RAJIVA MAHESHWARI, NEW DELHI V. ACIT, CIRCLE- 2(2)(1), INTL. TAXATION, NEW DELHI

ITA 3686/DEL/2018

• Counselvise Citation: [2021] 107 COUNSELVISE.COM (IT) 4868 (ITAT-DELHI)
• Duration Of Justice: 3 year(s) 4 month(s) 13 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-09-2021
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: F
• Assessment Year: 2014-2015
• Appeal Filed On: 16-05-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: GOVIND SINGHAL
• Assessee Lawyers: NEERAJ KABRA
• Keywords: Set aside
• Section: 143(3); 133(6)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH F NEW DLEHI BEFORE SHRI ANIL CHATURVEDI, ACCOUNTANT MEMBER AND SHRI K. NARASIMHA CHARY, JUDICIAL MEMBER ITA NO.3686/DEL/2018 ASSESSMENT YEAR: 2014-15 RAJIVA MAHESHWARI, VS. ACIT, CIRCLE 2(2)(1), 308, SINCERE TOWER-4, INTL. TAXATION, NEW DELHI. PREET VIHAR, NEW DELHI PAN : ACSPM0697D (APPELLANT) (RESPONDENT) APPELLANT BY : SH. NEERAJ KABRA, CA RESPONDENT BY: SH. GOVIND SINGHAL, SR. DR DATE OF HEARING: 29/09/2021 DATE OF ORDER : 29/09/2021 ORDER PER K. NARASIMHA CHARY, J.M. AGGRIEVED BY THE ORDER DATED 20/3/2018 IN APPEAL N O. 200/2016-17 PASSED BY THE LEARNED COMMISSIONER OF I NCOME TAX (APPEALS)-43, NEW DELHI (LD. CIT(A)), IN THE CASE OF SH. RAJIVA MAHESHWARI (THE ASSESSEE), FOR THE ASSESSMENT YEA R 2014-15, ASSESSEE PREFERRED THIS APPEAL. 2. BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE IS ENGAGED IN THE BUSINESS OF IMPORT/EXPORT AND TRADING OF PULSES AS WELL AS METALS UNDER THE NAME OF THE PROPRIETARY CONCERN RAJIVA EXPORTS. FOR THE ASSESSMENT 2 YEAR 2014-15 HE FILED THE RETURN OF INCOME ON 30/9/ 2014 DECLARING A TOTAL LOSS OF RS.85,54,140/-. ASSESSMENT UNDER SECT ION 143(3) OF THE INCOME TAX ACT, 1961 (FOR SHORT THE ACT) WAS COMP LETE BY ORDER DATED 30/12/2016 AT A LOSS OF RS.1,18,179/- BY MAKING ADD ITION OF RS.26,55,387/- ON ACCOUNT OF THE PAYMENTS MADE BY T HE ASSESSEE TO M/S NAVKAR EXIM TOWARDS LOCAL PURCHASE OF RS.23,11, 364/- AND TO M/S ALL INDIA GOODS CARRIERS AMOUNTING TO RS. 3,44,023/ -; AND ALSO RS.46,80,574/-ON ACCOUNT OF PAYMENT OF EXPENSES MAD E BY THE ASSESSEE TO CERTAIN PARTIES BY TREATING THE SAME AS BOGUS EXPENSES. 3. AGGRIEVED BY SUCH AN ACTION OF THE ASSESSING OFF ICER, THE ASSESSEE PREFERRED APPEAL BEFORE THE LD. CIT(A) AND THE LD.CIT(A) GRANTED PART RELIEF TO THE ASSESSEE BY CONFIRMING T HE ADDITION TO THE TUNE OF RS. 23,11,364/- ON ACCOUNT OF THE AMOUNTS S HOWN AS PURCHASE FROM M/S. NAVKAR EXIM ON THE GROUND THAT THOUGH THE NOTICE U/S. 133(6) OF THE ACT SENT BY THE ASSESSING OFFICER WAS RETURNED WITH THE ENDORSEMENT THAT THE PARTY WAS NOT KNOWN AT SUCH AD DRESS, CONFIRMATION WAS PRODUCED BY THE ASSESSEE BEFORE TH E LD. CIT(A) AND, THEREFORE, SUCH CONFIRMATION LETTER IS NOTHING BUT SELF SERVING DOCUMENT FURNISHED BY THE ASSESSEE. 