Sh. Madan Lal Aggarwal, New Delhi V. ACIT, New Delhi

ITA 5366/DEL/2011

• Counselvise Citation: 536620114 RSA 2011
• Duration Of Justice: 3 year(s) 4 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 01-04-2015
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: E
• Next Hearing Date: 18-03-2015
• Assessment Year: 2007-2008
• Appeal Filed On: 01-12-2011
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: P DAM KANUNJHA
• Assessee Lawyers: DR RAKESH GUPTA
• Keywords: Additional evidence; Deemed dividend
• Section: 54F

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL IN THE INCOME TAX APPELLATE TRIBUNAL IN THE INCOME TAX APPELLATE TRIBUNAL IN THE INCOME TAX APPELLATE TRIBUNAL DELHI DELHI DELHI DELHI BENCH BENCH BENCH BENCH E EE E : NEW DELHI : NEW DELHI : NEW DELHI : NEW DELHI BEFORE SHRI G.C. GUPTA BEFORE SHRI G.C. GUPTA BEFORE SHRI G.C. GUPTA BEFORE SHRI G.C. GUPTA, VICE , VICE , VICE , VICE PRESIDENT AND PRESIDENT AND PRESIDENT AND PRESIDENT AND SHRI SHRI SHRI SHRI T.S. KAPOOR T.S. KAPOOR T.S. KAPOOR T.S. KAPOOR, , , , ACCOUNTANT ACCOUNTANT ACCOUNTANT ACCOUNTANT MEMBER MEMBER MEMBER MEMBER ITA NO ITA NO ITA NO ITA NO. .. .5366/DEL/2011 5366/DEL/2011 5366/DEL/2011 5366/DEL/2011 ASSESSMENT YEAR ASSESSMENT YEAR ASSESSMENT YEAR ASSESSMENT YEAR : : : : 2007 2007 2007 2007- -- -08 0808 08 SHRI MADAN LAL AGGARWAL, SHRI MADAN LAL AGGARWAL, SHRI MADAN LAL AGGARWAL, SHRI MADAN LAL AGGARWAL, 2343, CHHATTA SHAHJI, 2343, CHHATTA SHAHJI, 2343, CHHATTA SHAHJI, 2343, CHHATTA SHAHJI, CHAWRI BAZA CHAWRI BAZA CHAWRI BAZA CHAWRI BAZAR, R,R, R, DELHI DELHI DELHI DELHI 110 006. 110 006. 110 006. 110 006. PAN : AAAPA3021B. PAN : AAAPA3021B. PAN : AAAPA3021B. PAN : AAAPA3021B. VS. VS. VS. VS. ASSISTANT COMMISSIONER OF ASSISTANT COMMISSIONER OF ASSISTANT COMMISSIONER OF ASSISTANT COMMISSIONER OF INCOME TAX, INCOME TAX, INCOME TAX, INCOME TAX, CIRCLE CIRCLE CIRCLE CIRCLE- -- -29(1), 29(1), 29(1), 29(1), NEW DELHI. NEW DELHI. NEW DELHI. NEW DELHI. (APPELLANT) (RESPONDENT) APPELLANT BY : DR. RAKESH GUPTA, ADVOCATE. RESPONDENT BY : SHRI P. DAM KANUNJHA, SR.DR. DATE OF HEARING : 18.03.2015 18.03.2015 18.03.2015 18.03.2015 DATE OF PRONOUNCEMENT : 01.04.2015 01.04.2015 01.04.2015 01.04.2015 ORDER ORDER ORDER ORDER PER G.C. GUPTA PER G.C. GUPTA PER G.C. GUPTA PER G.C. GUPTA, VP , VP , VP , VP : :: : THIS APPEAL BY THE ASSESSEE FOR THE ASSESSMENT YEA R 2007-08 IS DIRECTED AGAINST THE ORDER OF LEARNED CIT(A)-XXV, N EW DELHI DATED 31 ST OCTOBER, 2011. 2. THE GROUNDS OF APPEAL NO.1 & 2 OF THE ASSESSEES APPEAL ARE AS UNDER:- 1. THAT HAVING REGARD TO THE FACTS AND CIRCUMSTANC ES OF THE CASE, LD.CIT(A) HAS ERRED IN LAW AND ON FACT S IN CONFIRMING THE ACTION OF LD.A.O. IN MAKING THE ADDI TION OF RS.35,53,308/- UNDER THE HEAD DEEMED DIVIDEND U/ S 2(22)(E) AND THAT TOO WITHOUT CONSIDERING THE SUBMISSIONS OF THE ASSESSEE AND MORE SO WHEN THERE WAS COMMERCIAL AND BUSINESS EXPEDIENCY FOR THE IMPUGNED AMOUNT HAVE BEEN GIVEN BY THE COMPANY. ITA-5366/DEL/2011 2 2. IN ANY VIEW OF THE MATTER AND IN ANY CASE, ACTI ON OF LD.AO IN TREATING A SUM OF RS.35,53,308/- AS DEE MED DIVIDEND U/S 2(22)(E) IS BAD IN LAW AND AGAINST THE FACTS AND CIRCUMSTANCES OF THE CASE. 3. AT THE OUTSET, LEARNED COUNSEL FOR THE ASSESSEE HAS SOUGHT THE PERMISSION OF THE TRIBUNAL TO FILE A NUMBER OF DOCU MENTS AS ADDITIONAL EVIDENCE IN SUPPORT OF THE CASE OF THE ASSESSEE WIT H REGARD TO ISSUE OF DEEMED DIVIDEND. HE SUBMITTED THAT THE SHOW CAUSE NOTICE IN THIS CASE WAS ISSUED ON 18 TH DECEMBER, 2009 BY THE ASSESSING OFFICER AND THE ASSESSMENT WAS FRAMED IN HASTE WITHIN SIX DAYS ON 24 TH DECEMBER, 2009 AND THE ASSESSEE WAS NOT GIVEN PROPER OPPORTUN ITY OF HEARING AND TO FILE EVIDENCE BEFORE THE ASSESSING OFFICER. 