ACIT, New Delhi V. M/s. Mayfield Projects, Gurgaon

ITA 5162/DEL/2016

• Counselvise Citation: [2018] 126 COUNSELVISE.COM (IT) 4140 (ITAT-DELHI)
• Duration Of Justice: 1 year(s) 3 month(s) 12 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 12-01-2018
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: E
• Assessment Year: 2008-2009
• Appeal Filed On: 30-09-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SAMEER SRIVASTAVA
• Keywords: Unexplained expenditure
• Section: 153A; 37(1)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH E NEW DELHI BEFORE SHRI R.S. SYAL, VICE PRESIDENT AND SHRI SUDHANSHU SRIVASTAVA, JUDICIAL MEMBER ITA NO. 5162/DEL/2016 AY: 2008-09 ASSTT. COMMISSIONER OF INCOME TAX, VS M/S MAY FIELD PROJECTS, CENTRAL CIRCLE-26, V-BLOCK, SITE OFFICE, NEW DELHI. NEAR HANUMAN MANDIR, MAYFIELD GARDEN, SECTOR-50, GURGAON, HARYANA. (APPELLANT) (RESPONDENT) DEPARTMENT BY : SHRI SAMEER SRIVASTAVA, CIT DR ASSESSEE BY: NONE DATE OF HEARING: 04.01.2018 DATE OF PRONOUNCEMENT: 12.01.2018 ORDER PER SUDHANSHU SRIVASTAVA, JUDICIAL MEMBER THIS APPEAL HAS BEEN PREFERRED BY THE DEPARTMENT A GAINST THE ORDER OF THE LD. COMMISSIONER OF INCOME TAX(A)- 29, NEW DELHI DATED 21.06.2016 AND PERTAINS TO ASSESSMENT YEAR 20 08-09. 2. BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE SU BMITTED ITS RETURN OF INCOME U/S 139(1) OF THE INCOME TAX ACT, 1961 (HEREINAFTER CALLED 'THE ACT') ON 30.09.2008, DECLA RING A TOTAL INCOME OF RS. 7,28,52,650/-. SUBSEQUENTLY, A SEARC H ACTION AS CARRIED OUT IN SHRI RAM HARI RAM GROUP OF CASES ON 26.02.2009 AND THE ASSESSEE WAS ALSO SEARCHED AT LOCKER NO.309 3010 MAINTAINED AT VIJAYA BANK, ANSARI ROAD, DARYAGANJ, DELHI. THE ITA NO. 5162/DEL/2016 ASSESSMENT YEAR 2008-09 2 ASSESSMENT WAS COMPLETED U/S 153A/143(3) OF THE ACT ON 30.12.2010 DETERMINING INCOME AT RS. 8,66,17,194/-. SUBSEQUENTLY, A FURTHER SEARCH ACTION WAS CARRIED O UT IN ORCHID GROUP OF CASES ON 5.3.2013 INCLUDING THE ASSESSEE. THE LOCKER OF THE ASSESSEE SEARCHED WAS FOUND EMPTY. THE ASSESSI NG OFFICER REITERATED THE ADDITIONS MADE IN THE EARLIER ASSESS MENT ORDER U/S 153A/143(3) DATED 30.12.2010 AND ACCORDINGLY DETERM INED THE TOTAL INCOME AT RS. 8,66,17,194/- VIDE ORDER DATED 27.03.2015. 2.1 THE ASSESSEE HAD PREFERRED FIRST APPEAL AGAINST THE ORDER PASSED U/S 153A/143(3) DATED 30.12.2010 RELATING TO THE FIRST SEARCH WHICH WAS DISMISSED BY THE LD. COMMISSIONER OF INCOME TAX(A) AND THE ASSESSEE PREFERRED SECOND APPEAL BEF ORE THE ITAT NEW DELHI AND ITAT VIDE ORDER DATED 8.7.2015 IN ITA NO. 6062/6066/DEL/2012 RESTORED THE FILE TO THE OFFICE OF THE LD. COMMISSIONER OF INCOME TAX(A) WITH THE DIRECTION TO DECIDE THE APPEAL AFRESH. 