SIDHARTHA RUBBER PVT. LTD., NEW DELHI V. ITO, WARD- 8(3), NEW DELHI

ITA 5538/DEL/2017

• Counselvise Citation: [2020] 111 COUNSELVISE.COM (IT) 8615 (ITAT-DELHI)
• Duration Of Justice: 2 year(s) 4 month(s) 20 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 20-01-2020
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2006-2007
• Appeal Filed On: 30-08-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SANJOG KAPOOR
• Keywords: Assessment record
• Section: 143(2); 147; 68; 148

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL, DELHI SMC BENCH, NEW DELHI BEFORE SHRI H.S. SIDHU, JUDICIAL MEMBER ITA NO. 5538 & 5539/DEL/2017 [ASSESSMENT YEARS: 2006-07 & 2007-08] M/S SIDHARTHA RUBBER PVT. LTD. VS. ITO, WARD 8(3), T-306, VIKAS CHAMBER C.R. BLDG., NEW DELHI D-BLOCK, CENTRAL MARKET, PRASHANT VIHAR, NEW DELHI (PAN: AAICS5291A) [APPELLANT] [RESPONDENT] ASSESSEE BY: NONE REVENUE BY : SH. SANJOG KAPOOR, SR. DR. ORDER THESE APPEALS ARE FILED BY THE ASSESSEE AGAINST TH E RESPECTIVE ORDERS OF THE LD. COMMISSIONER OF INCOME TAX [APPEA LS]-22, NEW DELHI BOTH DATED 08.06.2017 PERTAINING TO ASSESSMENT YEAR S 2006-07 & 2007- 08. SINCE THE ISSUES INVOLVED IN THESE APPEALS ARE COMMON, HENCE, THE APPEALS WERE HEARD TOGETHER AND FOR THE SAKE OF CON VENIENCE, I AM REPRODUCING THE GROUNDS OF BOTH THE ASSESSMENT YEAR S AS UNDER:- AY 2006-07 1. ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) HAS ERRED IN LAW IN UPHOLDING THE VALIDITY OF PROCE EDINGS U/S. 147 READ WITH SECTION 148 OF THE ACT. 2. ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) HAS ERRED IN LAW IN UPHOLDING THE VALIDITY OF ASSES SMENT WITHOUT APPRECIATING THE FACT THAT NO OPPORTUNITY O F CROSS EXAMINATION / MATERIAL HAS BEEN PROVIDED TO THE ASS ESSEE. 2 3. WITHOUT PREJUDICE TO THE GROUND NO1 ABOVE. ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) HAS ERRED IN LAW IN UPHOLDING THE ADDITION OF RS. 20 LACS MADE U /S. 68 OF THE ACT ON ACCOUNT OF SHARE APPLICATION MONEY RE CEIVED. 4. WITHOUT PREJUDICE TO THE GROUND 1 ABOVE. ON THE FA CTS AND CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) HAS ERRED IN LAW IN UPHOLDING THE ADDITION OF RS. 50,000/- MADE U/S. 68 OF THE ACT ON ACCOUNT OF COMMISSION PAID. 5. THAT THE APPELLANT CRAVES LEAVE TO ADD, ALTER OR DE LETE THE ABOVE GROUNDS OF APPEAL AT THE TIME OF HEARING. 6. ON FACTS AND CIRCUMSTANCES OF THE CASE, THE LD. CI T(A) HAS ERRED IN LAW IN UPHOLDING THE VALIDITY OF PROCEEDIN GS AY 2007-08 1. ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) HAS ERRED IN LAW IN UPHOLDING THE VALIDITY OF PROCE EDINGS U/S. 147 READ WITH SECTION 148 OF THE ACT. 2. ON FACTS AND CIRCUMSTANCES OF THE CASE, THE LD. CIT (A) HAS ERRED IN LAW IN UPHOLDING THE VALIDITY OF ASSESSMEN T IGNORING THE FACT THAT NO STATUTORY NOTICE U/S. 14 3(2) HAS BEEN ISSUED BY THE AO BEFORE COMPLETION OF ASSESSM ENT. 3. ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) HAS ERRED IN LAW IN UPHOLDING THE VALIDITY OF ASSES SMENT WITHOUT APPRECIATING THE FACT THAT NO OPPORTUNITY O F CROSS EXAMINATION / MATERIAL HAS BEEN PROVIDED TO THE ASS ESSEE. 4. WITHOUT PREJUDICE TO THE GROUND NO 1 ABOVE. ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) HAS ERRED IN LAW IN UPHOLDING THE ADDITION OF RS. 20 LACS MADE U /S. 68 OF THE ACT ON ACCOUNT OF SHARE APPLICATION MONEY RE CEIVED. 5. WITHOUT PREJUDICE TO THE GROUND 1 ABOVE. ON THE FA CTS AND CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) HAS ERRED IN LAW 3 IN UPHOLDING THE ADDITION OF RS. 40,000/- MADE U/S. 68 OF THE ACT ON ACCOUNT OF COMMISSION PAID. 6. THAT THE APPELLANT CRAVES LEAVE TO ADD, ALTER OR DE LETE THE ABOVE GROUNDS OF APPEAL AT THE TIME OF HEARING. 7. ON FACTS AND CIRCUMSTANCES OF THE CASE, THE LD. CI T(A) HAS ERRED IN LAW IN UPHOLDING THE VALIDITY OF PROCEEDIN GS 2. FACTS NARRATED BY THE REVENUE AUTHORITIES ARE NO T DISPUTED, HENCE, THE SAME ARE NOT REPEATED HERE FOR THE SAKE OF CONV ENIENCE. 3. IN THIS CASE, NOTICE OF HEARING TO THE ASSESSEE WAS SENT BY THE REGISTERED AD POST, IN SPITE OF THE SAME, ASSESSEE, NOR HIS AUTHORIZED REPRESENTATIVE APPEARED TO PROSECUTE THE MATTER IN DISPUTE, NOR FILED ANY APPLICATION FOR ADJOURNMENT. KEEPING IN VIEW THE FA CTS AND CIRCUMSTANCES OF THE PRESENT CASE AND THE ISSUE INVOLVED IN THE P RESENT APPEAL, I AM OF THE VIEW THAT NO USEFUL PURPOSE WOULD BE SERVED TO ISSUE NOTICE AGAIN AND AGAIN TO THE ASSESSEE, THEREFORE, I AM DECIDING TH E PRESENT APPEAL EXPARTE QUA ASSESSEE, AFTER HEARING THE LD. DR AND PERUSING THE RECORDS. 4. I HAVE HEARD THE LD. DR AND PERUSED THE ORDERS P ASSED BY THE REVENUE AUTHORITIES ALONGWITH THE WRITTEN SUBMISSIO NS FILED BY THE LD. DR AND PAPER BOOK FILED BY THE LD. COUNSEL FOR THE AS SESSEE IN THESE TWO APPEALS. LD. COUNSEL FOR THE ASSESSEE HAS ALSO FILE D VARIOUS DOCUMENTARY EVIDENCES FOR SUBSTANTIATING THE CLAIM OF THE ASSES SEE. THE ISSUE INVOLVED IN THESE APPEALS IS RELATING TO ADDITION OF RS. 20 LACS IN EACH APPEAL ON ACCOUNT OF ACCOMMODATION ENTRY. IN VIEW OF THE DOC UMENTARY EVIDENCES DETECTED BY THE SEARCH PARTY OF INVESTIGATION WING, AFTER THE PRESCRIBED PROCEDURE, UNDER THE LAW, THE AO MADE THE ADDITION IN DISPUTE OF RS. 20 LACS IN EACH CASE AND @2.5% AS COMMISSION WAS CHARG ED ON ACCOUNT OF GETTING THE SAID ACCOMMODATION ENTRY. IN THE APPEAL FILED BY THE ASSESSEE AGAINST BOTH THE