M/s. Delhi Housing & Finance Corporation, New Delhi V. ACIT, New Delhi

ITA 454/DEL/2014

• Counselvise Citation: [2016] 121 COUNSELVISE.COM (IT) 4300 (ITAT-DELHI)
• Duration Of Justice: 2 year(s) 10 month(s) 20 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 13-12-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 07-12-2016
• Assessment Year: 2009-2010
• Appeal Filed On: 24-01-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ANIL KUMAR SHARMA SENIOR
• Assessee Lawyers: BL JAI N

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL IN THE INCOME TAX APPELLATE TRIBUNAL IN THE INCOME TAX APPELLATE TRIBUNAL IN THE INCOME TAX APPELLATE TRIBUNAL DELHI DELHI DELHI DELHI BENCH BENCH BENCH BENCH B BB B : NEW DELHI : NEW DELHI : NEW DELHI : NEW DELHI BEFORE SHRI BEFORE SHRI BEFORE SHRI BEFORE SHRI G.D. AGRAWAL, VICE PRESIDENT G.D. AGRAWAL, VICE PRESIDENT G.D. AGRAWAL, VICE PRESIDENT G.D. AGRAWAL, VICE PRESIDENT AND AND AND AND SHRI SUDHANSHU SRIVASTAVA SHRI SUDHANSHU SRIVASTAVA SHRI SUDHANSHU SRIVASTAVA SHRI SUDHANSHU SRIVASTAVA, JUDICIAL MEMBER , JUDICIAL MEMBER , JUDICIAL MEMBER , JUDICIAL MEMBER ITA NO ITA NO ITA NO ITA NO . .. . 454/DEL/2014 454/DEL/2014 454/DEL/2014 454/DEL/2014 ASSESSMENT YEAR : ASSESSMENT YEAR : ASSESSMENT YEAR : ASSESSMENT YEAR : 2009 2009 2009 2009 - -- - 10 1010 10 M/S DELHI HOUSING & FINANCE M/S DELHI HOUSING & FINANCE M/S DELHI HOUSING & FINANCE M/S DELHI HOUSING & FINANCE CORPORATION, CORPORATION, CORPORATION, CORPORATION, 2 PARK VI 2 PARK VI 2 PARK VI 2 PARK VIEW, EW, EW, EW, KAROL BAGH, KAROL BAGH, KAROL BAGH, KAROL BAGH, NEW DELHI NEW DELHI NEW DELHI NEW DELHI 110 005. 110 005. 110 005. 110 005. PAN : AAAFD1114C. PAN : AAAFD1114C. PAN : AAAFD1114C. PAN : AAAFD1114C. VS. VS. VS. VS. ASSISTANT COMMISSIONER OF ASSISTANT COMMISSIONER OF ASSISTANT COMMISSIONER OF ASSISTANT COMMISSIONER OF INCOME TAX, INCOME TAX, INCOME TAX, INCOME TAX, CIRCLE CIRCLE CIRCLE CIRCLE- -- -33(1), 33(1), 33(1), 33(1), NEW DELHI. NEW DELHI. NEW DELHI. NEW DELHI. (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI B.L. JAIN, FCA. RESPONDENT BY : SHRI ANIL KUMAR SHARMA, SENIOR DR. DATE OF HEARING : 08.12.2016 08.12.2016 08.12.2016 08.12.2016 DATE OF PRONOUNCEMENT : 13.12.2016 13.12.2016 13.12.2016 13.12.2016 ORDER ORDER ORDER ORDER PER G.D. AGRAWAL, VP PER G.D. AGRAWAL, VP PER G.D. AGRAWAL, VP PER G.D. AGRAWAL, VP : :: :- -- - THIS APPEAL BY THE ASSESSEE FOR THE ASSESSMENT YEA R 2009-10 IS DIRECTED AGAINST THE ORDER OF LEARNED CIT(A)-XXVI, NEW DELHI DATED 12 TH NOVEMBER, 2013. 2. IN THIS APPEAL, THE ASSESSEE HAS RAISED VARIOUS GROUNDS. HOWEVER, THEY ARE ALL AGAINST THE ADDITION OF `7,41 ,267/- WHICH IS MADE BY THE ASSESSING OFFICER ON ACCOUNT OF UNPROVED LIA BILITIES. 3. WE HAVE HEARD THE ARGUMENTS OF BOTH THE SIDES AN D PERUSED THE MATERIAL PLACED BEFORE US. THE ASSESSING OFFICER M ADE THE ADDITION OF `7,41,267/- WITH THE FOLLOWING FINDING:- 3. THE ASSESSEE WAS ASKED TO FILE CONFIRMATION/PRO OF OF LIABILITY OF RS.7,41,267/- EXCLUDING RS.11,236 + 25 00/- OF ITA-454/DEL/2014 2 AUDIT FEE AND ACCOUNTANCY CHARGES. BUT THE ASSESSE E IS FAILED TO PRODUCE THE CONFIRMATION REGARDING THESE EXPENSES. SO AN AMOUNT OF RS.7,41,262/- IS DISALLO WED AND ADDED BACK TO THE RETURNED INCOME OF THE ASSESSEE. 