M/s. Varad Builders P. Ltd., New Delhi V. DCIT, New Delhi

ITA 3427/DEL/2014

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 6852 (ITAT-DELHI)
• Duration Of Justice: 2 year(s) 4 month(s) 14 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 18-10-2016
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: D
• Next Hearing Date: 17-10-2016
• Assessment Year: 2000-2001
• Appeal Filed On: 04-06-2014
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: IPS BINDRA
• Assessee Lawyers: B C GUPTA
• Keywords: Document seized; Opportunity of being heard; Block assessment; Documents seized
• Section: 142(1); 153A; 132

Judgement Text

1 ITA NO. 3427/DEL/20 14 IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH: D NEW DELHI BEFORE SHRI R. S. SYAL, ACCOUNTANT MEMBER AND MS SUCHITRA KAMBLE, JU DICIAL MEMBER I.T.A .NO.3 427/DEL/2014 (ASSESSMENT YEA R 2000-01) VARAD BUILDERS P. LTD. 17/2868, BEADON PURA, FIRST FLOOR, KAROL BAGH NEW DELHI AAACV9438L (APPELLANT) VS DCIT CENTRAL CIRCLE-19 NEW DELHI (RESPONDENT) APPELLANT BY SHRI B. C. GUPTA, A/R RESPONDENT BY SH. I. P. S. BINDRA, CIT DR ORDER PER SUCHITRA KAMBLE, JM THIS APPEAL IS FILED AGAINST THE ORDER DATED 6/12/2 013 PASSED BY CIT(A), XII, NEW DELHI FOR ASSESSMENT YEAR 2000- 01. 2. THE GROUNDS OF APPEAL ARE AS FOLLOWS:- ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW THE CIT(A) WAS INCORRECT AND UNJUSTIFIED IN 1. DISMISSING THE APPEAL OF THE ASSESSEE. 2. DISMISSING THE APPEAL OF THE ASSESSEE WITHOUT D ECIDING ALL DATE OF HEARING 17.10.2016 DATE OF PRONOUNCEMENT 18.10.2016 2 ITA NO. 3427/DEL/20 14 GROUNDS OF APPEAL INDEPENDENTLY PARTICULARLY GROUND S OF APPEAL AT S. N. 6-7-9 OF THE GROUNDS TAKEN BEFORE T HE CIT(A). 3. IN HOLDING THAT THE CIT(A) WAS IN AGREEMENT WITH THE A.O IN ASSESSING THE AMOUNT OF RS.264,94,000/- AND RS.72813/- ON ACCOUNT OF UNEXPLAINED CASH ADVANCE A ND INTEREST INCOME. 4. IN CONFIRMING THE ADDITIONS MADE BY THE A.O IN T HE ASSTT. ORDER WITHOUT ANY REASON AND EVIDENCE. 5. IN CONFIRMING THE ADDITIONS OF RS.26494000/- AND RS.72813/- OF RS.4500000/- MADE INCORRECTLY BY THE A.O. 6. IN DISMISSING THE APPEAL AND CONFIRMING THE ADDI TIONS WITHOUT CONSIDERING THE EXAMINING THE VARIOUS DETAI LED HUGE SUBMISSIONS FILED OVER A PERIOD OF ABOUT 6 YEA RS ON VARIOUS DATES BEFORE VARIOUS CIT(A) AT RELEVANT POI NT OF TIME. 7. DISMISSING THE APPEAL IN A HURRIED, MANNER WITHO UT PROVIDING ADEQUATE OPPORTUNITY. 