Niftys Technologies Pvt. Ltd., New Delhi V. ITO, Ward- 18(2), New Delhi

ITA 4990/DEL/2018

• Counselvise Citation: [2019] 118 COUNSELVISE.COM (IT) 3486 (ITAT-DELHI)
• Duration Of Justice: 7 month(s) 9 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 25-02-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: E
• Assessment Year: 2008-2009
• Appeal Filed On: 16-07-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: RINKU SINGH SENIOR
• Keywords: Unexplained cash credit; Unexplained expenditure; Opportunity of being heard; Principle of natural justice
• Section: 69C; 234B; 147; 68

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH FRIDAY, NEW DELHI. BEFORE HONBLE VICE PRESIDENT, SHRI G.D. AGRAWAL AND SHRI KULDIP SINGH, JUDICIAL MEMBER EARLY HEARING APPLICATION NO.24/DEL/2019 (IN ITA NO.4990/DEL./2018) (ASSESSMENT YEAR : 2008-09) AND ITA NO.4990/DEL./2018 (ASSESSMENT YEAR : 2008-09) M/S. NIFTYS TECHNOLOGIES PVT. LTD., VS. ITO, WARD 1 8 (2), A 7/3, SHIVAJI APARTMENT, NEW DELHI. SECTOR 14, ROHINI, NEW DELHI 110 085. (PAN : AACCN2518B) (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI LALIT MOHAN, CA REVENUE BY : MS. RINKU SINGH, SENIOR DR DATE OF HEARING : 01.02.2019 DATE OF ORDER : 25.02.2019 O R D E R PER KULDIP SINGH, JUDICIAL MEMBER : KEEPING IN VIEW THE FACTS INTER ALIA THAT THE LD. C IT (A) HAS PASSED THE IMPUGNED ORDER EX PARTE DUE TO NON APPEA RANCE OF THE ASSESSEE WITHOUT GOING INTO THE MERITS OF THIS CASE AND THAT ADEQUATE OPPORTUNITY OF BEING HEARD IS REQUIRED TO BE PROVIDED TO ITA NO.4990/DEL./2018 2 THE ASSESSEE, THE APPLICATION FOR EARLY HEARING IS HEREBY ALLOWED AND BENCH IS PROCEEDED TO HEAR THE APPEAL BY TODAY ITSELF. 2. THE APPELLANT, M/S. NIFTYS TECHNOLOGIES PVT. LTD . (HEREINAFTER REFERRED TO AS THE ASSESSEE) BY FILI NG THE PRESENT APPEAL, SOUGHT TO SET ASIDE THE IMPUGNED ORDER DATE D 18.08.2017 PASSED BY LD. CIT (APPEALS)-37, NEW DELHI QUA THE ASSESSMENT YEAR 2008-09 ON THE GROUNDS INTER ALIA THAT :- 1. THAT ORDER DATED 18.8.2017 PASSED BY THE LEARNE D COMMISSIONER OF INCOME TAX (APPEALS)-XXXVII, NEW DE LHI UPHOLDING THE ORDER OF ASSESSMENT DATED 23.3.2016 U NDER SECTION 147/143(3) OF THE ACT DISMISSING THE APPEAL PREFERR ED BY THE APPELLANT EX-PARTE WITHOUT GRANTING ANY FAIR, MEANI NGFUL AND PROPER OPPORTUNITY IS CONTRARY TO THE PRINCIPLES OF NATURAL JUSTICE AND OTHERWISE VITIATED. 2. THAT THE LEARNED COMMISSIONER OF INCOME TAX (APP EALS) HAVING NOTICED THAT NOTICE HAD NOT BEEN SERVED ON T HE APPELLANT, OUGHT TO HAVE BEEN SERVED THE NOTICE THROUGH THE AS SESSING OFFICER OR AT THE ADDRESS STATED IN THE ORDER OF AS SESSMENT, PARTICULARLY WHEN THE APPELLANT HAD DULY COMPLIED W ITH DURING THE ASSESSMENT PROCEEDINGS AND THEREFORE, THE EX-PA RTE ORDER IS A VITIATED ORDER. 3. THAT FURTHERMORE INADVERTENT TYPOGRAPHICAL ERROR S IN FORM NO. 35 COULD NOT IN LAW BE A GROUND TO DENY SU BSTANTIVE JUSTICE TO THE APPELLANT COMPANY. 4. THAT ALSO THE ALLEGED DEFECT IN VERIFICATION COL UMN IN FORM 35 TERMS OF SECTION 140 OF THE ACT READ WITH S ECTION 249 OF THE ACT IS A TECHNICAL AND A PROCEDURAL DEFECT AND THEREFORE, COULD NOT BE A GROUND TO HOLD THAT THE APPELLANT HA D CONSCIOUSLY OMITTED TO CURE THE DEFECT DESPITE HAVING MULTIPLE OPPORTUNITIES AND CONCLUDE THAT THE APPEAL IS DEFECTIVE AND NOT A DMITTED IN VIEW OF SAID UNCURED DEFECT. ITA NO.4990/DEL./2018 3 5. THAT FURTHER, THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) HAS ERRED BOTH IN LAW AND ON FACTS IN UPH OLDING INITIATION OF PROCEEDINGS UNDER SECTION 147 OF THE ACT AND COMPLETION OF ASSESSMENT UNDER SECTION 147/143(3) O F THE ACT WITHOUT SATISFYING THE STATUTORY PRE-CONDITIONS UND ER THE ACT AND AS SUCH, BOTH THE INITIATION