Shubhkamna Buildtech Pvt. Ltd., Delhi V. DCIT, Central Circle , Noida

ITA 4872/DEL/2018

• Counselvise Citation: [2021] 107 COUNSELVISE.COM (IT) 6513 (ITAT-DELHI)
• Duration Of Justice: 3 year(s) 1 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 24-08-2021
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: G
• Assessment Year: 2011-2012
• Appeal Filed On: 09-07-2018
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Keywords: Depreciation; Document seized; Principle of natural justice; Additional evidence; Documents seized
• Section: 142(1); 13; 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL [ DELHI BENCH 'G': NEW DELHI ] BEFORE SHRI PRASHANT MAHARISHI, ACCOUNTANT MEMBER AND SHRI K.N. CHARY, JUDICIAL MEMBER (THROUGH VIDEO CONFERENCING) ITA NOS. 4870 TO 4873/DEL/2018 (ASSESSMENT YEARS: 2009-10 TO 2012-13) SHUBHKAMNA BUILDTECH PVT. LTD. 197- E, POCKET : IV, MAYUR VIHAR, PHASE - I, NEW DELHI - 110 092. PAN: AAKCS4622F VS. DCIT, CENTRAL CIRCLE, NOIDA. (APPELLANT) (RESPONDENT) ASSESSEE BY : NONE; DEPARTMENT BY : SHRI H. K. CHOUDHARY [CIT] - DR; DATE OF HEARINQ 24/08/2021 DATE OF PRONOUNCEMENT 24 /08/2021 O R D E R PER PRASHANT MAHARISHI, A. M. 1. THESE ARE THE FOUR APPEALS FILED BY ONE ASSESSEE NAMELY SUBHKAMANA BUILDTECH PRIVATE LIMITED HAVING ITS OFFICE AT PLOT NUMBER 197 - E, POCKET IV, MAYUR VIHAR, PHASE 1, NEW DELHI 92 FOR ASSESSMENT YEAR 2009 - 10, 2010 - 11, 2011 - 12 AND 2012 - 13 AGAINST THE ORDERS OF THE COMMISSIONER OF INCOME TAX APPEALS IV, KANPUR DATED 21 ST OF MARCH 2018 FOR ALL THOSE YEARS. 2. THESE WERE HEARD TOGETHER AND ARE BEING DISPOSED OF, FOR THE SAKE OF CONVENIENCE, BY THIS COMMON ORDER. 3. THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS OF APPEAL:- ITA. NO. 4870/DEL/2018 (ASSESSMENT YEAR : 2009-101 : '1. THAT THE LEARNED AUTHORITY BELOW HAS ERRED IN LAW AND IN FACTS IN MAKING ADDITION OF RS.1,28,80,000/- ON ACCOUNT OF UNEXPLAINED UNSECURED LOANS IN THE BALANCE SHEET WITHOUT ASKING FOR ANY DETAILS OF THE SAME AND IGNORING THE FACT THAT THE UNSECURED LOANS PREVIOUSLY ADDED TO THE INCOME IS AGAIN ADDED IN THE NEXT AY. HENCE ADDITION MADE BY AO IS ARBITRARY AND ABSURD & MAY PLEASE BE DELETED. 2 THE BALANCE SHEET FILLED WITH THE AO THROUGH SPEED POST CLEARLY SHOW THE RATE AND DEPRECIATION CHART HOWEVER THE LEARNED AO HAS COMPLETELY IGNORED THE SUBMISSION OF HE ASSESSEE AND MADE A ADDITION OF RS.2,34,318/-. HOWEVER THE SAME WAS ALREADY DISALLOWED BY THE ASSESSEE WHILE FILLING HIS RETURN OF INCOME. IN VIEW OF THE ABOVE THIS ADDITION OF RS.2,34,318/- IS WRONG IN LAW AND FACTS AND MAY PLEASE BE DELETED. 3. THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE THE AUTHORITY BELOW HAS ERRED IN LAW BY NOT ACCEPTING THE SUBMISSION OF THE ASSESSEE AND IGNORING THE SUBMISSION OF THE ASSESSEE IS AGAINST THE PRINCIPLE OF NATURAL JUSTICE. THE ASSESSMENT COMPLETED AS EX-PARTY ASSESSMENT AS PER THE PROVISION OF SECTION 144 OF THE IT ACT IS ILLEGAL AND UNLAWFUL, HENCE REQUIRED TO BE QUASHED. 4. THAT THE AUTHORITY BELOW HAS ERRED IN LAW AND IN FACTS IN MAKING THE ASSESSMENT OF THE ASSESSEE U/S 144 OF THE IT ACT WITHOUT GIVING PROPER OPPORTUNITY BY NOT ISSUING THE SHOW CAUSE NOTICE OR NOT IS SUING NOTICE U/S 142(1) FOR CONCLUDING THE CASE EX- PARTY ASSESSMENT U/S. 144 WHICH IS PREREQUISITE CONDITION FOR ASSESSMENT U/S 144 OF THE IT ACT, HENCE ASSESSMENT MADE ILLEGAL AND REQUIRED TO BE QUASHED. 5. THAT THE LEARNED CIT (A) HAS ERRED IN NOT ENTERTAINING THE ADDITIONAL EVIDENCES UNDER RULE 46A OF THE IT ACT. RULE 1962 FILED BEFORE APPELLATE PROCEEDINGS TO ADJUDICATE UPON SUBSTANTIAL CAUSE. 6. THAT THE APPELLANT CRAVES TO LEAVE TO ADD/DELETE/ ALTER ALL/ANY OF APPEAL BEFORE OR AT THE TIME OF HEARING OF THE APPEAL. ' ITA. NO. 4871/DEL/2018 F ASSESSMENT YEAR : 2010-11) : '1. THAT THE AUTHORITY BELOW HAS ERRED IN LAW AND IN FACTS IN MAKING ADDITION OF RS.29,676/- ON ACCOUNT OF FILED LOSS IN ITR AGAINST NIL TURNOVER. WHICH MAY PLEASE BE DELETED DURING ASSESSMENT PROCEEDING AND IGNORING SUBMISSION. 2. THAT THE AUTHORITY BELOW HAS ERRED IN LAW AND IN FACTS IN MAKING ADDITION OF RS.5,13,64,000/- ON ACCOUNT OF UNEXPLAINED UNSECURED LOANS IN THE BALANCE SHEET WITHOUT ASKING FOR ANY DETAILS OF THE SAME AND IGNORING THE FACT THAT THE UNSECURED LOANS PREVIOUSLY (AY 2008-09 TO 2009-10) ADDED TO THE INCOME IS AGAIN ADDED IN THE NEXT 2010-2011. HENCE ADDITION MADE BY AO IS ARBITRARY AND ABSURD & MAY PLEASE BE DELETED. 3. THAT THE AUTHORITY BELOW HAS ERRED IN MAKING ADDITION ON ACCOUNT OF UNSECURED LOAN OF RS.50,00,000/-. WHEN THE AO HAS MADE ADDITION OF RS.5,13,64,000/- UNDER THE HEAD UNSECURED LOAN. THIS ADDITION IS REPETITIVE IN NATURE IN THE SAME ASSESSMENT YEAR. THE SAME INCOME CANNOT BE ASSESSED TWICE IN ANY ASSESSMENT YEAR. HENCE IN THE SAKE OF JUSTICE THIS ADDITION OF RS.50,00,000/- MAY PLEASE BE DELETED. 4. THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE THE AUTHORITY BELOW HAS ERRED IN LAW BY NOT ACCEPTING THE SUBMISSION OF THE ASSESSEE AND IGNORING THE SUBMISSION OF THE ASSESSEE IS AGAINST THE PRINCIPLE OF NATURAL JUSTICE. THE ASSESSMENT COMPLETED AS EX-PARTE ASSESSMENT AS PER THE PROVISION OF SECTION 144 OF THE IT ACT IS ILLEGAL AND UNLAWFUL, HENCE REQUIRED TO BE QUASHED. 5. THAT THE AUTHORITY BELOW HAS ERRED IN LAW AND IN FACTS IN MAKING THE ASSESSMENT OF THE ASSESSEE U/S 144 OF THE IT ACT WITHOUT GIVING PROPER OPPORTUNITY BY NOT ISSUING THE SHOW CAUSE NOTICE OR NOT ISSUING NOTICE U/S 142(1) FOR CONCLUDING THE CASE EX-PARTE ASSESSMENT U/S 144 WHICH IS PRE-REQUISITE CONDITION FOR ASSESSMENT U/S 144 OF THE IT ACT, HENCE ASSESSMENT MADE ILLEGAL AND REQUIRED TO BE QUASHED. 6. THAT THE LEARNED CIT (A) HAS ERRED IN NOT ENTERTAINING THE ADDITIONAL EVIDENCES UNDER RULE 46A OF THE IT ACT. RULE 1962 FILED BEFORE APPELLATE PROCEEDINGS TO ADJUDICATE UPON SUBSTANTIAL CAUSE. 7. THAT THE APPELLANT CRAVES TO LEAVE TO ADD/DELETE/ ALTER ALL/ANY OF APPEAL BEFORE OR AT THE TIME OF HEARING OF THE APPEAL. ' ITA, NO. 4872/PEL/2018 (ASSESSMENT YEAR : 2011-12) : '1. THAT THE AUTHORITY BELOW HAS ERRED IN LAW AND IN FACTS IN MAKING ADDITION OF RS.3,10,781/- ON ACCOUNT OF FILED LOSS IN ITR AGAINST NIL TURNOVER. WHICH MAY PLEASE BE DELETED. 2. THAT THE LEARNED AUTHORITY BELOW HAS ERRED IN LAW AND IN FACTS IN MAKING ADDITION OF RS.3,34.49,000/- ON ACCOUNT OF UNEXPLAINED UNSECURED LOANS IN THE BALANCE SHEET WITHOUT ASKING FOR ANY DETAILS OF THE SAME AND IGNORING THE FACT THAT THE UNSECURED LOANS PREVIOUSLY (AY 2008-09 TO 2010-11) ADDED TO THE INCOME IS AGAIN ADDED IN THE AY 2011-2012. HENCE ADDITION MADE BY AO IS ARBITRARY AND ABSURD & MAY PLEASE BE DELETED. 3. THAT THE AUTHORITY BELOW HAS ERRED IN MAKING ADDITION ON ACCOUNT OF UNSECURED LOAN OF RS.3,31,50,000/- FROM OM SAI ASSOCIATES AND OM SAI TRADING. WHEN THE AO HAS MADE ADDITION OF RS.3,34,49,000/- IN THE YEAR SAME ASSESSMENT YEAR UNDER THE HEAD UNSECURED LOAN. THIS ADDITION IS REPETITIVE IN NATURE IN THE SAME ASSESSMENT YEAR/THE SAME INCOME CAN NOT BE ASSESSED TWICE IN ANY ASSESSMENT YEAR. HENCE IN THE INTEREST OF JUSTICE HIS ADDITION OF RS.3,31,50,000/- MAY PLEASE BE DELETED. 4. ON THE FACTS AND CIRCUMSTANCES OF THE CASE THE LD. AO HAS ERRED IN LAW AND IN FACTS IN ADDING RS.68,00,000/- TO THE INCOME OF THE ASSESSEE ON THE BASIS OF AUDIT REPORT OF THE OTHER COMPANY (RUDRA BUILDWELL PVT LTD). ALSO AS EXPLAINED IN THE ORDER THAT PDC MEANS POST DATED CHEQUES AND MUST BE REFLECTED IN BOOKS OF ACCOUNTS. IT IS PERTINENT TO MARK HERE THAT PDC NEED NOT BE SHOWN IN THE BOOKS OF ACCOUNTS AS THEY COULD BE CANCELED OR NOT. GIVEN TO PARTY. HENCE ADDITION MADE ON THIS GROUND COULD NOT BE SUSTAINED AND MAY PLEASE BE DELETED. 5. THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE THE AO HAS ERRED IN LAW BY NOT ACCEPTING THE SUBMISSION OF THE ASSESSEE AND IGNORING THE SUBMISSION OF THE ASSESSEE IS AGAINST THE PRINCIPLE OF NATURAL JUSTICE. THE ASSESSMENT COMPLETED AS EX-PARTE ASSESSMENT AS PER THE PROVISION OF SECTION 144 OF THE IT ACT IS ILLEGAL AND UNLAWFUL, HENCE REQUIRED TO BE QUASHED. 6. THAT THE AUTHORITY BELOW HAS ERRED IN LAW AND IN FACTS IN MAKING THE ASSESSMENT OF THE ASSESSEE U/SL44 OF THE IT ACT WITHOUT GIVING PROPER OPPORTUNITY BY NOT ISSUING THE SHOW CAUSE NOTICE OR NOT ISSUING NOTICE U/S 142(1) FOR CONCLUDING THE CASE EX- PARTE ASSESSMENT U/SL44 WHICH IS PRE-REQUISITE CONDITION FOR ASSESSMENT U/S 144 OF THE IT ACT, HENCE ASSESSMENT MADE ILLEGAL AND REQUIRED TO BE QUASHED. 7. THAT THE LEARNED CIT(A) HAS ERRED IN NOT ENTERTAINING THE ADDITIONAL EVIDENCES UNDER RULE 46A OF THE IT ACT. RULE 1962 FILED BEFORE APPELLATE PROCEEDINGS TO ADJUDICATE UPON SUBSTANTIAL CAUSE. 8. THAT THE APPELLANT CRAVES TO LEAVE TO ADD/DELETE/ ALTER ALL/ANY OF APPEAL BEFORE OR AT THE TIME OF HEARING OF THE APPEAL. ' ITA. NO, 4873/DEL72018 F ASSESSMENT YEAR : 2012-13): '1. THE AUTHORITY BELOW HAS ERRED IN LAW AND FACTS IN MAKING ADDITION OF RS.191,40,06,913/- ON THE BASIS OF BUDGETED FIGURES FROM SEIZED DOCUMENTS WHICH HAS NO RELEVANCE AS IT IS NOT SIGNED AUDITED OR DATED AND MAKING ITS OWN ABSORBED CALCULATION WITHOUT TAKING INTO CONSIDERATION THE AUDIT REPORT, BALANCE SHEET AND COMPUTATION. 2. ALSO THE CONTENTION OF THE AO THAT THE TURNOVER IS VERY LOW AS COMPARED TO THE INDUSTRY IS SUPER FLOS AND IMAGINARY IN NATURE. SO THE ADDITION OF RS. 1.91.40,06,913/- IS HIGHLY ABSURD IN NATURE AND AGAINST THE NATURAL JUSTICE. IT MAY BE PRAYED THAT THE ADDITION OF THIS NATURE MAY PLEASE BE DELETED. 3. THAT THE AUTHORITY BELOW HAS ERRED IN MAKING ADDITION ON ACCOUNT OF UNVERIFIED SHARE CAPITAL OF RS. 50,00,000/-. THE SAME ADDITION HAS ALSO BEEN MADE IN THE AY 2008-09 AND CAN NOT BE ADDED TO THE INCOME OF ASSESSEE TWICE. THE AO CAN NOT MAKE ADDITION OF SAME INCOME IN TWO AY ON THE SAME GROUND. WHICH IS AGAINST THE PRINCIPAL OF NATURAL JUSTICE AND MAY PLEASE BE DELETED. 