3. SEARCH ACTION U/S 132 OF INCOME-TAX ACT, 1961 WA S TAKEN ON 15/12/2004 IN B. M. GUPTA GROUP OF CASES WHICH ALSO INCLUDED THE CASE OF M/S VARAD BUILDERS PVT. LTD., THE ASSESSEE AT 13/13A WEA KAROL BAGH, NEW DELHI. DURING THE COURSE OF SEARCH VARIOUS INCRIMINATING DOCUMENTS WERE FOUND AND SEIZED. APA RT FROM RS.5,93,000/- WAS ALSO FOUND, OUT OF WHICH CASH OF RS.5,70,000/- WAS SEIZED. SINCE THERE WAS ACTION U/S 132, NOTICE U/S 153A OF INCOME-TAX ACT, 1961 WAS ISSUED ON 13/6/2006 REQUIR ING THE ASSESSEE TO FURNISH RETURN OF INCOME FOR THE ABOVE BLOCK ASSESSMENT YEAR IN RESPECT OF WHICH THE ASSESSEE CO MPANY WAS ASSESSABLE, WITHIN 16 DAYS OF THE SERVICE OF THE SA ID NOTICE. 3 ITA NO. 3427/DEL/20 14 4. SINCE NO RETURN WAS FILED BY THE ASSESSEE TILL 2 0/8/2006, NOTICE U/S 142(1) ALONG WITH DETAILED QUESTIONNAIRE BASED ON THE SEIZED DOCUMENTS WAS ISSUED ON 21/8/2006 FIXING THE DATE OF HEARING ON 6/9/2006. ON 6/9/2006 SHRI B. L. GUPTA, COUNSEL FOR THE ASSESSEE ATTENDED AND ON REQUEST THE CASE WAS A DJOURNED TO 20/9/2006. ON 20/9/2006 SHRI B. L. GUPTA COUNSEL F OR THE ASSESSEE ATTENDED AND FILED A LETTER WITH DETAILS. SINCE IN THE ABOVE LETTER WHICH WAS FILED ON 20/9/2006, THE ASSESSEE S UBMITTED THAT RETURN FILED EARLIER MAY BE TREATED TO HAVE BEEN FI LED IN RESPONSE TO NOTICE U/S 153A OF THE ACT, NOTICE U/S 143(2) ALONG WITH QUESTIONNAIRE WITH ADDITIONAL QUERIES WAS ISSUED ON 6/10/2006 FIXING THE DATE OF HEARING ON 12/10/2006. ON 12/10 /2006 SHRI B. L. GUPTA, COUNSEL FOR THE ASSESSEE ATTENDED AND FIL ED A LETTER WITH ENCLOSURES. IN THIS LETTER THE ASSESSEE CHALLENGED THE SEARCH IN ITS CASE. 5. THE ASSESSING OFFICER MADE AN ADDITION OF RS.2,6 4,94,000/- ON ACCOUNT OF UNEXPLAINED CASH LOAN ADVANCES AND RS .72,813/- ON ACCOUNT OF UNACCOUNTED INTEREST INCOME. THE ASSESS ING OFFICER ALSO MADE AN ADDITION ON ACCOUNT OF UNEXPLAINED EQUITY S HARE CAPITAL FOR RS.45 CRORES. THE CIT(A) DISMISSED ALL THE GRO UNDS WITHOUT DISCUSSING THE FACTS OF THE CASE. THE ASSESSEE IS BEFORE US. 6. THE LD. AR SUBMITTED THAT IN THE SUBSEQUENT ASSE SSMENT YEAR I.E. ASSESSMENT YEAR 2001-02, THE ITAT, NEW DELHI B ENCHES HAS REMANDED BACK THE MATTER TO THE CIT(A). THE TRIBUN AL OBSERVED THAT THE CIT(A) HAS NOT CARED TO RECORD THE ARGUMENTS A DVANCED IN 4 ITA NO. 3427/DEL/20 14 SUPPORT OF THE GROUNDS RAISED. IN THE ABSENCE OF A NY RECORDING OF THE ARGUMENTS, THE INDEPENDENT REASONING OF THE CIT(A) IN UPHOLDING THE ACTION OF THE A.O OBVIOUSLY IS NOT AVAILABLE FOR JU DICIAL SCRUTINY. IN THE ABSENCE OF THE SAME, THE CONCLUSION ARRIVED AT IS OPEN TO THE CHALLENGE THAT THE LD.CIT(A) HAS DECIDED THE APPEAL WITH THE PRE- CONCEIVED NOTION THAT THE GROUNDS NECESSARILY HAVE TO BE DISMISSED. IN THE ABSENCE OF ANY DISCUSSION ON THE ARGUMENTS A DVANCED BY THE ASSESSEE, GROUND NO. 3 RAISED BY THE ASSESSEE DESER VES TO THE ALLOWED. THE IMPUGNED ORDER ACCORDINGLY IS SET ASI DE BACK TO THE FILE OF THE CIT(A) WITH THE DIRECTION TO DECIDE THE SAME IN ACCORDANCE WITH LAW BY WAY OF A SPEAKING ORDER AFTER GIVING THE ASS ESSEE A REASONABLE OPPORTUNITY OF BEING HEARD. 