(A) REQUIRED AND WAS PROVIDED WITH A REMAND REPORT BY THE AO. ITA NO.3387/DEL./2009 (AY : 2005-06) 2 THEREIN, THE AO REITERATED THE STAND DURING THE ORI GINAL ASSESSMENT PROCEEDING. IT WAS ALSO SUBMITTED ON 19.10.2007 A COPY OF CONTRACT DAT ED 23.3.2005 HAD BEEN STATED TO HAVE BEEN FILED, BUT NO SUCH ENCLOSURE WAS THERE; THAT T HE ASSESSEE HAD NEVER CLAIMED THOUGH IT HAD ALREADY SUBMITTED SUCH DOCUMENT/COPY OF CONTRAC T; THAT IT WAS BEING CLAIMED FOR THE FIRST TIME IN THE FIRST APPEAL; THAT IT HAD ALREADY FILED REQUISITE DOCUMENTS BEFORE THE AO IN THE ORIGINAL ASSESSMENT PROCEEDINGS. THE ASSESSEE CONTENDED THAT THE ASSESSEE HAD NO INFORMATION TO GIVE REGARDING SOURCE OF SOURCE; THA T THE GENUINENESS OF THE TRANSACTION COULD NOT BE CHALLENGED; THAT SIMPLY THE AGREEMENT WAS NOT ON A STAMP PAPER OR WITNESSED OR REGISTERED; THAT EVEN WHEN THE FACTUAL INFORMATION OF ENCLOSURE TO THE LETTER DATED 19.10.2007 HAD BEEN INTIMATED TO THE ASSESSEE ON 10.12.2007, TO MAKE THE ADDITION NO REPLY/OBJECTION HAD BEEN RECEIVED FROM THE ASSES SEE; AND THAT AS SUCH IT WAS CLEAR THAT THE ASSESSEE HAD NOT FILED THE DOCUMENTS CALLED FOR DURING THE ASSESSMENT PROCEEDINGS DESPITE ADEQUATE OPPORTUNITY, THAT IT WAS ONLY IN T HE FIRST APPEAL RAISED THAT THE ASSESSEE FILED SOME DOCUMENTARY EVIDENCE WHICH HAD NOT BEEN CONSIDERED CLOSED, IT WOULD AMOUNT TO MAKING A DE NOVO ASSESSMENT; THAT A LETTER HAD B EEN ISSUED TO THE ASSESSEE, THE CREDITOR M/S AGRO WEB ONLINE (P) LTD. SO AS TO VERIFY THE GE NUINENESS OF THE TRANSACTION/DOCUMENTS. IN RESPONSE TO, THE PARTY HAD SUBMITTED A CERTIFIED COPY OF CONTRACT, THAT THIS CONTRACT WAS NOT EXECUTED ON A LEGAL PAPER/DOCUMENT; THAT IT WAS ONLY PLAIN PAPER; THAT HE HAD STATED THAT IT HAD ENTERE D INTO AN AGREEMENT WITH THE ASSESSEE COMPANY FOR PURCHASE OF YELLOW SOYA BEAN MEAL AND H AD MADE A PAYMENT OF RS.2.50 CRORE I.E. APPROXIMATELY 90% OF THE CONTRACT; THAT IT HAD ALSO BEEN STATED THAT THE CONTRACT COULD NOT BE EXECUTED AND THAT THE AMOUNT WAS REFUN DED BY THE ASSESSEE COMPANY IN THE NEXT FINANCIAL YEAR. 3. BEFORE US, THE LD.COUNSEL FOR THE ASSESSEE HAS, INTER ALIA, SUBMITTED THE FOLLOWING DOCUMENTS: 1. CONFIRMATION OF ACCOUNT FORM M/S AGROWEB ONLINE (P) LTD. 2. STATEMENT OF BANK ACCOUNT OF M/S SSL ENGERY LTD. (ASSESSEE) FOR THE F.Y. 2004-05. 3. STATEMENT OF BANK ACCOUNT OF M/S SSL ENERGY LTD. (ASSESSEE) FOR THE F.Y. 2005-06. 4. CONTRACT NOTE FOR YELLOW SOYA BEAN MEAL BETWEEN AGROWEB ONLINE (P) LTD. AND THE ASSESSEE. 5. INCOME TAX ACKNOWLEDGMENT OF AGROWEB ONLINE (P) LTD. FOR THE AY 2005-06 AND 06-07. ITA NO.3387/DEL./2009 (AY : 2005-06) 3 6. STATEMENT OF BANK ACCOUNT OF M/S AGROWEB ONLINE (P) LTD. FOR THE F.Y. 2004-05. 7. STATEMENT OF BANK ACCOUNT OF M/S AGROWEB ONLINE (P) LTD. FOR THE F.Y. 2005-06 10. SPEED POST RECEIPT AS EVIDENCE OF SUBMISSION FI LED BY THE ASSESSEE DATED 21.12.2007. 4. EVIDENTALLY, ALL THE ABOVE DOCUMENTS WERE NOT BE FORE THE AO DURING THE ORIGINAL ASSESSMENT PROCEEDINGS. IN THE INTEREST OF JUSTICE AND SO AS TO ARRIVE AT THE A CORRECT DECISION REGARDING THE ADDITION OR OTHERWISE OF THE AMOUNT OF RS.2.50 CRORE U/S 68 OF THE ACT, WE DEEM IT PROPER TO REMIT THIS MATTER TO THE FILE OF THE AO TO BE EXAMINED AND DECIDE AFRESH IN ACCORDANCE WITH LAW AND DULY TAKIN G INTO CONSIDERATION ALL THE ABOVE EVIDENCE NOW FILED BEFORE US. 5. BOTH THE PARTIES ARE MUTUALLY AGREED TO THIS COU RSE BEING TAKEN. 6. IN THE RESULT, FOR STATISTICAL, THE APPEAL OF TH E ASSESSEE IS TREATED AS ALLOWED . 7. ORDER PRONOUNCED IN OPEN COURT ON THE DATE OF HE ARING I.E. 22.03.2010. SD/- SD/- (SHAMIM YAHYA) (A.D. JAIN) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED, MARCH 22, 2010. SKB COPY FORWARDED TO: 1.APPELLANT 2.RESPONDENT 3.CIT 4.CIT(A)-XII, NEW DELHI 5.CIT(ITAT), NEW DELHI. AR/ITAT