4. LEARNED DR HAS OPPOSED THE SUBMISSIONS OF THE LE ARNED COUNSEL FOR THE ASSESSEE. HE SUBMITTED THAT THE ASSESSEE S HOULD HAVE FILED NECESSARY EVIDENCE BEFORE THE ASSESSING OFFICER AT THE TIME OF ASSESSMENT ITSELF. HE REFERRED TO THE RELEVANT POR TION OF THE ORDER OF THE ASSESSING OFFICER AND THE CIT(A) IN SUPPORT OF THE CASE OF THE REVENUE. HE SUBMITTED THAT THE ASSESSEE COULD HAVE PREPARED ITS CASE EVEN PRIOR TO THE SHOW CAUSE NOTICE ISSUED BY THE ASSESSING OFFICER AND THAT THE NOTICE UNDER SECTION 143(2) WA S ISSUED EARLIER ALSO WHICH WAS SERVED ON 29 TH SEPTEMBER, 2009 ON THE ASSESSEE. HE SUBMITTED THAT THE CONDUCT OF THE ASSESSEE WAS NON- COOPERATIVE WITH THE DEPARTMENT. HE RELIED ON THE ORDER OF THE ASSE SSING OFFICER AND THE CIT(A). 5. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND HAV E PERUSED THE ORDER OF THE ASSESSING OFFICER AND THE CIT(A). WE FIND THAT THE ASSESSMENT IN THIS CASE WAS FRAMED UNDER SECTION 14 3(3) ON 24 TH DECEMBER, 2009 AND THE SHOW CAUSE NOTICE WAS SERVED ON THE ASSESSEE ON 18 TH DECEMBER, 2009. THE ASSESSEE HAS SOUGHT TO FILE ITA-5366/DEL/2011 3 ADDITIONAL EVIDENCE BEFORE THE TRIBUNAL IN SUPPORT OF ITS CASE. IN THE FACTS OF THE CASE, WE ARE OF THE VIEW THAT IT SHALL BE IN THE INTEREST OF JUSTICE TO RESTORE THE ISSUES IN THE GROUNDS OF APP EAL OF THE ASSESSEE TO THE FILE OF THE ASSESSING OFFICER WITH THE DIRECTIO N TO PASS A DE NOVO ASSESSMENT ORDER IN ACCORDANCE WITH LAW AFTER ALLOW ING DUE OPPORTUNITY TO THE ASSESSEE. THE ASSESSEE SHALL BE AT LIBERTY TO FILE ANY EVIDENCE IN SUPPORT OF ITS CASE. WE MAKE IT CLEAR THAT THE ISSUES IN THE OTHER GROUNDS OF APPEAL NO.3 & 4 OF THE ASSESSEE RE GARDING EXEMPTION UNDER SECTION 54F AND DISALLOWANCE OUT OF EXPENSES ARE ALSO RESTORED TO THE FILE OF THE ASSESSING OFFICER FOR FRESH ADJU DICATION AS PER LAW. WE DIRECT ACCORDINGLY. 6. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED FOR STATISTICAL PURPOSES. DECISION PRONOUNCED IN THE OPEN COURT ON 1 ST APRIL, 2015. SD/- SD/- ( (( ( T.S. KAPOOR T.S. KAPOOR T.S. KAPOOR T.S. KAPOOR ) )) ) (G. (G. (G. (G. C. GUPTA C. GUPTA C. GUPTA C. GUPTA ) )) ) ACCOUNTANT ACCOUNTANT ACCOUNTANT ACCOUNTANT MEMBER MEMBER MEMBER MEMBER VICE PRESIDENT VICE PRESIDENT VICE PRESIDENT VICE PRESIDENT VK. COPY FORWARDED TO: - 1. APPELLANT : SHRI MADAN LAL AGGARWAL, SHRI MADAN LAL AGGARWAL, SHRI MADAN LAL AGGARWAL, SHRI MADAN LAL AGGARWAL, 2343, CHHATTA S 2343, CHHATTA S 2343, CHHATTA S 2343, CHHATTA SHAHJI, CHAWRI BAZAR, HAHJI, CHAWRI BAZAR, HAHJI, CHAWRI BAZAR, HAHJI, CHAWRI BAZAR, DELHI DELHI DELHI DELHI 110 006. 110 006. 110 006. 110 006. 2. RESPONDENT : ASSISTANT COMMISSIONER OF INCOME TA X, ASSISTANT COMMISSIONER OF INCOME TAX, ASSISTANT COMMISSIONER OF INCOME TAX, ASSISTANT COMMISSIONER OF INCOME TAX, CIRCLE CIRCLE CIRCLE CIRCLE- -- -29(1), NEW DELHI. 29(1), NEW DELHI. 29(1), NEW DELHI. 29(1), NEW DELHI. 3. CIT 4. CIT(A) 5. DR, ITAT ASSISTANT REGISTRAR