7. THUS, THE LD. AR SUBMITTED THAT IN THIS ASSESSME NT YEAR ALSO THE CIT (A) HAS NOT DISCUSSED ANY FACTS OR HAS NOT TAKEN ANY CONTENTIONS RAISED BY THE LD. AR. THUS, THE CIT (A )S ORDER HAS TO BE SET ASIDE. 8. THE LD. DR RELIED ON THE ORDER OF ASSESSING OFFI CER AND CIT (A). 9. WE HAVE HEARD BOTH THE PARTIES. IT IS PERTINENT TO NOTE THAT THE CIT(A) HAS NOT AT ALL DISCUSSED ANY FACTUAL ASPECT OF THE ASSESSEES CASE IN FACT THERE IS NO DISCUSSION ON THE SUBMISSI ONS OF THE ASSESSEE/ASSESSEES REPRESENTATIVE. WHILE ARRIVING AT THE FINDING ALSO, THE CIT(A) HAS NOT GIVEN ANY PARTICULAR REASO N AS TO WHY THE ASSESSING OFFICER S ORDER IS JUST AND PROPER. THE ORDER OF THE ITAT, NEW DELHI BENCHES IN ITA NO. 1531/DEL/2014 ASSESSME NT YEAR 2001-02 PASSED ON 24/7/2015 IS ALSO TAKEN ON RECORD . IN THE SAID 5 ITA NO. 3427/DEL/20 14 ORDER THE CORRECTNESS OF THE ORDER DATED 6/12/2013 OF CIT(A)- 12, NEW DELHI PERTAINING TO ASSESSMENT YEAR 2001-02 WAS UNDER CHALLENGE. THE TRIBUNAL HAS OBSERVED THAT THE CIT( A) DECIDED THE APPEAL WITH THE PRE-CONCEIVED NOTION AND THERE WAS NO JUDICIAL SCRUTINY OF THE ASSESSING OFFICER S ACTION. THUS, THE APPEAL BEFORE US IS ALSO ON THE SIMILAR LINE. IN LIGHT OF THIS, THE IMPUGNED ORDER ACCORDINGLY IS SET ASIDE AND THE REMANDED BACK TO T HE FILE OF THE A.O CIT(A) WITH THE DIRECTION TO DECIDE THE SAME IN ACC ORDANCE WITH LAW BY WAY OF SPEAKING ORDER AFTER GIVING REASONABLE OP PORTUNITY OF BEING HEARD TO THE ASSESSEE. 10. IN THE RESULT, APPEAL OF THE ASSESSEE IS PARTLY ALLOWED FOR STATISTICAL PURPOSE. THE ORDER IS PRONOUNCED IN THE OPEN COURT ON 18TH OF OCTOBER, 2016. SD/- SD/- (R.S. SYAL) (SUCH ITRA KAMBLE) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 18/10/2016 R. NAHEED * COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT ASSISTANT R EGISTRAR ITAT NEW DELHI 6 ITA NO. 3427/DEL/20 14 DATE 1. DRAFT DICTATED ON 17.10.2016 PS 2. DRAFT PLACED BEFORE AUTHOR 17.10.2016 PS 3. DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER .2016 JM/AM 4. DRAFT DISCUSSED/APPROVED BY SECOND MEMBER. JM/AM 5. APPROVED DRAFT COMES TO THE SR.PS/PS 1 8 .10.2016 PS/PS 6. KEPT FOR PRONOUNCEMENT ON PS 7. FILE SENT TO THE BENCH CLERK 1 8 .10.2016 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.