M/s. Smartspace Infrastructure Pvt. Ltd., New Delhi V. ITO, New Delhi

ITA 5762/DEL/2014

• Counselvise Citation: [2018] 121 COUNSELVISE.COM (IT) 5874 (ITAT-DELHI)
• Duration Of Justice: 3 year(s) 7 month(s) 2 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-05-2018
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: G
• Assessment Year: 2011-2012
• Appeal Filed On: 28-10-2014
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: KAUSHLENDRA TIWARI
• Keywords: Unexplained cash credit
• Section: 142(1); 68

Judgement Text

1 ITA NO. 5762/DEL/2014 IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH: G NEW DELHI BEFORE SHRI N. K. SAINI, ACCOUNTANT MEMBER AND MS SUCHITRA KAMBLE, JUDI CIAL MEMBER ITA NO. 5762/DEL/2014 ( A.Y 2011-12) SMART SPACE INFRASTRUCTURE PVT. LTD. 67, FRIENDS COLONY WEST NEW DELHI AAJCS2713E (APPELLANT) VS ITO WARD-9(1) NEW DELHI (RESPONDENT) APPELLANT BY SH. ANIL BHALLA, CA RESPONDENT BY SH. KAUSHLENDRA TIWARI, SR. DR ORDER PER SUCHITRA KAMBLE, JM THIS APPEAL IS FILED BY THE ASSESSEE AGAINST THE OR DER DATED 03/09/2014 PASSED BY CIT(A)-XII, NEW DELHI FOR ASSESSMENT YEAR 2011-12. 2. THE GROUNDS OF APPEAL ARE AS UNDER:- 1. THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) HAS ERRED BOTH ON FACTS AND IN LAW IN UPHOLDING THE DECISION OF LEARN ED ASSESSING OFFICER IN MAKING AN ADDITION U/S 68 ON ACCOUNT OF UNEXPLAINED CASH CREDITS OF RS.56,75,000/-. 3. THE ASSESSEE FILED RETURN OF INCOME ON 29.09 .2011 DECLARING AT LOSS OF RS.69,547/-. THE RETURN WAS PROCESSED U/S 143(1) OF THE I.T. ACT, 1961. DATE OF HEARING 28.05.2018 DATE OF PRONOUNCEMENT 30.05.2018 2 ITA NO. 5762/DEL/2014 THEREAFTER THE CASE WAS SELECTED FOR SCRUTINY THROU GH CASS (COMPUTER ASSISTED SCRUTINY SELECTION). NOTICES U/S 143(21 AN D 142(1) OF THE INCOME TAX ACT, 1961 WERE ISSUED. IN RESPONSE, CHARTERED A CCOUNTANT / AUTHORISED REPRESENTATIVE OF THE ASSESSEE ATTENDED THE PROCEED INGS FROM TIME TO TIME AND SUBMITTED THE DETAILS ASKED FOR BOOKS OF ACCOUN TS WERE PRODUCED AND EXAMINED ON TEST CHECK BASIS. DURING THE YEAR UNDER CONSIDERATION THE ASSESSEE COMPANY HAS SHOWN ITS OBJECT OF CARRYING O N INFRASTRUCTURE ACTIVITIES, THOUGH THE ASSESSEE DURING THE YEAR UND ER CONSIDERATION HAS NOT UNDERTAKEN ANY BUSINESS ACTIVITY. DURING THE COURSE OF ASSESSMENT PROCEEDINGS THE ASSESSING OFFICER OBSERVED THAT HUG E AMOUNT HAS BEEN CREDITED IN THE BANK ACCOUNTS OF THE ASSESSEE. VIDE ORDER SHEET DATED 21/11/2013 THE ASSESSEE WAS SPECIFICALLY ASKED TO E XPLAIN THE SOURCE OF THESE CASH DEPOSITS IN THE ACCOUNTS OF THE ASSESSEE . BUT INSTEAD OF PRODUCING THE EXPLANATION THE ASSESSEE HAD MERELY PRODUCED BA NK STATEMENT BEFORE THE UNDERSIGNED. THEREAFTER VIDE ORDER SHEET ENTRY DATE D 26/02/2014 THE ASSESSEE WAS AGAIN ASKED TO PRODUCE CASH BOOK FOR T HE YEAR UNDER CONSIDERATION BUT INSTEAD OF PRODUCING THE SAME THE ASSESSEE HAD PRODUCED THE CASH BOOK FOR F. Y. 2005-06 TO 2009-10. THE ASS ESSING OFFICER FURTHER OBSERVED THAT THE ASSESSEE RECEIVED AN AMOUNT OF RS . 