ITO, New Delhi V. M/s. Meindhart VKSIMPL- JV, New Delhi

ITA 361/DEL/2013

• Counselvise Citation: [2014] 140 COUNSELVISE.COM (IT) 81765 (ITAT-DELHI)
• Duration Of Justice: 1 year(s) 8 month(s) 8 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-09-2014
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: E
• Next Hearing Date: 18-09-2014
• Assessment Year: 2008-2009
• Appeal Filed On: 21-01-2013
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Assessee Lawyers: J P CHANDRAKER
• Keywords: Additional evidence
• Section: 43B

Judgement Text

ITA NO. 361/DEL/2013 PAGE 1 OF 3 IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH `E NEW DELHI BEFORE SHRI G.D. AGRAWAL, VICE PRESIDENT AND SHRI CHANDRA MOHAN GARG, JUDICIAL MEMBER I.T.A.NO. 361/DEL/2013 ASSESSMENT YEAR : 2008-09 INCOME TAX OFFICER, VS MEINDHART VKSIMP L-JV, WARD-33(2), ROOM NO.1602, 307, C.A. CHAMBERS, 16 TH FLOOR, TOWER E-2, KAROL BAGH, DR. S.P. MUKHERJEE CIVIC CENTRE, NEW D ELHI-110005 J.L. NEHRU ROAD, (PAN: AABTM3640H) NEW DELHI-110002 (APPELLANT) (RESPONDENT) APPELLANT BY: NONE RESPONDENT BY : SHRI J.P. CHANDRAKER, SR. DR O R D E R PER CHANDRA MOHAN GARG, JUDICIAL MEMBER THIS APPEAL HAS BEEN PREFERRED BY THE REVENUE AGAIN ST THE ORDER OF CIT(A)-XXVI, DELHI DATED 17.10.2012 IN APPEAL NO. 301/2010-11 FOR AY 2008-09. 2. THE REVENUE HAS RAISED EFFECTIVELY FOLLOWING TWO GROUNDS IN THIS APPEAL:- 1. THE CIT(A) HAS ERRED IN DELETING THE ADDITION OF RS.54,31,130/- U/S 43-B OF THE I.T. ACT ON ACCOUNT OF UNPAID SERVICE TAX LIABILITY. 2. THE CIT(A) HAS ERRED IN ADMITTING ADDITIONAL E VIDENCES IN VIOLATION OF RULE 46A WITHOUT PROVIDING AN OPPORTUN ITY TO THE AO. ITA NO. 361/DEL/2013 PAGE 2 OF 3 GROUND NO.2 3. APROPOS GROUND NO. 2, WE HAVE HEARD ARGUMENTS AND C ONTENTIONS OF BOTH THE SIDES AND CAREFULLY PERUSED THE RELEVANT MATERI AL PLACED ON RECORD INTER ALIA IMPUGNED ORDER AND DECISION OF HONBLE HIGH COURT OF DELHI IN THE CASE OF CIT VS NOBLE & HEWITT (I)(P) LTD. (2008) 166 TAXMAN 48 (DELHI). FROM OPERATIVE PART OF THE ORDER, WE CLEARLY OBSERVE THA T THE CIT(A) CONSIDERED THE GAR-7, PROFORMA FOR MAKING PAYMENT OF SERVICE TAX A LONG WITH THE COUNTERFOIL OF SERVICE TAX PAYMENTS AS AN EVIDENCE FOR DISCHAR GING THE LIABILITY WHICH WAS SHOWN AS CURRENT LIABILITIES IN THE BALANCE SHEET. THE CIT(A) CONSIDERED FRESH ADDITIONAL EVIDENCE WHICH WAS NOT SUBMITTED BEFORE THE AO DURING ASSESSMENT PROCEEDINGS, WITHOUT CONFRONTING THE SAME TO THE AO AND WITHOUT CALLING REMAND REPORT FROM THE AO, WHICH IS CLEAR VIOLATION OF RULE 46A OF I.T. RULES, 1962. THEREFORE, WE REACH TO A CONCLUSION THAT THE CIT(A) CONSIDERED THE ADDITIONAL EVIDENCE AGAINST THE LETTER AND SPIRIT O F RULE 46A OF I.T. RULES, 1962. HENCE WE HOLD THAT THE IMPUGNED ORDER IS NOT SUSTAI NABLE AND WE SET ASIDE THE SAME AND RESTORE THE ISSUE OF ADDITION OF RS.54,31, 130 TO THE FILE OF THE AO WITH A DIRECTION THAT THE AO SHALL EXAMINE THE DETAILS, EVIDENCE AND EXPLANATION OF THE ASSESSEE TOWARDS ITS CLAIM U/S 43B OF THE ACT A ND ADJUDICATE THE SAME AFRESH WITHOUT BEING PREJUDICED WITH EARLIER ASSESSMENT AN D IMPUGNED ORDER BY AFFORDING DUE OPPORTUNITY OF HEARING FOR THE ASSESS EE. THE AO IS ALSO DIRECTED TO TAKE NOTE OF THE DECISION HONBLE HIGH COURT OF DELHI IN THE CASE OF CIT VS ITA NO. 361/DEL/2013 PAGE 3 OF 3 NOBEL & HEWITT (SUPRA) WHILE ADJUDICATING THE ISSUE AFRESH. ACCORDINGLY, GROUND NO. 2 OF THE REVENUE IS DEEMED TO BE ALLOWED FOR STATISTICAL PURPOSES. GROUND NO.1 4. SINCE MAIN ISSUE HAS BEEN RESTORED TO THE FILE O F THE AO, HENCE, MAIN GROUND NO. 1 IS ALSO RESTORED TO THE FILE OF THE AO FOR FRESH ADJUDICATION. HENCE, GROUND NO.1 OF THE REVENUE IS ALSO DEEMED TO BE ALLOWED. 5. IN THE RESULT, APPEAL OF THE REVENUE IS DEEMED T O BE ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 30. 09.2014. SD/- SD/- (G.D. AGRAWAL) (CHANDRAMOHAN GARG) VICE PRESIDENT JUDICIAL MEMBER DT. 30TH SEPTEMBER, 2014 GS COPY FORWARDED TO:- 1. APPELLANT 2. RESPONDENT 3. C.I.T.(A) 4. C.I.T. 5. DR BY ORDER ASSTT.REGISTRAR