ACIT, New Delhi V. M/s Triveni Motors, New Delhi

ITA 4390/DEL/2015

• Counselvise Citation: [2019] 116 COUNSELVISE.COM (IT) 8740 (ITAT-DELHI)
• Duration Of Justice: 4 year(s) 6 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 12-07-2019
• Appeal Filed By: Department
• Order Result: Partly Allowed
• Bench Allotted: F
• Assessment Year: 2006-2007
• Appeal Filed On: 06-07-2015
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: SULEKHA VERMA
• Keywords: Additional evidence; Set aside

Judgement Text

ITA NO.-4390/DEL/2015. M/S TRIVENI MOTORS, NEW DELHI. PAGE 1 OF 5 IN THE INCOME TAX APPELLATE TRIBUNAL (DELHI BENCH: F: NEW DELHI) BEFORE SHRI KULDIP SINGH, JUDICIAL MEMBER AND SHRI ANADEE NATH MISSHRA, ACCOUNTANT MEMBER ITA NO:- 4390/DEL/2015 ( ASSESSMENT YEAR: 2006-07) ASSTT. COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE -28, NEW DELHI. VS. M/S TRIVENI MOTORS, C-691, NEW FRIENDS COLONY, NEW DLHI. PAN NO: AACFT0256B APPELLANT RESPONDENT REVENUE BY : SMT. SULEKHA VERMA, CIT(DR) ASSESSEE BY : SHRI RAMESH GOYAL, CA ORDER PER ANADEE NATH MISSHRA, AM THIS APPEAL BY REVENUE IS FILED AGAINST THE ORDER O F LEARNED COMMISSIONER OF INCOME TAX (APPEALS)-29, [LD. CIT(A), FOR SHORT], NEW DELHI, DATED 15.04.2015 FOR ASSESSMENT YEAR 2006-07, ON THE FOLLOWING GROUNDS: 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE AND IN LAW, THE CIT(A) HAS ERRED IN DELETING THE ADDITION OF RS. 85,75,000/- M ADE BY AO ON ACCOUNT OF UNEXPLAINED LOANS 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E AND IN LAW, THE CIT(A) HAS ERRED IN DELETING THE DISALLOWANCE MADE BY AO OF EX PENSES OF RS. 21,78,267/- U/S 43B. ITA NO.-4390/DEL/2015. M/S TRIVENI MOTORS, NEW DELHI. PAGE 2 OF 5 3. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E AND IN LAW, THE CIT(A) HAS ERRED IN DELETING THE DISALLOWANCE MADE BY AO OF DE PRECIATION OF RS. 73,51, 344/-. 4. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E AND IN LAW, THE CIT(A) HAS ERRED IN DELETING THE DISALLOWANCE MADE BY AO OF, 1 0% OF DIRECT AND INDIRECT EXPENSES, OF RS. 5,76,067/-. 5. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E AND IN LAW, THE CIT(A) HAS ERRED IN DELETING THE DISALLOWANCE MADE BY THE AO O F, 50% OF ADMINISTRATIVE AND SELLING EXPENSES, OF RS. 79,26,400/- 6. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E AND IN LAW, THE DECISION OF CIT(A) IS NOT ACCEPTABLE IN VIEW OF THE BARE FACT A ND ONCE A COMPLETED ASSESSMENT IS REOPENED THE OLD ASSESSMENT STANDS VI TIATED AND DE-NOVO ASSESSMENT HAS TO BE MADE AFTER CONSIDERING ALL ISS UES THAT COME TO THE NOTICE OF THE AO. 7. THE ORDER OF THE CIT(A) IS ERRONEOUS AND IS NOT TENABLE ON FACTS AND IN LAW. 8. THE APPELLANT CRAVES LEAVE TO ADD, ALTER OR AMEN D ANY / ALL OF THE GROUNDS OF APPEAL BEFORE OR DURING THE COURSE OF THE HEARING O F THE APPEAL.. 2. AT THE TIME OF HEARING BEFORE US, BOTH SIDES- RE VENUE REPRESENTED BY THE LD.CIT DR, SMT. SULEKHA VERMA AND THE ASSESSEE REPRESENTED BY SH. RAMESH GOYAL, CA SUBMITTED THAT LD.CIT(A) ACCEPTED ADDITIONAL EVIDE NCES FROM THE ASSESSEE ON THE BASIS OF WHICH HE ALLOWED RELIEF TO THE ASSESSEE. HOWEVE R, DURING THE APPELLATE PROCEEDINGS BEFORE THE CIT(A), ANY CLEAR VIOLATION OF RULE 46A( 3) OF THE INCOME TAX RULES, 1962 DID NOT ALLOW REASONABLE OPPORTUNITY TO THE AO TO EXAMI NE THE EVIDENCES OR DOCUMENTS OR TO CROSS-EXAMINE THE WITNESS PRODUCED BY THE ASSESS EE OR TO PRODUCE ANY EVIDENCE OR DOCUMENT OR ANY WITNESS IN REBUTTAL OF THE ADDITION AL EVIDENCE PRODUCED BY THE ASSESSEE. LD.CIT DR FILED A COPY OF THE ORDER OF C O-ORDINATE BENCH OF ITAT, DELHI IN ASSESSEES OWN CASE FOR AY 2008-09 IN ITA NO.6429/D EL/2014 VIDE ORDER DATED 19.11.2018 WHEREIN, IN SIMILAR CIRCUMSTANCES, THE M ATTER WAS RESTORED TO THE LD.CIT(A) ITA NO.