M/s. Ramjilal Construction Pvt. Ltd., New Delhi V. ITO, New Delhi

ITA 6322/DEL/2016

• Counselvise Citation: [2019] 112 COUNSELVISE.COM (IT) 4963 (ITAT-DELHI)
• Duration Of Justice: 2 year(s) 11 month(s) 6 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 15-11-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: F
• Assessment Year: 2011-2012
• Appeal Filed On: 09-12-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Opportunity of being heard; Additional evidence
• Section: 143(3); 68

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH: F, NEW DELHI BEFORE SHRI H.S. SIDHU, JUDICIAL MEMBER AND SHRI O.P. KANT, ACCOUNTANT MEMBER ITA NO.6322/DEL/2016 ASSESSMENT YEAR: 2011-12 M/S. RAMJILAL CONSTRUCTION PVT. LTD., L-1/288A, DDA FLATS, KALKAJI, NEW DELHI VS. INCOME TAX OFFICER, WARD-21(1), NEW DELHI PAN :AACCR0292G (APPELLANT) (RESPONDENT) ORDER PER O.P. KANT, AM: THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST O RDER DATED 28/10/2016 PASSED BY THE COMMISSIONER OF INCOME-TAX (APPEALS)-10, NEW DELHI [IN SHORT THE LD. CIT(A)] FOR ASSESSMENT YEAR 2011-12 RAISING FOLLOWING GROUNDS: ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LEA RNED CIT(A) HAS ERRED: 1. IN SUSTAINING THE ADDITION OF RS. 13,30,000/- U /S 68 REPRESENTING AN UNSECURED LOAN OF M/S DELHI TEXTILES COOPERATIVE GR OUP HOUSING MADE BY THE ASSESSING OFFICER. 2. IN IGNORING THAT THE UNSECURED LOAN HAS BEEN CO NFIRMED BY THE PRESIDENT OF THE ABOVE COOPERATIVE SOCIETY AND WHIC H HAS BEEN ADVANCED THROUGH BANKING CHANNEL. 3. IN IGNORING THE COPY OF THE BANK ACCOUNT OF THE COOPERATIVE SOCIETY OPENED IN 2006 THROUGH WHICH THE ABOVE UNSECURED LO AN HAS BEEN APPELLANT BY SHRI T.R. TALWAR, CA RESPONDENT BY SHRI SURENDER PAL, SR.DR DATE OF HEARING 05.09.2019 DATE OF PRONOUNCEMENT 15.11.2019 2 ITA NO.6322/DEL/2016 ADVANCED AND WHICH WAS SUBMITTED BEFORE THE ASSESSI NG OFFICER/CIT(A). THE APPELLANT CRAVES LEAVE TO ADD, ALTER, SUBSTITU TE AND DELETE ANY OF THE GROUNDS OF APPEAL ON OR BEFORE THE DATE OF HEAR ING. 2. BRIEFLY STATED FACTS OF THE CASE ARE THAT THE ASSE SSEE WAS ENGAGED IN THE REAL ESTATE BUSINESS. DURING THE YEA R UNDER CONSIDERATION, THE ASSESSEE FILED RETURN OF INCOME ON 29/09/2011, DECLARING LOSS OF 9,21,085/-. THE SCRUTINY ASSESSMENT UNDER SECTION 143(3) OF THE INCOME-TAX A CT, 1961 (IN SHORT THE ACT) WAS COMPLETED ON 20/07/2014, WHERE IN TOTAL INCOME WAS ASSESSED AT 57,19,640/- AFTER MAKING CERTAIN ADDITIONS/DISALLOWANCES. ON FURTHER APPEAL, THE LEA RNED CIT(A) PARTLY ALLOWED THE GROUNDS RAISED BY THE ASSESSEE. THE ASSESSEE FILED APPEAL BEFORE THE TRIBUNAL AGAINST THE ADDITI ON OF 13,30,000/- SUSTAINED BY THE LEARNED CIT(A), WHICH WAS MADE BY THE ASSESSING OFFICER UNDER SECTION 68 OF THE ACT F OR LOAN RECEIVED FROM M/S DELHI TEXTILE COOPERATIVE GROUP. THE LEARN ED CIT(A) SUSTAINED THE ADDITION OF RS.13,30,000/- ON THE GRO UND THAT THE ASSESSEE FAILED TO SUBSTANTIATE THE EXACT NATURE OF THE CLAIM OF THE LOAN TAKEN FROM DELHI TEXTILE COOPERATIVE GROUP. 3. BEFORE US, THE LD. COUNSEL OF THE ASSESSEE HAS GIV EN UNDERTAKING TO PRODUCE THE PARTY M/S. DELHI TEXTIL E COOPERATIVE GROUP BEFORE THE ASSESSING OFFICER ALONG WITH ALL NECESSARY DOCUMENTS TO DISCHARGE ITS ONUS UNDER SECTION 68 OF THE ACT. 4. THE LD. DR THOUGH RELIED ON THE ORDER OF THE LEARN ED CIT(A), DID NOT OBJECT TO RESTORING THE MATTER BACK TO THE ASSESSING OFFICER SUBJECT TO PRODUCING THE PARTY BY THE ASSES SEE ALONG WITH DOCUMENTS TO DISCHARGE ITS ONUS UNDER SECTION 68 OF THE ACT. 3 ITA NO.6322/DEL/2016 5. WE HAVE HEARD RIVAL SUBMISSION OF THE PARTIES AND PERUSED THE RELEVANT MATERIAL ON RECORD. THE LEARNED CIT(A) SUSTAINED