Web Auto Resources Pvt. Ltd, New Delhi V. ACIT, Circle-27(1), New Delhi

ITA 3608/DEL/2019

• Counselvise Citation: [2020] 111 COUNSELVISE.COM (IT) 3956 (ITAT-DELHI)
• Duration Of Justice: 10 month(s) 6 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 02-03-2020
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: SMC
• Assessment Year: 2015-2016
• Appeal Filed On: 25-04-2019
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: JAGDISH SINGH
• Assessee Lawyers: PRIYA RANJAN SINGH
• Keywords: Principle of natural justice
• Section: 131; 68; 143(3); 133(6)

Judgement Text

1 ITA NO. 3608/DEL/2019 IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH: I(2 ) + SMC NEW DELHI BEFORE MS SUCHITRA KAMBLE, JUDICIAL MEM BER, AND SHRI PRASHANT MAHARISHI, ACCOU NTANT MEMBER ITA NO. 3608/DEL/2019 ( A.Y 2015-16) WEB AUTO RESOURCES PVT. LTD. 127 E, GROUND FLOOR, MOHAMMADPUR, NEAR BHIKAJI CAMA PLACE, NEW DELHI PIN 110066 PAN AABCW1912D (APPELLANT) VS ACIT CIRCLE-27(1) NEW DELHI (RESPONDENT) APPELLANT BY SH. PRIYA RANJAN SINGH, AR RESPONDENT BY SH. JAGDISH SINGH, SR. DR ORDER PER SUCHITRA KAMBLE, JM THIS APPEAL IS FILED BY THE ASSESSEE AGAINST THE OR DER DATED 21/02/2019 PASSED BY CIT(A)-1, NEW DELHI FOR ASSESSMENT YEAR 2 015-16. 2. THE GROUNDS OF APPEAL ARE AS UNDER:- THAT THE ORDER OF LD. CIT (A) IN RESPECT OF ALLEGED CREDITORS IS BASED ON MERE SURMISE, CONJECTURE & DISBELIEF AND THUS, ILLEGAL, UNWARRANTED AND UNTENABLE IN LAW, LIABLE TO BE QUASHED/DELETED. THAT THE ORDER OF LD. CIT (A) IS PERVERSE ON THE FA CTS AS WELL AS ON THE LAW AS LD. CIT (A) HAS ERRED IN CONFIRMING AN ADDITION OF RS78,10,154/-_ MADE TO INCOME OF APPELLANT BY THE AO. DATE OF HEARING 26.02.2020 DATE OF PRONOUNCEMENT 02 .03.2020 2 ITA NO. 3608/DEL/2019 THAT THE APPELLANT HAS DISCHARGED ITS ONUS BY SATIS FYING REQUIREMENT OF SECTION 68 AND THERE IS NO EVIDENCE CONTRARY TO HIS SUBMISSIONS PRODUCED BY THE AO ON RECORD , HENCE THE ASSTT ORDER PASSED BY THE AO IS BAD IN LAW. THAT IF THE LD. AO HAS ANY DOUBT ABOUT THE SOURCE & CREDITWORTHINESS OF THE LENDER SHE SHOULD HAVE ISSUED SUMMONS U/S 131 OF TH E IT ACT. THE AO HAS NOT DONE SO. THEREFORE, HER CONTENTION WAS THAT WHE N ASSESSEE HAS DISCHARGED ITS ONUS COMPLETELY AND THE LD. AO DOES NOT ISSUE SUMMONS TO THE DEPOSITORS THEN ADDITION CANNOT BE MADE IN THE HAND OF THE ASSESSEE U/S 68 OF I. T. ACT. THAT THE APPELLANT HAS DISCHARGED HIS ONUS OF PROVI NG IDENTITY , THE SOURCE OF LOAN AND THE GENUINENESS OF TRANSACTIONS IN ACCORDA NCE WITH THE PROVISIONS OF SECTION 68. IT IS THE SETTLED LAW THAT THE ASSESSEE IS NOT ANSWERABLE TO EXPLAIN SOURCE OF SOURCE OF THE FUND. THAT LD. AO AND CIT(A) ADMITTED THE IDENTITY OF THE ABOVE MENTIONED THREE PERSONS FROM WHOM THE APPELLANT HAS TAKEN LOAN BUT DOUBTED THE CREDIT WORTHINESS OF THEE PERSONS AND CONSEQUENTLY GENUINE NESS OF TRANSACTIONS. IN THE CASE OF ACIT VS. MRS PREM ANAND, ITA NO.3514 /DEL/2014 DATED 13/4/2017/ITAT-DELHI .. IT HAS BEEN HELD THAT THE A PPELLANT IS NOT REQUIRED TO EXPLAIN SOURCE OF SOURCE . 