-4390/DEL/2015. M/S TRIVENI MOTORS, NEW DELHI. PAGE 3 OF 5 WITH THE DIRECTION TO RE-ADJUDICATE THE GROUNDS. T HE RELEVANT PORTION OF THE AFORESAID ORDER IS REPRODUCED HERE UNDER:- 4.0. HAVING HEARD THE LD. CIT DR AND AFTER HAVING PERUSED THE MATERIAL ON RECORD AS WELL AS THE IMPUGNED ORDER, W E FIND THAT THE AVERMENT OF THE LD. CIT DR IS CORRECT INASMUCH AS T HE LD. CIT (A) ADMITTED ADDITIONAL EVIDENCE BUT DID NOT CALL FOR A REMAND REPORT FROM THE ASSESSING OFFICER NOR GAVE THE ASSESSING O FFICER ANY OPPORTUNITY TO EXAMINE THE EVIDENCE WHICH WERE FURN ISHED BEFORE HIM BY THE ASSESSEE FOR THE FIRST TIME. THIS SHOULD NOT HAVE BEEN DONE AND THE LD. CIT (A) SHOULD HAVE FOLLOWED THE P ROVISIONS OF RULE 46A IN THIS REGARD. ACCORDINGLY, IN LIGHT OF THE FA CTUAL MATRIX, WE RESTORE THE FILE TO THE OFFICE OF THE LD. CIT (A) W ITH THE DIRECTION TO RE-ADJUDICATE THE GROUNDS RAISED BEFORE HIM AFTER G IVING OPPORTUNITY TO THE ASSESSING OFFICER TO EXAMINE AND COMMENT ON THE ADDITIONAL EVIDENCES WHICH HAVE BEEN EARLIER ADMITTED BY HIM A ND ALSO AFTER GIVING DUE OPPORTUNITY TO THE ASSESSEE TO REBUT THE OBSERVATIONS OF THE AO. 3. IN VIEW OF THE FOREGOING, BOTH SIDES SUBMITTED, THAT FOR THIS YEAR ALSO ALL THE DISPUTED ISSUES IN THE PRESENT APPEAL SHOULD BE RES TORED BACK TO THE LD.CIT(A) FOR FRESH ORDER. ITA NO.-4390/DEL/2015. M/S TRIVENI MOTORS, NEW DELHI. PAGE 4 OF 5 4. AFTER HEARING BOTH SIDES, WE FIND THAT IT IS NOT IN DISPUTE THAT THE LD.CIT(A) ADMITTED ADDITIONAL EVIDENCES FROM ASSESSEES SIDE IN THE COURSE OF APPELLATE PROCEEDINGS BEFORE THE LD.CIT(A). IT IS ALSO NOT I N DISPUTE THAT THE LD.CIT(A) DID NOT GIVE OPPORTUNITY TO THE ASSESSING OFFICER THOUGH TH E AO WAS ENTITLED TO OPPORTUNITY UNDER RULE 46A(3) OF INCOME TAX RULES. WE ALSO FIN D THAT IN CO-ORDINATE BENCH OF ITAT, DELHI HAS, IN AFORESAID ORDER DATED 19.11.201 8 IN ITA NO.6429/DEL/2014, RESTORED THE MATTER TO THE CIT(A). IN VIEW OF THE FOREGOING , AND RESPECTFULLY FOLLOWING THE ORDER OF THE CO-ORDINATE BENCH OF ITAT, DELHI IN AFORESAI D APPEAL I.E. ITA NO.6429/DEL/2014 FOR AY 2008-09 AND AS BOTH SIDES AGREE TO THIS; WE SET ASIDE THE ORDER OF THE LD. CIT(A) AND RESTORE ALL THE DISPUTED ISSUES RAISED I N THE PRESENT APPEAL BEFORE US TO THE FILE OF THE LD.CIT(A) FOR FRESH ORDER AFTER GIVING OPPORTUNITY TO THE AO TO EXAMINE AND COMMENT ON THE ADDITIONAL EVIDENCES WHICH HAVE BEEN EARLIER ADMITTED BY HIM AND ALSO AFTER GIVING DUE OPPORTUNITY TO THE ASSESSEE TO REB UT THE OBSERVATIONS OF THE AO. WE DIRECT LD.CIT(A) TO ADHERE THE PROVISIONS OF RULE 4 6A(3) OF INCOME TAX RULES, 1962. THUS, THE PRESENT APPEAL IS DISPOSED OFF IN ACCORDA NCE WITH THE AFORESAID DIRECTIONS. 5. IN THE RESULT, THE APPEAL OF THE REVENUE IS PART LY ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 12 TH DAY OF JULY, 2019. SD/- SD/- (KULDIP SINGH) (ANADEE NATH MISSHR A) JUDICIAL MEMBER ACCOUNTANT ME MBER DATED: 12.07.2019 * POOJA & AMIT * ITA NO.-4390/DEL/2015. M/S TRIVENI MOTORS, NEW DELHI. PAGE 5 OF 5 COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT ASSISTANT REGISTRAR ITAT NEW DELHI DATE OF DICTATION DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE OTHER MEMBER DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR. PS/PS DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE DICTATING MEMBER FOR PRONOUNCEMENT DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR. PS/PS DATE ON WHICH THE FINAL ORDER IS UPLOADED ON THE WEBSITE OF ITAT DATE ON WHICH THE FILE GOES TO THE BENCH CLERK DATE ON WHICH THE FILE GOES TO THE HEAD CLERK THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT REGISTRAR FOR SIGNATURE ON THE ORDER DATE OF DISPATCH OF THE ORDER