ACIT, New Delhi V. Shri Shiv Priya, Delhi

ITA 5595/DEL/2016

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The case involves appeals by the Revenue against the common order of the ld. CIT(A) -23, New Delhi, which pertained to Assessment Years 2012-13 to 2014-15. The primary grievance was the deletion of the addition made on account of benefit/perquisite under section 2(24)(iv) of the Income-tax Act, 1961, and the incorrect application of section 115BE of the Act. The Assessing Officer had initially made the addition by estimating the benefit at an interest rate of 6% per annum, which was later deleted by the CIT(A) based on a precedent in a similar case. The Tribunal, however, decided to set aside the matter to the Assessing Officer, directing a reconsideration in accordance with the Tribunal's previous decision in a similar case.

• Counselvise Citation: [2023] 140 COUNSELVISE.COM (IT) 300981 (ITAT-DELHI)
• Duration Of Justice: 6 year(s) 2 month(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 16-01-2023
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: G
• Next Hearing Date: 15-01-2023
• Assessment Year: 2014-2015
• Appeal Filed On: 27-10-2016
• Other Referred Cases: Anil Kumar Sharma vs. ITA Nos. 5597 to 5599/DEL/2016
• Laws Referred To: Income-tax Act, 1961
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Section: 139; 153A

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, DELHI ‘G’ BENCH, NEW DELHI BEFORE SHRI N.K. BILLAIYA, ACCOUNTANT MEMBER, AND SHRI ANUBHAV SHARMA, JUDICIAL MEMBER ITA No. 5593/DEL/2018 [A.Y. 2012-13 ITA No. 5594/DEL/2018 [A.Y. 2013-14 ITA No. 5595/DEL/2018 [A.Y. 2014-15 The A.C.I.T. Vs. Shri Shiv Priya Central Circle - 1 307, 3 rd Floor, Nipun Tower New Delhi Karkardooma Community Centre Ballabhgarh PAN: AGDPS 2265 G (Applicant) (Respondent) Assessee By : None Department By : Shri H.K. Choudhary, CIT- DR Date of Hearing : 16.01.2023 Date of Pronouncement : 17.01.2023 ORDER PER N.K. BILLAIYA, ACCOUNTANT MEMBER:- The above captioned appeals by the Revenue are preferred against the common order of the ld. CIT(A) -23, New Delhi dated 23.08.2016 pertaining to Assessment Years 2012-13 to 2014-15. 2 2. Since common grievance is involved in all the captioned three appeals, they were heard together and are disposed of by this common order for the sake of convenience and brevity. 3. The common grievance is that the ld. CIT(A) erred in deleting the addition made on account benefit/perquisite u/s 2(24)(iv) of the Income-tax Act, 1961 [hereinafter referred to as 'The Act'] and further erred in holding that provisions of section 115BE of the Act cannot be invoked. 4. Briefly stated, the facts of the case are that search was carried out on 09.09.2010 in the M/s Amrapali Group of cases, which included the assessee and a fresh search was carried out on 07.08.2013, again in the case of Amrapali Group including the assessee. Pursuant to the notice u/s 153A of the Act, the assessee was asked to file return of income for which the assessee stated that the return filed u/s 139 of the Act may be treated as return filed in response to notice u/s 153A of the Act. 5. During the course of scrutiny assessment proceedings, the Assessing Officer noticed that the assessee has shown receipt of 3 advance against property from M/s Amrapali Infrastructure Pvt Ltd. The assessee was show cause to submit details of property against which these advances have been received and further explain as to why not the benefit as determined by taking rate of interest @ 6% p.a. and should be added to his total income for the year under consideration. 6. In its reply, the assessee stated that facts do not invoke application of section 2(22)(iv) of the Act and further pointed out that similar additions were made in earlier years and the same were deleted by the ld. CIT(A) and the Tribunal has decided the issue. 7. The reply of the assessee was dismissed by the Assessing Officer who, invoking the provisions of section 2(22)(iv) of the Act, estimated the benefit by taking rate of interest @ 6% p.a. and made the impugned addition. 