Shri Bhupendra Singh Bajwa, Meerut V. ACIT, Meerut

ITA 356/DEL/2016

• Counselvise Citation: [2018] 121 COUNSELVISE.COM (IT) 5379 (ITAT-DELHI)
• Duration Of Justice: 2 year(s) 2 month(s) 8 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 03-04-2018
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: A
• Next Hearing Date: 12-06-2017
• Assessment Year: 2006-2007
• Appeal Filed On: 25-01-2016
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: APARNA KARAN
• Keywords: Opportunity of being heard; Principle of natural justice; Additional evidence; Question of law; Deemed dividend; Tax effect

Judgement Text

ITA 4021/D/14, 3291, 3292,3293,3294/D/15, ITA 356/D/16 ASSESSMENT YEARS 2008-09, 2006-07,07-08,08-09,09-10 IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH: A NEW DELHI BEFORE SHRI SUDHANSHU SRIVASTAVA, JUDICIAL MEMBER AND SHRI PRASHANT MAHARISHI, ACCOUNTANT MEMBER ITA NO. 4021/DEL /2015 ASSESSMENT YEAR: 2008-09 D CIT, CENTRAL CIRCLE, MEERUT VS SHRI BHUPENDRA SINGH BAJWA, A-151, DEFENCE COLONY, MAWANA ROAD, MEERUT. (PAN: AFUPB6508B) (APPELLANT) (RESPONDENT) ITA NO. 3291/DEL /2015 ASSESSMENT YEAR: 2007-08 ITA NO. 3292/DEL /2015 ASSESSMENT YEAR: 2008-09 ITA NO. 3293/DEL /2015 ASSESSMENT YEAR: 2009-10 ITA NO. 356/DEL /2016 ASSESSMENT YEAR: 2006-07 SHRI BHUPENDRA SINGH BAJWA, A-151, DEFENCE COLONY, MAWANA ROAD, MEERUT. (PAN: AFUPB6508B) VS DCIT /ACIT , CENTRAL CIRCLE, MEERUT (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI SANDEEP SAPRA, ADVOCATE RESPONDENT BY : MS APARNA KA RAN, CIT DR DATE OF HEARING: 05.01.2018 ITA 4021/D/14, 3291, 3292,3293,3294/D/15, ITA 356/D/16 ASSESSMENT YEARS 2008-09, 2006-07,07-08,08-09,09-10 2 DATE OF PRONOUNCEMENT : 03.04.2018 ORDER PER SUDHANSHU SRIVASTAVA, J.M. THE ABOVE FIVE APPEALS HAVE BEEN FILED BY THE ASSESSEE AND THE REVENUE AGAINST THE ORDERS PASSED BY THE LD. CIT (APPEALS), MEERUT AS PER DETAILS GIVEN BELOW:- ITA NO. A.Y. CIT (A) ORDER DATED 4021/D/2015 2008-09 30.03.2015 3291/DEL/2015 2007-08 30.03.2015 3292/DEL/2015 2008-09 30.03.2015 3293/DEL/2015 2009-10 30.03.2015 356/DEL/2016 2006-07 18.11.2015 1.1 ALL THESE FIVE APPEALS WERE HEARD TOGETHER AND ARE BEING DISPOSED OF BY THIS COMMON ORDER FOR THE SAKE OF CONVENIENCE. 2. AT THE OUTSET, THE LD. AR SUBMITTED THAT THE DEPARTMENTS APPEAL BEARING ITA 4021/DEL/2015 WAS BELOW THE TAX EFFECT AND WAS NOT MAINTAINABLE IN VI EW OF THE CBDT CIRCULAR NO. 21/2015 DATED10TH DECEMBER, ITA 4021/D/14, 3291, 3292,3293,3294/D/15, ITA 356/D/16 ASSESSMENT YEARS 2008-09, 2006-07,07-08,08-09,09-10 3 2015, (F.NO. 279/MISC./142/2007-ITJ(PT.)) READ WITH SECTION 268 A OF THE INCOME TAX ACT. IT WAS PRAYED THAT THE DEPARTMENTS APPEAL BE DISMISSED. 2.1 WITH RESPECT TO THE FOUR APPEALS FILED BY THE ASSESSEE, IT WAS SUBMITTED THAT THE FOLLOWING ADDIT IONAL GROUND OF APPEAL HAS BEEN RAISED BY THE ASSESSEE FO R ALL THE ASSESSMENT YEARS UNDER CONSIDERATION:- THAT THE ADDITION MADE ON ACCOUNT OF DEEMED DIVIDEND MADE U/S 2(22)(E) OF I.T. ACT IN RESPECT OF LOANS RECEIVED FROM M/S GODWIN CONSTRUCTION (P) LTD. FOR THE ABOVE MENTIONED ASSESSMENT YEARS UNDER APPEAL DESERVES TO BE DELETED AS THE APPELLANT HAD NOT BEEN CONFRONTED BY THE AO DURING THE COURSE OF ASSESSMENT PROCEEDINGS BEFORE MAKING SUCH ADDITION THEREBY VIOLATING THE PRINCIPLES OF NATURAL JUSTICE. 2.2 IT WAS ALSO SUBMITTED THAT THE ASSESSEE HAS FIL ED AN APPLICATION UNDER RULE 10 AND RULE 29 OF THE INCOME TAX APPELLATE TRIBUNAL RULES ALONG WITH AN AFFIDAVIT. THE LD. AR FURTHER SUBMITTED THAT THE ADDITIONAL GROUND RAI SED AN IMPORTANT QUESTION OF LAW WHICH WENT TO THE VERY ROOT OF THE MATTER AND DID NOT REQUIRE ANY VERIFICATION OF FACTS FOR BRINGING ON RECORD ANY FRESH MATERIAL OR ITA 4021/D/14, 3291, 3292,3293,3294/D/15, ITA 356/D/16 ASSESSMENT YEARS 2008-09, 2006-07,07-08,08-09,09-10 4 ADDITIONAL EVIDENCES. IT WAS PRAYED THAT THE ADDIT IONAL GROUND MAY BE ADMITTED. 