ACIT, Central Circle-1, New Delhi V. Gaurisuta Infrastructure P.Ltd, Delhi

ITA 4858/DEL/2017

• Counselvise Citation: [2024] 100 COUNSELVISE.COM (IT) 4430 (ITAT-DELHI)
• Duration Of Justice: 6 year(s) 5 month(s) 1 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 01-01-2024
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: C
• Next Hearing Date: 01-01-2024
• Assessment Year: 2013-2014
• Appeal Filed On: 30-07-2017
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Keywords: Unexplained cash credit
• Section: 68; 133(6)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL (DELHI BENCH: ‘C’: NEW DELHI) BEFORE SHRI N.K. BILLAIYA, ACCOUNTANT MEMBER AND SHRI YOGESH KUMAR US, JUDICIAL MEMBER ITA No:- 4858/Del/2017 ( Assessment Year: 2013-14) Asstt. Commissioner of Income Tax, Central Circle-1, New Delhi. Vs. M/s Gaurisuta Infrastructure Pvt. Ltd., Office No. 37, C- Block, DDA Market, Surajmal Vihar, Delhi-110092 PAN No: AAECG6312L APPELLANT RESPONDENT Revenue by : Shri Waseem Arshad, CIT(DR) Assessee by : None. Date of Hearing : 02.01.2024 Date of Pronouncement : 02.01.2024 ORDER PER N.K. BILLAIYA, AM This appeal by the Revenue is preferred against the order of the CIT(A)-23, New Delhi, dated 26.05.2017, pertaining to A.Y. 2013-14. 2. The solitary grievance of the Revenue is that the CIT(A) erred in deleting the addition of Rs. 14,29,00,000/- made by the AO on account of unexplained cash credit u/s 68 of the Act. ITA No.-4858/Del/2017 Gaurisuta Infrastructure P. Ltd. Page 2 of 10 3. None appeared on behalf of the assessee inspite of several notices. The DR was asked to serve the notice through the officer and inspite of the service of notice through DR, the assessee chose not to respond. Finally ITO, ward 10(1), New Delhi sent a report in respect of proof of service. The said report is read as under: ITA No.-4858/Del/2017 Gaurisuta Infrastructure P. Ltd. Page 3 of 10 ITA No.-4858/Del/2017 Gaurisuta Infrastructure P. Ltd. Page 4 of 10 4. We decided to proceed it ex-parte. The DR was heard at length. The case records were carefully perused. The quarrel is in respect of the addition of Rs. 14.29 crores on account of unexplained share application money treated as cash credit u/s 68 of the Act. 5. The underlying facts as emanating from the assessment order show that the assessee has shown share application money pending allotment at Rs. 443,48,98,930/-. For ascertaining the credit-worthiness of the parties from whom the assessee company has received share application money and the genuineness of the transaction. The AO issued notice u/s 133(6) of the Act. The details of notices issued and the response is tabulated below: ITA No.-4858/Del/2017 Gaurisuta Infrastructure P. Ltd. Page 5 of 10 ITA No.-4858/Del/2017 Gaurisuta Infrastructure P. Ltd. Page 6 of 10 ITA No.-4858/Del/2017 Gaurisuta Infrastructure P. Ltd. Page 7 of 10 6. Inspite of several opportunities the assessee could not furnish documentary evidences to discharge the initial burden cast upon it by the provision of section 68 of the Act. The AO concluded by holding that first, the investors were not found to be existent and secondly, During the course ITA No.-4858/Del/2017 Gaurisuta Infrastructure P. Ltd. Page 8 of 10 of assessment proceedings, the assessee is required to produce the main directors / controlling persons with supportive documentary evidence. However, the assessee failed to discharge the onus cast upon it. The AO made addition of Rs. 14.29 crores. 7. The assessee challenged the addition before the CIT(A) and reiterated its claim of having discharged the initial burden cast upon it. After considering the facts and submissions, the CIT(A) observed that the AO is factually incorrect as the replies from the impugned 15 parties were duly received in his office much before the assessment was made. The CIT(A) further observed that though the AO has mentioned that field inquiries were conducted but no evidence has been brought on record and the CIT(A) went on to delete the impugned addition. 8. We have given a thoughtful consideration to the findings of the CIT(A). It is a settled proposition of law that powers of CIT(A) are co- terminus to that of the AO. This means what the AO can do the CIT(A) can also do. If the CIT(A) was of the opinion that the AO has not made any field inquiry then nothing prevented CIT(A) to conduct the field inquiry on his own. Further, when the AO has categorically mentioned that he has not received any reply from the impugned 15 parties then the CIT(A) ought to ITA No.-4858/Del/2017 Gaurisuta Infrastructure P. Ltd. Page 9 of 10 have verified from the assessment records whether any such reply was received or not. It appears that the CIT(A) has simply believed in the submission of the assessee and deleted the addition. 9. In the interest of justice and fair play we deem it fit to restore the issue to the files of the CIT(A). The CIT(A) is directed to make necessary inquiries in respect of the 15 parties under dispute and decide the issue afresh after affording a reasonable and adequate opportunity of being heard to the assessee. 10. In the result, appeal of the Revenue is allowed for statistical purpose. Order pronounced in the Open Court on 02.01.2024 Sd/- Sd/- (YOGESH KUMAR US) (N.K. BILLAIYA) JUDICIAL MEMBER ACCOUNTANT MEMBER Dated: 02/01/2024. Pooja/- Copy forwarded to: 1. Appellant 2. Respondent 3. CIT 4. CIT(Appeals) 5. DR: ITAT ASSISTANT REGISTRAR ITAT NEW DELHI ITA No.-4858/Del/2017 Gaurisuta Infrastructure P. Ltd. Page 10 of 10 Date of dictation 02.01.24 Date on which the typed draft is placed before the dictating Member 02.01.24 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