Micro Max Technologies Pvt. Ltd., New Delhi V. ITO, New Delhi

ITA 5838/DEL/2012

• Counselvise Citation: [2013] 140 COUNSELVISE.COM (IT) 69338 (ITAT-DELHI)
• Duration Of Justice: 10 month(s) 21 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 10-10-2013
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: E
• Next Hearing Date: 08-10-2013
• Assessment Year: 2003-2004
• Appeal Filed On: 19-11-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: MRS RENUKA JAIN GU PTA
• Keywords: Unexplained cash credit; Opportunity of being heard; Reason to believe
• Section: 147

Judgement Text

ITA NO. 5838/DEL/2012 1 IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH E, NEW DELHI BEFORE SHRI SHAMIM YAHYA, ACCOUNTANT MEMBER AND SHRI C.M. GARG, JUDICIAL MEMBER I.T.A. NO. 5838/DEL/2012 A.Y. : 200 3 - 0 4 M/S MICRO MAX TECHNOLOGIES PVT. LTD., P-31, WEST PATEL NAGAR, NEW DELHI (PAN: AAACM7070M) VS. ITO, WARD 6(1), NEW DELHI (APPELLANT) (APPELLANT) (APPELLANT) (APPELLANT) (RESPONDENT) (RESPONDENT) (RESPONDENT) (RESPONDENT) ASSESSEE BY : SH. MANOJ KUMAR, CA DEPARTMENT BY : MRS. RENUKA JAIN GUPTA, SR. D.R. ORDER ORDER ORDER ORDER PER SHAMIM PER SHAMIM PER SHAMIM PER SHAMIM YAHYA: AM YAHYA: AM YAHYA: AM YAHYA: AM THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST T HE ORDER OF THE LD. COMMISSIONER OF INCOME TAX (APPEALS)-IX, NE W DELHI DATED 29.8.2012 PERTAINING TO ASSESSMENT YEAR 2003-04. 2. THE GROUNDS RAISED READ AS UNDER:- 1. LOOKING INTO THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE ADDITION OF RS. 2,04,000/- UND ER THE HEAD UNEXPLAINED CASH CREDIT U/S. 68 IS NOT TENABLE IN LAW AND LD. CIT(A) HAS ERRED IN SUSTAINI NG THE ADDITION ON UNTENABLE AND ILLEGAL GROUNDS. HENCE, THE ADDITION MADE, AS SUCH, MAY KINDLY BE DELETED. ITA NO. 5838/DEL/2012 2 2. LOOKING INTO THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD. CIT(A) HAS ERRED IN NOT PROVIDING THE SUFFICIENT OPPORTUNITY TO THE ASSESSE E AND IN DECIDING THE CASE EX-PARTE. HENCE, THE ORDER, AS SUCH, MAY KINDLY BE SET ASIDE AND SENT BACK TO THE FILE OF THE LD. CIT(A) FOR FRESH DISPOS AL. 3. THAT UNDER THE FACTS AND CIRCUMSTANCES OF THE CA SE AND IN LAW, THE LD. AO HAS ERRED IN INVOKING SECTION 147 SIMPLY ON THE BASIS OF INFORMATION AND WITHOUT HAVING ANY REASON TO BELIEVE AND APPLICATION OF HIS MIND THAT THE INCOME HAS ESCAPED ASSESSMENT. HENCE, THE ORDER PASSED ON THE BASIS OF SUCH A DEFECTIVE NOTICE IS IN FRUCTUOUS AND WITHOUT JURISDICTION AND LIABLE TO BE QUASHED AND DEMAND MAY BE VACATED. THE LD. CIT(A) HAS ERRED IN SUSTAINING SUCH ASSESSMENT ORDER ON ILLEGAL AN D UNTENABLE GROUNDS. HENCE, THE ASSESSMENT, AS SUCH, FOR LACK OF JURISDICTION UNDER SECTION 147 MA Y BE QUASHED. 4. THE UNDER THE FACTS AND CIRCUMSTANCES OF THE CAS E AND IN LAW, THE AO HAS ERRED IN LAW AS THE STATUTOR Y REQUIREMENT OF SECTION 151(2) REGARDING SATISFACTIO N BY THE JT. CIT IS ABSENT IN ABSENT IN THE FILE AND INSTEAD THE APPROVAL OF CIT-II, DELHI WAS TAKEN. TH E LD. CIT(A)-IX HAS ERRED IN SUSTAINING SUCH ASSESSMENT ORDER ON ILLEGAL AND UNTENABLE GROUNDS. HENCE, THE ASSESSMENT AS SUCH MAY BE QUASHED. 