THE SUM OF RS.13,30,000/- OBSERVING AS UNDER: 4.4.1 DURING THE YEAR UNDER CONSIDERATION ONLY THE RE IS FRESH ADDITION OF M/S. DELHI TEXTILES FROM WHICH APPELLAN T HAS OBTAINED UNSECURED LOAN OF RS.13.30 LACS. DURING THE APPELLA TE PROCEEDINGS, LD. AR HAS FILED COPY OF LEDGER ACCOUNTS, BANK STAT EMENTS AND AFFIDAVIT DULY SWORN IN BY SH. RAMJI LAI IN THE CAP ACITY AS PRESIDENT AFFIRMING THAT THE LOAN HAS BEEN ADVANCED BY THE AB OVE COOPERATIVE SOCIETY BY WAY OF CHEQUES ISSUED FROM STATE BANK OF BIKANER AND JAIPUR, NEW DELHI. THE THEN CIT(A) - XVIII VIDE LET TER NO. 417 DATED 30.07.2014 CALLED FOR A REPORT ON THE ADMISSIBILITY OF ADDITIONAL EVIDENCES AS WELL AS ON THEIR MERITS. IN RESPONSE T O THE SAME. ASSESSING OFFICER VIDE LETTER NO. 85 DATED 03.09.20 14 HAS SUBMITTED AS UNDER: ...3(IV) DELHI TEXTILES COOPERATIVE GROUP HOUSING RS.13,30,000/- THE ASSESSEE HAS SHOWN THAT THIS AMO UNT HAS BEEN TAKEN FROM THIS SOCIETY. NO COPY OF SANCTIONED AMOUNT OF THE LOAN AND THE REPAYMENT PLAN AND RATE OF INTERES T HAS BEEN FILED. FROM THE ABOVE, IT IS EVIDENT THAT THOUGH LD. AR HA S FILED CONFIRMATION ALONG WITH COPY OF LEDGER, BANK STATEM ENT AND AFFIDAVIT BUT HAS FURTHER FAILED TO SUBSTANTIATE THE EXACT NA TURE OF CLAIM OF LOAN TAKEN BY THE APPELLANT FROM THE ABOVE SOCIETY, AS MENTIONED IN THE REMAND REPORT BY THE AO. THEREFORE, IN THE ABOV E BACKDROP OF THE FACTS, I AM OF THE CONSIDERED VIEW THAT LD. AR HAS FAILED TO SUBSTANTIATE HIS CLAIM, WITH REQUISITE DOCUMENTARY EVIDENCE THAT IT HAS OBTAINED LOAN FROM THE ABOVE CONCERN, AS IN THE ABSENCE OF DOCUMENTARY EVIDENCES, CITED BY THE AO IN HIS REMAN D REPORT (RELEVANT PORTION OF WHICH IS REPRODUCED ABOVE), IT IS NOT ESTABLISHED THAT APPELLANT HAS OBTAINED A LOAN FROM THE ABOVE C ONCERN, THEREFORE, IT IS HELD THAT LD. AR HAS FAILED TO SUB STANTIATE HIS CLAIM IN RESPECT OF AMOUNT OF RS. 13,30,000/- AS UNSECURED L OAN. THEREFORE, I AM OF THE CONSIDERED VIEW THAT NO INTERFERENCE IS C ALLED FOR TO THE ADDITION MADE BY THE AO OF SECTION 68 OF THE ACT IN RESPECT OF AMOUNT OF RS.13,30,000/- OBTAINED FROM M/S. DELHI T EXTILES DURING THE YEAR UNDER CONSIDERATION. ACCORDINGLY, OUT OF T HE TOTAL ADDITION OF RS.32,57,000/- ONLY ADDITION OF RS. 13,30,000/- SUR VIVES AND APPELLANT GETS RELIEF IN RESPECT OF REMAINING AMOUN T OF RS.19,27,000/-. 6. IN VIEW OF THE UNDERTAKING GIVEN BY THE LD. COUNSE L OF THE ASSESSEE TO PRODUCE THE PARTY M/S DELHI TEXTILES CO OPERATIVE GROUP HOUSING, IN WHOSE NAME CREDIT ENTRY OF 13,30,000/- IS 4 ITA NO.6322/DEL/2016 APPEARING IN THE BOOKS OF ACCOUNTS OF THE ASSESSEE AND SUBMIT ALL THAT NECESSARY DOCUMENTARY EVIDENCES FOR DISCHARGIN G ITS ONUS UNDER SECTION 68 OF THE ACT, AND IN VIEW OF THE FAC TS AND CIRCUMSTANCES OF THE CASE, WE FEEL IT APPROPRIATE T O RESTORE THIS MATTER TO LD. ASSESSING OFFICER FOR DECIDING THE IS SUE OF ADDITION OF 13,30,000/- AMOUNT RECEIVED FROM M/S. DELHI TEXTIL E COOPERATIVE GROUP HOUSING AFRESH, IN ACCORDANCE WIT H LAW. THE ONUS IS ON THE ASSESSEE TO PRODUCE THE SAID PARTY B EFORE THE LD. ASSESSING OFFICER ALONG WITH ALL DOCUMENTARY EVIDEN CES TO DISCHARGE ITS ONUS UNDER SECTION 68 OF THE ACT. ADE QUATE OPPORTUNITY OF BEING HEARD SHALL BE PROVIDED TO THE ASSESSEE. THE GROUND OF THE APPEAL IS ACCORDINGLY ALLOWED FOR STA TISTICAL PURPOSES. 7. IN THE RESULT, THE APPEAL OF THE ASSESSEE ALLOWED FOR STATISTICAL PURPOSES. ORDER IS PRONOUNCED IN THE OPEN COURT ON 15 TH NOVEMBER, 2019. SD/- SD/- (H.S. SIDHU) (O.P. KANT) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 15 TH NOVEMBER, 2019. RK/-(D.T.D.) COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR ASST. REGISTRAR, ITAT, NEW DELHI