2.2 CONSEQUENT TO THE DIRECTIONS OF THE ITAT, THE A SSESSEE WAS PROVIDED WITH A FRESH OPPORTUNITY BY THE LD. COMMIS SIONER OF INCOME TAX(A) AND THE APPEAL OF THE ASSESSEE WAS PA RTLY ALLOWED VIDE ORDER DATED 21.06.2016 WHEREIN THE DISALLOWANC ES/ADDITIONS ON ACCOUNT OF ADMINISTRATIVE EXPENSES OF RS. 7,41,5 36/- WERE ITA NO. 5162/DEL/2016 ASSESSMENT YEAR 2008-09 3 RESTRICTED TO RS. 2,96,615/-, DISALLOWANCE ON ACCOU NT OF INTERNAL DEVELOPMENT EXPENSES AMOUNTING TO RS. 42,64,338/- H AD BEEN RESTRICTED TO RS. 8,52,867/- AND ADDITION ON ACCOUN T OF UNEXPLAINED EXPENDITURE AMOUNTING TO RS. 87,58,700/ - WAS RESTRICTED TO RS. 70,22,100/-, 2.3 THE ASSESSEE ALSO APPROACHED THE LD. COMMISSION ER OF INCOME TAX(A) AGAINST THE ASSESSMENT ORDER U/S 153A /143(3) PASSED ON 27.03.2005 WHICH WAS ALLOWED BY THE LD. COMMISSIONER OF INCOME TAX(A) WITH FOLLOWING OBSERV ATIONS:- 5.5 IT IS OBSERVED THAT IN THE PRESENT ORDER, NO FURTHER ADDITION HAS BEEN MADE BY THE AO AND JUST REITERATED THE EARLIER ADDITIONS MADE. LOOKING TO T HE FACT THAT THE APPEAL OF THE APPELLANT WAS ALLOWED VIDE A.NO.896/2010-11 DATED 21.06.2016 AND THE ADDITIONS ARE DIRECTED TO BE DELETED IN PART, THEREFORE, THE ADDITIONS IN THE PRESENT ORDER IS ALSO TO BE DELETE D IN PART, RETAINING THE SUSTAINED ADDITIONS ON THE SAME REASONING. THE AO IS DIRECTED TO DELETE THE ADDITIO NS PARTLY, AS IT WAS ALREADY DONE IN THE EARLIER APPEL LATE ORDER DATED 21.06.2016 FOR THIS ASSESSMENT YEAR. ACCORDINGLY, THE APPELLANT GETS A RELIEF OF RS.4,44 ,921/- FOR ADMINISTRATIVE EXPENSES, RS.34,11,478/- FOR INT ERNAL DEVELOPMENT EXPENSES AND RS.17,33,600/- FROM ADDITION MADE ON ACCOUNT OF SEIZED MATERIAL WHICH I S SAME AS THAT OF APPEAL ORDER NO.896/2010-11 DATED 21.06.2016. 3. NOW, AGAINST THIS ADJUDICATION BY THE LD. COMMIS SIONER OF INCOME TAX(A), THE DEPARTMENT IS IN APPEAL AND HAS RAISED THE FOLLOWING GROUNDS OF APPEAL:- ITA NO. 5162/DEL/2016 ASSESSMENT YEAR 2008-09 4 1. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) HAS ERRED IN LAW AND ON FACTS IN RESTRICTING THE DISALLOWANCE OF 5% OF ADMINISTRATIV E EXPENSES MADE BY THE AO TO 2% OF ADMINISTRATIVE EXPENSES, I.E. ALLOWING RELIEF OF RS.4,44,921/-, WI THOUT ANY BASIS AS THE ASSESSEE FAILED TO SUBSTANTIATE TH E ABOVE EXPENSES U/S 37(1) EITHER AT THE ASSESSMENT STAGE OR AT THE APPELLATE STAGE. 2. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) HAS ERRED IN LAW AND ON FACTS IN DELETING THE ADDITION OF RS.34,11,478/- MADE BY DISALLOWING 2.5% OF INTERNAL DEVELOPMENT EXPENSES WITHOUT APPRECIATING THE FACT THAT THE ASSESSEE FAI LED TO SUBSTANTIATE THE ABOVE EXPENSES U/S 37(1) EITHER AT THE ASSESSMENT STAGE OR AT THE APPELLATE STAGE. 3. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF TH E CASE, THE LD. CIT(A) HAS ERRED IN LAW AND ON FACTS IN DELETING THE ADDITION OF RS. 17,33,600/- DESPITE TH E FACT THAT THE ASSESSEE FAILED TO SUBSTANTIATE THE ABOVE EXPENSES EVEN AT THE APPELLATE STAGE. 4. THAT THE ORDER OF THE CIT(A) IS PERVERSE, ERR ONEOUS AND IS NOT TENABLE ON FACTS AND IN LAW. 5. THAT THE GROUNDS OF APPEAL ARE WITHOUT PREJUDI CE TO EACH OTHER. 6. THAT THE APPELLANT CRAVES LEAVE TO ADD, AMEND, ALTER OR FORGO ANY GROUND(S) OF APPEAL EITHER BEFORE OR A T THE TIME OF HEARING OF THE APPEAL. 3.1 NONE WAS PRESENT ON BEHALF OF THE ASSESSEE RESP ONDENT; HOWEVER, LOOKING TO THE FACTS OF THE CASE, WE DEEM IT EXPEDIENT TO PROCEED WITH THE HEARING OF THE APPEAL EX PARTE QUA THE ASSESSEE. ITA NO. 5162/DEL/2016 ASSESSMENT YEAR 2008-09 5 3.2 LD. CIT DR READ OUT EXTENSIVELY FROM THE ORDER OF ASSESSMENT. HOWEVER, HE COULD NOT NEGATE THE FACT THAT THE ADDITIONS/DISALLOWANCES MADE UNDER THE FIRST ASSESS MENT ORDER PASSED U/S 153A/143(3) WERE PARTLY DELETED BY THE L D. COMMISSIONER OF INCOME TAX(A) VIDE ORDER DATED 21.6 .2016 AND FURTHER THE SECOND ASSESSMENT ORDER U/S 153A/143(3) PASSED ON 27.3.2015 WAS EXACTLY SIMILAR TO THE EARLIER ASSESS MENT ORDER DATED 30.12.2010. IT IS UNDISPUTED THAT LD. COMMIS SIONER OF INCOME TAX(A) HAS ADJUDICATED THE ISSUE ON THE SAME LINES AS HAD BEEN DONE IN THE FIRST APPELLATE ORDER DATED 21.6.2 016. NO FRESH MATERIAL HAS BEEN BROUGHT ON RECORD BY THE DEPARTME NT TO DISTINGUISH THE EARLIER ORDER OF THE LD. COMMISSION ER OF INCOME TAX(A) AND FURTHER, THE LD. CIT DR HAS ALSO NOT BEE N ABLE TO POINT OUT ANY FACTUAL OR LEGAL DISCREPANCY IN THE IMPUGNE D ORDER. ACCORDINGLY, WE DEEM IT FIT TO DISMISS THE GROUNDS RAISED BY THE DEPARTMENT. 4. IN THE RESULT, THE APPEAL OF THE DEPARTMENT STAN DS DISMISSED. ITA NO. 5162/DEL/2016 ASSESSMENT YEAR 2008-09 6 ORDER PRONOUNCED IN THE OPEN COURT ON 12 TH JANUARY, 2018. SD/- SD/- (R.S. SYAL) (SUDHANSHU SRIVASTAVA) VICE PRESIDENT JUDIC IAL MEMBER DT. 12 TH JANUARY 2018 GS COPY FORWARDED TO:- 1. APPELLANT 2. RESPONDENT 3. CIT(A) 4. CIT 5. DR BY ORDER ASSTT. REGISTRAR