5. THAT UNDER THE FACTS AND CIRCUMSTANCES OF THE CA SE AND IN LAW, THE LD. AO HAS ERRED IN MAKING ADDITION ITA NO. 5838/DEL/2012 3 OF RS. 2,04,000/- U/S. 68 WHICH DEALS WITH UNEXPLAINED CASH CREDITS ON UNTENABLE AND ILLEGAL GROUNDS. THE CIT(A) ALSO HAS ERRED IN SUSTAINING TH E ADDITION WITHOUT PROVIDING SUFFICIENT OPPORTUNITY T O THE ASSESSEE. HENCE, THE ADDITION U/S. 68 IS IL LEGAL AND HENCE LIABLE TO BE VACATED. 6. THAT IT IS PRAYED THAT APPELLANT ASSESSEE MAY B E PERMITTED TO ADD, AMEND, DELETE OR SUBSTITUTE ANY GROUNDS OF APPEAL ON OR BEFORE OF THE DATE OF HEARING. 3. IN THIS CASE ASSESSMENT WAS FRAMED U/S 147 OF T HE I.T. ACT. IN THE ASSESSMENT AO MADE ADDITION ON ACCOUNT OF UNEXP LAINED CASH CREDIT AMOUNTING TO RS. 2.04 LACS. THE SAME CONSIS TED OF BOGUS ACCOMMODATION ENTRY OF RS. 2 LACS AND PLUS COMMISS ION @ 2% THEREON AMOUNTING TO RS. 4000/-. 4. UPON ASSESSEES APPEAL LD. CIT(A) CONFIRMED THE AOS ACTION. 5. AGAINST THE ABOVE ORDER THE ASSESSEE IS IN APPEA L BEFORE US. 6. AT THE OUTSET, LD. COUNSEL OF THE ASSESSEE SUBMI TTED THAT IN THIS CASE THE LD. CIT(A) HAS PASSED AN EXPARTE OR DER. HE PLEADED THAT SUFFICIENT OPPORTUNITY HAS NOT BEEN GIVEN TO THE ASSESSEE. HE SUBMITTED THAT APPELLATE ORDER WAS PASSED BY THE LD . CIT(A) IN THE MONTH OF AUGUST, 2012 BY GIVING THE ASSESSEE VERY S HORT OPPORTUNITY. IN THAT PERIOD, LD. COUNSEL OF THE AS SESSEE CONTENDED THAT ASSESSEES COUNSEL WAS BUSY IN TIME BARRING M ATTER RELATING TO INCOME TAX AS WELL AS COMPANIES ACT CASES. HENCE, LD. COUNSEL OF THE ASSESSEE PRAYED THAT THE MATTER MAY BE REMITTE D TO THE FILE OF THE LD. CIT(A) FOR CONSIDERATION AFTER ALLOWING TH E ASSESSEE ADEQUATE OPPORTUNITY OF BEING HEARD. ITA NO. 5838/DEL/2012 4 6.1 LD. DEPARTMENTAL REPRESENTATIVE ON THE OTHER HA ND SUBMITTED THAT ASSESSEE HAS NOT COOPERATED BEFORE THE LD. CIT (A). SHE SUBMITTED THAT IF THE MATTER IS BEING REMITTED TO T HE FILE OF THE LD. CIT(A), THE ASSESSEE SHOULD BE DIRECTED TO COOPERAT E IN THE HEARING. 7. WE HAVE CAREFULLY CONSIDERED THE SUBMISSIONS AND PERUSED THE RECORDS. ON THE FACTS AND CIRCUMSTANCES OF THE CASE , IN OUR CONSIDERED OPINION, INTEREST OF JUSTICE WILL BE SER VED IF THE MATTER IS REMITTED TO THE FILE OF THE LD. CIT(A). LD. CIT(A) IS DIRECTED TO CONSIDER THE ISSUE AFRESH, AFTER GIVING THE ASSESSE E ADEQUATE OPPORTUNITY OF BEING HEARD. WE HOLD AND DIRECT AC CORDINGLY. 8. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 10/10/2013, U PON CONCLUSION OF HEARING. SD/- SD/- [ [[ [C.M. GARG C.M. GARG C.M. GARG C.M. GARG] ]] ] [SHAMIM YAHYA] [SHAMIM YAHYA] [SHAMIM YAHYA] [SHAMIM YAHYA] JUDICIAL MEMBER JUDICIAL MEMBER JUDICIAL MEMBER JUDICIAL MEMBER ACCOUNTANT MEMBER ACCOUNTANT MEMBER ACCOUNTANT MEMBER ACCOUNTANT MEMBER DATE 10/10/2013 SRBHATNAGAR SRBHATNAGAR SRBHATNAGAR SRBHATNAGAR COPY FORWARDED TO: COPY FORWARDED TO: COPY FORWARDED TO: COPY FORWARDED TO: - -- - 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT (A) 5. DR, ITAT TRUE COPY BY ORDER, ASSISTANT REGISTRAR, ITAT, DELHI BENCHES ITA NO. 5838/DEL/2012 5