37,50,000/- IN CASH IN THE BANK ACCOUNT NO. 302010200004268 FROM 01/04/201 0 TO 30/04/2010, RS, 8,25,000/ - IN CASH DURING THE PERIOD 0L/07/201 0 TO 31/07/2010 AND RS 5,00,000/- IN CASH DURING THE PERIOD 01/11/2010 TO 31/11/2010 IN THE ACCOUNT NO 473010200003155 OF THE AXIS BANK. FURTHE R, THE ASSESSEE ALSO RECEIVED RS. 1,00,000/- IN CASH ON 07/10/2010 AND R S 5,00,000/- ON 15/12/2010 IN THE ACCOUNT ON 157010200006361 OF THE AXIS BANK. THE ASSESSING OFFICER HELD THAT THE ASSESSEE FAILED TO EXPLAIN THE SOURCE OF THE CASH CREDIT IN ITS BOOKS OF ACCOUNTS. I HAVE NO OTHER OPTION EXCEP T TO TAX THE SAME IN ACCORDANCE WITH THE PROVISIONS OF SECTION 68 OF THE INCOME TAX ACT. THEREFORE, A SUM AMOUNT OF RS. 56,75,000/- WAS ADDED TO THE TOTAL TA XABLE INCOME OF THE ASSESSEE COMPANY. 3 ITA NO. 5762/DEL/2014 4. BEING AGGRIEVED BY THE ASSESSMENT ORDER, THE ASS ESSEE FILED APPEAL BEFORE THE CIT (A). THE CIT (A) DISMISSED THE APPEAL OF T HE ASSESSEE. 5. THE LD. AR SUBMITTED THAT THE CIT (A) AS WELL AS THE ASSESSING OFFICER HAS NOT CONSIDERED THE EVIDENCE PRODUCED BEFORE THE AUTHORITIES. THEREFORE, THE MATTER MAY BE REMANDED BACK TO THE FILE OF THE ASSESSING OFFICER. 6. THE LD. DR RELIED UPON THE ORDER OF THE CIT (A) AND ASSESSMENT ORDER BUT DID NOT OBJECT FOR REMANDING BACK TO THE MATTER OF THE ASSESSING OFFICER. 7. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE M ATERIAL AVAILABLE ON RECORD. IT IS PERTINENT TO NOTE THAT THE DOCUMENTS WHICH WERE PRODUCED BEFORE THE ASSESSING OFFICER AS WELL AS THE CIT(A) HAS NOT AT ALL BEEN CONSIDERED BY BOTH THE REVENUE AUTHORITIES. THEREFORE, IT WILL B E APPROPRIATE TO REMAND THIS MATTER FOR FRESH TO THE FILE OF THE ASSESSING OFFIC ER. NEEDLESS TO SAY, THE ASSESSEE BE GIVEN OPPORTUNITY OF HEARING BY FOLLOWI NG PRINCIPLE OF NATURAL JSUTICE. 8. IN RESULT, THE APPEAL OF THE ASSESSEE IS PARTLY ALLOWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED IN THE OPEN COURT ON 30 TH MAY, 2018 . SD/- SD/- (N. K. SAINI) (SUCHITRA KAMBLE) ACCOUNTANT MEMBER JUDICIAL MEM BER DATED: 30/05/2018 R. NAHEED COPY FORWARDED TO: 4 ITA NO. 5762/DEL/2014 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT ASSISTANT REGISTRAR ITAT NEW DELHI DATE 1. DRAFT DICTATED ON 28/05/2018 PS 2. DRAFT PLACED BEFORE AUTHOR 28/05/2018 PS 3. DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER .2018 JM/AM 4. DRAFT DISCUSSED/APPROVED BY SECOND MEMBER. JM/AM 5. APPROVED DRAFT COMES TO THE SR.PS/PS 30.05.2018 PS/PS 6. KEPT FOR PRONOUNCEMENT ON PS 7. FILE SENT TO THE BENCH CLERK 3 0 .05.2018 PS 8. DATE ON WHICH FILE GOES TO THE AR 9. DATE ON WHICH FILE GOES TO THE HEAD CLERK. 10. DATE OF DISPATCH OF ORDER.