ACIT, New Delhi V. Shri Vijay Kumar Gupta, New Delhi

ITA 3803/DEL/2013

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 3135 (ITAT-DELHI)
• Duration Of Justice: 3 year(s) 10 month(s) 28 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 11-05-2017
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: D
• Next Hearing Date: 09-05-2017
• Assessment Year: 2008-2009
• Appeal Filed On: 13-06-2013
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: NAVEEN CHANDR SHAILESH THAKUR
• Keywords: Opportunity of being heard; Retrospective amendment; Non compliance; Assessment record
• Section: 131; 6; 139

Judgement Text

PAGE 1 OF 7 IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH - D NEW DELHI BEFORE SHRI BHAVNESH SAINI, JUDICIAL MEMBER AND SHRI B.P. JAIN, ACCOUNTANT MEMBER ITA NO.3600/DEL/201 3 ASSESSMENT YEAR : 2008-09 VIJAY KUMAR GUPTA S/O SHRI JUGAL KISHORE GUPTA A-26, 71/7, RAMA ROAD, NAJAFGARH INDUSTRIAL AREA NEW DELHI 110 015 PAN AAAPG2664G VS. ADDL. CIT RANGE-33 E-2, BLOCK, DR.S.P.MUKHERJEE CIVIC CENTRE NEW DELHI. (APPELLANT) (RESPONDENT) AND ITA NO.3803/DEL/2013 ASSESSMENT YEAR : 2008-09 ACIT CIRCLE-33(1), ROOM NO. 1505, 15 TH FLOOR, DR. SHYAMA PRASAD MUKHERJEE CIVIC CENTRE, NEW DELHI - 110002 VS. VIJAY KUMAR GUPTA 10165, SUMER PLAZA, GURUDWARA ROAD, KAROL BAGH, NEW DELHI 110 005 PAN AAAPG2664G (APPELLANT) (RESPONDENT) ASSESSEE BY : SAMEER KAPOOR, CA DEPARTMENT BY: SHRI NAVEEN CHANDR SHAILESH THAKUR, SR.DR DATE OF HEARING 09/05/2017 DATE OF PRONOUNCEMENT /05/2017 ITA NOS. 3600,3803/DEL/2013 VIJAY KUMAR GUPTA VS. ACIT PAGE 2 OF 7 PER BHAVNESH SAINI, JUDICIAL MEMBER ORDER ` BOTH THE CROSS APPEALS ARE DIRECTED AGAINST THE O RDER OF LD. CIT(A) XXVI, NEW DELHI DATED 28 TH MARCH, 2013 FOR ASSESSMENT. YEAR 2008-9. 2. WE HAVE HEARD LD. REPRESENTATIVE OF BOTH THE PA RTIES AND PERUSED THE MATERIAL AVAILABLE ON RECORD. THE APPEA LS ARE DECIDED AS UNDER : ASSESSEES APPEAL 3. LD. COUNSEL FOR ASSESSEE DID NOT PRESS GROUND NO . 1 OF APPEAL OF ASSESSEE . SAME IS DISMISSED AS NOT PRESSED. 4. ON GROUND NO. 2 ASSESSEE CHALLENGED THE ORDER OF LD. CIT(A) IN CONFIRMING THE DISALLOWANCE OF RS. 75,69,030/- U /S 40(A) (IA) OF THE I.T. ACT. 5. IN THE COURSE OF ASSESSMENT PROCEEDINGS, THE ASS ESSING OFFICER, ON EXAMINATION OF THE BOOKS OF ACCOUNTS NO TICED THAT ASSESSEE HAD MADE PAYMENT OF EXPENSES AMOUNTING TO RS. 75,69,030/-. ASSESSING OFFICER OBSERVED THAT FROM T HE COPY OF TDS CONTRACTOR ACCOUNT, IT WAS FOUND THAT THE ASSESSEE DEDUCTED THE TAX ON THE PAYMENTS MADE TO THE CONTRACTORS M/S. PACIFI C