Baring Pvt. Equity Partners (India) Pvt. Ltd., New Delhi V. DCIT, New Delhi

ITA 5862/DEL/2016

• Counselvise Citation: [2020] 111 COUNSELVISE.COM (IT) 7736 (ITAT-DELHI)
• Duration Of Justice: 3 year(s) 2 month(s) 13 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-01-2020
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: A
• Assessment Year: 2012-2013
• Appeal Filed On: 16-11-2016
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Keywords: Opportunity of being heard; Set aside

Judgement Text

BARING PVT. EQUITY PARTNERS (INDIA) PVT. LTD. VS. D CIT/ I.T.A.NO.5862/DEL/2016/A.Y.2012-13 PAGE 1 OF 4 IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH A NEW DELHI BEFORE SHRI BHAVNESH SAINI, JUDICIAL MEMBER AND SHRI N.K. BILLAIYA, ACCOUNTANT MEMBER . . /. I.T.A NO.5862/DEL/2016 / ASSESSMENT YEAR:2012-13 BARING PVT. EQUITY PARTNERS (INDIA) PVT. LTD. A-16/9, VASANT VIHAR, NEW DELHI. VS. DCIT CIRCLE-4(1) NEW DELHI. PAN NO. AACCB5013B APPELLANT / RESPONDENT /ASSESSEE BY SHRI M.P. RASTOGI, ADV. /REVENUE BY NONE / DATE OF HEARING: 2 9 .0 1.20 20 /PRONOUNCEMENT ON 2 9 .0 1.20 20 /O R D E R PER BHAVNESH SAINI, J.M. 1. THIS APPEAL BY ASSESSEE HAS BEEN DIRECTED AGAINST T HE ORDER OF LD. CIT(APPEALS)-35, NEW DELHI DATED 01.09.2016 FOR ASS ESSMENT YEAR 2012-13. 2. WE HAVE HEARD LD. COUNSEL FOR ASSESSEE AND PERUSED THE FINDINGS OF AUTHORITIES BELOW. LD. DR SOUGHT ADJOURNMENT WHICH IS REJECTED BEING IN SMALL CASE. 3. ON GROUND NO. 1 & 2 ASSESSEE CHALLENGED THE ADDITIO N OF RS. 82,730/- ON ACCOUNT OF COMMISSION. THE AO NOTED FROM AIR/26 AS INFORMATION THAT ASSESSEE COMPANY HAS RECEIVED COMMISSION INCOME AMO UNTING TO RS. BARING PVT. EQUITY PARTNERS (INDIA) PVT. LTD. VS. D CIT/ I.T.A.NO.5862/DEL/2016/A.Y.2012-13 PAGE 2 OF 4 82,730/- FROM MUTHOOT SECURITIES LTD. THE ASSESSEE ASKED TO CLARIFY WHY NOT COMMISSION INCOME FROM THE SAID PARTY AS PER 26 AS BE NOT ADDED TO THE INCOME OF THE ASSESSEE. THE COUNSEL FOR ASSESS EE AGREED FOR ADDITION BEFORE AO. THE AO, ACCORDINGLY, MADE THE ADDITION BECAUSE ASSESSEE AGREED FOR THE ADDITION. THE ASSESSEE CHALLENGED T HE ADDITION BEFORE LD. CIT(A), THE LD. CIT(A), HOWEVER, DISMISSED THIS GRO UND OF APPEAL OF THE ASSESSEE. 4. IT IS WELL SETTLED LAW THAT NO APPEAL LIES ON AGREE D ADDITIONS. WE RELY UPON THE JUDGMENT OF BOMBAY HIGH COURT IN THE CASE OF JIVAT LAL PURTAPSHI VS. CIT 65 ITR 261, JUDGMENT OF KERALA HI GH COURT IN THE CASE OF VAMADEVAN BHANU VS. CIT 330 ITR 559 AND JUDGMENT OF PUNJAB & HARYANA HIGH COURT IN THE CASE OF BANTA SINGH KARTAR SINGH VS. CIT 125 ITR 239. LD. COUNSEL FOR ASSESSEE SUBMITTED THAT THE SAME INCOME WAS OFFERED IN SUBSEQUENT ASSESSMENT YEAR. HOWEVER, HE HAS NOT PO INTED OUT ANYTHING FROM THE RECORD WHY ASSESSEE DID NOT MAKE ANY REQUE ST BEFORE AO FOR RECTIFICATION OF THE ORDER, IF, HE HAS NOT AGREED F OR ADDITION BEFORE AO. SINCE, ASSESSEE HAS NOT TAKEN ANY STEP BEFORE AO FO R RECTIFICATION OF THE ADDITION, THE CONTENTION OF LD. COUNSEL FOR ASSESSE E CANNOT BE BELIEVED THAT COUNSEL FOR ASSESSEE DID NOT AGREE