Akshi Mittal, Delhi V. ITO, Ward-61(4), New Delhi

ITA 5094/DEL/2018

• Counselvise Citation: [2019] 115 COUNSELVISE.COM (IT) 7825 (ITAT-DELHI)
• Duration Of Justice: 1 year(s) 2 month(s) 21 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 14-10-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2014-2015
• Appeal Filed On: 24-07-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: EKTA VISHNOI
• Assessee Lawyers: VIRENDER CHAUHAN
• Keywords: Depreciation; Opportunity of being heard; Speculation loss; Unabsorbed depreciation; Set aside
• Section: 234B; 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH: SMC NEW DELHI BEFORE SHRI H. S. SIDHU, JUDICIAL MEMBER I.T.A. NO. 5094/DEL/2018 ASSESSMENT YEAR: 2014-15 AKSHI MITTAL, VS. ITO, WARD-61(4), C/O M/S AVC & CO., NEW DELHI 5C/9, 2 ND FLOOR, OPP. LIBERTY CINEMA, NEW ROHTAK ROAD, NEW DELHI 110 005 (PAN: AAIPM7321C) (ASSESSEE) (RESPONDENT) ASSESSEE BY : SH. VIRENDER CHAUHAN, CA REVENUE BY : MS. EKTA VISHNOI, SR. DR. ORDER THIS APPEAL IS FILED BY ASSESSEE AGAINST THE ORDER DATED 21.05.2018 PASSED BY THE LD. CIT(A)-20, NEW DELHI RELATING TO ASSESSMENT YEAR 2014-15 ON THE FOLLOWING GROUNDS:- 1. THAT HAVING REGARDS TO THE FACTS AND CIRCUMSTANCES OF THE CASE, LD. CIT(A) HAS GROSSLY ERRED IN LAW WHILE CON FIRMING ADDITIONS OF RS. 14,94,096/- OUT OF RS. 19,08,151/- ON ACCOUNT OF INTEREST ON LOAN AS ALLEGED INCOME OF TH E APPELLANT BY RECORDING THE REASON THAT THERE IS NO NEXUS OF THE INTEREST EXPENDITURE WITH THE SHARE TRADING IN COME BY MAKING IRRELEVANT OBSERVATIONS. THEREFORE, THE ADDI TIONS MADE AS SUCH MAY BE LIABLE TO BE DELETED. 2. THAT UNDER THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD. CIT(A) HAS GROSSLY ERRED WHILE NOT GI VING DIRECTIONS TO THE AO TO SET OFF BROUGHT FORWARDS CU RRENT YEAR BUSINESS LOSS OF RS. 49,02,021/-, UNABSORBED DEPRECIATION OF RS. 3,05,643/- LONG TERM CAPITAL LO SS OF RS. 11,41,110/- AND BROUGHT FORWARD PREVIOUS YEARS BUSI NESS LOSS OF RS. 25,56,706/-, SPECULATION LOSS OF RS. 74 ,387/-, 2 SHORT TERM CAPITAL LOSS OF RS. 63,86,160/- AND LONG TERM CAPITAL LOSS OF RS. 5,35,419/-. 3. THAT UNDER THE FACTS AND CIRCUMSTANCES OF THE CASE AND INL AW, THE LD. CIT(A) HAS GROSSLY ERRED WHILE CONFIRMI NG THE ORDERS PASSED BY THE LD. AO, IN AS MUCH AS THE SAME WERE PASSED WITHOUT ASSUMING JURISDICTION. AS SUCH, THE ORDERS PASSED BY THE AO MAY BE LIABLE TO BE QUASHED. 4. THAT UNDER THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW INTEREST CHARGED UNDER SECTIONS 234A, 234B AND 234C MAY ACCORDINGLY BE LIABLE TO BE DELETED. 5. THAT THE APPELLANT, CRAVE LEAVE TO AMEND, ALTER, AD D OR DELETE ANY OF THE FORGOING GROUNDS OF APPEAL AND T HE ABOVE GROUNDS OF APPEAL ARE MUTUALLY EXCLUSIVE. 2. FACTS NARRATED BY THE REVENUE AUTHORITIES ARE NO T DISPUTED BY BOTH THE PARTIES, HENCE, THE SAME ARE NOT REPEATED HERE FOR THE SAKE OF BREVITY. 3. DURING THE HEARING, LD. COUNSEL FOR THE ASSESSEE HAS STATED THAT AO HAS COMPLETED THE ASSESSMENT U/S. 144 OF THE INCOME TAX ACT, 1961 (IN SHORT ACT) VIDE ORDER DATED 18.11.2016 WITHOUT G IVING PROPER OPPORTUNITY TO THE ASSESSEE. HE FURTHER STATED THA T ASSESSEE FILED ALL THE DOCUMENTARY EVIDENCES BEFORE THE LD. CIT(A) ALONGWI TH WRITTEN SUBMISSIONS WHICH HAVE NOT BEEN THOROUGHLY APPREC IATED BY THE LD. CIT(A) AND DECIDED THE ISSUES IN DISPUTE AGAINST TH E ASSESSEE. IN THIS BEHALF, HE DRAW MY ATTENTION TOWARDS PAGE NO. 6 ONW ARDS OF THE IMPUGNED ORDER. HE HAS ALSO DRAWN MY ATTENTION TO WARDS PAGES 1-136 I.E. OF PAPER BOOK DATED 16.11.2017 FILED BY THE ASESSEE BEFORE THE LD. CIT(A) AND THE SECOND PAPER BOOK DATED 7.2.2018 PAG ES 137-404. HE STATED THAT THESE DOCUMENTARY EVIDENCES ARE VERY MU CH ESSENTIAL FOR SUBSTANTIATE THE CLAIM OF THE ASSESSE. HENCE HE STA TED THAT THE EXPARTE ASSESSMENT ORDER DATED 18.11.2016 WAS PASSED U/S. 1 44 OF THE ACT IN THE ABSENCE OF THE ASSESSEE. SIMILARLY, THE LD. CIT(A) HAS ALSO NOT APPRECIATED THE EVIDENCES PROPERLY. HE REQUESTED T HAT THE ISSUES IN 3 DISPUTE MAY BE SET ASIDE TO THE AO TO DECIDE THE S AME AFRESH, AS PER LAW AFTER TAKING INTO CONSIDERATION THESE DOCUMENTARY E VIDENCES FILED IN THE SHAPE OF PAPER BOOKS. 4. ON THE CONTRARY, LD. DR STATED THAT ASSESSEE RE MAINED NON- COOPERATIVE BEFORE THE AO. SHE DRAW MY ATTENTION TOWARDS THE ASSESSMENT ORDER PAGE NO. 2 TO ESTABLISH THAT THE ASSESSEE REMAINED NON-COOPERATIVE AND DID NOT FILE ANY EVIDENCES TO S UBSTANTIATE THE CLAIM BEFORE THE AO, BUT THE ASSESSEE HAS FILED THE WRITT EN SUBMISSIONS ALONGWITH THE OTHER DOCUMENTARY EVIDENCES FOR SUBST ANTIATING THE CLAIM OF THE ASSESSEE FOR WHICH THE LD. CIT(A) HAS NOT GIVEN OPPORTUNITY TO THE AO ON ALL THE EVIDENCES FILED BY THE ASSESSEE WHICH HA VE NOT BEEN FILED BY THE ASESSEE BEFORE THE AO. SHE HAS NOT RAISED ANY SERIOUS OBJECTION, IF THESE ISSUES BE SET ASIDE TO THE AO TO FRAME THE AS SESSMENT DO-NOVO AND DECIDE THE ISSUE IN DISPUTE AS PER LAW, AFTER GIVIN G ADEQUATE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. 