Genius Softech Pvt. Ltd., New Delhi V. ITO, Ward- 10(4), New Delhi

ITA 516/DEL/2018

• Counselvise Citation: [2019] 115 COUNSELVISE.COM (IT) 6695 (ITAT-DELHI)
• Duration Of Justice: 1 year(s) 9 month(s) 12 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 04-11-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2008-2009
• Appeal Filed On: 22-01-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: EKTA VISHNOI
• Keywords: Opportunity of being heard; Principle of natural justice; Opportunity of cross examination; Additional evidence; Accommodation entries; Reassessment proceedings; Set aside
• Section: 147; 148

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL (DELHI BENCH SMC : NEW DELHI) BEFORE SHRI H.S. SIDHU, JUDICIAL MEMBER ITA NO. 516/DEL/2018 (A.Y. 2008-09) GENIUS SOFTECH PVT. LTD. 206, HANS BHAWAN, 1, BAHADUR SHAH ZAFAR MARG, NEW DELHI 110 002 (PAN: AACCG9309D) VS. ITO, WARD 10(4), C.R. BUILDING, NEW DELHI ASSESSEE BY SH. MUKUL GUPTA, CA REVENUE BY MS. EKTA VISHNOI, SR. DR. ORDER ASSESSEE HAS FILED THIS APPEAL AGAINST THE IMPUGNE D ORDER DATED 30.11.2017 PASSED BY LD. CIT(A)-35, NEW DELHI RELE VANT TO ASSESSMENT YEAR 2008-09 ON THE FOLLOWING GROUNDS : - 1. THE LEARNED CIT(A) HAS ERRED ON FACTS AND IN LAW IN UPHOLDING THE IMPUGNED ORDER OF THE LEARNED ASSESSI NG OFFICER WHICH IS CONTRARY TO LAW, PASSED WITHOUT APPLICATIO N OF MIND AND WITHOUT COMPLYING WITH THE PROCEDURE AND RULES, IS AGAINST EQUITY AND JUSTICE AND FACTS OF THE ASSESSE E AND MATERIAL ON RECORD. 2. THE APPELLANT DENIES HIS LIABILITY TO TAX AS UPHELD BY THE LEARNED CIT (A) AND DETERMINED AND COMPUTED BY THE LEARNED ASSESSING OFFICER AND THE MANNER IN WHICH IT HAS BE EN SO DETERMINED OR COMPUTED. 3. THE LEARNED CIT(A) HAS ERRED ON FACTS AND IN LAW IN UPHOLDING THE VALIDITY OF REASSESSMENT PROCEEDINGS IGNORING THE FACT THAT INITIATION OF THE PROCEEDINGS U/S 14 8 AND THE CONSEQUENT ORDER U/S 147 ARE BAD IN LAW AS: 2 A. THE INITIATION OF PROCEEDINGS U/S 148 ARE CONTRA RY TO PROVISIONS OF LAW. B. THE MANDATORY PROCEDURE LAID DOWN IN THE ACT HAS NOT BEEN FOLLOWED. C. THE INFORMATION HAS BEEN COLLECTED BEHIND THE BA CK OF THE ASSESSEE AND THE ASSESSEE WAS NEVER CONFRONTED WITH THE SAME NOR AN OPPORTUNITY PROVIDED FOR EXAMINATION OF JAIN BROTHERS, COPIES OF THE ORDERS OF JAIN BROTHERS AND THE RELEVANT SEIZED MATERIAL RELIED UPON HAS NOT BEEN P ROVIDED TO THE ASSESSEE. D. THE ASSESSMENT HAS BEEN MADE ON THE BASIS OF CONJECTURE & SURMISES WITHOUT ANY COGENT EVIDENCE. 4. THE LEARNED CIT(A) HAS ERRED. ON FACTS AND IN LA W IN UPHOLDING THE ADDITION OF RS.30,OO,OOO/- U/S.68 ON ACCOUNT OF SHARE CAPITAL, TREATING THE SAME AS AN ACCOMMODA TION ENTRY. 5. THE LEARNED CIT(A) HAS ERRED ON FACTS AND IN LAW IN UPHOLDING THE ADDITION OF RS.60,OOO/- U/S 69C, AS A LLEGED COMMISSION PAID FOR OBTAINING ACCOMMODATION ENTRIES . 6. THE LEARNED CIT(A) HAS ERRED ON FACTS AND IN L AW BY NOT ADJUDICATING GROUND OF INITIATION OF PENALTY PROCEE DINGS U/S 271 (1)(C) WITHOUT ANY MATERIAL ON RECORD. PRAYER 1. THE APPELLANT CRAVES LEAVE AND SANCTION OF THE H ON'BLE ITAT TO FILE ADDITIONAL EVIDENCE, IF SO REQUIRED FO R PROPER PROSECUTION OF THE CASE, BASED ON FACTS AND CIRCUMS TANCES, WHICH HAS NOT BEEN OR COULD NOT BE ADDUCED OR FILED BEFORE LOWER AUTHORITIES EITHER BECAUSE PROPER AND SUFFICI ENT 3 OPPORTUNITY WAS NOT PROVIDED OR BECAUSE IT WAS NOT SOLICITED OR ITS NEED WAS NOT APPRECIATED. 