FOR THIS AD DITION BEFORE AO. THE FINDING OF FACT RECORDED BY THE AO THUS, ADMITTEDLY NOT BEEN CONTROVERTED BY THE ASSESSEE BY ANY EVIDENCE ON RECORD. SINCE, ASSESSEE AGREED FOR ADDITION BEFORE AO AND NO STEPS HAVE BEEN TAKEN BEF ORE AO IN THIS REGARD, BARING PVT. EQUITY PARTNERS (INDIA) PVT. LTD. VS. D CIT/ I.T.A.NO.5862/DEL/2016/A.Y.2012-13 PAGE 3 OF 4 THEREFORE, APPEAL OF THE ASSESSEE WOULD NOT BE MAIN TAINABLE. THESE GROUNDS OF APPEAL OF THE ASSESSEE ARE, ACCORDINGLY, DISMISSED. 5. ON GROUND NO. 3 TO 5 ASSESSEE CHALLENGED THE ADDITI ON OF RS. 2,76,463/- ON ACCOUNT OF INTEREST INCOME. THE AO D ID NOT MAKE THIS ADDITION IN THE ASSESSMENT ORDER. THE ASSESSEE RAI SED THIS ISSUE BEFORE LD. CIT(A) AND REQUESTED FOR ITS EXCLUSION AS WAS MADE DURING THE ASSESSMENT PROCEEDINGS. THE LD. CIT(A) NOTED THAT THERE IS NO DISCUSSION OF THIS ISSUE IN THE ASSESSMENT ORDER, THEREFORE, THIS ISSUE IS C OVERED BY JUDGMENT OF THE APEX COURT IN THE CASE OF GOETZE (INDIA) LTD. R EPORTED IN 284 ITR 323. THIS GROUND WAS, THEREFORE, DISMISSED. 6. LD. COUNSEL FOR ASSESSEE SUBMITTED THAT ASSESSEE HA D SHOWN THE INTEREST INCOME ON DEBENTURES ON ACCRUAL BASIS IN T HE RETURN FILED. HE HAS SUBMITTED THAT THIS INTEREST HAS NOT ARISEN OR ACCR UED TO THE ASSESSEE. THEREFORE, IT IS NOT TAXABLE IN ASSESSMENT YEAR UND ER APPEAL. 7. CONSIDERING THE SUBMISSIONS OF THE LD. COUNSEL FOR ASSESSEE, WE ARE OF THE VIEW THAT THE MATTER REQUIRES RECONSIDERATIO N AT THE LEVEL OF THE LD. CIT(A). HONBLE DELHI HIGH COURT IN THE CASE OF CI T VS. JAI PARABOLIC SPRINGS LTD. 306 ITR 42 HELD AS UNDER: HELD, DISMISSING THE APPEAL, THAT THERE WAS NO PROHIBITIO N ON THE POWERS OF THE TRIBUNAL TO ENTERTAIN AN ADDIT IONAL GROUND WHICH ACCORDING TO THE TRIBUNAL AROSE IN THE MATTER AND FOR THE JUST DECISION OF THE CASE. THERE WAS N O INFIRMITY IN THE ORDER OF THE TRIBUNAL. BARING PVT. EQUITY PARTNERS (INDIA) PVT. LTD. VS. D CIT/ I.T.A.NO.5862/DEL/2016/A.Y.2012-13 PAGE 4 OF 4 8. IN THIS JUDGMENT THE HONBLE HIGH COURT CONSIDERED THE DECISION OF THE HONBLE SUPREME COURT IN THE CASE OF GOETZE (IN DIA) LTD. (SUPRA). SINCE, CIT(A) IS FIRST APPELLATE AUTHORITY AND HAS COTERMINOUS POWERS TO THAT OF THE AO. THEREFORE, THERE WAS NO BAR ON HIS POWERS TO CONSIDER AND ENTERTAIN THIS ISSUE AT FIRST APPELLATE STAGE. WE, THEREFORE, SET ASIDE THE ORDER OF LD. CIT(A) AND RESTORE THIS ISSUE TO HIS F ILE WITH DIRECTION TO RE- DECIDE THIS ISSUE ON MERITS IN ACCORDANCE WITH LAW BY GIVING REASONABLE SUFFICIENT OPPORTUNITY OF BEING HEARD TO THE ASSESS EE. 9. IN THE RESULT, THE APPEAL OF ASSESSEE ON THESE GROU NDS IS ALLOWED FOR STATISTICAL PURPOSES. 10. IN THE RESULT, THE APPEAL OF ASSESSEE IS PARTLY AL LOWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED IN THE OPEN COURT. SD/- SD/- (N.K. BILLAIYA) (BHAVNESH SAINI) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 29 TH JANUARY, 2020 * KAVITA ARORA, SR. P.S. COPY OF ORDER SENT TO- ASSESSEE/AO/PR. CIT/ CIT (A) / ITAT (DR)/GUARD FILE OF ITAT. BY ORDER ASSISTANT REGISTRAR, ITAT: DELHI BENCHES-DELHI