Shri Kishore Bhatia, New Delhi V. ITO, New Delhi

ITA 6305/DEL/2016

• Counselvise Citation: [2019] 118 COUNSELVISE.COM (IT) 3543 (ITAT-DELHI)
• Duration Of Justice: 2 year(s) 2 month(s) 13 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 21-02-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2008-2009
• Appeal Filed On: 08-12-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S L ANURAGI
• Keywords: Principle of natural justice; Deemed dividend
• Section: 148; 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH SMC, NEW DELHI BEFORE SH. R.K PANDA, ACCOUNTANT MEMBER ITA NO.6305/DEL/2016 ASSESSMENT YEAR: 2008-09 KISHORE BHATIA PROP. M/S. VIDHUR ENTERPRISES 3, SHANKAR MARKET, CONNAUGHT PLACE, NEW DELHI 110001 PAN NO. AHIPB1335N VS ITO WARD 52 (3) NEW DELHI (APPELLANT) (RESPONDENT) APPELLANT BY NONE RESPONDENT BY SH. S. L. ANURAGI, SR. DR DATE OF HEARING: 18/02/2019 DATE OF PRONOUNCEMENT: 21 /0 2 /201 9 ORDER PER R.K. PANDA, AM: 1. THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED A GAINST THE ORDER DATED 06.10.2016 OF THE CIT(A)-18, NEW DELHI RELATING TO A. Y. 2008-09. 2. NONE APPEARED ON BEHALF OF THE ASSESSEE DESPITE SERVICE OF NOTICE. THEREFORE, THIS APPEAL IS BEING DECIDE ON T HE BASIS OF MATERIAL AVAILABLE ON RECORD AND AFTER HEARING THE LD. DR. 3. THE GROUNDS RAISED BY THE ASSESSE ARE AS UNDER : - 1. THE ORDER IS BAD IN LAW, AS IT HAS BEEN PASSED IN GROSS VIOLATION OF PRINCIPLES OF NATURAL JUSTICE. 2. LEARNED ASSESSING OFFICER HAS ERRED IN ADDING S UM OF RS.6,22,901/- ALLEGED AS DEEMED DIVIDEND UNDER THE GIVEN FACTS AND CIRCUMSTANCES. 3. WITHOUT PREJUDICE TO ABOVE THE LD. ASSESSING OF FICER HAS MADE ADDITION OF RS.6,22,901/- U/S 2 (22) (E) OF TH E IT ACT, 1961. 2 4. THE APPELLANT MAY BE PERMITTED TO ADD, ALTER OR A MEND ANY OF THE FOREGOING GROUNDS OF APPEAL. 4. THE FACTS OF THE CASE, IN BRIEF, ARE THAT THE A SSESSEE IS AN INDIVIDUAL AND FILED HIS RETURN OF INCOME ON 30.09. 2008 DECLARING TOTAL INCOME OF RS.6,07,030/-. SUBSEQUENTLY, THE C ASE OF THE ASSESSEE WAS REOPENED BY ISSUE OF NOTICE U/S 148 AN D THE ASSESSING OFFICER IN THE EXPARTE ORDER PASSED U/S 1 44/147 DETERMINED THE TOTAL INCOME OF THE ASSESSEE AT RS.1 2,29,930/- WHEREIN HE HAD MADE ADDITION RS.6,22,901/- U/S 2 (2 2) (E) OF THE IT ACT ON THE GROUND THAT ASSESSEE HAS RECEIVED UNS ECURED LOAN OF RS.6,22,901/- FROM A COMPANY M/S. BHATIA RASAYAN UDYOG PVT. LTD IN WHICH THE ASSESSEE HAS MORE THAN 10% SH AREHOLDING. IN APPEAL THE LD. CIT(A) UPHELD THE ACTION OF THE A SSESSING OFFICER. WHILE DOING SO HE HAD GIVEN AN OBSERVATION THAT DESPITE BEING SPECIFICALLY ASKED TO SUBMIT CONSOLIDATED STA TEMENT FOR THE TRANSACTION WITH THE COMPANY M/S. B. R. U LIMITED A ND THE BALANCE AT THE END OF EACH TRANSACTION THE ASSESSEE DID NOT SUBMIT THE SAME. SINCE THE FULL DETAILS WERE NOT FI LED BEFORE THE CIT(A), THE LD. CIT(A) RELYING UPON VARIOUS DECISIO N UPHELD THE ACTION OF THE ASSESSING OFFICER. 5. AGGRIEVED WITH SUCH ORDER OF THE CIT(A), THE ASS ESSEE IS IN APPEAL BEFORE THE TRIBUNAL. 6. I HAVE PERUSED THE MATERIAL AVAILABLE ON RECORD AND HEARD THE LD. DR. I FIND THE ASSESSMENT IN THIS CASE WAS COMPLETED U/S 144 OF THE IT ACT BY THE ASSESSING OFFICER WHEREIN HE MADE ADDITION OF RS.6,22,901/- U/S 2 (22) (E) OF THE IT ACT ON ACCOUNT OF DEEMED DIVIDEND. I FIND THE LD. CIT(A) UPHELD THE ACTION OF THE ASSESSING OFFICER. IT IS ONE OF THE GROUND BY THE ASSESSEE IN THE GROUNDS OF APPEAL THAT THE ACCUMULATED PROFIT FOR A . Y. 2008-09 3 HAS ONLY RS.4,58,794.94 AND THEREFORE, THE DEEMED D IVIDEND CANNOT EXCEED THIS AMOUNT. CONSIDERING THE TOTALIT Y OF THE FACTS OF THE CASE AND INTEREST OF JUSTICE I DEEM IT PROPE R TO RESTORE THIS ISSUE BACK TO THE FILE OF THE ASSESSING OFFICER WIT H A DIRECTION TO GIVE ONE MORE OPPORTUNITY TO THE ASSESEE TO SUBSTAN TIATE HIS CASE AND DECIDE THE ISSUE AS PER FACT AND LAW. ACCORDING LY THE GROUNDS RAISED BY THE ASSESSEE ARE ALLOWED FOR STATISTICAL PURPOSE. 6. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED IN THE OPEN COURT ON 21.02.2019. SD/- (R.K PANDA) ACCOUNTANT MEMBER *NEHA* DATE:- 21.02.2019 COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT ASSISTANT REGISTRAR ITAT NEW DELHI DATE OF DICTATION 18.02.2019 DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR.PS/PS DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE DICTATING MEMBER FOR PRONOUNCEMENT DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR. PS/ PS DATE ON WHICH THE FINAL ORDER IS UPLOADED ON THE WEBSITE OF ITAT 22.02.2019 DATE ON WHICH THE FILE GOES TO THE BENCH CLERK DATE ON WHICH FILE GOES TO THE HEAD CLERK. THE DATE ON WHICH FILE GOES TO THE ASSISTANT REGIST RAR FOR SIGNATURE ON THE ORDER DATE OF DISPATCH OF THE ORDER