Saamag Developers Pvt. Ltd., New Delhi V. DCIT, New Delhi

ITA 3560/DEL/2017

• Counselvise Citation: [2018] 126 COUNSELVISE.COM (IT) 3444 (ITAT-DELHI)
• Duration Of Justice: 8 month(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 09-02-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2012-2013
• Appeal Filed On: 05-06-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH SMC, NEW DELHI BEFORE SHRI R. K. PANDA, ACCOUNTANT MEMBER ITA NO.3560/DEL/2017 ASSESSMENT YEAR : 2012-13 SAAMAG DEVELOPERS PVT. LTD., B- 67, SARITA VIHAR, NEW DELHI. VS. DCIT, CENTRAL CIRCLE- 19, NEW DELHI. PAN : AAJCS4952R (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI M. P. RASTOGI, ADV. DEPARTMENT BY : SHRI ARUN KUMAR YADAV, SR.DR DATE OF HEARING : 04-01-2018 DATE OF PRONOUNCEMENT : 09-02-2018 O R D E R PER R. K. PANDA, AM : THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAIN ST THE ORDER DATED 30.03.2017 OF CIT(A)- 27, NEW DELHI RELATING TO ASS ESSMENT YEAR 2012-13. 2. ADDITION OF RS.12,00,000/- BY THE ASSESSING OFFI CER UNDER THE PROVISIONS OF SECTION 2(22)(E) WHICH HAS BEEN UPHELD BY THE LD . CIT(A) IS THE ONLY ISSUE RAISED BY THE ASSESSEE IN THE GROUNDS OF APPEAL. 3. FACTS OF THE CASE, IN BRIEF, ARE THAT THE ASSESS EE IS A COMPANY ENGAGED IN THE BUSINESS OF REAL ESTATE DEVELOPMENT I.E. ACQUIS ITION OF LAND, DEVELOPMENT THEREOF, CONSTRUCTION OF RESIDENTIAL APARTMENTS, CO MMERCIAL COMPLEXES ETC. IT FILED ITS RETURN OF INCOME ON 30.09.2012 DECLARING LOSS OF RS.7,89,821/- WHICH WAS REVISED ON 19.11.2013 DECLARING LOSS OF RS.7,95 ,439/-. DURING THE COURSE OF 2 ITA NO.3560/DEL/2017 ASSESSMENT PROCEEDINGS, ON PERUSAL OF SCHEDULE TO F INANCIAL STATEMENTS OF THE ASSESSEE COMPANY, THE ASSESSING OFFICER NOTED THAT THERE WAS CERTAIN TRANSACTION OF LOANS AND ADVANCES WITH RELATED PARTIES. HE, TH EREFORE, ASKED THE ASSESSEE TO EXPLAIN AS TO WHY THE PROVISIONS OF SECTION 2(22)(E ) SHOULD NOT BE ATTRACTED. THE ASSESSEE IN ITS REPLY SUBMITTED THE DETAILS OF LOAN S AND ADVANCES, THE DETAILS OF WHICH ARE AS UNDER :- (I) MR. DINESH PANDEY RS.10,00,000/- (II) M/S FARE TOWNSHIP PVT. LTD. RS.5,00,000/- (III) M/S SAGA REALTORS PVT. LTD. RS.9,00,000/- (IV) M/S SAAMAG CONSTRUCTION LTD. RS.19,15,000/- (V) ZENITH TOWNSHIP PVT. LTD. RS.50,000/- (VI) M/S MAX BUILDTECH PVT. LTD. RS.31,10,000/- (VII) M/S SAGA DEVELOPERS PVT. LTD. RS.25,000/- (VIII) M/S SAAMAG INFRASTRUCTURE LTD. RS.12,00,000/- 4. IT WAS SUBMITTED THAT