BLOOMING DIAGNOSTICS & IMPEX PVT. LTD., NEW DELHI V. ITO, WARD- 5(1), NEW DELHI

ITA 4531/DEL/2017

• Counselvise Citation: [2021] 107 COUNSELVISE.COM (IT) 2323 (ITAT-DELHI)
• Duration Of Justice: 4 year(s) 3 month(s) 16 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 26-10-2021
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2012-2013
• Appeal Filed On: 10-07-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Source of fund; TDS
• Section: 142(1); 201; 143(2); 13; 22; 131; 68

Judgement Text

IN TH E INCOME TAX APPELLATE TRIBUNAL DELHI BENCH : A : NEW DELHI BEFORE SHRI R. K. PANDA, ACCOUNTANT MEMBER AND SHRI KULDIP SINGH, JUDICIAL MEMBER ITA NO. 4531 / DEL /201 7 ASSESSMENT YEAR : 20 1 2 - 13 BLOOMING DIAGNOSTICS & IMPEX PVT. LTD., C/O R.K. TULI & ASSO CIATES, CA, 11/37, OLD RAJINDER NAGAR, NEW DELHI. PAN : AA CCB9882G VS ITO, WARD - 5 (1), NEW DELHI. (APP ELL A NT ) (RESPONDENT) A SSESSEE BY : SHRI BALDEV RAJ, CA RE VENUE BY : SHRI OM PRAKASH, SR. DR DATE OF HEARING : 2 6 . 10 . 20 2 1 DATE OF PRONOUNCEMENT : 2 6 . 10 . 20 2 1 ORDER PER R. K. PANDA, AM : THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAINST THE EX PARTE ORDER DATED 10 TH MARCH, 201 7 OF THE CIT(A) - 2 , NEW DELHI, RELATING TO THE ASSESSMENT YEAR 201 2 - 13 . 2. ALTHOUGH A NUMBER OF GROUNDS HAVE BEEN RAISED BY THE ASSESSEE, THESE ALL RELATE TO THE EX PARTE ORDER OF THE CIT(A) IN CONFIRMING THE VARIOUS ADDITIONS MADE BY THE AO AND DETERMINING THE TOTAL INCOME OF THE ASSESSEE AT RS.2,24,13,520/ - AGAINST THE RETURNED INCOME OF THE ASSESSEE OF RS.5,95,800/ - . ITA NO. 4531 / DEL /201 7 2 3 . FACTS OF THE CASE, IN BRIEF, ARE THAT THE ASSESSEE IS A PRIVATE LIMITED COMPANY ENGAGED IN THE BUSINESS OF TRADING OF DRUGS, MEDICINES AND PATHOLOGICAL ITEMS. IT FILED ITS RETURN OF INCOME ON 6 TH JULY, 2013 DE CLARING THE TOTAL INCOME OF RS.5,95,810/ - . THE CASE WAS SELECTED FOR SCRUTINY UNDER CASS AND NOTICE U/S 143(2) OF THE ACT DATED 02.09.2014 WAS ISSUED AND SERVED UPON THE ASSESSEE THROUGH SPEED POST. A QUESTIONNAIRE DATED 22 ND OCTOBER, 2014 U/S 142(1) OF THE ACT WAS ISSUED AND SERVED UPON THE ASSESSEE FOR COMPLIANCE. 4. DURING THE COURSE OF ASSESSMENT PROCEEDINGS, THE AO ASKED THE ASSESSEE TO PROVE THE IDENTITY, GENUINENESS AND CREDIT WORTHINESS OF THE PERSON FROM WHOM SHARE CAPITAL/SHARE APPLICATION MONE Y/SHARE PREMIUM AMOUNTING TO RS.2,98,68,677/ - HAS BEEN RECEIVED. FROM THE VARIOUS DETAILS FURNISHED BY THE ASSESSEE, HE NOTED THAT DURING AY 2011 - 12, THE ASSESSEE HAD RECEIVED AN AMOUNT OF RS.5,45,500/ - TOWARDS SHARE CAPITAL AND SHARE PREMIUM WHICH HAS GO NE UPTO RS.2,98,68,677/ - DURING THE YEAR. THUS, THERE IS AN INCREASE IN THE SHARE CAPITAL AND SHARE PREMIUM OF RS.2,44,63,177/ - . THE AO, IN ORDER TO EXAMINE THE IDENTITY, GENUINENESS AND CREDIT WORTHINESS OF THE PERSONS ISSUED SUMMONS U/S 131 OF THE ACT TO VARIOUS PARTIES FROM WHOM THE ASSESSEE HAS RECEIVED SHARE CAPITAL/SHARE PREMIUM. HE ALSO ASKED THE PERSONS TO CONFIRM THE INVESTMENT WITH EVIDENCE ABOUT THEIR SOURCES OF INCOME FROM WHERE THE ALLEGED INVESTMENTS WERE MADE. THEY WERE ASKED TO FILE THE COPY OF THEIR ITR FOR A.Y. 2011 - 12 AND 2012 - 13, STATEMENT OF AFFAIRS, BALANCE SHEET, P&L ACCOUNT AND THE BANK STATEMENT, ETC. ITA NO. 4531 / DEL /201 7 3 SINCE THE ASSESSEE FAILED TO SUBSTANTIATE WITH EVIDENCE TO THE SATISFACTION OF THE AO REGARDING THE IDENTITY AND CREDIT WORTHINES S OF THE PERSONS AND THE GENUINENESS OF THE TRANSACTIONS, THE