Dispo Medical Devices (P) Ltd., Delhi V. ITO, Ward-7(3), New Delhi

ITA 5228/DEL/2018

• Counselvise Citation: [2018] 119 COUNSELVISE.COM (IT) 0085 (ITAT-DELHI)
• Duration Of Justice: 4 month(s) 2 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 06-12-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2004-2005
• Appeal Filed On: 03-08-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: B S RAJPUROHIT
• Section: 147; 68; 148

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL (DELHI BENCH B : NEW DELHI) BEFORE SHRI H.S. SIDHU, JUDICIAL MEMBER AND SHRI O.P. KANT, ACCOUNTANT MEMBER ITA NO. 5228/DEL/2018 ASSESSMENT YEAR: 2004-05 DISPO MEDICAL DEVICES PVT. LTD., VS. ITO, WARD 7(3 ) B-10, SWASTHYA VIHAR, ROOM NO. 400-B DELHI 110 092 4 TH FLOOR, C.R. BLDG., (PAN: AAACD8655R) NEW DELHI 2 (APPELLANT) (RESPONDENT) ASSESSEE BY : SH. P.C. YADAV, ADV. REVENUE BY : SH. B.S. RAJPUROHIT, SR. DR ORDER PER H.S. SIDHU, JM THE ASSESSEE HAS FILED THE APPEAL AGAINST THE ORDE R DATED 29.8.2016 OF THE LD. CIT(A)-37, NEW DELHI PERTAIN ING TO ASSESSMENT YEAR 2004-05 ON THE FOLLOWING GROUNDS:- I) THAT ORDER OF CIT(A) PASSED WITHOUT GIVING OPPORTUNITY TO HEAR IS AGAINST PRINCIPLE NATURE JUSTICE AND THE ORDER PASSED DESERVED TO BE QUASHED. THE ASSESSEE COMPANY HAD FILED REQUEST FOR ADJOURNMENT VIDE LETTER DATED 27.7.2016 TO CIT(A). HOWEVER, CIT(A) HAS NOT CONSIDERED THE 2 SAME AS AFTER THAT NO LETTER WAS RECEIVED BY COMPANY FROM CIT(A) FOR FURTHER DATES. II) THAT INITIATING PROCEEDING UNDER SECTION 147 OF THE INCOME TAX ACT, 1961 AND ISSUING NOTICE UNDER SECTION 148 OF SAID ACT IS BASED ON INFORMATION RECEIVED FROM ACIT CC-19, NEW DELHI WHICH IS FURTHER ON THE BASIS OF MERE STATEMENT OF ONE PERSON IS AGAINST LAW AND FACTS OF THE CASE AND ORDER PASSED DESERVED TO BE QUASHED. III) THAT THE CIT(A) HAS ERRED IN CONFIRMING ADDITION OF RS. 1,50,00,000 /- RECEIVED AS UNSECURED LOAN FROM THE COMPANY M/S GALAXY MINES AND STONES PRIVATE LIMITED UNDER SECTION 68 OF THE INCOME TAX ACT, 1961 STATING AS BOGUS ENTRY RECEIVED BY ASSESSEE COMPANY. GALAXY MINES AND STONES PRIVATE LIMITED IS COMPANY INCORPORATED UNDER COMPANIES ACT, 1956 WITH REGISTRAR OF THE COMPANY WITH CIN U748991PTC045219. THE COMPANY IS STILL EXISTING ON MCA SITES. THE ORDER O F LD. CIT(A) MAY BE DELETED. IV) THAT THE CIT(A) HAS ERRED IN CONFIRMING ADDITION OF RS. 20,00,000/- RECEIVED AS UNSECURED LOAN FROM RELATIVE OF DIRECTORS OF THE COMPANY AS INCOME UNDER SECTION 68 OF THE INCOME TAX ACT, 1961. THE 3 ABOVE ORDER OF LD. CIT(A) MAY BE DELETED AS THE AMOUNT HAS BEEN RECEIVED FROM RELATIVES OF DIRECTORS. V) THAT THE LD. CIT(A) HAS ERRED IN CONFIRMING ADDITION OF RS. 3,12,309/- WHICH HAS BEEN CLAIMED BY AO HAS UNVERIFIED EXPENSES DEBITED TO PROFIT AND LOSS ACCOUNT WHICH HAS BEEN MADE ARBITRARILY AND IS UNJUSTIFIED AND THE SAME IS UNWARRANTED. VI) HONBLE ITAT IN THIS CASE WHEN ASSESSEE COMPANY APPROACHED AGAINST ORDER OF CIT(A) HAS MENTIONED THAT IN VIEW OF THE SAME THE ENTIRE MATTER NEEDS TO BE REMANDED BACK TO THE FILE OF THE ASSESSING OFFICER, FOR FOLLOWING REASONS.. VII) FURTHER RELIANCE HAS BEEN MADE UNDER FOLLOWING CASES LAWS WHICH STRENGTHEN OUR VIEW POINTS.. VIII) THE ASSESSEE COMPANY RESERVES THE RIGHT TO ADD, ALTER, MODIFY, THE GROUNDS OF APPEAL AT THE TIME OR BEFORE THE TIME OF HEARING. 