ASSESSMENT ORDERS, THE LD. CIT(A) HAS ADJUDICATED AND DECIDED THE ISSUES RAISED BY THE ASSESSEE IN THE GR OUNDS OF APPEAL IN A SUMMARY MANNER AND HAS NOT DISCUSSED ANY DOCUMENTAR Y EVIDENCES FILED 4 BY THE ASSESSEE MEANING THEREBY THE LD. CIT(A) HAS PASSED A NON- SPEAKING ORDER WHICH IS NOT SUSTAINABLE IN THE EYES OF LAW. LD. CIT(A) HAS NOT PERUSED THE ASSESSMENT RECORD TO REPLY THE NON -ISSUANCE OF NOTICE U/S. 143(2) OF THE ACT AND LD. CIT(A) HAS ALSO NOT MENTIONED THE REASONS RECORDED AND THE APPROVAL GIVEN BY THE COMPETENT A UTHORITY BEFORE ISSUANCE OF NOTICE U/S. 148 OF THE ACT. LD. CIT(A) HAS ALSO NOT COMMENTED THAT WHAT MATERIAL IS IN THE POSSESSION OF THE AO B EFORE ISSUANCE OF NOTICES U/S. 148 OF THE ACT. LD. CIT(A) HAS ALSO N OT SPECIFICALLY MENTIONED ABOUT THE NOTICE ISSUED AND SERVED UPON THE ASSESSE E FOR PRODUCTION OF DIRECTORS OF THE COMPANY FROM WHERE THE ASSESSEE HA S PURCHASED THE SHARES IN DISPUTE. 4.1 I HAVE GONE THROUGH THE ORDERS PASSED BY THE RE VENUE AUTHORITIES AS WELL AS THE PAPER BOOKS FILED BY THE ASSESSEE CO NTAINING PAGES 1-130 CERTIFIED BY THE LD. AR OF THE ASSESSEE THAT SAID DOCUMENTS / INFORMATION WAS SUBMITTED BEFORE THE REVENUE AUTHORITIES BELOW. I HAVE GONE THROUGH THE DOCUMENTARY EVIDENCES FILED BY THE ASSE SSEE IN THE SHAPE OF PAPER BOOK DATED 19.2.2018 IN BOTH THE CASES AND FO UND THAT THE ASSESSEE HAS FILED SUFFICIENT EVIDENCES FOR SUBSTAN TIATING ITS CLAIM BEFORE THE AUTHORITIES BELOW, BUT THE SAME HAS NOT BEEN TH OROUGHLY EXAMINED BY BOTH THE AUTHORITIES BELOW. IN MY VIEW THE IMPUGNE D ORDER IS NON- SPEAKING ORDER AND IS NOT SUSTAINABLE IN THE EYES O F LAW. BUT KEEPING IN VIEW THE SENSITIVENESS OF THE ISSUE REGARDING BOGU S SHARES APPLICATION MONEY RECEIVED BY VARIOUS BENEFICIARIES FROM THE BO GUS SHARE HOLDERS COMPANY THROUGH COMMISSION AGENTS, I AM FULLY CONV INCED THAT THE ISSUE INVOLVED IN THESE TWO APPEALS REQUIRE THOROUGH INVE STIGATION AT THE LEVEL OF THE LD. CIT(A) WITH THE CLEAR DIRECTIONS THAT SE PARATE PAPER BOOKS FILED BY THE ASSESSEE CONTAINING PAGES 1-130 IN EACH CASE BE THOROUGHLY EXAMINED AND PASSED A WELL REASONED AND SPEAKING OR DER AFTER SEEKING THE REMAND REPORT FROM THE AO AS REQUIRED UNDER THE LAW AS WELL AS AFTER PROVIDING FULL OPPORTUNITY OF HEARING AS WELL AS FO R PRODUCING THE EVIDENCES FOR SUBSTANTIATING THE CLAIM OF THE ASSES SEE. I HOLD AND DIRECT ACCORDINGLY. 5 5. IN THE RESULT, BOTH THE APPEALS OF THE ASSESS EE ARE ALLOWED FOR STATISTICAL PURPOSES. THE ORDER PRONOUNCED ON 20.01.2020. SD/- [H.S. SIDHU] JUDICIAL MEMBER DATED: 20-01-2020 SRB COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) ASST. REGISTRAR, 5. DR ITAT, NEW DELHI