AO, AFTER ACCEPTING THE AMOUNT OF RS.60 LAKHS, CLAIMED TO HAVE BEEN RECEIVED FROM SHRI J.D. TYAGI, WHO IS A RETIRED GOVERNMENT SERVANT AND WHOSE BANK ACCOUNT WAS SHOWING SUFFICIENT FUNDS SINCE 2 0 TH FEBRUARY, 2012, ACCEPTED THE SAME AS GENUINE AND MADE AN ADDITION OF RS.1,84,63,177/ - TO THE TOTAL INCOME OF THE ASSESSEE U/S 68 OF THE IT ACT. THE AO ALSO MADE VARIOUS OTHER ADDITIONS SUCH AS VAT PAYABLE RS.35,619/ - ; DISALLOWANCE OF EXPENSES U/S 40 (A)(IA) RS.16,57,830/ - ; AD HOC DISALLOWANCE OF VARIOUS EXPENSES RS.5 LAKHS; AND DISALLOWANCE ON LATE DEPOSIT OF TDS RS.16,569/ - . ACCORDINGLY, THE AO DETERMINED THE TOTAL INCOME OF THE ASSESSEE AT RS.2,24,13,516/ - . SINCE THERE WAS NO COMPLIANCE BY T HE ASSESSEE BEFORE THE CIT(A) DESPITE FOUR STATUTORY NOTICES ISSUED, THE LD.CIT(A), IN THE EX PARTE ORDER PASSED BY HIM, SUSTAINED THE VARIOUS ADDITIONS MADE BY THE AO AND ALSO ENHANCED THE INCOME OF THE ASSESSEE BY RS.60 LAKHS WHICH THE AO HAD ALLOWED. 5 . AGGRIEVED WITH SUCH ORDER OF THE CIT(A), THE ASSESSEE IS IN APPEAL BEFORE THE TRIBUNAL. 6. THE LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT IN THE INTEREST OF JUSTICE THE ASSESSEE SHOULD BE GIVEN AN OPPORTUNITY TO SUBSTANTIATE HIS CASE BEFORE THE CIT(A) SINCE THERE WAS NO PROPER COMPLIANCE BEFORE THE CIT(A). ITA NO. 4531 / DEL /201 7 4 7. THE LD. DR, ON THE OTHER HAND, WHILE OPPOSING THE ARGUMENTS ADVANCED BY THE LD. COUNSEL FOR THE ASSESSEE, SUBMITTED THAT THE LD.CIT(A) HAS GIVEN SUFFICIENT OPPORTUNITY TO THE ASSESSEE TO SUBSTANT IATE ITS CASE, BUT, THE ASSESSEE DID NOT APPEAR BEFORE THE CIT(A). FURTHER, THE LD.CIT(A) HAS DECIDED THE APPEAL ON MERIT. HE ACCORDINGLY SUBMITTED THAT THE ORDER OF THE CIT(A) BE UPHELD AND THE GROUNDS RAISED BY THE ASSESSEE SHOULD BE DISMISSED. 8. WE HAVE CONSIDERED THE RIVAL ARGUMENTS MADE BY BOTH THE SIDES AND PERUSED THE RECORD. IT IS AN ADMITTED FACT THAT DESPITE THREE OPPORTUNITIES GRANTED BY THE CIT(A), THE ASSESSEE DID NOT APPEAR BEFORE THE CIT(A) FOR WHICH THE LD.CIT(A) NOT ONLY SUSTAINED THE ADDITIONS MADE BY THE AO, BUT ALSO ENHANCED THE ASSESSMENT BY RS.60 LAKHS BEING SHARE APPLICATION MONEY/SHARE CAPITAL RECEIVED FROM SHRI J.D. TYAGI. IT IS THE SUBMISSION OF THE LD. COUNSEL FOR THE ASSESSEE THAT GIVEN AN OPPORTUNITY, THE ASSESSEE IS IN A PO SITION TO SUBSTANTIATE ITS CASE WITH EVIDENCE TO THE SATISFACTION OF THE CIT(A). CONSIDERING THE TOTALITY OF THE FACTS OF THE CASE AND IN THE INTERESTS OF JUSTICE, WE DEEM IT PROPER TO RESTORE THE ISSUE BACK TO THE FILE OF THE CIT(A) WITH A DIRECTION TO G RANT ONE FINAL OPPORTUNITY TO THE ASSESSEE TO SUBSTANTIATE ITS CASE AND DECIDE THE ISSUE AS PER FACT AND LAW. THE ASSESSEE IS ALSO HEREBY DIRECTED TO APPEAR BEFORE THE CIT(A) AND SUBSTANTIATE ITS CASE WITHOUT SEEKING ANY ADJOURNMENT UNDER ANY PRETEXT, FAI LING WHICH, THE LD.CIT(A) IS AT LIBERTY TO PASS APPROPRIATE ORDER AS PER LAW. WE HOLD AND DIRECT ACCORDINGLY. THE GROUNDS RAISED BY THE ASSESSEE ARE ACCORDINGLY ALLOWED FOR STATISTICAL PURPOSES. ITA NO. 4531 / DEL /201 7 5 9 . IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS AL LOWED FOR STATISTICAL PURPOSES. THE ORDER W AS PRO NOUNCED IN THE OPEN COURT ON CONCLUSION OF THE HEARING ITSELF, I.E., ON 2 6 TH OCTOBER, 2021. SD/ - SD/ - (KULDIP SINGH) ( R. K. PANDA ) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 2 6 TH OCTOBER, 2021. DK COPY FORWARDED TO : 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR ASSTT. REGISTRAR, ITAT, NEW DELHI