4. THAT THE AUTHORITY BELOW HAS ERRED IN LAW AND IN FACTS IN MAKING ADDITION OF 8,62,12,425/- ON ACCOUNT OF UNEXPLAINED UNSECURED LOANS IN THE BALANCE SHEET WITHOUT ASKING FOR ANY DETAILS OF THE SAME AND IGNORING THE FACT THAT THE UNSECURED LOANS PREVIOUSLY (AY 2008-09 TO 2011-12) ADDED TO THE INCOME IS AGAIN ADDED IN THE AY 2012-2013.THE SAME AMOUNT CAN NOT BE ADDED TO THE INCOME OF THE ASSESSEE EACH YEAR ON THE SAME GROUND AND HENCE ADDITION MADE BY AO IS ARBITRARY AND ABSURD AND MAY PLEASE BE DELETED. 5. THE ADDITION ON ACCOUNT OF UNSECURED LOAN OF RS.2,29,00,000/- FROM OM SAI ASSOCIATES AND OM SAI TRADING. WHEN THE AO HAS MADE ADDITION OF RS.3,24.49,000/- IN THE ASSESSMENT YEAR 2010- 2011 AND 2011-12 UNDER THE HEAD UNSECURED LOAN. THIS ADDITION IS REPETITIVE IN NATURE. THE SAME INCOME CAN NOT BE ASSESSED TWICE IN ANY ASSESSMENT YEAR. HENCE IN THE INTEREST OF JUSTICE THIS DOUBLE ADDITION OF RS.2,29,00,000/- MAY PLEASE BE DELETED. 6. ON THE FACTS AND CIRCUMSTANCES OF THE CASE THE AUTHORITY BELOW HAS ERRED IN LAW AND IN FACTS IN ADDING RS. 4,55,00,000/- TO THE INCOME OF THE ASSESSEE ON THE BASIS OF AUDIT REPORT OF THE OTHER COMPANY(RUDRA BUILDWELL PVT LTD). ALSO AS EXPLAINED IN THE ORDER THAT PDC MEANS POST DATED CHEQUES AND MUST BE REFLECTED IN BOOKS OF ACCOUNTS. IT IS PERTINENT TO MARK HERE THAT PDC NEED NOT BE SHOWN IN THE BOOKS OF ACCOUNTS AS THEY COULD BE CANCELED OR NOT GIVEN TO PARTY. HENCE ADDITION MADE ON THIS GROUND COULD NOT BE SUSTAINED AND MAY PLEASE BE DELETED. 7. THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE THE AUTHORITY BELOW HAS ERRED IN LAW BY NOT ACCEPTING THE SUBMISSION OF THE ASSESSEE AND IGNORING THE SUBMISSION OF THE ASSESSEE IS AGAINST THE PRINCIPLE OF NATURAL JUSTICE. THE ASSESSMENT COMPLETED AS EX- PARTE ASSESSMENT AS PER THE PROVISION OF SECTION 144 OF THE IT ACT IS ILLEGAL AND UNLAWFUL, HENCE REQUIRED TO BE QUASHED. 8. THAT THE LD AO HAS ERRED IN LAW AND IN FACTS IN MAKING THE ASSESSMENT OF THE ASSESSEE U/SL44OF THE IT ACT WITHOUT GIVING PROPER OPPORTUNITY BY NOT ISSUING THE SHOW CAUSE NOTICE OR NOT ISSUING NOTICE U/S 142(1) FOR CONCLUDING THE CASE EX-PARTE ASSESSMENT U/SL44 WHICH IS PRE-REQUISITE CONDITION FOR ASSESSMENT U/S 144 OF THE IT ACT, HENCE ASSESSMENT MADE ILLEGAL AND REQUIRED TO BE QUASHED. 9. THAT THE LEARNED CIT(A) HAS ERRED IN NOT ENTERTAINING THE ADDITIONAL EVIDENCES UNDER RULE 46A OF THE IT ACT. RULE 1962 FILED BEFORE APPELLATE PROCEEDINGS TO ADJUDICATE UPON SUBSTANTIAL CAUSE. 