OF THE PROCEEDINGS AND COMPLETION OF ASSESSMENT ARE WITHOUT JURISDICTION AND THUS, DESER VE TO BE QUASHED AS SUCH. 6. THAT FURTHER, THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) HAS ERRED BOTH IN LAW AND ON FACTS IN SUS TAINING AGGREGATE ADDITION OR RS.75,00,000/- REPRESENTING S UM RECEIVED FROM M/S TAURUS IRON & STEEL CO. (P) LTD. (NOW KNOW N AS M/S OCTOPUS ISPAT (P) LTD.) AND ERRONEOUSLY HELD AS UNE XPLAINED CASH CREDITS UNDER SECTION 68 OF THE ACT. 7. THAT THE LEARNED COMMISSIONER OF INCOME TAX (APP EALS) HAS ERRED BOTH IN LAW AND ON FACTS IN SUSTAINING AD DITION OF RS.1,50,000/- ON ACCOUNT OF ALLEGED COMMISSION PAID TO THE ENTRY PROVIDER IN CASH FOR OBTAINING ACCOMMODATION ENTRIE S AND HELD AS UNEXPLAINED EXPENDITURE U/S 69C OF THE ACT. 8. THAT THE LEARNED COMMISSIONER OF INCOME TAX (APP EALS) HAS ERRED BOTH IN LAW AND ON FACTS IN SUSTAINING LE VY OF INTEREST OF RS.22,51,823/- U/S 234B OF THE ACT WHICH IS NOT LEV IABLE ON THE FACTS OF THE INSTANT CASE. IT IS THEREFORE PRAYED THAT, IT BE HELD THAT CONCLU SION OF LEARNED COMMISSIONER OF INCOME TAX (APPEALS) THAT A PPEAL IS NOT ADMITTED SINCE THE FORM NO. 35 VERIFICATION POR TION IS NOT IN CONSONANCE WITH PROVISIONS OF SECTION 140 READ WITH APPLICABLE RULES (RULE 45) RELATING TO SECTION 249 OF THE ACT AND IS TO BE DISMISSED BE HELD TO BE INVALID, ARBITRARY AND UNTE NABLE. IT IS FURTHER PRAYED THAT ORDER DISPOSING OF THE APPEAL E X PARTE ALONGWITH INTEREST LEVIED MAY KINDLY BE SET ASIDE A ND APPEAL OF THE APPELLANT COMPANY BE ALLOWED. 3. BRIEFLY STATED THE FACTS NECESSARY FOR ADJUDICAT ION OF THE CONTROVERSY AT HAND ARE : ASSESSING OFFICER COMPLET ED THE ASSESSMENT UNDER SECTION 143 (3)/147 OF THE INCOME- TAX ACT, 1961 ITA NO.4990/DEL./2018 4 (FOR SHORT THE ACT) BY MAKING ADDITION OF RS.75,0 0,000/- AND RS.1,50,000/- ON ACCOUNT OF UNEXPLAINED CREDIT UNDE R SECTION 68 OF THE ACT AND UNEXPLAINED EXPENDITURE RESPECTIVELY. 4. ASSESSEE CARRIED THE MATTER BEFORE THE LD. CIT ( A) BY WAY OF AN APPEAL WHO HAS PROCEEDED TO DECIDE THE APPEAL EX PARTE ON THE GROUND THAT NOTICE DATED 19.05.2017 ISSUED TO THE A SSESSEE FOR HEARING ON 30.05.2017 AND SUBSEQUENT NOTICES RECEIV ED BACK UNCLAIMED AND THEREBY DISMISSED THE SAME ON GROUND OF MAINTAINABILITY. FEELING AGGRIEVED, THE ASSESSEE H AS COME UP BEFORE THE TRIBUNAL BY WAY OF FILING THE PRESENT AP PEAL. 5. WE HAVE HEARD THE LD. AUTHORIZED REPRESENTATIVES OF THE PARTIES TO THE APPEAL, GONE THROUGH THE DOCUMENTS R ELIED UPON AND ORDERS PASSED BY THE REVENUE AUTHORITIES BELOW IN T HE LIGHT OF THE FACTS AND CIRCUMSTANCES OF THE CASE. 6. BARE PERUSAL OF THE IMPUGNED ORDER PASSED BY THE LD. CIT (A) GOES TO PROVE THAT NUMEROUS NOTICES TO PROCURE THE PRESENCE OF THE ASSESSEE WERE ISSUED BUT IT IS NOT BROUGHT ON R ECORD IF THE SAID NOTICES WERE EVER SERVED UPON THE ASSESSEE OR HE HA S REFUSED TO ACCEPT THE NOTICE RATHER NOTICE RECEIVED BACK WITH REPORT UNCLAIMED/ATTEMPTED DELIVERY. WE ARE OF THE CONSID ERED VIEW THAT TO DECIDE THE ISSUE IN CONTROVERSY ONCE FOR ALL, AD EQUATE OPPORTUNITY IS REQUIRED TO BE GIVEN TO THE ASSESSEE , BY EFFECTING ITA NO.4990/DEL./2018 5 PROPER SERVICE, IMPUGNED ORDER PASSED BY THE LD. CI T(A) IS SET ASIDE AND REMANDED BACK TO LD. CIT (A) TO DECIDE AF RESH AFTER PROVIDING AN OPPORTUNITY OF BEING HEARD TO THE ASSE SSEE. CONSEQUENTLY, THE APPEAL FILED BY THE ASSESSEE IS A LLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN OPEN COURT ON THIS 25 TH DAY OF FEBRUARY, 2019. SD/- SD/- (G.D. AGRAWAL) (KULDIP SINGH) VICE PRESIDENT JUDICIAL MEMBER DATED THE 25 TH DAY OF FEBRUARY, 2019 TS COPY FORWARDED TO: 1.APPELLANT 2.RESPONDENT 3.CIT 4.CIT(A)-37, NEW DELHI. 5.CIT(ITAT), NEW DELHI. AR, ITAT NEW DELHI.