DCIT,Central Circle-18, New Delhi V. Anant Overseas P.Ltd, New Delhi

ITA 4905/DEL/2017

• Counselvise Citation: [2021] 107 COUNSELVISE.COM (IT) 5852 (ITAT-DELHI)
• Duration Of Justice: 4 year(s) 1 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 17-09-2021
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: 2011-2012
• Appeal Filed On: 01-08-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SATPAL GULATI
• Keywords: Search and seizure; Rule 8D
• Section: 143(3); 153A; 14A; 132

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH A NEW DLEHI BEFORE SHRI PRASHANT MAHARISHI, ACCOUNTANT MEMBER AND SHRI K. NARASIMHA CHARY, JUDICIAL MEMBER ITA NO. 4905/DEL/2017 ASSESSMENT YEAR: 2011-12 DCIT, CENTRAL CIRCLE-18, VS. ANANT OVERSEAS P. LTD ., NEW DELHI. 305, 3 RD FLOOR, BHANOT CORNER, PAMPOSH ENCLAVE, GR. KAILASH-I, NEW DELHI. PAN : AAACA0234B (APPELLANT) (RESPONDENT) APPELLANT BY : SH. SATPAL GULATI, CIT/DR RESPONDENT BY: SH. M.P. RASTOGI, ADVOCATE DATE OF HEARING: 08.07.2021 DATE OF ORDER : 17.09.2021 ORDER PER K. NARASIMHA CHARY, J.M. AGGRIEVED BY THE ORDER DATED 08.05.2017 PASSED BY T HE COMMISSIONER OF INCOME TAX (APPEALS)-29, NEW DELHI ('LD. CIT(A)') IN THE CASES OF ANANT OVERSEAS P. LTD. (THE ASSESSEE) FO R THE ASSESSMENT YEAR 2011-12, REVENUE PREFERRED THIS APPEAL. 2. ASSESSEE IS A NON BANKING FINANCIAL COMPANY ENGA GED IN MAKING INVESTMENTS AND TO DEAL IN SHARES AND SECURITIES. T HEY HAVE FILED THEIR RETURN OF INCOME ON 20.09.2010 DECLARING BUSINESS L OSS OF RS.4,21,13,627/-. ASSESSMENT U/S. 143(3) OF THE INC OME-TAX ACT, 1961 2 (THE ACT FOR SHORT) WAS DONE BY ORDER DATED 04.01 .2013 BY DISALLOWING A SUM OF RS.2,64,94,305/- U/S. 14A OF THE ACT READ WITH RULE 8D OF THE RULES AND THE BUSINESS LOSS WAS ASSESSED AT RS.1,36 ,59,562/-. WHEN THE ASSESSEE PREFERRED APPEAL, OUT OF TOTAL DISALLOWANC E OF RS.2,64,94,305/-, LD. CIT(A) DELETED THE ADDITION TO THE TUNE OF RS.2 ,64,58,483/- AND SUSTAINED THE ADDITION OF RS.35,822/-. NO FURTHER A PPEAL WAS PREFERRED BY THE ASSESSEE. 3. AS THE MATTER STOOD THUS, SEARCH AND SEIZURE OPE RATION U/S. 132 OF THE ACT WAS CARRIED OUT ON 19.02.2014 IN M/S. UFLEX GROUP OF CASES AND IT COVERS THE ASSESSEE ALSO. PURSUANT TO NOTICE ISSUED U/S. 153A OF THE ACT, THE ASSESSEE FILED RETURN OF INCOME ON 06.07.2015 D ECLARING TOTAL LOSS AT RS.2,89,51,091/-. BY ORDER DATED 29.02.2016, LD. AS SESSING OFFICER OBSERVED THAT INASMUCH AS THE ORIGINAL ASSESSMENT U /S. 143(3) WAS MADE BY WAY OF ORDER DATED 04.01.2013 AT RS.1,36,59,562/ - AFTER MAKING DISALLOWANCE U/S. 14A, THE ASSESSMENT U/S. 153A REA D WITH SEC. 143(3) OF THE ACT WAS ALSO DONE AT RS.1,36,59,562/- GIVING CR EDIT TO THE