4. AFTER CONSIDERING THE FACTS OF THE CASE AND SUBM ISSIONS OF BOTH THE SIDES, WE ARE UNABLE TO AGREE WITH THE ABOVE FI NDING OF THE ASSESSING OFFICER. EVEN IF THE ASSESSEE IS NOT ABL E TO PRODUCE THE CONFIRMATION OF LIABILITIES, THE SAME CANNOT BE DIS ALLOWED BECAUSE IN THIS YEAR, ADMITTEDLY, NO EXPENDITURE WAS CLAIMED B Y THE ASSESSEE. IT IS AN ADMITTED FACT THAT IT IS A LIABILITY CARRIED FORWARD FROM THE EARLIER YEARS. THEREFORE, WHEN NO EXPENDITURE IS CLAIMED I N THIS YEAR, MERELY BECAUSE THE ASSESSEE COULD NOT FILE THE CONFIRMATIO N, THERE CANNOT BE ANY DISALLOWANCE. 5. LEARNED CIT(A) SUSTAINED THE ADDITION WITH THE F OLLOWING FINDING :- REGARDING THESE LIABILITIES, THE APPELLANT COULD N OT PLACE ANYTHING ON RECORD BEFORE ME, WHICH COULD PROVE THA T THESE LIABILITIES WERE IN EXISTENCE AS ON 31.03.200 9. FURTHER, THE GENUINE LIABILITY CANNOT LIE UNCLAIMED FOR SUCH A LONG PERIOD OF TIME. THUS, IT IS MOST UNLIKELY T HAT THESE LIABILITIES REMAINED UNPAID. THUS, IN VIEW OF THE ABOVE FACTS, IT IS HELD THAT THE LIABILITIES OF RS.7,41,2 67/- ARE NOT EXISTING IN THE RELEVANT YEAR AND CONSEQUENTIALLY T HE ASSET TO THAT EXTENT REMAINED UNEXPLAINED; THEREFORE, THE LIABILITY REQUIRES TO BE ASSESSED AS INCOME. THUS, THE ADDITION OF RS.7,41,267/- IS SUSTAINED ON THE FACT THAT THE APPELLANT FAILED TO PROVE THE EXISTENCE OF THESE LI ABILITIES DURING THE RELEVANT YEAR. 6. AFTER CONSIDERING THE SUBMISSIONS OF BOTH THE SI DES, WE ARE UNABLE TO AGREE WITH THE ABOVE FINDING OF THE LEARN ED CIT(A). MERELY BECAUSE THE LIABILITY REMAINED UNPAID FOR A LONGER PERIOD, IT CANNOT BE TREATED AS INCOME. IN OUR OPINION, THE UNPAID LIAB ILITY CAN BE TREATED AS INCOME ONLY WHEN THERE IS REMISSION AND CESSATIO N OF LIABILITY AND PROVISION OF SECTION 41(1) APPLIES. HOWEVER, LEARN ED CIT(A) IN PARAGRAPH 5 HAS ALREADY GIVEN THE FINDING THAT SECT ION 41(1) IS NOT ITA-454/DEL/2014 3 APPLICABLE. THE RELEVANT FINDING OF LEARNED CIT(A) IN PARAGRAPH 5 IS REPRODUCED BELOW :- IT IS NOT A CASE WHERE THE PROVISIONS OF SECTION 4 1(1) WERE INVOKED AS IT IS NOT A CASE OF REMISSION OR CESSATI ON OF THE LIABILITIES. 7. ONCE IT IS AN ADMITTED POSITION THAT THERE IS NO REMISSION OR CESSATION OF LIABILITY DURING THE YEAR UNDER CONSID ERATION, IN OUR OPINION, THE ADDITION FOR UNEXPLAINED OLD LIABILITI ES CANNOT BE MADE. WE, THEREFORE, DELETE THE ADDITION OF `7,41,267/- M ADE BY THE ASSESSING OFFICER AND SUSTAINED BY THE LEARNED CIT( A). 8. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED. DECISION PRONOUNCED IN THE OPEN COURT ON 13.12.2016 . SD/- SD/- (SUDHANSHU SRIVASTAVA (SUDHANSHU SRIVASTAVA (SUDHANSHU SRIVASTAVA (SUDHANSHU SRIVASTAVA ) )) ) ( (( ( G.D. AGRAWAL G.D. AGRAWAL G.D. AGRAWAL G.D. AGRAWAL ) )) ) JUDICIAL MEMBER JUDICIAL MEMBER JUDICIAL MEMBER JUDICIAL MEMBER VICE PRESIDENT VICE PRESIDENT VICE PRESIDENT VICE PRESIDENT VK. COPY FORWARDED TO: - 1. APPELLANT : M/S DELHI HOUSING & FINANCE CORP ORATION, M/S DELHI HOUSING & FINANCE CORPORATION, M/S DELHI HOUSING & FINANCE CORPORATION, M/S DELHI HOUSING & FINANCE CORPORATION, 2 PARK VIEW, KAROL BAGH, NEW DELHI 2 PARK VIEW, KAROL BAGH, NEW DELHI 2 PARK VIEW, KAROL BAGH, NEW DELHI 2 PARK VIEW, KAROL BAGH, NEW DELHI 110 005. 110 005. 110 005. 110 005. 2. RESPONDENT : ASSISTANT COMMISSIONER OF INCOME TA X, ASSISTANT COMMISSIONER OF INCOME TAX, ASSISTANT COMMISSIONER OF INCOME TAX, ASSISTANT COMMISSIONER OF INCOME TAX, CIRCLE CIRCLE CIRCLE CIRCLE- -- -33( 33( 33( 33(1), NEW DELHI. 1), NEW DELHI. 1), NEW DELHI. 1), NEW DELHI. 3. CIT 4. CIT(A) 5. DR, ITAT ASSISTANT REGISTRAR