THE ASSESSEE HAS TAKEN MON EY IN NORMAL COURSE OF BUSINESS AND, THEREFORE, IT DOES NOT ATTRACT THE PR OVISIONS OF SECTION 2(22)(E) OF THE I.T. ACT. FURTHER, THE ASSESSEE ALSO GAVE ITEM -WISE DETAILS WHICH ARE AS UNDER :- (I) ADVANCE RECEIVED FROM MR. DINESH PANDEY, BEING INDIVIDUAL, DOES NOT FALL UNDER THE MISCHIEF OF SECTION 2(22)(E). (II) M/S FARE TOWNSHIP PVT. LTD. HAS NO ACCUMULATED RESERVE AND SURPLUS THEREFORE AMOUNT RECEIVED FROM IT CANNOT BE COVERED U/S 2(22) (E) OF THE ACT. RELEVANT PAGE OF BALANCE SHEET OF EXTRACT OF M/S FARE TOWNSH IP PVT. LTD. IS ATTACHED HEREWITH. (III) ASSESSEE IS NEITHER A SHAREHOLDER OF M/S SAGA REALTORS PVT. LTD. NOR ANY COMMON SHAREHOLDER HOLDS 10% OR MORE IN BOTH COMPAN IES. THUS AMOUNT RECEIVED FROM IT CANNOT BE COVERED U/S 2(22)(E) OF THE ACT. SHAREHOLDING OF M/S SAGA REALTORS PVT. LTD. IS SUBMITTED HEREWITH. (IV) ASSESSEE IS NEITHER A SHAREHOLDERS OF M/S ZENI TH TOWNSHIP PVT. LTD. NOR ANY COMMON SHAREHOLDER HOLDS 10% OR MORE IN BOTH COMPAN IES. THUS AMOUNT 3 ITA NO.3560/DEL/2017 RECEIVED FROM IT CANNOT BE COVERED U/S 2(22)(E) OF THE ACT. SHAREHOLDING OF M/S ZENITH TOWNSHIP PVT. LTD. IS SUBMITTED HEREWITH . (VI) ASSESSEE IS NEITHER SHAREHOLDERS OF M/S MAX BU ILDTECH PVT. LTD. NOR ANY COMMON SHAREHOLDER HOLDS 10% OR MORE IN BOTH COMPAN IES. THUS AMOUNT RECEIVED FROM IT CANNOT BE COVERED U/S 2(22)(E) OF THE ACT. SHAREHOLDING OF M/S MAX BUILDTECH PVT. LTD. IS SUBMITTED HEREWITH. (VII) M/S SAGA DEVELOPERS PVT. LTD. HAS NO AVAILABL E RESERVE AND SURPLUS THEREFORE AMOUNT RECEIVED FROM IT CANNOT BE COVERED U/S 2(22) (E) OF THE ACT. (VIII) AMOUNT OF RS.12,00,000/- RECEIVED FROM M/S S AAMAG INFRASTRUCTURE LTD. IS TRADE ADVANCE RECEIVED IN NORMAL COURSE OF BUSINESS AND THEREFORE FALL OUTSIDE THE PURVIEW OF SECTION 2(22)(E) OF THE ACT. 5. HOWEVER, THE ASSESSING OFFICER WAS NOT SATISFIED WITH THE EXPLANATION GIVEN BY THE ASSESSEE BY OBSERVING AS UNDER :- (I) AMOUNT OF RS.31,10,000/- RECEIVED BY THE ASSES SEE FROM M/S SAAMAG INFRASTRUCTURE LTD. COVERED U/S 2(22)(E). (II) MR. DINESH PANDEY HAS COMMON AND SUBSTANTIAL S HAREHOLDINGS OF 35% IN ASSESSEE COMPANY AS WELL AS 50% IN M/S SAAMAG INFRA STRUCTURE PVT. LTD. (III) ASSESSEE COMPANY IS NOT A COMPANY IN WHICH PU BLIC HAS SUBSTANTIAL INTEREST. (IV) SUBSTANTIAL BUSINESS OF THE ASSESSEE COMPANY I S NOT MONEY LENDING. (V) BALANCE ACCUMULATED PROFITS OF M/S PYRAMID REAL TORS PVT. LTD. IS MORE THAN RS.12,00,000/-. 