2. THE FACTS NARRATED BY THE REVENUE AUTHORITIES AR E NOT DISPUTED BY BOTH THE PARTIES, HENCE, THE SAME ARE NOT REPEAT ED HERE FOR THE SAKE OF CONVENIENCE. 3. AT THE TIME OF HEARING, LD. COUNSEL FOR THE ASSE SSEE STATED THAT NO DOUBT THAT LD. FIRST APPELLATE AUTHORITY HAS PAS SED THE EXPARTE ORDER AGAINST THE ASSESSEE, BUT SUFFICIENT OPPORTU NITY TO THE 4 ASSESSEE FOR SUBSTANTIATING THE CLAIM BEFORE THE LD . CIT(A) WAS NOT PROVIDED TO THE ASSESSEE. IN ADDITION TO HIS ARGUM ENT, HE DRAW OUR ATTENTION TOWARDS PAGE NO. 16 OF THE PAPER BOOK WHI CH IS A LETTER DATED 08.12.2011 ADDRESSED TO THE ITO, WARD 10(3), NEW DELHI IN WHICH THE ASSESSEE HAS REQUESTED IN PARA NO. 7 AT P AGE NO. 2 THE AO TO PROVIDE COPY OF THE STATEMENT OF SH. SK GUPT A AND COPY OF THE REPORT OF INVESTIGATION WING ON THE BASIS OF WH ICH THE ASSESSMENT WAS REOPENED. LD. COUNSEL FOR THE ASSES SEE STATED THAT THESE DOCUMENTS HAVE NOT BEEN PROVIDED BY THE AO WH ICH HAS BEEN USED AGAINST THE ASSESSEE FOR MAKING THE ADDITION I N DISPUTE. HE REQUESTED THAT AO MAY BE DIRECTED TO PROVIDE THESE DOCUMENTS TO THE ASSESSEE AND FRAMED THE ASSESSMENT AFRESH AFTER GIVING FULL OPPORTUNITY TO THE ASSESSEE FOR REBUTTAL THE SAME. HOWEVER, LD. DR HAS NOT RAISED ANY OBJECTION TO THE SAME. 4. WE HAVE HEARD BOTH THE PARTIES AND GONE THROUGH THE CONTENTIONS RAISED BY THE ASSESSEE ALONGWITH THE P AGE 16-17 OF THE PAPER BOOK I.E. A LETTER DATED 8.12.2011 ADDRESSED TO THE AO IN WHICH THE ASSESSEE HAS REQUESTED FOR SUPPLY OF DOCU MENTS VIZ. THE COPY OF STATEMENT OF SH. SK GUPTA AND THE COPY OF I NVESTIGATION REPORT ON THE BASIS OF WHICH THE ASSESSMENT WAS REO PENED. AFTER GOING THROUGH THE ASSESSMENT ORDER AS WELL AS THE O RDER PASSED BY THE LD. FIRST APPELLATE AUTHORITY, WE ARE OF THE CONSIDERED VIEW THAT THE MATTER NEEDS TO BE SET ASIDE TO THE FILE O F AO WITH THE CLEAR DIRECTIONS TO PROVIDE (I) COPY OF STATEMENT OF SH. SK GUPTA AND (II) 5 COPY OF REPORT OF INVESTIGATION WING ON THE BASIS O F WHICH THE ASSESSMENT WAS REOPENED TO THE ASSESSEE AND THEN F RAME THE ASSESSMENT AFRESH, AFTER GIVING ADEQUATE OPPORTUNIT Y OF BEING TO THE ASSESSEE TO SUBSTANTIATE ITS CLAIM BEFORE THE AO. W E HOLD AND DIRECT ACCORDINGLY. IT IS MADE CLEAR THAT THE ASSESSMENT YEAR IN DISPUTE IS AY 2004-05 AND IS VERY OLD, THEREFORE, THE ASSESSEE IS DIRECTED NOT TO SEEK ANY UNNECESSARY ADJOURNMENT AND FULLY COOPERAT E WITH THE AO FOR COMPLETION OF ASSESSMENT. 5. IN THE RESULT, ASSESSEES APPEAL IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED ON 06-12-2018. SD/- SD/- (O.P. KANT) (H.S. SIDHU) ACCOUNTANT MEMBER JUD ICIAL MEMBER DT. 06-12-2018 SR BHATNAGAR COPY FORWARDED TO: - 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR, ITAT - TRUE COPY - BY ORDER, ASSISTANT REGISTRAR ITAT DELHI BENCHES