8. The assessee carried the matter before the ld. CIT(A) and the ld. CIT(A), while deciding the ground in the captioned Assessment Years, held as under: 4 “4.4 Ground No.4(a) in all the years is the substantive ground relating to the only addition made of Rs.21006124/- in all the three years on account of alleged benefit/perquisite under section 2(24)(iv) of the Act. The issue involved is similar to the facts of the case considered by me in the case of Sh. Anil Kumar Sharma vide my order, of even date in ITA. Nos. 113, 120 & 108/16-17 for AYs 2012-13 to 2014-15 at para-4.4 wherein I have deleted similar addition made for reasons mentioned therein. The addition in this case for all the three assessment years are also hereby deleted. This ground is accordingly allowed.” 9. Nobody appeared on behalf of the assessee inspite of repetitive notices since 23.07.2019. We, therefore, decided to proceed exparte. 10. The ld. DR, referring to the findings of the ld. CIT(A), drew our attention to the decision of the Tribunal in the case of Anil Kumar Sharma in ITA Nos. 5597 to 5599/DEL/2016 for Assessment Years 2012- 13 to 2014-15 and pointed out that the impugned issue has been set aside by the Tribunal. 11. We have given thoughtful consideration to the orders of the authorities below. We find that the ld. CIT(A) has not given any independent finding but has simply followed his decision in the case of Anil Kumar Sharma for the captioned Assessment Years. 5 12. We find that this Tribunal, vide order dated 17.02.2020, in the case of Anil Kumar Sharma [supra] had the occasion to consider the following grievance: “1. The order of Id. CIT (A) is not correct in law and on facts. 2. On the facts and circumstances of the case, the Ld. CIT(A) has erred in deleting the addition of Rs.4,64,50,348/- was made on account of ‘Benefit/perquisite u/s.2(24(iv) of the Income Tax Act, 1961. 3. That on the facts and circumstances of the case, Ld. CIT(A) has erred in holding that provisions of Section 115BBE of the Act cannot be invoked. 4. The appellant crave leave to add, amend any/all the ground of appeal before or during the course of hearing of the appeal.” 13. It can be seen from the above that the grounds of appeal are identical to the grounds of appeal taken in the present appeals. After considering the facts, the Tribunal held as under: 6 “6. Thus, respectfully following the aforesaid precedent in assessee’s own case, we restore all this issues raised before us to the file of the Assessing Officer for reconsideration as per the direction of the Tribunal. 7. In the result, all the appeals of the assessee are allowed for statistical purposes.” 14. On finding parity of facts, respectfully following the decision of the Tribunal, the captioned appeals are set aside to the file of the Assessing Officer with a direction that the impugned issue has to be decided in line with the decision taken in the case of Anil Kumar Sharma [supra]. 15. In the result, the appeals of the Revenue in ITA Nos. 5593 to 5595 /DEL/2016 are treated as allowed for statistical purposes. The order is pronounced in the open court on 17.01.2023. Sd/- Sd/- [ANUBHAV SHARMA] [N.K. BILLAIYA] JUDICIAL MEMBER ACCOUNTANT MEMBER Dated: 17 th January, 2023. VL/ 7 Copy forwarded to: 1. Appellant 2. Respondent 3. CIT 4. CIT(A) 5. DR Asst. Registrar, ITAT, New Delhi Date of dictation Date on which the typed draft is placed before the dictating Member Date on which the typed draft is placed before the Other Member Date on which the approved draft comes to the Sr.PS/PS Date on which the fair order is placed before the Dictating Member for pronouncement Date on which the fair order comes back to the Sr.PS/PS Date on which the final order is uploaded on the website of ITAT Date on which the file goes to the Bench Clerk Date on which the file goes to the Head Clerk The date on which the file goes to the Assistant Registrar for signature on the order Date of dispatch of the Order