6. DISTINGUISHING THE VARIOUS DECISIONS CITED BEFOR E HIM, THE ASSESSING OFFICER, INVOKING THE PROVISIONS OF SECTION 2(22)(E ) MADE ADDITION OF RS.12,00,000/- TO THE TOTAL INCOME OF THE ASSESSEE. 7. IN APPEAL, THE LD. CIT(A) UPHELD THE ACTION OF T HE ASSESSING OFFICER BY OBSERVING AS UNDER :- 5.2 I HAVE GONE THROUGH THE FACTS OF THE CASE, WRI TTEN SUBMISSION OF THE APPELLANT AND CONSIDERED THEM. I DO NOT FIND ANY MERIT IN TH E CONTENTION OF THE APPELLANT. EVEN IF IT IS CONSIDERED THAT THESE ADVANCES ARE BUSINES S ADVANCES, SECTION 2(22)(E) DOES NOT DIFFERENTIATE BETWEEN TRADE/ BUSINESS ADVANCES OR OTHER ADVANCES. SECTION 2(22)(E) OF THE ACT PROVIDES, INTER ALIA, THAT DIVI DEND INCLUDE ANY PAYMENT BY A COMPANY, NOT BEING A COMPANY IN WHICH THE PUBLIC AR E SUBSTANTIALLY INTERESTED, OR ANY SUM (WHETHER AS REPRESENTING A PART OF THE ASSETS O F THE COMPANY OR OTHERWISE) MADE 4 ITA NO.3560/DEL/2017 AFTER 31 ST DAY OF MAY, 1987, BY WAY OF ADVANCE OR LOAN TO A C ONCERN IN WHICH A BENEFICIAL SHAREHOLDER (SHAREHOLDER IN LENDING COMP ANY HOLDING MORE THAN 10% SHARES) IS A MEMBER OR A PARTNER AND IN WHICH HE HA S A SUBSTANTIAL INTEREST. IN THE CASE IN HAND, APPELLANT HAD BORROWED RS.12,0 0,000/- FROM M/S SAAMAG INFRASTRUCTURE LTD. MR. DINESH PANDEY HAVE COMMON S HAREHOLDING (MORE THAN 10%) IN THE APPELLANT COMPANY AS WELL AS IN M/S SAAMAG I NFRASTRUCTURE LTD. ACCORDINGLY THE TRANSACTIONS ARE COVERED U/S 2(22)(E) OF THE AC T. THUS ADDITIONS MADE BY AO ARE UPHELD AND GROUNDS OF APPEAL NO.S 1, 2 & 3 ARE DIS MISSED. 8. AGGRIEVED WITH SUCH ORDER OF THE LD. CIT(A), THE ASSESSEE IS IN APPEAL BEFORE THE TRIBUNAL. 9. LD. COUNSEL FOR THE ASSESSEE STRONGLY OBJECTED T O THE ADDITION OF RS.12,00,000/- MADE BY THE ASSESSING OFFICER U/S 2( 22)(E) WHICH HAS BEEN SUSTAINED BY THE LD. CIT(A). HE SUBMITTED THAT DUR ING THE YEAR UNDER APPEAL THE ASSESSEE HAD RECEIVED THE FOLLOWING AMOUNTS FROM SA AMAG INFRASTRUCTURE LTD. THOUGH CHEQUES DRAWN ON JAMMU & KASHMIR BANK LTD. : - 1. RS.10,00,000/- ON 12.09.2011 VIDE CHEQUE NO.181 518. 2. RS.2,00,000/- ON 05.01.2012 VIDE CHEQUE NO.1815 36. 