ACIT, New Delhi V. Shri Anil Kumar Sharma, Delhi

ITA 5597/DEL/2016

• Counselvise Citation: [2020] 111 COUNSELVISE.COM (IT) 5108 (ITAT-DELHI)
• Duration Of Justice: 3 year(s) 3 month(s) 20 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 17-02-2020
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2012-2013
• Appeal Filed On: 28-10-2016
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Keywords: Notional interest; Set aside
• Section: 48

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH A NEW DELHI BEFORE SHRI AMIT SHUKLA, JUDICIAL MEMBER & SHRI DR. B.R.R. KUMAR, ACCOUNTANT MEMBER I.T.AS. NO.5597, 5598 & 5599/DEL/2016 ASSESSMENT YEARS 2012-13, 2013-14 & 2014-15 ACIT, CENTRAL CIRCLE-1, NEW DELHI. V. ANIL KUMAR SHARMA, 83, AGCR ENCLAVE, NIPUN TOWER, KARKARDOOMA COMMUNITY CENTRE, DELHI. TAN/PAN: AUTPS 1076K (APPELLANT) (RESPONDENT) APPELLANT BY: SHRI AMIT JAIN, SR.DR RESPONDENT BY: NONE DATE OF HEARING: 10 02 2020 DATE OF PRONOUNCEMENT: 17 02 2020 O R D E R PER AMIT SHUKLA, J.M.: THE AFORESAID APPEALS HAVE BEEN FILED BY THE REVENU E AGAINST THE COMMON IMPUGNED ORDER DATED 23.08.2016, PASSED BY LD. COMMISSIONER OF INCOME TAX (APPEALS)- XXIII, NEW DELHI FOR THE QUANTUM OF ASSESSMENT PASSED U/S.153A/143(3) FOR THE ASSESSMENT YEARS 2012-13, 2 013-14 AND 2014-15. THE COMMON GROUNDS RAISED IN ALL THE A PPEALS READ AS UNDER: 1. THE ORDER OF LD. 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 I.T.AS. NO.5597, 5598, 5599/DEL/2016 2 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 115 BBE 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. 2. AT THE OUTSET, BOTH THE PARTIES ADMITTED THAT IN THE EARLIER YEARS, SIMILAR ISSUE HAD COME UP FOR CONSID ERATION BEFORE THE TRIBUNAL, WHEREIN THE TRIBUNAL HAS REMAN DED BACK THIS ISSUE TO THE FILE OF THE ASSESSING OFFICER. 3. THE FACTS IN BRIEF ARE THAT IN ALL THE THREE YEA RS, ASSESSING OFFICER HAS NOTED THAT ASSESSEE HAS RECEI VED ADVANCE AGAINST PROPERTY FROM THE FOLLOWING COMPANI ES: S. NO. NAME OF ENTITY/CONCERN AMOUNT OF ADVANCE (IN RS.) 1. M/S. AMRAPALI INFRASTRUCTURE PVT. LTD. (ADVANCE AGAINST PROPERTY) 73,19,50,557/- 2. M/S. HI TECH CITY DEVELOPERS PVT. LTD. (ADVANCE AGAINST PROPERTY) 4,22,21,918/- TOTAL 77,41,72,475/- 4. THE ASSESSING OFFICER HELD THAT THE AMOUNT HAS B EEN RECEIVED BY THE ASSESSEE AS A DIRECTOR WITHOUT ANY INTEREST, AND THEREFORE, IN TERMS OF PROVISION OF SECTION 2(2 4)(IV), THE INTEREST FREE ADVANCE RECEIVED BY THE DIRECTORS IS TO BE TREATED AS BENEFIT/PERQUISITE RECEIVED BY HIM, BECAUSE HE I S THE PERSON WHO HAS CONTROLLED THE AFFAIRS OF THESE TWO COMPANIES I.T.AS. NO.5597, 5598, 5599/DEL/2016 3 AND ALSO OTHER COMPANIES. ACCORDINGLY, HE CALCULATE D THE BENEFIT BY TAKING THE RATE OF INTEREST @ 6% PER ANN UM, WHICH WORKED OUT TO RS.4,64,50,348/-. LD. CIT(A) HAS DELE TED THE ADDITION ON THE GROUND THAT IN THE EARLIER YEARS, T HIS ISSUE HAS BEEN DECIDED IN FAVOUR OF THE ASSESSEE BY THE T HEN LD. CIT(A) WHEREIN THE ADDITION OF NOTIONAL INTEREST HA S BEEN DELETED AND SAME HAS BEEN AFFIRMED BY THE TRIBUNAL. 