SAS Hospitality P.Ltd, New Delhi V. ITO, Ward-22(3), New Delhi

ITA 6081/DEL/2017

• Counselvise Citation: [2021] 108 COUNSELVISE.COM (IT) 2725 (ITAT-DELHI)
• Duration Of Justice: 3 year(s) 8 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 21-06-2021
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: G
• Assessment Year: 2012-2013
• Appeal Filed On: 28-09-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: PRAKASH DUBEY
• Keywords: Principle of natural justice; Rule 8D
• Section: 43B; 14A; 68

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH G: NEW DELHI (THROUGH VIDEO CONFERENCING) BEFORE, SHRI R.K.PANDA, ACCOUNTANT MEMBER AND SHRI SUDHANSHU SRIVASTAVA, JUDICIAL MEMBER I.T.A NO.6081/DEL/2017 (ASSESSMENT YEAR-2012-13) SAS HOSPITALITY PRIVATE LIMITED 14D, 14 TH FLOOR HANSALAYA BUILDING BARAKHAMBA ROAD NEW DELHI- 110 001. PANAAOCS 1815Q VS. INCOME TAX OFFICER WARD-22(3), NEW DELHI (APPELLANT) (RESPONDENT) APPELLANT BY SH. KAPIL GOEL, ADV. RESPONDENT BY SHRI PRAKASH DUBEY, SR. DR DATE OF HEARING 25.03.2021 DATE OF PRONOUNCEMENT 21.06.2021 ORDER PER SUDHANSHU SRIVASTAVA, JM: THIS APPEAL IS PREFERRED BY THE ASSESSEE AGAINST OR DER DATED 05.12.2016 PASSED BY THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS)-17, NEW DELHI {CIT(A)} FOR ASSESSMENT YEAR: 2012-13. 2 ITA NO.6081/DEL/2017 SAS HOSPITAL PRIVATE LIMITED VS . ITO 2.0 THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS O F APPEAL: 1. THE LEARNED INCOME TAX OFFICER HAS ERRED IN LAW AS WELL AS ON FACT, IN MAKING AN ADDITION OF RS.7,50,00,000 /- UNDER SECTION 68 OF THE I.T. ACT, 1961, TOWARDS SHARE APP LICATION MONEY. 2. THE LEARNED INCOME TAX OFFICER HAS ERRED I N LAW AS WELL AS ON FACT, IN MAKING A DISALLOWANCE OF RS.17,365/- , UNDER SECTION 14A OF THE I.T. ACT, 1961. 3. THE LEARNED INCOME TAX OFFICER HAS ERRED I N LAW AS WELL AS ON FACT, IN MAKING AN ADDITION OF RS.1,28,093/- UNDER SECTION 43B OF THE I.T. ACT, 1961. 4. THE APPELLANT CRAVES LEAVE TO ADD, ALTER, A MEND, RAISE OR DELETE ANY OR ALL GROUNDS OF APPEAL. 2.1 THE ASSESSEE HAS ALSO SUBSEQUENTLY FILED TH E REVISED GROUNDS OF APPEAL WHICH ARE AS UNDER: 1. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LD. CIT (APPEALS)-17, NEW DELHI, HAS ERRED IN NOT P ROVIDING SUFFICIENT OPPORTUNITY TO THE APPELLANT-COMPANY OF BEING HEARD. 2. THAT ON THE FACTS AND IN THE CIRCUMSTANCES O F THE CASE, THE LD. CIT(APPEALS)- 17, NEW DELHI, HAS ERRED IN LAW A S WELL AS ON 3 ITA NO.6081/DEL/2017 SAS HOSPITAL PRIVATE LIMITED VS . ITO FACT, IN CONFIRMING ADDITIONS OF RS. 7,50,00,000/- MADE BY AO U/S. 68 OF THE I.T. ACT, 1961, TOWARDS SHARE APPLIC ATION MONEY. 