EXPORTS & IMPORTS PRIOR TO 1 ST MARCH, 2008. BUT THE SAME WAS NOT DEPOSITED IN ITA NOS. 3600,3803/DEL/2013 VIJAY KUMAR GUPTA VS. ACIT PAGE 3 OF 7 THE GOVT. ACCOUNT TILL 31 ST MARCH, 2008. THE ASSESSEE SUBMITTED THAT TDS ON PAYMENT TO CONTRACTORS HAD BEEN DEPOSITED B EFORE THE DUE DATE OF FILING OF THE RETURN. IT WAS SUBMITTED THAT THE AMENDMENT TO SECTION 40(A)(IA) BY THE FINANCE ACT, 2010 IS REMED IAL AND CURATIVE IN NATURE AND HAS RETROSPECTIVE EFFECT. THE ASSESS EE RELIED UPON THE ORDER OF ITAT MUMBAI BENCH IN THE CASE OF GOLDEN S TABLES LIFE STYLE CENTRE PVT. LTD. VS. CIT AND ORDER OF ITAT AHMEDABAD BENCH IN THE CASE OF SHRI KANUBHAI RAMJIBHAI VS. IT O. THE ASSESSING OFFICER HOWEVER NOTED THAT THE AMENDMENT IN SECTION 40(A)(IA) IS APPLICABLE FROM THE ASSESSMENT YEAR 20 10-11. THEREFORE, THE AMOUNT IN QUESTION WAS DISALLOWED. THE ASSESSEE REITERATED THE SUBMISSIONS MADE BEFORE LD. CIT(A). HOWEVER, LD. CI T(A) FOLLOWING THE ORDER OF SPECIAL BENCH OF ITAT MUMBAI IN THE CASE OF BHARATI SHIPYARD LIMITED VS. DCIT 132 ITD 53 HELD THAT AMENDMENT TO SECTION 40(A)(IA) CAN NOT BE HELD TO THE RETROSPECTIVE W.E.F. 1.4.2005 AND DISMISS THE APPEAL OF THE ASSES SEE. 6. LD. COUNSEL FOR ASSESSEE REITERATED THE SUBMISSI ONS MADE BEFORE AUTHORITIES BELOW AND SUBMITTED THAT AMENDME NT TO PROVISIONS OF SECTION 40(A)(IA) OF THE ACT, BY THE FINANCE AC T 2010 IS APPLICABLE RESPECTIVELY FROM 1.4.2005. CONSEQUENTLY ANY PAYMENT OF TAX DEDUCTED AT SOURCE ON OR BEFORE THE DUE DATE FO R FILING OF THE RETURN OF INCOME U/S 139 (1) OF THE ACT CAN NOT BE DISALLOWED IN ITA NOS. 3600,3803/DEL/2013 VIJAY KUMAR GUPTA VS. ACIT PAGE 4 OF 7 TERMS OF PROVISION OF SECTION 40(A)(IA) OF THE ACT. IN SUPPORT OF HIS CONTENTION HE HAS RELIED UPON THE DECISION OF DELHI HIGH COURT IN THE CASE OF CIT VS. RAJINDER KUMAR IN ITA NO. 65/2013 DATED 1 ST JULY, 2013, DECISION OF CALCUTTA HIGH COURT IN THE CASE O F CIT VS. VIRGIN CREATIONS IN ITAT NO. 302 OF 2011 DATED 23 RD NOVEMBER 2011, DECISION OF GUJARAT HIGH COURT IN THE CASE OF CIT V S. BMS PROJECTS P. LTD. 88CCH 119 AND DECISION OF GUJARAT HIGH COUR T IN THE GROUP CASES OF CIT VS. OM PRAKASH R CHAUDHARY DATED 22 ND NOVEMBER, 2013. ON THE OTHER HAND LD. DR RELIED UPON ORDERS O F THE AUTHORITIES BELOW. 