3. THE LD. CIT DR OPPOSED ADMISSION OF ADDITIONAL GROUND AND SUBMITTED THAT THE ASSESSEE HAD NOT COOPERATED WITH THE ASSESSING OFFICER DURING THE ASSESSMENT PROCEEDINGS AND, THEREFORE, THE ASSESSEE SHOULD NOT BE ALLOWED ANOTHER OPPORTUNITY IN THE FO RM OF ALLOWING ADDITIONAL GROUND OF THE ASSESSEE. 4. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD AS WELL AS THE PAP ER BOOK FILED ON BEHALF OF THE ASSESSEE. IT IS OUR CO NSIDERED OPINION THAT THE ADDITIONAL GROUND SOUGHT TO BE RAI SED BY THE ASSESSEE GOES TO THE VERY ROOT OF THE MATTER AN D DOES NOT ENTAIL ANY VERIFICATION OF THE FACTS OR BRINGIN G ON RECORD ANY FRESH MATERIAL OR ADDITIONAL EVIDENCE. RESPECTFULLY FOLLOWING THE JUDGMENT OF THE HONBLE APEX COURT IN THE CASE OF NATIONAL THERMAL POWER CORPORA TION LTD. VS. COMMISSIONER OF INCOME TAX REPORTED IN 229 ITR 383 (SC), WE ADMIT THE ADDITIONAL GROUND RAISED BY THE ASSESSEE. ITA 4021/D/14, 3291, 3292,3293,3294/D/15, ITA 356/D/16 ASSESSMENT YEARS 2008-09, 2006-07,07-08,08-09,09-10 5 4.1 IT IS SEEN THAT THE ASSESSEE HAD SUBMITTED ADDI TIONAL EVIDENCE BEFORE THE LD. COMMISSIONER OF INCOME TAX (A) WITH RESPECT TO THE ASSESSEES CHALLENGE OF ADDITIO N MADE U/S 2(22)(E) OF THE INCOME TAX ACT, 1961 (HEREINAFT ER CALLED 'THE ACT') AS DEEMED DIVIDEND IN ALL THE YEA RS UNDER CONSIDERATION BUT THE LD. COMMISSIONER OF INC OME TAX (A) DID NOT ALLOW THE ADDITIONAL EVIDENCE TO BE FILED. THE ASSESSEE HAS DEMONSTRATED THAT HE HAD JUSTIFIAB LE REASON FOR NOT SUBMITTING THE DOCUMENTS BEFORE THE ASSESSING OFFICER AND IT IS OUR CONSIDERED OPINION THAT THE LD. COMMISSIONER OF INCOME TAX (A) SHOULD HAVE ADMITTED THE ADDITIONAL EVIDENCE AND SHOULD HAVE CONSIDERED THE SAME AFTER CALLING FOR REMAND REPORT FROM THE ASSESSING OFFICER. THEREFORE, IN THE FACTS OF THE CASE AND IN INTEREST OF JUSTICE, WE DIRECT THE LD. COMMI SSIONER OF INCOME TAX (A) TO ADMIT THE ADDITIONAL EVIDENCE FURNISHED BY THE ASSESSEE WITH REGARD TO THE SHAREHOLDING OF THE COMPANY AND DECIDED THE ISSUE DE NOVO AFTER AFFORDING ADEQUATE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE FOR ALL THE YEARS UNDER CONSIDERATI ON. ACCORDINGLY, ITA 356/DEL/2016, 3291/DEL/2015, ITA 4021/D/14, 3291, 3292,3293,3294/D/15, ITA 356/D/16 ASSESSMENT YEARS 2008-09, 2006-07,07-08,08-09,09-10 6 3292/DEL/2015, 3293/DEL/2015 ARE RESTORED TO THE FI LE OF THE LD. COMMISSIONER OF INCOME TAX (A) FOR DECID ING THE ISSUE DE NOVO. 4.2 AS FAR AS THE DEPARTMENTS APPEAL BEARING ITA 4021/DEL/2015 IS CONCERNED, WE AGREE WITH THE AVERMENTS OF THE LD. AR THAT THIS APPEAL IS NOT MAINTAINABLE IN VIEW OF THE CBDT CIRCULAR NO. 21/20 15 DATED10TH DECEMBER, 2015, {F. NO. 279/MISC./142/200 7- ITJ(PT.)} READ WITH SECTION 268 A OF THE INCOME TAX ACT, 1961. HENCE, ITA 4021/DEL/2015 STANDS DISMISSED. 5. IN THE RESULT, ALL THE FOUR APPEALS OF THE ASSES SEE ARE ALLOWED FOR STATISTICAL PURPOSES WHEREAS THE DEPART MENTS APPEAL STANDS DISMISSED. THE ORDER IS PRONOUNCED IN THE OPEN COURT ON 3 RD APRIL, 2018. SD/- SD/- (PRASHANT MAHARISHI) (SUDHANSHU SRIVASTAVA) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 3 RD APRIL, 2018 GS ITA 4021/D/14, 3291, 3292,3293,3294/D/15, ITA 356/D/16 ASSESSMENT YEARS 2008-09, 2006-07,07-08,08-09,09-10 7 COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR, ITAT TRUE COPY BY ORDER ASSISTANT REGISTRAR