Pramod Panday, Noida V. DCIT, New Delhi

ITA 3561/DEL/2017

• Counselvise Citation: [2018] 126 COUNSELVISE.COM (IT) 2969 (ITAT-DELHI)
• Duration Of Justice: 9 month(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 12-03-2018
• 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
• Department Lawyers: V K JIWANI
• Keywords: Opportunity of being heard; Deemed dividend

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH: SMC, NEW DELHI BEFORE SHRI H. S. SIDHU, JUDICIAL MEMBER I.T.A. NO. 3561/DEL/2017 ASSESSMENT YEAR: 2012-13 PRAMOD PANDAY, VS. DCIT, CC-19, C-2/101, SECTOR-36, NEW DELHI NOIDA (PAN: AALPP2708H) (ASSESSEE) (RESPONDENT) A SSESSEE BY : SH. M.P. RASTOGI, ADV. REVENUE BY : SH. V.K. JIWANI, SR. DR ORDER THIS APPEAL IS FILED BY ASSESSEE AGAINST THE ORDER DATED 30.3.2017 PASSED BY THE LD. CIT(A)-27, NEW DELHI RELATING TO ASSESSMENT YEAR 2012-13 ON THE FOLLOWING GROUNDS:- (1) THE LOWER AUTHORITIES HAVE ERRED IN LAW AS WELL AS ON FACTS IN ADDING RS. 5,00,000/- AS ALLEGED DEEMED DIVIDEND U/ S. 2(22)(E) OF THE INCOME TAX ACT, 1961 WITHOUT APPREC IATING THE FACTS AND CIRCUMSTANCES OF THE CASE AND WITHOUT CONSIDERING THE SUBMISSIONS MADE BY THE APPELLANT D URING THE COURSE OF PROCEEDINGS. (2) THE CIT(A) HAS ERRED IN HOLDING THAT SECTION 2(22)( E) OF THE ACT DOES NOT DIFFERENTIATE BETWEEN LOANS AND ADVANC ES RECEIVED FOR BUSINESS PURPOSES OR FOR ANY OTHER PUR POSES. THE APPELLANT CRAVES LEAVE TO ADD, ALTER, AMEND OR WITHDRAW ANY OF THE GROUNDS OF APPEAL AT THE TIME OF HEARIN G. 2. FACTS NARRATED BY THE REVENUE AUTHORITIES ARE NO T DISPUTED BY THE PARTIES, HENCE, THE SAME ARE NOT REPRODUCED HERE F OR THE SAKE OF BREVITY. 2 3. AT THE TIME OF HEARING, LD. COUNSEL OF THE ASSES SEE STATED THAT LOWER AUTHORITIES HAVE ERRED IN ADDING AND CONFIR MING THE ADDITION OF RS. 5 LACS WITHOUT APPRECIATING THE FACTS AND CIRCUMS TANCES OF THE CASE AND WITHOUT CONSIDERING THE SUBMISSIONS MADE BY THE ASS ESSEE DURING THE COURSE OF PROCEEDINGS. IT WAS FURTHER SUBMITTED THA T LD. CIT(A) HAS ERRED IN HOLDING THAT SECTION 2(22)(E) OF THE ACT DOES NO T DIFFERENTIATE BETWEEN LOANS AND ADVANCES RECEIVED FOR BUSINESS PURPOSES OR FOR ANY OTHER PURPOSES. HE FURTHER STATED THAT ASSESSEE AND ITS GROUP CONCERNS ARE INVOLVED IN REAL ESTATE BUSINESS AND ARE BEING CAR RYING ON BUSINESS WITH THE ASSISTANCE OF EACH OTHER. BECAUSE THE GROUP COM PANIES WERE ENGAGED IN THE DEVELOPMENT OF INTEGRATED TOWNSHIP FOR WHICH A SUFFICIENT QUANTITY OF LAND IS REQUIRED BUT ON ACCOUNT