3. THAT ON THE FACTS AND IN THE CIRCUMSTANCES O F THE CASE, THE LD. CIT(APPEALS), HAS ERRED IN LAW AS WELL AS ON FA CT, IN CONFIRMING DISALLOWANCE OF RS. 17,365/- MADE BY AO U/S. 14A READ WITH RULE 8D OF THE I.T. RULE, 1962. 4. THAT ON THE FACTS AND IN THE CIRCUMSTANCE S OF THE CASE, THE LD. CIT(APPEALS), HAS ERRED IN LAW AS WELL AS O N FACT, IN CONFIRMING ADDITIONS OF RS. 1,28,093/- U/S. 43B OF THE I.T. ACT, 1961. 5. THAT THE RESPONDENT CRAVES LEAVE TO ADD, ALTE R, AMEND OR ADDUCE ANY GROUND/(S) AT OR BEFORE THE DATE OF HEAR ING. 3.0 AT THE VERY OUTSET, THE LD. AUTHORIZED REPRESENTATIVE (AR) SUBMITTED THAT THE IMPUGNED ORDER HAS BEEN PASSED B Y THE LD. FIRST APPELLATE AUTHORITY WITHOUT THE ASSESSEE BEING REPRESENTED BEFORE HIM. THE LD. AUTHORIZED REPRESENTATIVE SUBMI TTED THAT, THUS, THE PRINCIPLE OF NATURAL JUSTICE WAS NOT FOLLO WED. THE LD. AUTHORIZED REPRESENTATIVE PRAYED THAT THE ASSESSEE MAY BE OFFERED ANOTHER OPPORTUNITY TO EXPLAIN ITS CASE BEFORE THE TAX AUTHORITIES. 4 ITA NO.6081/DEL/2017 SAS HOSPITAL PRIVATE LIMITED VS . ITO 4.0 PER CONTRA, THE LD. SR. DR SUBMITTED T HAT THE ASSESSEE HAD FAILED TO PRODUCE THE REQUIRED DOCUMENTARY EVID ENCES BOTH BEFORE THE ASSESSING OFFICER AS WELL AS THE LD. FIRS T APPELLATE AUTHORITY AND, THEREFORE, THE ASSESSEE SHOULD NOT B E GRANTED A FRESH OPPORTUNITY. 5.0 WE HAVE HEARD THE RIVAL SUBMISSIONS AND HAVE ALSO PERUSED THE MATERIAL ON RECORD. A PERUSAL OF THE RE CORDS SHOWS THAT THE ASSESSEE HAS NOT CO-OPERATED WITH THE LOWER AUTH ORITIES NEITHER AT THE STAGE OF ASSESSMENT PROCEEDINGS NOR AT THE S TAGE OF FIRST APPELLATE PROCEEDINGS, THEREFORE, THE LOWER AUTHORI TIES HAD NO OPTION BUT TO PASS THEIR RESPECTIVE ORDERS QUA EX-PARTE THE ASSESSEE. HOWEVER, THE FACT REMAINS THAT IN VIEW OF THE SUBSTA NTIVE JUSTICE, THE ASSESSEE SHOULD BE GIVEN AN OPPORTUNITY TO PRES ENT AND EXPLAIN ITS CASE. THEREFORE, WITHOUT GOING INTO THE MERITS O F THE CASE, WE DEEM IT APPROPRIATE TO RESTORE THE FILE TO THE OFFI CE OF THE LD. CIT(A) FOR AFRESH ADJUDICATION OF THE ISSUES BEFORE HIM AF TER GIVING PROPER OPPORTUNITY TO THE ASSESSEE TO PRESENT ITS CASE. WE ALSO DIRECT THE 5 ITA NO.6081/DEL/2017 SAS HOSPITAL PRIVATE LIMITED VS . ITO ASSESSEE TO FULLY CO-OPERATE THIS TIME DURING THE C OURSE OF FIRST APPELLATE PROCEEDINGS, FAILING WHICH, THE LD. FIRST APPELLATE AUTHORITY SHALL BE AT LIBERTY TO PASS THE ORDER IN ACCORDANCE WITH LAW EX-PARTE QUA THE ASSESSEE. 6.0 IN THE FINAL RESULT, THE APPEAL OF THE AS SESSEE STANDS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED ON 21 ST JUNE, 2021. SD/- SD/- (R.K.PANDA) (SUDHANSHU SRIVASTAVA) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 21/06/2021 PK/PS COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT ASSISTANT REGISTRAR ITAT DEHRADUN