10. REFERRING TO THE BANK STATEMENT, HE SUBMITTED T HAT IT IS CLEAR FROM THE BANK STATEMENT THAT BEFORE MAKING PAYMENT OF RS.10, 00,000/- ON 12.09.2011, SAAMAG INFRASTRUCTURE LTD. HAD RECEIVED RS.10,00,00 0/- FROM M/S ZENITH TOWNSHIP PVT. LTD. AND OUT OF THIS AMOUNT AS RECEIV ED FROM ZENITH TOWNSHIP PVT. LTD., SAAMAG INFRASTRUCTURE LTD. PAID THE AMOU NT TO THE ASSESSEE. HE SUBMITTED THAT SAAMAG INFRASTRUCTURE LTD. WAS HAVIN G BALANCE OF RS.9,025/- WHICH WAS INSUFFICIENT TO MAKE THE PAYMENT OF RS.10 ,00,000/-. HE SUBMITTED 5 ITA NO.3560/DEL/2017 THAT THE AMOUNT OF RS.2,00,000/- WAS PAID BY SAAMAG INFRASTRUCTURE LTD. OUT OF THE AMOUNT FURTHER RECEIVED FROM ZENITH TOWNSHIP PV T. LTD. OF RS.5,00,000/- ON 03.01.2012. 11. HE ACCORDINGLY SUBMITTED THAT THE AFORESAID TWO AMOUNTS WERE PAID BY SAAMAG INFRASTRUCTURE LTD. TO THE ASSESSEE NOT OUT OF ITS ACCUMULATED PROFITS BUT OUT OF THE AMOUNTS RECEIVED FROM ZENITH TOWNSHIP PV T. LTD. 12. REFERRING TO THE DECISION OF THE HONBLE CALCUT TA HIGH COURT IN THE CASE OF NANDLAL KANORIA VS. CIT REPORTED IN 122 ITR 405, HE SUBMITTED THAT IN THAT CASE THE ASSESSEE HAD RECEIVED RS.75,000/- ON 30.07 .1968 AND RS.2,00,000/- ON 02.09.1968 FROM ONE SOLE PROPRIETORSHIP CONCERN, NA MELY, INDIRA & CO. AND IT WAS ALLEGED BY THE ASSESSING OFFICER THAT THE SAID AMOUNTS WERE RECEIVED BY INDIRA & CO. FROM A COMPANY WHEREIN NANDLAL KANORIA WAS HAVING SUBSTANTIAL INTEREST AND ACCORDINGLY MADE ADDITION U/S 2(22)(E) IN THE HANDS OF NANDLAL KANORIA. HOWEVER, IT WAS DISCOVERED BY THE HONBLE HIGH COURT THAT INDIRA & CO. HAD MADE PAYMENTS OF RS.2,00,000/- TO THE ASSES SEE OUT OF LOAN RECEIVED FROM ANOTHER THIRD COMPANY AND IT WAS ACCORDINGLY H ELD THAT THE AMOUNT OF RS.2,00,000/- CANNOT BE SAID TO HAVE BEEN PAID TO N ANDLAL KANORIA OUT OF ACCUMULATED PROFITS. IN THE INSTANCE CASE ALSO, HE SUBMITTED THAT THE ABOVE AMOUNTS OF RS.12,00,000/- HAS BEEN PAID BY SAAMAG I NFRASTRUCTURE LTD. OUT OF LOANS RAISED FROM ZENITH TOWNSHIP PVT. LTD.. 6 ITA NO.3560/DEL/2017 13. REFERRING TO THE DECISION OF HONBLE DELHI HIGH COURT IN THE CASE OF R. DALMIA VS. CIT REPORTED IN 133 ITR 169, HE SUBMITTE D THAT THE HON'BLE HIGH COURT IN THE SAID DECISION HAS HELD THAT THE EXPRES SION POSSESSED ACCUMULATED PROFITS MEANS THAT THE PAYER COMPANY MUST HAVE PHY SICAL AVAILABILITY OF ACCUMULATED PROFITS FOR ITS DISBURSEMENT AND IN CAS E THE ACCUMULATED PROFITS ARE NOT PHYSICALLY AVAILABLE FOR DISBURSEMENT, NO ADDIT ION CAN BE MADE U/S 2(22)(E). HE SUBMITTED THAT AFTER CONSIDERING THE ABOVE JUDGM ENT, THE JAIPUR BENCH OF THE TRIBUNAL IN THE CASE OF BHIM SINGH VS. ACIT IN ITA NO.89/JP/2008 AND IN THE CASE OF SMT. MADHUWANTI SINGH VS. ACIT IN ITA NO.88 /JP/2008 ORDER DATED 1109.2008 HAS HELD THAT IF THE PAYER COMPANY HAS AL READY MADE THE INVESTMENT IN