5. BEFORE US, LD. DR HAS FILED THE COPY OF ITAT O RDER IN ITA NO.6780/DEL/2013 FOR THE ASSESSMENT YEAR 2011-12 WH EREIN THE TRIBUNAL HAS DEALT AND DECIDED THIS ISSUE BY FO LLOWING THE ORDER OF THE TRIBUNAL IN ASSESSMENT YEAR 2009-10 IN ITA NO.4836/DEL/2014 WHICH READS AS UNDER:- 7. AFTER CONSIDERING THE SUBMISSIONS OF THE LD. D. R, WE ARE OF THE VIEW THAT THE MATTER REQUIRES RECONSIDER ATION AT THE LEVEL OF THE A.O. THE LD. CIT(A) IN THIS CASE F OLLOWING HIS ORDER FOR THE A.Y. 2010-2011 ALLOWED THE APPEAL OF ASSESSEE. THE LD. D.R. HOWEVER FILED COPY OF THE OR DER OF THE TRIBUNAL DATED 26.03.2018 IN THE CASE OF SAME ASSESSEE IN WHICH FOR A.Y. 2009-2010 IN ITA.NO.4836/DEL./2014, THE TRIBUNAL HAS CONSIDERED THE SIMILAR ISSUE IN DEPARTMENTAL APPEAL ON GROUND NO.3 - ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LD. CI T(A) HAS ERRED IN DELETING THE ADDITION OF RS. 34,06,230/- M ADE BY THE A.O. ON ACCOUNT OF BENEFIT OF PERQUISITE UNDER SECTION 2(24)(IV) OF THE I.T. ACT, 1961. THE LD. D.R. REFE RRED TO THE FINDINGS OF THE TRIBUNAL IN PARA 48 OF THE ORDER WH ICH READS AS UNDER : I.T.AS. NO.5597, 5598, 5599/DEL/2016 4 48. (IV) IN VIEW OF ABOVE FINDINGS, WE SET ASIDE GROUND NO. 3 OF THE APPEAL OF THE REVENUE TO THE FILE OF THE LD. AS SESSING OFFICER WITH A DIRECTION TO THE ASSESSEE TO SHOW BEFORE HIM THAT HOW THE ABOUT TRANSACTION OF RECEIVING LOAN FROM A FIRM TO THE ASSESSEE FREE OF INTEREST WHERE A COMPANY WHERE THE ASSESSEE IS DIRECTOR WHICH IS PROVIDED HUGE INTERES T FREE FUNDS TO SUCH FIRM IS NOT CHARGEABLE TO TAX AS INCOME UND ER SECTION 2(24)(IV) OF THE ACT. THE LD. AO MAY EXAMINE THE AR GUMENTS OF THE ASSESSEE AND DECIDE THE ISSUE AFRESH IN ACCORDA NCE WITH THE LAW AFTER GRANTING ASSESSEE ADEQUATE OPPORTUNIT Y OF HEARING. ACCORDINGLY, GROUND NO. 3 OF THE APPEAL OF THE REVENUE IS ALLOWED WITH ABOVE DIRECTION. 8. THE LD. D.R, THEREFORE, CONTENDED THAT THE ISSUE IS COVERED AND THE MATTER REQUIRES RECONSIDERATION AT THE LEVEL OF THE A.O. AS DIRECTED BY THE TRIBUNAL ABOVE. 9. FOLLOWING THE REASONS FOR DECISION OF THE COORDI NATE BENCH OF THE TRIBUNAL, WE SET ASIDE THE ORDERS OF T HE AUTHORITIES BELOW AND RESTORE THE MATTER IN ISSUE T O THE FILE OF A.O. FOR RECONSIDERATION AS IS DIRECTED BY THE T RIBUNAL VIDE ORDER DATED 26.03.2018 (SUPRA). THE DEPARTMENT AL APPEAL IS ALLOWED FOR STATISTICAL PURPOSES. HOWEVER , THE CROSS OBJECTION OF THE ASSESSEE IS DISMISSED AS HAS BECOME INFRUCTUOUS BECAUSE IT WAS FILED MERELY IN SUPPORT OF THE ORDER OF THE LD. CIT(A) WHICH IS SET ASIDE. 6. THUS, RESPECTFULLY FOLLOWING THE AFORESAID PRECE DENT IN ASSESSEES OWN CASE, WE RESTORE ALL THIS ISSUES RAISED BEFORE US TO THE FILE OF THE ASSESSING OFFICER FOR I.T.AS. NO.5597, 5598, 5599/DEL/2016 5 RECONSIDERATION AS PER THE DIRECTION OF THE TRIBUNA L. 7. IN THE RESULT, ALL THE APPEALS OF THE ASSESSEE A RE ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 17 TH FEBRUARY, 2020. SD/- SD/- [DR. B.R.R. KUMAR] [AMIT SHUKLA] ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: FEBRUARY, 2020 PKK: