ACIT, New Delhi V. M/s. Grand Express Developers Pvt. Ltd., New Delhi

ITA 487/DEL/2017

• Counselvise Citation: [2021] 104 COUNSELVISE.COM (IT) 8688 (ITAT-DELHI)
• Duration Of Justice: 4 year(s) 9 month(s) 13 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 11-11-2021
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: C
• Assessment Year: 2013-2014
• Appeal Filed On: 29-01-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Unexplained cash credit
• Section: 68; 143(3); 133(6); 292BB; 143(2)

Judgement Text

Page | 1 IN THE INCOME TAX APPELLATE TRIBUNAL [ DELHI BENCH “C”: NEW DELHI ] BEFORE MS SUCHITRA KAMBLE, JUDICIAL MEMBER AND SHRI PRASHANT MAHARISHI, ACCOUNTANT MEMBER (Through Video Conferencing) ITA. No.487/Del/2017 (Assessment Year: 2013-14) ACIT, Central Circle : 2, New Delhi. Vs. M/s. Grand Express Developers Pvt. Ltd., 28– Raja Garden, New Delhi–110 015. PAN: AAECG8860D (Appellant) (Respondent) Assessee by : N o n e; Department by : Ms. Sunita Singh [CIT] – D. R.; Date of Hearing : 07/10/2021 Date of pronouncement : 11/11/2021 O R D E R PER PRASHANT MAHARISHI, A. M. 1. This appeal is filed by the ld. ACIT, Central Circle 2, New Delhi, against the order passed by the ld. CIT (Appeals)–23, New Delhi, dated 17.11.2016 for assessment year 2013-14 raising the following grounds of appeal:- “1. The order of Ld. CIT(A) is not correct in law and on facts. 2. That on the facts and circumstances of the case, the Ld. CIT(A) has erred in deletingthe addition of Rs.7,38,80,000/- made by AO on account of ‘Unexplained Credit’. 3. That on the facts and circumstances of the case, the Ld. CIT(A) has erred in not sustaining the assessment order framed u/s 143(3) of the Income-tax Act, 1961. 4. The appellant craves leave to add, amend any/all the ground of appeal before or during the course of hearing of the appeal. “ Page | 2 2. Briefly stated the facts shows that assessee is a company engaged in the business of real estate development. It filed return income on 31.03.2014 declaring loss of Rs.2,682/-. The search took place on 18.10.2012 in Bharat Infotech Infrastructure Pvt. Ltd. The assessee is a sister concern of that party. During the course of search, certain incriminating documents belonging to the assessee were found and, therefore, notice under Section 153C of the Act was issued on 23.01.2014. It was found that assessee has received an un-secured loss of Rs.88,60,76,521/-during the year. The assessee was asked to furnish the confirmation and the requisite details to show the identity, creditworthiness and genuineness of the party. Notices under Section 133(6) of the Act were also issued by the ld. Assessing Officer and assessee was also asked to produce the parties. In response to that notice few parties submitted the confirmation, some of them denied having any transaction with the assessee. With respect to the parties, where the assessee failed to prove the identity, creditworthiness and genuineness of the transaction amounting to Rs.7,38,80,000/-, the ld. Assessing Officer made the addition under Section 68 of the Act. Assessment order was passed under Section 143(3) of the Act on 30 th March, 2015 determining the total income of the assessee at Rs.7,38,77,320/-. 3. Assessee preferred an appeal before the ld. CIT (Appeals) contesting that no notice under Section 143(2) of the Act for assessment year 2013-14 was issued and served to the appellant on or before 30.09.2014. The assessee also submitted that the post tracking number submitted by the Assessing Officer were enquired RTI Act to the Postal Authorities wherein reply was received by the assessee that the tracking number is not valid. The Assessing Officer was questioned on that, who submitted there is no record available to prove issuance of notice to the assessee. Therefore, the ld. CIT (Appeals) held that issuance of notice under Section 143(2) of the Act stipulated within the time frame is mandatory for making assessment. He held that in absence of that the assessment order passed does not survive and he quashed it. He did not decide the issue on the merits of the case, therefore, Revenue is in appeal. 4. The ld. [CIT] – DR submitted that the assessee appeared before the Assessing Officer and, therefore, provisions of Section 292BB of the Act Page | 3 applies and, therefore, the ld. CIT (Appeals) fell into an error in quashing the assessment order. 5. None appeared on behalf of the assessee despite issue of notice. The issue is decided on the merits of the case. 6. We have carefully considered the contentions of the Revenue. In the present case the return of income was filed by the assessee on 31.01.2014 declaring loss of Rs. 2,682/-. The assessment under Section 143(3) of the Act was passed on 30.03.2015. The ld. Assessing Officer in the remand report itself before the ld. CIT (Appeals) has stated that there is no official record available with him to show issuance of notice. The ld. CIT (Appeals) based on this relying on the decisions of several High Courts as per para No. 4 quashed the order of the Assessing Officer. We concur with the order of the ld. CIT (Appeals) that where there is no issuance of notice under Section 143(2) of the Act the order passed by the ld. Assessing Officer deserves to be quashed. Issuance of notice u/s 143 (2) of the act is foundation stone for the assessment order. Even before us, no proof of issuance of any notice under Section 143(2) of the Act was shown. Thus we do not find any infirmity in the order of the ld CIT (A). 7. In the result, without going into the merits of the addition, we confirm the order of the ld. CIT (Appeals) in quashing the assessment order. 8. The appeal of the Assessing Officer is dismissed. Order pronounced in the open court on : 11/11/2021. Sd/- Sd/- (SUCHITRA KAMBLE) (PRASHANT MAHARISHI) JUDICIAL MEMBER ACCOUNTANT MEMBER Dated : 11/11/2021 *MEHTA* Copy forwarded to 1. Appellant; 2. Respondent 3. CIT Page | 4 4. CIT (Appeals) 5. DR: ITAT ASSISTANT REGISTRAR ITAT, New Delhi Date of dictation 11.11.2021 Date on which the typed draft is placed before the dictating member 11.11.2021 Date on which the typed draft is placed before the other member 11.11.2021 Date on which the approved draft comes to the Sr. PS/ PS 11.11.2021 Date on which the fair order is placed before the dictating member for pronouncement 11.11.2021 Date on which the fair order comes back to the Sr. PS/ PS 11.11.2021 Date on which the final order is uploaded on the website of ITAT 11.11.2021 date on which the file goes to the Bench Clerk 11.11.2021 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