M/s. Mohit Land Construwell (P) Ltd, Budaun V. ITO, Budaun

ITA 3754/DEL/2009

• Counselvise Citation: [2011] 134 COUNSELVISE.COM (IT) 3703 (ITAT-DELHI)
• Duration Of Justice: 1 year(s) 10 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 04-07-2011
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: E
• Next Hearing Date: 04-07-2011
• Assessment Year: 2006-2007
• Appeal Filed On: 04-09-2009
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SRUJANI MOHANTY
• Keywords: Opportunity of being heard
• Section: 40A(3); 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH `E: NEW DELHI BEFORE SHRI C.L.SETHI, JUDICIAL MEMBER AND SHRI SHAMIM YAHYA, ACCOUNTANT MEMBER I.T. A. NO.3754/DEL/2009 ASSESSMENT YEAR : 2006-07 M/S. MOHIT LAND CONSTRUWELL (P) LTD., INCOME-TAX O FFICER, AHUJA BHWAN, CHANDAUSI ROAD, VS. BUDAUN (UP). BISAULI, BUDAUN (UP). PAN: AADCM9879P (APPELLANT) (RESPONDENT) APPELLANT BY: SHRI SANAT KAPOOR, ADVOCATE. RESPONDENT BY: SMT. SRUJANI MOHANTY, SR. DR. O R D E R PER C.L. SETHI, JUDICIAL MEMBER: THE PRESENT APPEAL FILED BY THE ASSESSEE, ARISES OU T OF THE ORDER DATED 20.06.2009 PASSED BY THE LEARNED COMMISSIONER OF IN COME-TAX (APPEALS) IN THE MATTER OF AN ASSESSMENT MADE BY THE ASSESSING O FFICER UNDER SEC. 143(3) OF THE INCOME-TAX ACT, 1961 (THE ACT) DATED 30 TH DECEMBER, 2008, PERTAINING TO THE ASSESSMENT YEAR 2006-07. 2. IN THIS APPEAL, THE ASSESSEE HAS OBJECTED THE OR DER OF THE LEARNED CIT(A) IN CONFIRMING THE ADDITION/DISALLOWANCE U/S 40A(3) OF THE ACT ON ACCOUNT OF PAYMENT MADE TO THE FOLLOWING PARTIES:- 1. M/S. SOFIA ADVERTISERS RS.1,07,668/-. 2 2. M/S. AJIT BRICKS, SAHARANPUR. RS.20,13,169/- 3. NAUSHAD RS. 2,37,000/- 3. THE PRESENT APPEAL ALONG WITH THE APPEAL FILED B Y THE REVENUE CAME TO BE DECIDED BY ORDER DATED 30 TH JULY, 2008 BY INCOME-TAX APPELLATE TRIBUNAL, DELHI BENCH `E, NEW DELHI. BY THIS ORDER, APPEAL OF THE REVENUE WAS PARTLY ALLOWED AND THE APPEAL OF THE ASSESSEE WAS DISMISSE D. IN THE ASSESSEES APPEAL, THE TRIBUNAL UPHELD THE ORDER OF THE LEARNE D CIT(A) IN SUSTAINING THE ADDITIONS UNDER SEC.40A(3) IN RESPECT OF PAYMENT M ADE TO M/S. SOFIA ADVERTISERS, M/S. AJIT BRICKS AND NAUSHAD. THEREAF TER, THE ASSESSEE FILED A MISCELLANEOUS APPLICATION U/S 254 OF THE ACT, WHICH WAS REGISTERED AS MA NO.444/DEL/2010. ON THE MISC. APPLICATION FILED BY THE ASSESSEE, THE TRIBUNAL PASSED ORDER DATED 26 TH NOVEMBER, 2010 WHEREBY THE TRIBUNAL RECALLED ITS ORDER PASSED IN ASSESSEES APPEAL TO D ECIDE THE MATTER ON MERITS. IN THE LIGHT OF THE TRIBUNALS ORDER DATED 26 TH NOVEMBER, 2010 PASSED IN MA NO.444/DEL/2010, THE APPEAL FILED BY THE ASSESSEE I S AGAIN FIXED FOR HEARING ON MERITS. 4. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE M ATERIAL ON RECORD. 