7. ON CONSIDERATION OF RIVAL SUBMISSIONS IN THE LIG HT OF THE ABOVE JUDGMENTS CITED BY LD. COUNSEL FOR ASSESSEE IN WHIC H IT WAS HELD THAT AMENDMENT IN SECTION 40(A)(IA) BY FINANCE ACT 2010 HAS RETROSPECTIVE EFFECT, WE ARE OF THE VIEW THE MATTE R REQUIRES RECONSIDERATION AT THE LEVEL OF THE LD. CIT(A). LD. CIT(A) WAS THEREFORE NOT JUSTIFIED IN FOLLOWING THE DECISION O F ITAT MUMBAI BENCH. THE ORDERS OF THE AUTHORITIES BELOW ARE ACCO RDINGLY SET ASIDE AND MATTER IN ISSUE IS RESTORED TO THE FILE OF LD. CIT(A) WITH DIRECTION TO RE DECIDE THIS ISSUE IN THE LIGHT OF T HE ABOVE DECISIONS AND BY VERIFYING THE REQUIRED TDS DEDUCTED AND PAID BY THE ASSESSEE AS PER THE ABOVE PROVISIONS CONTAINED U/S 40(A)(IA) OF THE ACT. LD. CIT(A) SHALL GIVE REASONABLE SUFFICIENT OPPORTUNIT Y OF BEING HEARD ITA NOS. 3600,3803/DEL/2013 VIJAY KUMAR GUPTA VS. ACIT PAGE 5 OF 7 TO THE ASSESSEE . IN THE RESULT THIS GROUND OF APPE AL OF ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. IN THE RESULT APPEAL OF ASSESSEE IS PARTLY ALLOWED FOR STATISTICAL PURPOSES. DEPARTMENTAL APPEAL 8. THE REVENUE IN THE DEPARTMENTAL APPEAL CHALLENGE D THE DELETION OF ADDITION OF RS. 48 LACS ON ACCOUNT ON UNEXPLAINE D UNSECURED LOANS. 9. IN THE COURSE OF ASSESSMENT PROCEEDINGS , AO NOT ICED THAT THE ASSESSEE HAD SHOWN UNSECURED LOAN IN HIS STATEMENT OF ASSETS AND LIABILITIES. THE AO ASKED THE ASSESSEE TO FILE LOAN CONFIRMATIONS , ITRS BANK STATEMENTS OF THE PARTIES NAMELY ASHOK DUSAD, ASHOK KUMAR PALOR, M/S. RISHAB CHAND SANJAY KUMAR(HUF) AND SURBHI LUNA WAT IN WHOSE NAMES UNSECURED LOANS AMOUNTING TO RS. 10,00,000/- , RS. 25,00,000/-, RS. 7,00,000/- AND RS. 6,00,000/- RESPECTIVELY WERE SHOWN. DUE TO NON COMPLIANCE, THE AO OBSERVED THAT HE HAS NO OPTION B UT TO ADD THE UNSECURED LOANS TO THE INCOME OF THE ASSESSEE. AO A CCORDINGLY MADE ADDITION OF RS. 48 LACS. 10. THE ASSESSEE SUBMITTED BEFORE LD. CIT(A) THAT A LL THE ABOVE DOCUMENTS WERE FILED BEFORE AO AND WITHOUT AFFORDIN G REASONABLE OPPORTUNITY OF BEING HEARD ADDITION IS MADE. ON 15 TH DECEMBER, 2010 AO ASKED TO FILE CONFIRMATION IN RESPECT OF UNSECUR ED LOANS. THE LETTER DATED 16 TH DECEMBER, 2010 ALONGWITH OTHER DETAILS WERE FURNIS HED BEFORE AO AND CONFIRMATION OF THE LOAN WAS SUBMITTE D ON 21 ST DECEMBER, 2010. ALL THE CONFIRMATIONS AND OTHER DOC UMENTS WERE FILED ITA NOS. 3600,3803/DEL/2013 VIJAY KUMAR GUPTA VS. ACIT PAGE 6 OF 7 ON 21 ST DECEMBER 2010 ALONGWITH THE LETTER OF THE SAME DAT E. COPIES OF THE SAME WERE ALSO FILED BEFORE LD. CIT(A). 11. LD. CIT(A) NOTED THAT ASSESSEE HAS FILED AFFIDA VIT BEFORE HIM (PB 3) IN WHICH ASSESSEE AFFIRMED THAT HE HAS FILED ALL THE ABOVE DOCUMENTS BEFORE AO. LD. CIT(A) CALLED FOR THE ASSESSMENT REC ORD WHICH WAS NOT MADE AVAILABLE TO HIM. THEREFORE, IN THE LIGHT OF A FFIDAVIT OF THE ASSESSEE AND MATERIAL ON RECORD LD. CIT(A) NOTED THAT ASSESS EE HAS PROVED GENUINENESS OF THE LOANS THE ADDITION MADE ACCORDI NGLY DELETED. 