3. THE RETURN OF INCOME WAS FILED ON 30/09/2015 DEC LARING (-) RS. 61,78,821/-. THE ASSESSMENT U/S 143(3) WAS COMPLET ED ON 11/1/2017 DETERMINING INCOME OF RS.16,31,333/-. THE ASSESSIN G OFFICER MADE ADDITION U/S 68 OF THE INCOME TAX ACT AMOUNTING TO RS. 75,80 ,000/- AND DISALLOWANCE OF INTEREST ON UNEXPLAINED LOAN AMOUNTING TO RS. 2, 30,154/-. 3 ITA NO. 3608/DEL/2019 4. BEING AGGRIEVED BY THE ASSESSMENT ORDER, THE ASS ESSEE FILED APPEAL BEFORE THE CIT(A). THE CIT(A) DISMISSED THE APPEAL OF TH E ASSESSEE. 5. THE LD. AR SUBMITTED THAT THE CIT(A) IGNORED THE EVIDENCE PRODUCED BEFORE THE ASSESSING OFFICER AS WELL AS THE RESPON SE TO SUMMONS ISSUED U/S 133(6) GIVEN BY ONE SMT. KRISHNA GOEL, ROHIT GUPTA, ROHIT GUPTA HUF. THEREFORE, THE ADDITION MAY BE DELETED AND DOES NOT SUSTAIN UNDER THE LAW. 6. THE LD. DR RELIED UPON THE ASSESSMENT ORDER AND THE ORDER OF THE CIT(A). 7. WE HAVE HEARD THE LD. DR AND PERUSED THE MATERIA L AVAILABLE ON RECORD. FROM THE PERUSAL OF THE ASSESSMENT ORDER AS WELL AS ORDER OF THE CIT(A). IT CAN BE SEEN THAT THE ASSESSING OFFICER AS WELL AS CIT(A ) HAS NOT TAKEN THE COGNIZANCE OF RESPONSE GIVEN TO THE SUMMONS ISSUED UNDER SECTION 133(6) OF THE INCOME TAX ACT, 1961. THE EVIDENCE PRODUCED BY THE ASSESSEE BEFORE THE ASSESSING OFFICER AS WELL AS BEFORE THE CIT(A). TH EREFORE, IT WILL BE APPROPRIATE TO REMAND BACK THIS MATTER TO THE FILE OF THE CIT(A ) FOR FRESH ADJUDICATION IN LIGHT OF THE EVIDENCE FILED BY THE ASSESSEE DURING THE ASSESSMENT PROCEEDINGS AS WELL AS THE RESPONSE GIVEN U/S 133(6) OF THE ACT . NEEDLESS TO SAY, THE ASSESSEE BE GIVEN OPPORTUNITY OF HEARING BY FOLLOWI NG PRINCIPLES OF NATURAL JUSTICE. 8. IN RESULT, THE APPEAL OF THE ASSESSEE IS PARTLY ALLOWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED IN THE OPEN COURT ON 02 ND MARCH, 2020. SD/- SD/- (PRASHANT MAHARISHI) (SUCHITRA KAMBLE) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 02/03/2020 R. NAHEED 4 ITA NO. 3608/DEL/2019 COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT ASSISTANT REGISTRAR ITAT NEW DELHI DATE OF DICTATION 27.02.2020 DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER 28.02.2020 DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE OTHER MEMBER DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR. PS/PS DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE DICTATING MEMBER FOR PRONOUNCEMENT DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR. PS/PS 02.03.2020 DATE ON WHICH THE FINAL ORDER IS UPLOADED ON THE WEBSITE OF ITAT 02.03.2020 DATE ON WHICH THE FILE GOES TO THE BENCH CLERK 02.03.2020 DATE ON WHICH THE FILE GOES TO THE HEAD CLERK THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT REGISTRAR FOR SIGNATURE ON THE ORDER DATE OF DISPATCH OF THE ORDER