OF RESTRICTIVE S TATUTORY PROVISIONS IN RELATION TO LAND HOLDING ONE CANNOT PURCHASE THE E NTIRE LAND REQUIRED FOR PROJECT IN ONES NAME COMPLETELY AND HAS TO RESORT A DEVICE BY ACQUIRING THE LANDS IN DIFFERENT NAMES AND THEN PUT TOGETHER FOR DEVELOPMENT OF REAL ESTATE. SUCH AMOUNTS WERE RECEIVED BY THE APPE LLANT FROM SAAMAG INFRASTRUCTURE LTD. FOR PURCHASE OF LAND MEANT FOR REAL ESTATE. THE BUSINESS TRANSACTIONS ARE OUTSIDE THE PURVIEW OF SE CTION 2(22)(E) OF THE ACT. HENCE, HE REQUESTED THAT THE ISSUES IN DISPU TE MAY ALSO BE SET ASIDE TO THE FILE OF THE LD. CIT(A) TO DECIDE THE S AME AFRESH, AS PER LAW, AFTER GIVING ADEQUATE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. 3.1 ON THE CONTRARY, LD. DR RELIED UPON THE ORDERS OF THE AUTHORITIES BELOW AND OPPOSED THE REQUEST OF THE LD. COUNSEL OF THE ASSESSEE. 4. I HAVE HEARD BOTH THE PARTIES AND PERUSED THE RE CORDS ESPECIALLY THE IMPUGNED ORDER, I FIND THAT LD. CTI(A) WHILE UPHOLDING THE ACTION OF THE AO HAS NOT CONSIDERED THE SUBMISSIONS OF THE LD. COUNSEL OF THE ASSESSEE AND ITS GROUP CONCERNS WHO ARE ALSO INVOLV ED IN REAL ESTATE BUSINESS AND ARE BEING CARRYING ON BUSINESS WITH T HE ASSISTANCE OF EACH OTHER. BECAUSE THE GROUP COMPANIES WERE ENGAGED IN THE DEVELOPMENT OF INTEGRATED TOWNSHIP FOR WHICH A SUFFICIENT QUANTITY OF LAND IS REQUIRED BUT ON ACCOUNT OF RESTRICTIVE STATUTORY PROVISIONS IN R ELATION TO LAND HOLDING ONE CANNOT PURCHASE THE ENTIRE LAND REQUIRED FOR PROJECT IN ONES NAME 3 COMPLETELY AND HAS TO RESORT A DEVICE BY ACQUIRING THE LANDS IN DIFFERENT NAMES AND THEN PUT TOGETHER FOR DEVELOPMENT OF REAL ESTATE. SUCH AMOUNTS WERE RECEIVED BY THE ASSESSEE FROM SAAMAG I NFRASTRUCTURE LTD. FOR PURCHASE OF LAND MEANT FOR REAL ESTATE. THE BUS INESS TRANSACTIONS ARE OUTSIDE THE PURVIEW OF SECTION 2(22)(E) OF THE ACT. HENCE, THE REQUEST OF THE LD. COUNSEL OF THE ASSESSEE SEEMS TO BE GENU INE AND ACCORDINGLY, I SET ASIDE THE ISSUES IN DISPUTE TO THE FILE OF THE LD. CIT(A) TO DECIDE THE SAME AFRESH, AS PER LAW, KEEPING IN VIEW OF THE AFO RESAID CONTENTION OF THE LD. COUNSEL OF THE ASSESSEE AND GIVE HIM ADEQU ATE OPPORTUNITY OF BEING HEARD. 5. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE STANDS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED ON 12/03/2018. SD/- [H.S. SIDHU] JUDICIAL MEMBER DATE:- 12/03/2018 SRBHATNAGAR COPY FORWARDED TO: - 1. APPELLANT - 2. RESPONDENT - 3. CIT 4. CIT (A) 5. DR, ITAT TRUE COPY BY ORDER, ASSISTANT REGISTRAR, ITAT, DELHI BENCHES 4