5. IN THE ASSESSMENT MADE BY THE AO UNDER SEC. 143( 3) OF THE ACT, THE AO MADE THE ADDITION OF RS.20,78,178/- ON ACCOUNT O F VIOLATION OF PROVISIONS UNDER SEC. 40A(3) OF THE INCOME-TAX ACT, 1961, IN RESPECT OF THE 3 PAYMENTS MADE TO SEVERAL PARTIES. THE ADDITION OF RS.20,78, 178/- WAS MADE BEING 20% OF THE TOTAL PAYMENTS MADE TO VARIOUS PAR TIES AS UNDER:- SL. NO. NAME OF THE PARTY AMOUNT PAID AMOUNT OF DISALLOWANCE 1. M/S. R.A. TRADERS. RS.18,02,404/- RS.3,64 ,093/- 2. RAKESH GAUR (HUF). RS.21,15,936/- RS.4,23 ,187/- 3. NITIN CHHABRA RS. 60,000/- RS. 12,00 0/- 4. NEW SUN CITY RS.20,00,000/- RS.4,00,000 /- 5. SHRI GANESH ENTERPRISES RS. 5,06,175/- RS .1,01,235/- 6. M/S. V.P. BRICKS RS. 21,200/- RS. 4 ,214/- 7. M/S. SOFIA ADVERTISERS RS. 1,07,668/- RS. 21,534/- 8. M/S. AJIT BRICKS RS.20,13,169/- RS.4,02,6 34/- 9. BEARER CHEQUE IN CASE OF HEMANT AHUJA. RS. 76,924/- RS. 15,385/ - 10. BEARER CHEQUE IN FAVOUR OF NAUSHAD RS. 2,37,000/- RS. 47,4 00/- 11. SALARY PAYMENT RS.14,50,350/- RS.2,90, 070/- 6. ON AN APPEAL, THE LEARNED CIT(A) DELETED THE ADD ITION EXCEPT THE ADDITION MADE IN RESPECT OF PAYMENTS MADE TO M/S. S OFIA ADVERTISERS, M/S. AJIT BRICKS, HEMANT AHUJA AND NAUSHAD. 7. BEING AGGRIEVED WITH THE LEARNED CIT(A)S ORDER, BOTH THE ASSESSEE AS WELL REVENUE PREFERRED AN APPEAL BEFORE THE TRIBUNA L. 8. THE TRIBUNAL VIDE ORDER DATED 30 TH DAY OF JULY, 2010 ALLOWED THE REVENUES APPEAL IN RESPECT OF PAYMENT MADE TO SEVE N PARTIES BY RESTORING THE MATTER TO THE FILE OF THE LEARNED CIT(A) FOR FR ESH DISPOSAL. OUT OF THE FOUR ITEMS CONFIRMED BY THE LEARNED CIT(A), THE ASS ESSEE HAS ONLY CHALLENGED THE ADDITIONS IN RESPECT OF THE PAYMENTS MADE TO THREE PARTIES 4 NAMELY M/S. SOFIA ADVERTISERS, AJIT BRICKS AND NAUS HAD, WHICH WERE INITIALLY CONFIRMED BY THE TRIBUNAL BUT THAT ORDER HAS NOW BEEN RECALLED AND THESE ISSUES HAVE BEEN RESTORED TO THE FILE FOR FRE SH DISPOSAL. 9. SINCE THE SEVEN ITEMS IN RESPECT OF WHICH THE MA TTER HAS BEEN RESTORED BACK TO THE FILE OF THE LEARNED CIT(A) FOR FRESH DI SPOSAL AND SINCE ALL THE FACTS RELATING TO THESE PAYMENTS ARE NOT BEFORE US TO DECIDE THE MATTER ON MERIT, WE FIND IT APPROPRIATE THAT THE MATTER REGAR DING THE ADDITION IN RESPECT OF THE PAYMENT MADE TO THREE PARTIES, NAMELY, M/S. SOFIA ADVERTISERS, AJIT BRICKS AND NAUSHAD SHOULD ALSO GO TO THE LEARNED CI T(A) FOR HIS FRESH CONSIDERATION AS PER LAW, AFTER PROVIDING REASONABL E OPPORTUNITY OF BEING HEARD TO BOTH THE PARTIES. THE LEARNED CIT(A) SHAL L DECIDE THE ISSUE AS PER LAW AND IN THE LIGHT OF THE FACTS AND CIRCUMSTANCES OF THE CASE. 10. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS TR EATED TO BE ALLOWED FOR STATISTICAL PURPOSES. 11. THIS DECISION WAS PRONOUNCED IN THE OPEN COURT IMMEDIATELY AFTER THE HEARING WAS OVER ON 4 TH JULY, 2011. SD/- SD/- (SHAMIM YAHYA) (C.L. SETHI) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 4 TH JULY, 2011. 5 ITA NO.3754/DEL/2009 COPY OF THE ORDER FORWARDED TO:- 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR BY ORDER *MG DEPUTY REGISTRAR, ITAT.