M/s Vishwanath Fincap (P) Ltd, New Delhi V. ITO, New Delhi

ITA 568/DEL/2009

• Counselvise Citation: [2010] 136 COUNSELVISE.COM (IT) 3768 (ITAT-DELHI)
• Duration Of Justice: 1 year(s) 3 month(s) 21 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 07-06-2010
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: H
• Next Hearing Date: 07-06-2010
• Assessment Year: 2004-2005
• Appeal Filed On: 16-02-2009
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ANSHUMAN PATNAIK SENIOR
• Assessee Lawyers: ASHOK MALIK
• Keywords: Opportunity of being heard; Set aside
• Section: 68

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH : H, NEW DELHI BEFORE SHRI C.L. SETHI, JUDICIAL MEMBER AND SHRI B.C. MEENA, ACCOUNTANT MEMBER ITA NO.568/DEL/2009 (ASSESSMENT YEAR : 2004-05) M/S. VISHWANATH FINCAP (P) LTD., VS. ITO, WARD 17 (4), SHRI KUNJ, B-1, BRIJWASAN ROAD, NEW DELHI. BRIJWASAN, NEW DELHI. (PAN : AAACV3916H) (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI ASHOK MALIK, CA REVENUE BY : SHRI ANSHUMAN PATNAIK, SENIOR DR O R D E R PER B.C. MEENA, ACCOUNTANT MEMBER : THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST THE ORDER OF THE CIT (APPEALS)-XIX, NEW DELHI DATED 17.12.2008 FOR THE A SSESSMENT YEAR 2004- 05. THE GROUNDS OF APPEAL READ AS UNDER :- 1. LEARNED CIT (A) HAS GROSSLY ERRED ON THE FACTS OF CASE AND IN LAW IN SUSTAINING IN ADDITION OF RS.3,00,000 /- MADE IN THE INCOME OF THE ASSESSEE BY THE A.O. U/S 68 OF TH E INCOME TAX ACT. 2. THE LEARNED CIT (A) HAS GROSSLY ERRED ON THE FAC TS OF THE CASE AND IN LAW IN SUSTAINING THE ADDITION OF RS.6, 000/- MADE ON PRESUMPTION THAT THE ASSESSEE MUST HAVE PAID COMMIS SION. 3. THE APPELLANT SEEKS LEAVE TO ADD OR TO AMEND THE FOREGOING GROUNDS OF APPEAL, IF IT BECOMES NECESSAR Y TO DO SO IN THE INTEREST OF JUSTICE. ITA NO.568/DEL/2009 2 2. AT THE OUTSET OF THE HEARING, THE LEARNED DR SUB MITTED THAT THERE WAS A CROSS APPEAL FILED BY THE REVENUE AND IN THAT CASE , DELETED ADDITION OF RS.7 LACS HAS BEEN RESTORED BACK TO THE FILE OF THE CIT (A) FOR DECIDING AFRESH THE ISSUE IN GROUND NO.1 REGARDING SUSTAINING THE ADDIT ION OF RS.3 LACS U/S 68 IS INEXTRICABLY RELATED TO THE GROUNDS RAISED IN THE R EVENUES APPEAL. THEREFORE, IN THE INTEREST OF JUSTICE, THIS ISSUE MAY ALSO BE RESTORED BACK TO THE FILE OF THE CIT (A) TO DECIDE THE SAME AFRESH. 3. WE HAVE HEARD BOTH THE SIDES ON THE ISSUE AND FR OM THE RECORDS, WE FIND THAT THE ASSESSING OFFICER MADE THREE ADDITION S U/S 68 IN RESPECT OF THE FOLLOWING : (I) M/S. NITI HOUSING DEVELOPMENT & RS.3,00,000/- FINANCE CORPORATION LTD. N-1, RAJA HOUSE, 31-32, NEHRU PLACE, NEW DELHI. (II) M/S. SUMA FINANCE INVESTMENT LTD. DA-4, VIKAS MARG, SHAKARPUR, NEW DELHI RS.4,00,00 0/- (III) M/S. GOLDMOON FISCAL SERVICES LTD. RS.3,00, 000/- 4-BALDEV DAS STREET, KOLKATA. CIT(A) DELETED THE ADDITION IN RESPECT OF M/S. SUMA FINANCE INVESTMENT LIMITED AND M/S. GOLDMOON FISCAL SERVICES LIMITED OF RS.4 LACS AND RS.3 LACS RESPECTIVELY. CIT (A) SUSTAINED THE ADDITION OF RS.3 LACS IN THE NAME OF M/S. NITI HOUSING DEVELOPMENT & FINANCE CORPORATION LIMITED ON WHICH ITA NO.568/DEL/2009 3 THE