EITHER TO THE EXTENT OF ACCUMULATED PROFITS OR M ORE THAN THAT THEN IT MEANS THAT THE COMPANY DOES NOT POSSESS ACCUMULATED PROFITS UN DER ITS CONTROL TO MAKE ANY PAYMENT OUT OF ACCUMULATED PROFITS TO ITS SHAREHOLD ERS. 14. REFERRING TO THE BALANCE SHEET OF THE ASSESSEE COMPANY, HE DREW THE ATTENTION OF THE BENCH TO THE FIGURES OF RESERVES/L IABILITIES AND INVESTMENTS, THE DETAILS OF WHICH ARE AS UNDER :- 31.03.12 31.03.11 RESERVES & SURPLUS 1,52,38,655 1,54,04,600 CURRENT LIABILITIES 43,34,04,326 43,80,71,236 INVESTMENTS NON-CURRENT INVESTMENTS 12,16,62,350 12,16,62,350 INVENTORIES 17,19,04,0474 17,18,72,374 SHORT - TERM LOANS AND ADVANCES 3,68,48,172 4,00,63,172 OTHER CURRENT ASSETS 11,82,18,105 11,82,61,905 44,86,32,701 45,18,59,801 7 ITA NO.3560/DEL/2017 15. REFERRING TO THE ABOVE, HE SUBMITTED THAT IN TH E PRECEDING YEAR ITSELF I.E. ASSESSMENT YEAR 2011-12, THE INVESTMENT IN INVENTOR IES AND VARIOUS ASSETS WERE MORE THAN THE RESERVES AND SURPLUS AND ACCORDINGLY SUCH RESERVES AND SURPLUS WERE NOT PHYSICALLY AVAILABLE WITH SAAMAG INFRASTRU CUTRE LTD.. HE SUBMITTED THAT THE ACCUMULATED PROFITS OF SAAMAG INFRASTRUCUT RE LTD. WERE REDUCED IN ASSESSMENT YEAR 2012-13. 16. HE FURTHER SUBMITTED THAT THE AMOUNT RECEIVED W AS NOT IN THE FORM OF LOANS AND ADVANCES BUT WAS IN THE NATURE OF DEPOSIT S. REFERRING TO THE PROVISIONS OF SECTION 2(22)(E), HE SUBMITTED THAT F OR THE PURPOSE OF INVOKING PROVISIONS OF SECTION 2(22)(E) IT IS ONLY THE PAYME NTS WHICH BEAR THE CHARACTERISTICS OF LOANS AND ADVANCES. IT DOES NOT APPLY TO THE DEPOSITS. REFERRING TO THE DECISION OF THE HONBLE DELHI HIGH COURT IN THE CASE OF BAIDYA NATH PLASTIC INDUSTRIES (P) LTD. & ORS. VS. ITO REP ORTED IN 230 ITR 522, HE SUBMITTED THAT THE HON'BLE HIGH COURT IN THE SAID D ECISION HAS HELD THAT THERE IS DISTINCTION BETWEEN LOAN AND DEPOSITS. IN THE CASE OF LOAN, IT IS ORDINARILY THE DUTY OF THE DEBTOR TO SEEK OUT THE CREDITOR AND TO REPAY THE MONEY ACCORDING TO THE AGREEMENT WHEREAS IN THE CASE OF DEPOSITOR T O GO TO THE DEPOSITEE AND MAKE A DEMAND FOR IT. HE ALSO RELIED ON THE FOLLOW ING DECISIONS :- (I) BOMBAY STEAM NAVIGATION CO. PVT. LTD. VS. CIT, 56 ITR 52. (II) CIT VS. BAZPUR CO-OPERATIVE SUGAR FACTORY LTD ., 177 ITR 469. 8 ITA NO.3560/DEL/2017 17. HE ACCORDINGLY SUBMITTED THAT THE ORDER OF THE LD. CIT(A) BE SET-ASIDE AND THE GROUNDS RAISED BY THE ASSESSEE BE ALLOWED. 18. THE LD. DR ON THE OTHER HAND HEAVILY SUPPORTED THE ORDER OF THE LD. CIT(A). HE SUBMITTED THAT THE ADVANCES GIVEN WERE OUT OF LOAN TAKEN FROM THIRD PARTY IS BEING ARGUED BY THE LD. COUNSEL FOR THE AS SESSEE FOR THE FIRST TIME BEFORE THE TRIBUNAL WHICH IS NEW CONTENTION AND THEREFORE SHOULD NOT BE ENTERTAINED. HE ACCORDINGLY SUBMITTED THAT THE ORDER OF THE LD. CIT(A) BEING A SPEAKING ONE SHOULD BE UPHELD. 19. LD. COUNSEL FOR THE ASSESSEE IN HIS REJOINDER R EFERRED TO THE DECISION OF THE HONBLE SUPREME COURT IN THE CASE OF CIT VS. MAHALA KSHMI TEXTILE MILLS LTD. REPORTED IN 66 ITR 710 AND SUBMITTED THAT NEW CONTE NTION MAY BE CONSIDERED BY THE TRIBUNAL. 20. I HAVE CONSIDERED THE RIVAL ARGUMENTS MADE BY B OTH THE SIDES, PERUSED THE ORDERS OF THE AUTHORITIES BELOW AND THE PAPER BOOK FILED ON BEHALF OF THE ASSESSEE. I HAVE ALSO CONSIDERED THE VARIOUS DECIS IONS CITED BEFORE ME. I FIND THE ASSESSING OFFICER MADE ADDITION OF RS.12,00,000 /- UNDER PROVISIONS SECTION 2(22)(E) ON THE GROUND THAT THE ADVANCE OF RS.12,00 ,000/- FROM SAAMAG INFRASTRUCTURE LTD. RECEIVED BY THE ASSESSEE DURING THE IMPUGNED YEAR FALLS UNDER THE DEEMING PROVISIONS OF SECTION 2(22)(E) LD . CIT(A) UPHELD THE ACTION OF THE ASSESSING OFFICER, THE DETAILS OF WHICH ARE ALREADY REPRODUCED IN THE PRECEDING PARAGRAPHS. IT IS THE SUBMISSION OF THE LD. COUNSEL FOR THE ASSESSEE 9 ITA NO.3560/DEL/2017 THAT ACCUMULATED PROFITS, WHICH WAS AVAILABLE WITH THE ASSESSEE COMPANY WAS ALREADY EXHAUSTED AND THE ADVANCE OF RS.12,00,000/- GIVEN BY SAAMAG INFRASTRUCTURE LTD. WAS OUT OF LOAN FROM ZENITH TOW NSHIP PVT. LTD. AND, THEREFORE, THE PROVISIONS OF SECTION 2(22)(E) ARE N OT APPLICABLE TO THE ASSESSEE COMPANY. IT IS THE SUBMISSION OF THE LD. DR, NO SU CH ARGUMENT WAS ADVANCED BY THE ASSESSEE BEFORE THE LD. CIT(A) AND THE ASSES SEE IS MAKING NEW PLEA BEFORE THE TRIBUNAL. A PERUSAL OF THE MATERIAL AVA ILABLE ON RECORD SHOWS THAT THE ASSESSEE IS CHALLENGING THE ADDITION MADE BY TH E ASSESSING OFFICER ON ACCOUNT OF ADDITION U/S 2(22)(E) OF THE I.T. ACT. THE ASSESSEE BEFORE THE ASSESSING OFFICER HAD MADE A SUBMISSION THAT THE AM OUNT OF RS.12,00,000/- RECEIVED FROM SAAMAG INFRASTRUCTURE LTD. AS ADVANCE WAS IN THE NORMAL COURSE OF BUSINESS. NOW, IT IS THE SUBMISSION OF THE LD. COUNSEL FOR THE ASSESSEE THAT THE AMOUNT OF RS.12,00,000/- WAS RECEIVED FROM SAAMAG I NFRASTRUCTURE LTD. WHICH, IN TURN, HAD RECEIVED THE AMOUNT FROM M/S ZENITH TO WNSHIP PVT. LTD. AND FROM THE SAID AMOUNT, THE AMOUNT WAS GIVEN