ACIT, New Delhi V. M/s. Prashant Gupta HUF, New Delhi

ITA 4598/DEL/2010

• Counselvise Citation: [2014] 120 COUNSELVISE.COM (IT) 5444 (ITAT-DELHI)
• Duration Of Justice: 3 year(s) 3 month(s) 30 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 17-02-2014
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: F
• Next Hearing Date: 19-12-2013
• Assessment Year: 2007-2008
• Appeal Filed On: 18-10-2010
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Assessee Lawyers: SARVESH K AGARWAL
• Keywords: Opportunity of being heard; Additional evidence
• Section: 68

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL (DELHI BENCH F NEW DELHI) BEFORE SHRI I.C. SUDHIR, JUDICIAL MEMBER AND SHRI T.S. KAPOOR, ACCOUNTANT MEMBER I.T.A. NO.4598/DEL/2010 ASSESSMENT YEAR : 2007-08 ACIT, PRASHANT GUPTA HUF, CIRCLE-35 (1), PROP. PRAGATI INORGANICS, NEW DELHI. V. 513-514, 5 TH FLOOR, PLOT NO.18, ASHISH CORPORATE TOWER, KARKARDOMA, NEW DELHI. (APPELLANT) (RESPONDENT) PAN /GIR/NO. PAN /GIR/NO. PAN /GIR/NO. PAN /GIR/NO.AAFHP AAFHP AAFHP AAFHP- -- -4135 4135 4135 4135- -- -C CC C APPELLANT BY : MS. MEENAKSHI VOHRA, DR. RESPONDENT BY : SHRI SARVESH K. AGARWAL, ADVOCATE. ORDER PER TS KAPOOR, AM: THIS IS AN APPEAL FILED BY THE REVENUE AGAINST THE ORD ER OF LD CIT(A) DATED 22.6.2010. THE GROUNDS OF APPEALS TAKEN BY THE REVENUE ARE AS UNDER:- 1. ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LD CIT( A) HAS ERRED BOTH FACTS AND LAW IN DELETING ADDITION OF ` .25,50,000/- MADE BY THE ASSESSING OFFICER U/S 68 OF THE INCOME TAX ACT, 1961 IN IGNORING THE FACTS THAT THE ASSESSING OFFICER H AS SPECIFICALLY ASKED TO SUBMIT THE COPY OF DEPOSITORS BANK ACCOUNTS SO THAT GENUINENESS OF THE TRANSACTION AND CREDITWORTH INESS OF THE DEPOSITORS COULD BE ASCERTAINED , HOWEVER, ASSESSEE H AS ITA NO4598/DEL/2010 2 FAILED TO DISCHARGE HIS PRIMARY ONUS TO SUBMIT THIS DOCU MENT AND PROVING THE CREDITWORTHINESS. 2. THE CIT(A) HAS IGNORING THE PROVISION LAID DOWN UNDER SEC. 68 OF THE INCOME TAX ACT, 1961 WHILE DELETING THE ADDITI ON. 3. THE LD CIT(A) HAS DELETED THE ADDITIONS ON THE BASIS A FRESH DOCUMENTS FILED DURING APPELLATE PROCEEDINGS AND WITH OUT CALLING THE REMAND REPORT FROM THE ASSESSING OFFICER WHICH THE VIOLATION OF THE PROVISION LAID DOWN UNDER RULE 46A OF THE IT RULES. 4. THE APPELLANT CRAVES LEAVE FOR RESERVING THE RIGHT T O AMEND, MODIFY, ALTER ADD OR FOREGO ANY GROUND (S) OF APPEAL AT ANY TIME BEFORE OR DURING THE HEARING OF THIS APPEAL. 2. ONE OF THE GROUNDS TAKEN BY THE REVENUE IS REGARDI NG VIOLATION OF PROVISIONS OF RULE 46A. IT WAS CONTENDED BY THE LD DR THAT ON THE INSTRUCTION OF BENCH ON 16.12.2013 THE ASSESSING OFFICER WAS ASKED TO VERIFY THE DOCUMENT PLACED BEFORE HIM DURING ASSESSMENT PROCEEDINGS. THE LD DR INVITED OUR ATTENTION TO A CO PY OF LETTER DATED 17.12.2013 WRITTEN BY ONE MR. DEEPAK KUMAR, ACIT, C IRCLE-35, NEW DELHI AND SUBMITTED THAT ASSESSING OFFICER HAS CLEARLY STA TED THAT FORM NO.16A & FORM NO.15G WERE NOT SUBMITTED BEFORE ASSESSING OFFICER AT THE TIME OF ASSESSMENT PROCEEDINGS. THEREFORE, LD DR SU BMITTED THAT THERE IS A VIOLATION OF RULE 46A AS LD CIT(A) ON THE BASIS OF ADDITIONAL EVIDENCE INCLUDING FORM NO.16 A & 15G HAS ALLOWED TH E RELIEF WITHOUT CALLING REMAND REPORT FROM ASSESSING OFFICER. THEREFORE , IN THE INTEREST OF JUSTICE THE APPEAL SHOULD GO BACK TO ASSESSING OFFICER FOR RE- ADJUDICATION. 3. THE LD AR, ON THE OTHER HAND, INVITED OUR ATTENT ION TO PAGE 2 OF ASSESSMENT ORDER AND OUR SPECIFIC ATTENTION WAS INVITED T O PARA 3.1. WHEREIN THE DETAILED REPLY WAS FILED. ITA NO4598/DEL/2010 3 4. WE HAVE HEARD THE RIVAL SUBMISSIONS OF BOTH THE PAR TIES AND HAVE GONE THROUGH THE MATERIAL AVAILABLE ON RECORD. THE REPLY OF ASSESSEE VIDE LETTER DATED 25.11.2009 AS CONTAINED ON PA GE 2 OF ASSESSMENT ORDER READS AS UNDER:- ALL THE ABOVE LOANS ARE INTEREST BEARING AND WERE RE CEIVED THROUGH ACCOUNT PAYEE CHEQUES ONLY FROM PERSONS ALL OF WHOM ARE ASSESSED TO INCOME TAX. THE LOAN CONFIRMATIONS FROM ALL THESE PERSONS HAVE ALREADY BEEN FILED ALONGWITH THEIR ADDRESSES AND PAN NUMBERS. THE COPIES OF ACKNOWLEDGEMENTS OF THE INCOME TAX RETURNS ARE ENCLOSED. THE INTEREST WAS CREDI TED AT THE END OF THE IMPUGNED ASSESSMENT YEAR AND TAX DEDUCT ED AT SOURCE ON THE INTEREST SO CREDITED. THE PARTICULARS & D ETAILS OF INTEREST PAID WERE DULY INCORPORATED IN FORM 26Q, TH E QUARTERLY TDS RETURN FOR THE QUARTER ENDING 31.3.2007, A COPY OF WHICH HAS ALREADY BEEN FILED. THE INTEREST WAS PAID BY ACCOUNT PAYEE CHEQUES. ALL THE DEPOSITORS HAVE CONFIRMED THE DEPOSITS. NO DEPO SITORS HAS DENIED THE MAKING OF THE DEPOSIT. THUS THE IDENTIT IES OF THE CREDITORS, THE FACT THE LOANS WERE MADE BY THEM, THE TRANSACTIONS OF LOANS WERE GENUINE AND THE CAPACITIES OF THE DEPOSITORS TO MAKE THE DEPOSITS HAVE BEEN PROVED BY THE ASSESSEE. THUS THE ASSESSEE HAS DISCHARGED THE BURDEN PLACED UPON IT. FROM THE ABOVE IT BECOMES APPARENT THAT ASSESSEE HAD FIL ED COPY OF FORM 26Q WHICH IS QUARTERLY TDS RETURN AND LOAN CONF IRMATION AND COPIES OF INCOME TAX RETURNS WHEREAS THE ASSESSING OFFICER VIDE LETTER ITA NO4598/DEL/2010 4 DATED 17.12.2013 HAS SPECIFICALLY MENTIONED THE DOCU MENTS WHICH WERE FILED DURING ASSESSMENT PROCEEDINGS AND HAS SPECIFICA LLY DENIED THAT FORM NO.16A & 15G WERE FILED AT THE TIME OF ASSE SSMENT PROCEEDINGS. THE LETTER WRITTEN BY THE ASSESSING OFFICER DOES NOT MENTION ABOUT THE FACT OF HAVING FILED FORM NO.26Q I.E. QUARTERLY TDS RETURN. THEREFORE, IN THE INTEREST OF JUSTICE WITHOUT COMMENTING UPON MERITS OF THE CASE, WE REMIT THIS MATTER BACK TO THE O FFICE OF ASSESSING OFFICER FOR RE-ADJUDICATION. THE ASSESSING OFFICER SHALL PASS FRESH ASSESSMENT ORDER AFTER GIVING THE ASSESSEE AN OPPORTUNITY OF BEING HEARD. 5. IN THE RESULT, THE APPEAL FILED BY THE REVENUE IS ALLOWED FOR STATISTICAL PURPOSES. 6. ORDER PRONOUNCED IN THE OPEN COURT ON 14TH DAY O F FEBRUARY, 2014. SD/- SD/- (I.C.SUDHIR) (T.S. KAPOOR) JUDICIAL MEMBER ACCOUNTANT MEMBER DT. 14.02.2014. HMS COPY FORWARDED TO:- 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT 4. THE CIT (A)-, NEW DELHI. 5. THE DR, ITAT, LOKNAYAK BHAWAN, KHAN MARKET, NEW DEL HI. TRUE COPY. BY ORDER (ITAT, NEW DELHI). ITA NO4598/DEL/2010 5 DATE OF HEARING 19.12.2013 DATE OF DICTATION 13.2.2014 DATE OF TYPING 13.2.2014 DATE OF ORDER SIGNED BY 14.2.2014 BOTH THE MEMBERS & PRONOUNCEMENT. DATE OF ORDER UPLOADED ON NET & SENT TO THE BENCH CONCERNED.