4. HENCE, THE ASSESSEE FILED THIS APPEAL BEFORE US, CONTENDING THAT THE AUTHORITIES BELOW FAILED TO APPRECIATE THE CIRC UMSTANCES SURROUNDING THE TRANSACTION AND THEY DID NOT OFFER AN OPPORTUNITY TO THE ASSESSEE TO EXPLAIN THE CIRCUMSTANCES AND THERE FORE, GIVEN AN OPPORTUNITY, THE ASSESSEE IS READY TO EXPLAIN THE C IRCUMSTANCES, WHICH LED TO THE RETURN OF THE NOTICE U/S. 133(6) OF THE ACT SENT TO M/S. NAVKAR EXIM WITH THE ENDORSEMENT THAT NO SUCH ENTITY WAS T O BE FOUND IN THAT 3 ADDRESS, AND THE ASSESSEE PRODUCING CONFIRMATION CE RTIFICATES. ASSESSEE ALSO PRODUCED THE MATERIAL IN SUPPORT OF HIS CONTEN TIONS BEFORE US BY WAY OF PAPER BOOK AND PRESSED THAT AN OPPORTUNITY M AY BE GRANTED TO THE ASSESSEE TO EXPLAIN THE FACTS AND CIRCUMSTANCES OF THE CASE, BEFORE THE LD. CIT(A). 5. LEARNED DR FAIRLY CONCEDES THE REQUEST OF THE AS SESSEE TO REMAND THE MATTER FOR VERIFICATION, BUT SUBMITS THA T IN THE FITNESS OF THINGS, THE ASSESSING OFFICER IS COMPETENT TO CONDU CT SUCH VERIFICATION INSTEAD OF THE LD. CIT(A). 6. WE HAVE GONE THROUGH THE RECORD IN THE LIGHT OF SUBMISSIONS MADE ON EITHER SIDE. ONLY GROUND FOR SUSTENANCE OF THE ADDITION TO THE TUNE OF RS.23,11,364/- IS THAT INASMUCH AS THE NOTI CE U/S. 133(6) SENT TO M/S. NAVKAR EXIM RETURNED WITH THE ENDORSEMENT THAT NO SUCH ENTITY IS KNOWN AT THE GIVEN ADDRESS, THE CONFIRMATION LETTER PRODUCED BY THE ASSESSEE IS NOTHING BUT A SELF SERVING EVIDENCE. AS A MATTER OF FACT, THE ASSESSING OFFICER COULD HAVE REQUIRED THE PRESENCE OF THE CONCERNED PERSON FROM M/S. NAVKAR EXIM AND EXAMINED THE FACTS AND CIRCUMSTANCES, INSTEAD OF PROCEEDING ON MERE SUSPIC ION. IT IS LEGITIMATE FOR THE ASSESSING OFFICER TO LOOK INTO THE ASPECT T O GIVE A CONCRETE FINDING AS TO THE GENUINENESS OF THE CONFIRMATION L ETTER INSTEAD OF BASING ON THE RETURN OF THE NOTICE ISSUED U/S. 133( 6) OF THE ACT. 7. IN THESE CIRCUMSTANCES, WE SET ASIDE THE IMPUGNE D ORDER AND RESTORE THE ISSUE TO THE FILE OF THE LD. ASSESSING OFFICER TO VERIFY THE GENUINENESS OF THE CONFIRMATION LETTER ISSUED TO M/ S. NAVKAR EXIM IN 4 THE WAY IN WHICH HE FEELS PROPER AND REACH A CONCLU SION OF FACT. ASSESSEE SHALL ASSIST THE ASSESSING OFFICER IN SUCH VERIFICATION. 8. IN THE RESULT, THE APPEAL IS ALLOWED FOR STATIST ICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON THIS THE 29 TH DAY OF SEPTEMBER, 2021. SD/- SD/- (ANIL CHATURVEDI) (K. NARSIMHA CHARY) ACCOUNTANT MEMBER JUDICIAL ME MBER DATED: 29/09/2021 AKS