10. THAT THE APPELLANT CRAVES TO LEAVE TO ADD/DELETE/ ALTER ALL/ANY OF APPEAL BEFORE OR AT THE TIME OF HEARING OF THE APPEAL. ' 4. AT THE TIME OF HEARING, THE REGISTRY PLACED BEFORE US THAT THE NOTICE WAS ISSUED TO THE ABOVE PARTY AT THE ADDRESS GIVEN IN FORM NUMBER 36 FILED BY THE ASSESSEE BY SPEED POST TRACKING NUMBER ED 978388171IN. THE ABOVE APPEAL POST HAS BEEN RETURNED TO THIS TENDER ON 28/07/21 WITH THE REMARKS 'LEFT WITHOUT ADDRESSES. ON OUR VERIFICATION WE FIND THAT THE ADDRESSES CORRECTLY MENTIONED AND ALSO DEPOSITED STAMPS WERE APPROPRIATELY PAID, DESPITE THIS THE NOTICE IS SENT TO THE APPELLANT RETURNED BACK FOR THE REASON THAT APPELLANT ASSESSEE HAS LEFT THE PLACE WHICH WAS GIVEN IN FORM NUMBER 36 WITHOUT INTIMATING ANY OTHER ALTERNATIVE ADDRESS. AS THE APPELLANT HAS NOT INFORMED ANY CHANGE IN THE ADDRESS, WE DO NOT HAVE ANY OTHER OPTION TO FIND OUT THE CORRECT ADDRESS OF THE ASSESSEE AND THEREFORE THE ONLY ALTERNATIVE LEFT IS TO DISMISS THESE APPEALS. 5. AS THE APPEALS HAVE BEEN FILED BY THE APPELLANT, DIRECTION TO THE RESPONDENT WAS SERVE NOTICE ON THE APPELLANT WOULD BE UNFAIR, AS IT WOULD BE CASTING AN ADDITIONAL BURDEN ON INCOME TAX DEPARTMENT TO FIND OUT THE APPELLANT. 6. EVEN OTHERWISE, WE FIND THAT THE ABOVE COMPANY HAS BEEN REFERRED FOR INSOLVENCY PROCEEDINGSIN COMPANY PETITION NUMBER IB1059/ND/2018 U/S 9 OF IBC 2016 BY THE ORDER PASSED ON 26/11 /2018. ACCORDINGLY, THE INSOLVENCY RESOLUTION PROFESSIONAL HAS BEEN APPOINTED. THE BOARD OF THE COMPANY HAS BEEN SUSPENDED. THESE ALL APPEALS ARE FILED BY ONE MR. PIYUSH TIWARI, WHO IS PART OF THE SUSPENDED BOARD OF DIRECTORS. AS THE PERSON NAMED WHO FILED THE APPEAL DOES NOT HAVE NOW ANY LOCUS STANDI TO FILE THE APPEAL OR PURSUE MATTER ON BEHALF OF THE APPELLANT COMPANY, THESE APPEALS ARE DESERVES TO BE DISMISSED AS NOT MAINTAINABLE. 7. ACCORDINGLY WE DISMISS ALL THESE FOUR APPEALS FILED BY THE APPELLANT, HOWEVER, WE ALSO GIVE LIBERTY TO THE INSOLVENCY RESOLUTION PROFESSIONAL SO APPOINTED TO FILED THESE APPEALS IF AUTHORISED BY THE COMMITTEE OF CREDITORS. 8. IN THE RESULT ALL, THESE FOUR APPEALS FILED BY THE ASSESSEE ARE DISMISSED FOR ABOVE REASONS. ORDER PRONOUNCED IN THE OPEN COURT ON CONCLUSION OF THE HEARING ON 24.08.2021 SD/- SD/- ( K. N. CHARY ) (PRASHANT MAHARISHI) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 24/08/2021 *MEHTA* COPY FORWARDED TO 1. APPELLANT; 2. RESPONDENT; 3. CIT 4. CIT (APPEALS) 5. DR: ITAT ASSISTANT REGISTRAR ITAT, NEW DELHI