ASSESSEE IS IN APPEAL. THE ITAT IN THE REVENUE S APPEAL RESTORED THE ISSUE TO THE FILE OF THE CIT (A) BY HOLDING AS UNDE R : 6. WE HAVE HEARD THE CONTENTIONS OF LEARNED DR AND PERUSED THE MATERIAL AVAILABLE ON RECORD. FROM PER USAL OF THE LEARNED CIT (APPEALS)S ORDER, WE FIND THAT LEARNED FIRST APPELLATE AUTHORITY HAS REPRODUCED THE ASSESSMENT O RDER THEREAFTER THE DETAILS OF SHARE APPLICATION MONEY I N PARAGRAPH 9. THE CIT(APPEALS) THEREAFTER DISCUSSED THE POSITION OF LAW UP TO PARAGRAPH NO.23. LEARNED FIRST APPELLATE AUTHORITY NOWHERE ANALYZED THE FACTS AND CIRCUMSTANCES OF THE TWO SHA RE APPLICANTS I.E. M/S. SUMA FINANCE INVESTMENT LTD. A ND M/S. GOLDMOON FISCAL SERVICES LTD. THE ADDITION IN RESPE CT OF THESE TWO SHARE APPLICANTS HAVE BEEN DELETED. IN OUR OPIN ION, ASSESSING OFFICER HAS POINTED OUT THE DEFECTS IN TH E DETAILS OF ASSESSEE IN RESPECT OF THESE TWO SHARE APPLICANTS A LSO. LEARNED FIRST APPEL1ATE AUTHORITY OUGHT TO HAVE RECORDED A FINDING WHETHER IDENTITY OF THESE TWO APPLICANTS HAS BEEN P ROVED OR NOT. IN CASE IDENTITY IS PROVED, THEN ASSESSING OFFICER COULD HAVE INVESTIGATED THE CASES OF SHARE APPLICANTS. HE COUL D HAVE ISSUED NOTICE TO THOSE TWO APPLICANTS IF LAW PERMITS TO DO SO. IN THE ABSENCE OF ANY FINDING AT THE END OF LEARNED FIRST APPELLATE AUTHORITY COUPLED WITH THE ABSENCE OF ASSESSEE, WE ARE AT LOSS TO ARRIVE AT A FINAL CONCLUSION WHETHER THE FINDING OF THE ASSESSING OFFICER DESERVES TO BE UPHELD OR NOT, THE REFORE, IN THE INTEREST OF JUSTICE, WE DEEM IT APPROPRIATE TO SET ASIDE THE ISSUE TO THE FILE OF THE LEARNED CIT(APPEALS) FOR READJUD ICATION WITH REGARD TO THE DELETION OF THE ADDITION OF RS.7 LACS . IT IS NEEDLESS TO SAY THAT OBSERVATION MADE BY US WOULD NOT IMPAIR OR INJURE THE CASE OF ASSESSING OFFICER OR WOULD CAUSE ANY PR EJUDICE TO THE DEFENCE/EXPLANATION OF THE ASSESSEE. THE LEARN ED CIT (APPEALS) WILL PROVIDE DUE OPPORTUNITY OF HEARING T O THE ASSESSEE BEFORE RE-ADJUDICATING THE ISSUE. SINCE THE ISSUE REGARDING DELETION OF TWO ADDITIONS U/S 68 HAS BEEN RESTORED IN THE REVENUES APPEAL TO THE CIT (A) BY THE ITAT TO RE-ADJUDICATE THE ITA NO.568/DEL/2009 4 ISSUE, HENCE WE ARE OF THE VIEW THAT IN THE INTERES T OF JUSTICE, THIS ISSUE ALSO NEEDS TO BE RESTORED TO THE FILE OF CIT (A) FOR DEC IDING AFRESH, AFTER GIVING AN OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. 4. GROUND NO.2 IS REGARDING SUSTAINING THE ADDITION OF RS.6,000/- FROM THE COMMISSION PAID OF RS.20,000/-. THIS ISSUE IS ALSO RELATED TO THE ADDITIONS MADE U/S 68 IN RESPECT OF THE THREE PERSO NS. THEREFORE, IN THE INTEREST OF JUSTICE, THIS ISSUE IS ALSO RESTORED TO THE FILE OF THE CIT (A). 5. GROUND NO.3 IS GENERAL IN NATURE AND DOES NOT RE QUIRE ANY ADJUDICATION. 6. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN OPEN COURT ON THE 7 TH DAY OF JUNE 2009 AFTER THE CONCLUSION OF THE HEARING. SD/- SD/- (C.L. SETHI) (B.C. MEENA) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED : THE 7 TH DAY OF JUNE, 2009/TS COPY FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT 3. CIT 4. CIT(A)-XIX, NEW DELHI. 5. DR, ITAT. ASSTT.REGISTRAR ITAT, NEW DELHI.