5. I HAVE HEARD BOTH THE PARTIES AND PERUSED THE RE CORDS, ESPECIALLY THE ORDERS OF THE REVENUE AUTHORITIES. I NOTE THAT AO HAS COMPLETED THE ASSESSMENT U/S. 144 OF THE INCOME TAX ACT, 1961 VID E ORDER DATED 18.11.2016 WITHOUT GIVING PROPER OPPORTUNITY TO THE ASSESSEE. HOWEVER, ASSESSEE FILED ALL THE DOCUMENTARY EVIDENCES BEFORE THE LD. CIT(A) ALONGWITH WRITTEN SUBMISSIONS WHICH HAVE ALSO NOT BEEN THOROUGHLY APPRECIATED BY THE LD. CIT(A) AND DECIDED THE ISSUE S IN DISPUTE AGAINST THE ASSESSEE. I NOTE THAT ASSESSEE HAS FILED TWO PA PER BOOKS DATED 16.11.2017 & 7.2.2018 CONTAINING PAGES 1-404 ATTACH ING THEREIN VARIOUS DOCUMENTARY EVIDENCES WHICH ARE VERY MUCH ESSENTIAL FOR SUBSTANTIATE THE CLAIM OF THE ASSESSEE. HENCE HE STATED THAT THE EXPARTE ASSESSMENT ORDER DATED 18.11.2016 WAS PASSED U/S. 144 OF THE A CT IN THE ABSENCE OF THE ASSESSEE. SIMILARLY, THE LD. CIT(A) HAS ALSO N OT APPRECIATED THE EVIDENCES PROPERLY. HE REQUESTED THAT THE ISSUES I N DISPUTE MAY BE SET ASIDE TO THE AO TO DECIDE THE SAME AFRESH, AS PER LAW AFTER TAKING INTO CONSIDERATION THESE DOCUMENTARY EVIDENCES FILED IN THE SHAPE OF PAPER BOOKS. I NOTE THAT LD. DR STATED THAT ASSESSEE RE MAINED NON- 4 COOPERATIVE BEFORE THE AO. I FURTHER NOTE THAT ASSE SSEE HAS FILED THE WRITTEN SUBMISSIONS ALONGWITH THE OTHER DOCUMENTAR Y EVIDENCES FOR SUBSTANTIATING THE CLAIM OF THE ASSESSEE FOR WHICH THE LD. CIT(A) HAS NOT GIVEN OPPORTUNITY TO THE AO ON ALL THE EVIDENCES FI LED BY THE ASSESSEE WHICH HAVE NOT BEEN FILED BY THE ASESSEE BEFORE THE AO. I FURTHER NOTE THAT LD. DR HAS NOT RAISED ANY SERIOUS OBJECTION, I F THESE ISSUES BE SET ASIDE TO THE AO TO FRAME THE ASSESSMENT DO-NOVO AND DECIDE THE ISSUE IN DISPUTE AS PER LAW, AFTER GIVING ADEQUATE OPPORTUNI TY OF BEING HEARD TO THE ASSESSEE. KEEPING IN VIEW OF THE FACTS AND CI RCUMSTANCES AS EXPLAINED ABOVE AND IN THE INTEREST OF JUSTICE, I SET ASIDE THE ISSUES IN DISPUTE TO THE FILE OF THE AO WITH THE DIRECTIONS TO FRAME THE ASSESSMENT DE-NOVO AND DECIDE THE ISSUES IN DISPUTE, AS PER LAW, AFTER GIVING ADEQUATE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE . ASSESSEE IS ALSO DIRECTED THROUGH HIS COUNSEL TO FILE ANY OTHER EVI DENCES/ DOCUMENTS WITH THE AO AT THE TIME OF PROCEEDINGS TO SUBSTANTIATE HIS CASE AND DID NOT TAKE ANY UNNECESSARY ADJOURNMENT AND FULLY COOPERAT E WITH THE AO. 6. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE STANDS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED ON 14/10/2019. SD/- [H.S. SIDHU] JUDICIAL MEMBER DATE 14/10/2019 SRB COPY FORWARDED TO: - 1. APPELLANT - 2. RESPONDENT - 3. CIT 4. CIT (A) 5. DR, ITAT TRUE COPY BY ORDER, ASSISTANT REGISTRAR, ITAT, DELHI BENCHES