12. AFTER CONSIDERING RIVAL SUBMISSIONS WE ARE OF T HE VIEW MATTER REQUIRES RECONSIDERATION AT THE LEVEL OF THE LD. CI T(A). LD. COUNSEL FOR ASSESSEE FILED ALL THE ABOVE PAPERS/DOCUMENTS IN TH E PAPER BOOK TO SHOW THAT LOAN CONFIRMATIONS, COPIES OF ITR , COPIE S OF AFFIDAVIT AND BANK STATEMENTS OF ALL THE CREDITORS WERE FILED BEFORE A O ALONGWITH THE LETTER DATED 21 ST DECEMBER, 2010. COPY OF THE AFFIDAVIT OF ASSESSEE FILED BEFORE LD. CIT(A) IS FILED AT PAGE 3 OF THE PAPER BOOK WH ICH IS UNDATED AND UNATTESTED. LD. COUNSEL FOR ASSESSEE WAS NOT ABLE TO EXPLAIN WHY AFFIDAVIT OF ASSESSEE WAS UNATTESTED. ANYHOW, WHEN ASSESSEE MADE A CLAIM THAT ALL THE REQUIRED DOCUMENTS WERE FILED BE FORE THE AO AND ASSESSMENT RECORD WAS NOT MADE AVAILABLE TO THE LD . CIT(A), LD. CIT(A) IS REQUIRED TO ISSUE SUMMON U/S 131 TO THE A O TO PRODUCE THE ASSESSMENT RECORD BEFORE HIM AS WELL AS TO CALL FOR THE REMAND REPORT FROM AO IN WRITING ON THE ABOVE SUBJECT. HOWEVER T HE LD. CIT(A) WITHOUT TAKING NECESSARY STEPS IN THE MATTER MERELY ACCEPTED THE AFFIDAVIT OF ASSESSEE. EVEN IF NO ASSESSMENT RECORD IS MADE AVAILABLE TO ITA NOS. 3600,3803/DEL/2013 VIJAY KUMAR GUPTA VS. ACIT PAGE 7 OF 7 LD. CIT(A) AND HE HAS ACCEPTED THE AFFIDAVIT OF THE ASSSESEE, THE LD. CIT(A) IS REQUIRED TO DISCUSS THE ALL THE EVIDENCES FILED BY ASSESSEE IN THE APPELLATE ORDER AND HAVE PASS A REASONED ORDER CONSIDERING THE DETAILS NOTED IN THE DOCUMENTS. LD. CIT(A) INSTEAD EXAMINING AND VERIFYING THE EVIDENCES ALLEGED TO HAVE BEEN FILED BEFORE ASSESSING OFFICER MERELY ACCEPTED THE SAME WITHOUT ANY VERIF ICATION. THE COURSE ADOPTED BY THE LD. CIT(A) FOR DELETING THE ADDITION IS THUS UNSUSTAINABLE IN LAW. IN THIS VIEW OF THE MATTER WE SET ASIDE THE ORDER OF THE LD. CIT(A) AND RESTORE THIS ISSUE TO HIS FILE WITH DIRE CTION TO REDECIDE THIS ISSUE STRICTLY IN ACCORDANCE WITH LAW ON FOLLOWING THE OBSERVATION IN THIS ORDER BY GIVING REASONABLE SUFFICIENT OPPORTUNITY O F BEING HEARD TO THE ASSESSEE AND ASSESSING OFFICER. IN THE RESULT APPEA L IS ALLOWED FOR STATISTICAL PURPOSES. 13. IN THE RESULT ASSESSEES APPEAL IS PARTLY ALLOW ED FOR STATISTICAL PURPOSES AND DEPARTMENTAL APPEAL IS ALLOWED FOR STA TISTICAL PURPOSE PRONOUNCED IN THE OPEN COURT. SD/- SD/- (B.P. JAIN) ( BHAVNESH SAINI ) ACCOUNTANT MEMEBR JUDICIAL MEMBER DATED: 11/05/2017 *VEENA* COPY FORWARDED TO: - 1. APPELLANT 2. RESPONDENT 3. PRINCIPAL CIT 4. CIT(A) 5. DR, ITAT TRUE COPY BY ORDER, ASSISTANT REGISTRAR