M/s Alcobex Metals Ltd., New Delhi V. DCIT, New Delhi

ITA 3969/DEL/2011

• Counselvise Citation: [2017] 127 COUNSELVISE.COM (IT) 3496 (ITAT-DELHI)
• Duration Of Justice: 6 year(s) 2 month(s) 5 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 07-11-2017
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: A
• Next Hearing Date: 18-05-2017
• Assessment Year: 2004-2005
• Appeal Filed On: 01-09-2011
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: B RAMANJANEYULU
• Keywords: Additional evidence

Judgement Text

1 ITA NO. 3969/DEL/2011 IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH: A NEW DELHI BEFORE SHRI N. K. SAINI, ACCOUNTANT MEM BER AND MS SUCHITRA KAMBLE, JUDI CIAL MEMBER ITA NO. 3969/DEL/201 1 ( A.Y 2004-05) AL C OBEX METALS LTD. 4223/1, ANSARI ROAD NEW DELHI AAACA3098H (APPELLANT) VS DCIT CIRCLE-1)1 NEW DELHI (RESPONDENT) APPELLANT BY SH. GAUTAM JAIN, ADV RESPONDENT BY SH. B. RAMANJANEYULU, SR. DR ORDER PER SUCHITRA KAMBLE, JM THE APPEAL IS FILED BY THE ASSESSEE AGAINST THE ORD ER DATED 21/6/2011 PASSED BY CIT(A)-IV, NEW DELHI. 2. THE GROUNDS OF APPEAL ARE AS UNDER:- 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE A ND IN THE LAW, THE LD.CIT(A) HAS ERRED IN FACT IN CONFIRMING AN ADDITI ON OF RS.57,45,183/- ON ACCOUNT OF COMMISSION ON EXPORTS. 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E AND IN THE LAW, THE LD.CIT(A) HAS ERRED IN FACT IN CONFIRMING AN ADDIT ION OF RS.48,209/- ON ACCOUNT OF CHARITY AND DONATION. DATE OF HEARING 26.10.2017 DATE OF PRONOUNCEMENT 07.11.2017 2 ITA NO. 3969/DEL/2011 3. THE ASSESSEE IS ENGAGED IN THE BUSINESS OF MANUF ACTURING OF NON- FERROUS METALS. RETURN SHOWING LOSS OF RS.21,55,83, 857/- FOR THE ASSESSMENT YEAR 2004-05 WAS FILED ON 29/10/2004. THE CASE WAS PROCESSED U/S 143(1) OF THE I.T. ACT. SUBSEQUENTLY, THE CASE WAS SELECTED FOR SCRUTINY AND VARIOUS NOTICES WERE ISSUED. THE AUTHORIZED REPRESENTATIVE OF THE ASSESSEE COMPANY APPEARED BEFORE THE UNDERSIGNED AND FILED THE DETAI LS AS CALLED FOR. THE ADDITION WAS MADE ON ACCOUNT OF COMMISSION ON EXPOR TS TO THE EXTENT OF RS.57,45,183/- AS WELL AS CHARITY AND DONATION FOR RS.48,209/- ALONG WITH OTHER ADVANCE BY THE ASSESSING OFFICER . 4. BEING AGGRIEVED BY THE ORDER OF THE CIT(A), THE ASSESSEE FILED APPEAL BEFORE THE CIT(A). THE CIT(A) PARTLY ALLOWED THE APPEAL O F THE ASSESSEE. THE ASSESSEE HAS FILED THE PRESENT APPEAL IN RESPECT OF TWO ISSU ED RELATING TO ADDITION ON ACCOUNT OF COMMISSION ON EXPORTS AND ADDITION ON AC COUNT OF CHARITY AND DONATION. THE CIT(A) OBSERVED THAT THE ASSESSEE WA S A SICK COMPANY AND HAVE BEEN REFERRED TO BRFI SINCE THE FACTORY WAS CLOSED FOR 5 TO 6 YEARS. THE ASSESSEE COULD NOT GET DOCUMENTS FOR WHICH REQUEST WAS MADE FOR ADMISSION OF THE ADDITIONAL EVIDENCE UNDER RULE 46A (1) OF THE I NCOME TAX RULES 1962. THUS, THE CIT(A) REJECTED THE ADDITIONAL EVIDENCE. 5. THE LD. AR SUBMITTED THAT THE MATTER MAY BE SENT BACK TO ASSESSING OFFICER AND THE DOCUMENTS AND ADDITIONAL EVIDENCE HAS BEEN PROCURED BY THE ASSESSEE. THE SAME NEEDS TO BE VERIFIED. 6. THE LD. DR OBJECTED TO THE SAME. 7. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE M ATERIAL AVAILABLE ON RECORD. FROM THE ASSESSMENT ORDER IT IS CLEAR THAT THE ASSESSING OFFICER MADE ADDITIONS ONLY ON ACCOUNT OF ABSENCE OF EVIDENCE. T HOUGH THE SAID EVIDENCE WAS PRODUCED BEFORE THE CIT(A), THE CIT(A) HAS NOT ALLOWED THE SAME BY CALLING FOR REMAND REPORT FROM THE ASSESSING OFFICER. THER EFORE, IN THE INTEREST OF 3 ITA NO. 3969/DEL/2011 JUSTICE IT IS PROPER AND JUST TO REMAND BACK THESE TWO ISSUES DECIDED HEREIN AFRESH BEFORE THE ASSESSING OFFICER. NEEDLESS TO S AY, THE ASSESSEE BE GIVEN FULL OPPORTUNITY OF HEARING AS WELL AS PRODUCING THE ADD ITIONAL EVIDENCE BEFORE THE ASSESSING OFFICER AND ASSESSING OFFICER AFTER VER IFYING THE SAID EVIDENCES CAN DECIDE THE ISSUE AFRESH IN ACCORDANCE WITH LAW. 8. IN RESULT THE APPEAL OF THE ASSESSEE IS PARTLY A LLOWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED IN THE OPEN COURT ON 07 TH NOVEMBER, 2017 . SD/- SD/- (N. K. SAINI) (SUCHITRA KAMBLE) ACCOUNTANT MEMBER JUDICIAL MEM BER DATED: 07/11/2017 R. NAHEED * COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT ASSISTANT REGISTRAR ITAT NEW DELHI DATE 1. DRAFT DICTATED ON 26/10/2017 PS 4 ITA NO. 3969/DEL/2011 2. DRAFT PLACED BEFORE AUTHOR 26/10/2017 PS 3. DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER .2017 JM/AM 4. DRAFT DISCUSSED/APPROVED BY SECOND MEMBER. JM/AM 5. APPROVED DRAFT COMES TO THE SR.PS/PS 7.11.2017 PS/PS 6. KEPT FOR PRONOUNCEMENT ON PS 7. FILE SENT TO THE BENCH CLERK 7 .1 1 .2017 PS 8. DATE ON WHICH FILE GOES TO THE AR 9. DATE ON WHICH FILE GOES TO THE HEAD CLERK. 10. DATE OF DISPATCH OF ORDER.