2. THE APPELLANT CRAVES LEAVE TO AND PERMISSION OF THE HON'BLE ITAT TO ADD TO OR ALTER ANY OF THE GROUNDS OF APPEAL AT ANY TIME UPTO THE FINAL DECISION OF THE APPEAL. 3. THE ORDER OF THE A.D. AS UPHELD BY THE LEARNED C IT(A) BE DECLARED AS NULL AND VOID AB-INITIO, ADDITIONS M ADE BY AO AND UPHELD BY LD. CIT(A) BE DELETED, AND THE INCOME RETURNED BE ACCEPTED AS TRUE AS PER LAW; OR SUCH OTHER ORDER AS YOUR HONOURS MAY DEEM FIT UNDER THE CIRCUMSTANCES OF THE CASE BE PASSED. 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 CONVENIENCE. 3. AT THE TIME OF HEARING, LD. COUNSEL FOR THE ASSE SSEE DRAW MY ATTENTION TOWARDS GROUND NO. 3 AND STATED THAT AS SESSEE HAS REQUESTED FOR CROSS EXAMINATION OF JAIN BROTHERS BEFORE THE A SSESSING OFFICER AND BEFORE THE LD. FIRST APPELLATE AUTHORITY, BUT THE S AME HAS NOT BEEN PROVIDED TO THE ASSESSEE BY THEM, WHICH IS CONTRAR Y TO PRINCIPLE OF NATURAL JUSTICE AND AGAINST THE VARIOUS DECISIONS RENDERED BY THE TRIBUNAL, HONBLE HIGH COURTS AND THE HONBLE SUPRE ME COURT OF INDIA. HE FURTHER DRAW MY ATTENTION TOWARDS GROUND RAIS ED BEFORE THE LD. CIT(A) I.E. GROUND NO. 1(C) AND STATED THAT THE SA ME ASSESSEE HAS NOT BEEN ADJUDICATED. HENCE, HE REQUESTED THAT THE GRO UND NO. 3 RAISED BEFORE THE TRIBUNAL I.E. PROVIDING OF OPPORTUNITY FOR CROSS EXAMINATION OF JAIN BROTHERS BE GIVEN TO THE ASSESSEE AND THIS ISSUE MAY BE SET ASIDE TO THE FILE OF THE LD. CIT(A) WITH THE DIRECTIONS TO DECIDE THE SAME AFRESH, AFTER HEARING THE LD. COUNSEL FOR THE ASSESSEE. 4 4. ON THE CONTRARY, LD. DR HAS NOT RAISED ANY SERIO US OBJECTION ON THE REQUEST OF THE LD. COUNSEL FOR THE ASSESSEE 5. I HAVE HEARD BOTH THE PARTIES AND PERUSED THE OR DERS OF THE REVENUE AUTHORITIES ESPECIALLY THE GROUND RAISED BY THE ASS ESSEE BEFORE THE LD. CIT(A) I.E. GROUND NO. 1(C) AND GROUND RAISED BY TH E ASSESSEE BEFORE THIS TRIBUNAL IN THE PRESENT APPEAL I.E. GROUND NO. 3(C) . I AM OF THE VIEW THAT ASSESSEE HAS REQUESTED TO THE LD. FIRST APPELLATE A UTHORITY TO PROVIDE AN OPPORTUNITY OF CROSS EXAMINATION OF JAIN BROTHERS, BUT ON THIS ISSUE THE LD. CIT(A) HAS NOT COMMENTED UPON AND ALSO NOT ADJU DICATED THE SAME ISSUE. THEREFORE, IN THE INTEREST OF JUSTICE, I SET ASIDE THE ISSUE OF PROVIDING OPPORTUNITY TO THE ASSESSEE FOR CROSS E XAMINATION OF JAIN BROTHERS TO THE FILE OF THE LD. CIT(A) TO DECIDE TH E ISSUE INVOLVED IN GROUND NO. 1 RAISED BEFORE THE LD. CIT(A), WHICH HA S BEEN REPRODUCED IN THE IMPUGNED ORDER AT PAGE NO. 1 VIDE PARA NO. 3(C) AND WHICH IS ALSO RAISED BEFORE THIS TRIBUNAL VIDE GROUND NO. 3(C), A S REPRODUCED ABOVE AND ACCORDINGLY DIRECT THE LD. CIT(A) TO DECIDE/ADJUDI CATE THE SAME, AFTER GIVING ADEQUATE OPPORTUNITY OF BEING HEARD TO BOTH THE PARTIES. SINCE NO OTHER ISSUES HAVE BEEN ARGUED BY ANY PARTY, THEREFO RE, THE SAME ARE NOT BEING ADJUDICATED UPON. 6. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED ON THIS 04 TH DAY OF NOVEMBER, 2019. SD/- (H.S. SIDHU) JUDICIAL MEMBER DATED THE 04 TH NOVEMBER, 2019 SRB COPY FORWARDED TO:- 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A), NEW DELHI. 5. CIT(ITAT), NEW DELHI AR, ITAT