TO THE ASSESS EE AND, THEREFORE, THE PROVISIONS OF SECTION 2(22)(E) ARE NOT APPLICABLE. SINCE THIS PLEA IS BEING TAKEN FOR THE FIRST TIME BEFORE THE TRIBUNAL, THEREFORE, CONSIDERING THE TOTALITY OF THE FACTS OF THE CASE AND IN THE INTEREST OF JUSTICE, I DEEM IT PROPER TO RESTORE THE ISSUE TO THE FILE OF THE LD. CIT(A) WITH A DIRECTIO N TO ADJUDICATE THE ISSUE AFRESH AND IN ACCORDANCE WITH LAW AFTER GIVING DUE OPPORTU NITY OF BEING HEARD TO THE ASSESSEE. 10 ITA NO.3560/DEL/2017 21. SO FAR AS ARGUMENT OF THE LD. DR THAT THE PLEA OF THE LD. COUNSEL FOR THE ASSESSEE THAT ADVANCE WAS GIVEN OUT OF LOAN TAKEN F ROM THIRD PARTY WAS BEING ARGUED FOR THE FIRST TIME IS CONCERNED, IN MY OPINI ON, THE ASSESSEE CAN TAKE NEW CONTENTION BEFORE THE TRIBUNAL TO SUPPORT ITS CASE IF FULL DETAILS ARE AVAILABLE ON RECORD. THE ASSESSEE HAS FILED THE BANK STATEMENT WHICH WAS ALSO FILED BEFORE THE ASSESSING OFFICER AS STATED BY THE LD. COUNSEL FOR THE ASSESSEE AND NOT CONTROVERTED BY THE LD. DR. I FIND THE HON'BLE SUP REME COURT IN THE CASE OF MAHALAKSHMI TEXTILE MILLS LTD. (SUPRA) HAS HELD THA T U/S 33(4) THE APPELLATE TRIBUNAL IS COMPETENT TO PASS SUCH ORDERS ON APPEAL AS IT THINKS FIT. THERE IS NOTHING IN THE INCOME-TAX ACT WHICH RESTRICTS THE T RIBUNAL TO THE DETERMINATION OF QUESTIONS RAISED BEFORE THE DEPARTMENTAL AUTHORI TIES. ALL QUESTIONS, WHETHER OF LAW OR OF FACTS, WHICH RELATE TO THE ASSESSMENT OF THE ASSESSEE MAY BE RAISED BEFORE THE TRIBUNAL. IF FOR REASONS RECORDED BY TH E DEPARTMENTAL AUTHORITIES IN RESPECT OF A CONTENTION RAISED BY THE ASSESSEE, GRA NT OF RELIEF TO HIM ON ANOTHER GROUND IS JUSTIFIED, IT WOULD BE OPEN TO THE DEPART MENTAL AUTHORITIES AND THE TRIBUNAL, AND INDEED THEY WOULD BE UNDER A DUTY, TO GRANT THAT RELIEF. THE RIGHT OF THE ASSESSEE TO RELIEF IS NOT RESTRICTED TO THE PLEA RAISED BY HIM. 22. IN VIEW OF THE ABOVE, THE PLEA OF THE LD. DR IS REJECTED AND THE MATTER IS RESTORED TO THE FILE OF THE LD. CIT(A) FOR ADJUDICA TION OF THE ISSUE AFRESH AS DIRECTED EARLIER. THE GROUNDS RAISED BY THE ASSESS EE ARE ACCORDINGLY ALLOWED FOR STATISTICAL PURPOSES. 11 ITA NO.3560/DEL/2017 23. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 09 TH FEBRUARY, 2018. SD/- (R. K. PANDA) ACCOUNTANT MEMBER DATED: 09-02-2018. SUJEET COPY OF ORDER TO: - 1) THE APPELLANT 2) THE RESPONDENT 3) THE CIT 4) THE CIT(A) 5) THE DR, I.T.A.T., NEW DELHI BY ORDER //TRUE COPY// ASSISTANT REGISTRAR ITAT, NEW DELHI