TAX PAID. 4. AGGRIEVED BY SUCH AN ACTION OF THE ASSESSING OFF ICER, ASSESSEE PREFERRED APPEAL BEFORE THE LD. CIT(A) WHO, TAKING NOTE OF THE APPELLATE PROCEEDINGS AND THE ORDER THEREUNDER, RECORDED A FI NDING THAT AGAINST THE FIRST APPELLATE ORDER IN ORIGINAL PROCEEDINGS, REVENUE PREFERRED APPEAL AND THEREFORE, THE ADDITIONS MADE IN THE ORI GINAL ORDER PASSED U/S. 143(3) OF THE ACT WILL BE SUBJECT TO SUCH ORDE R OF THE ITAT, AND NO FRESH ADDITIONS COULD BE MADE PURSUANT TO THE NOTIC E ISSUED U/S. 153A OF THE ACT SINCE NO INCRIMINATING MATERIAL WAS FOUND D URING THE SEARCH. WITH THESE OBSERVATIONS, LD. CIT(A) ALLOWED THE APP EAL OF THE ASSESSEE IN PART. CHALLENGING THE SAME, REVENUE PREFERRED THIS APPEAL. 3 5. IT IS THE SUBMISSION ON BEHALF OF THE REVENUE TH AT THE DISALLOWANCE WAS MADE BY THE LD. ASSESSING OFFICER U/S. 14A READ WITH RULE 8D AND, THEREFORE, SAME COULD NOT HAVE BEEN DI STURBED BY THE LD. CIT(A); WHEREAS LD. AR SUBMITTED THAT IN THE ABSENC E OF ANY INCRIMINATING MATERIAL, NO NEW ADDITION COULD BE MADE AND SINCE T HE FINDINGS OF THE LD. CIT(A) ARE IN ACCORDANCE WITH LAW, THE GROUNDS OF A PPEAL OF THE REVENUE ARE DEVOID OF MERITS. 6. WE HAVE GONE THROUGH THE RECORD IN THE LIGHT OF SUBMISSIONS MADE ON EITHER SIDE. IT IS NOT IN DISPUTE THAT NO I NCRIMINATING MATERIAL WAS FOUND DURING THE SEARCH AND THE DECISION OF HON BLE HIGH COURT IN CIT VS. KABUL CHAWLA, 380 ITR 573(DEL), IS APPLICA BLE TO THE FACTS OF THE CASE. 7. IN SO FAR AS THE ORIGINAL DISALLOWANCE IS CONCER NED, IN THE APPEAL PREFERRED AGAINST THE ORDER U/S. 143(3) OF THE ACT, LD. CIT(A) GRANTED RELIEF TO THE ASSESSEE TO THE TUNE OF RS.2,64,58,48 3/- AND UPHELD THE ADDITION OF RS.35,822/-. LD. CIT(A) RIGHTLY OBSERVE D THAT THE ASSESSING OFFICER DID NOT GIVE EFFECT TO THE APPELLATE ORDER IN REPEATING THE ADDITION. MAY BE BECAUSE THE REVENUE PREFERRED APPE AL BEFORE THE ITAT AGAINST THE ORDER OF THE LD. CIT(A) GRANTING RELIEF TO THE ASSESSEE, LD. ASSESSING OFFICER MIGHT HAVE REPEATED THE ADDITION. HOWEVER, LD. CIT(A) IN HIS ORDER OBSERVED THAT IN CASE THE ITAT ALTERS THE ORDER OF THE LD. CIT(A), SUCH AN ORDER OF ITAT WILL PREVAIL AND THER EFORE, OBSERVING SO, HE PARTLY ALLOWED THE APPEAL. ORDER OF THE LD. CIT(A) PROTECTS THE INTEREST OF THE REVENUE AND DOES NOT WARRANT ANY INTERFERENCE. WITH THIS VIEW OF THE MATTER, WE UPHOLD THE FINDING OF THE LD. CIT(A) AND DISMISS THE GROUNDS OF APPEAL. 4 8. IN THE RESULT, THE APPEAL OF THE REVENUE IS DISM ISSED. ORDER PRONOUNCED IN THE OPEN COURT ON THIS THE 17 TH DAY OF SEPTEMBER, 2021. SD/- SD/- (PRASHANT MAHARISHI) (K. NARSIMH A CHARY) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 17/09/2021 AKS