Capital Bus Service Pvt Ltd, Delhi V. DCIT, Central Circle-31, New Delhi

ITA 636/DEL/2022

• Counselvise Citation: [2022] 104 COUNSELVISE.COM (IT) 1251 (ITAT-DELHI)
• Duration Of Justice: 6 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 10-10-2022
• Appeal Filed By: Assessee
• Order Result: PartlyAllowed
• Bench Allotted: B
• Next Hearing Date: 03-10-2022
• Assessment Year: 2017-2018
• Appeal Filed On: 10-04-2022
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Unexplained cash credit; Principle of natural justice; Set aside
• Section: 68; 132; 144; 142(1); 153A; 153

Judgement Text

Page 1 of 11 IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH ‘B’: NEW DELHI BEFORE, SHRI CHALLA NAGENDRA PRASAD, JUDICIAL MEMBER AND SHRI ANADEE NATH MISSHRA, ACCOUNTANT MEMBER ITA No.630/Del/2022 (ASSESSMENT YEAR 2012-13) ITA No.631/Del/2022 (ASSESSMENT YEAR 2013-14) ITA No.633/Del/2022 (ASSESSMENT YEAR 2014-15) ITA No.634/Del/2022 (ASSESSMENT YEAR 2015-16) ITA No.635/Del/2022 (ASSESSMENT YEAR 2016-17) ITA No.636/Del/2022 (ASSESSMENT YEAR 2017-18) ITA No.637/Del/2022 (ASSESSMENT YEAR 2018-19) Capital Bus Service Pvt. Ltd Room No.17, Vir Hakikat Roi ISBT Sarai Kala Khan Hazrat Nizamuddin Delhi-110 013 PAN-AAACC O176G Vs. Dy.CIT Central Circle-31 New Delhi (Appellant) (Respondent) Appellant by None Respondent by Ms. Deep Shikha Sharma, Commissioner of Income Tax, Departmental Representative (“CIT- DR” for short) ITA No.630 /Del/2022 & Ors Capital Bus Service Pvt. Ltd. vs. DCIT Page 2 of 11 ORDER PER BENCH: (A) This batch of appeals by Assessee are filed against the order of Learned Commissioner of Income Tax (Appeals)-30, New Delhi [“Ld. CIT(A)”, for short], dated 10/02/2022 for Assessment Years 2012-13, 2013-14, 2014-15, 2015-16, 2016-17, 2017-18 and 2018-19 respectively. Grounds taken in these appeals are as under: ITA No.630/Del/2022 for AY 2012-13 “1. Because the action for initiation, continuation and conclusion of assessment proceedings u/s 153A at an amount of Rs.51,18,250/- is being challenged on facts & law. 2. Because the action is being challenged on facts & law for completing the assessment u/s 153A as the search warrant and Panchnama not in the name of the assessee and consequently, the subsequent proceeding are without jurisdiction. Assessment based on such invalid initiation is a nullity and order u/s 153A has to be quashed. 3. Because the action is being challenged on facts & law for making additions in assessment proceedings u/s 153A when there is no incriminating material/document found during the course of search u/s 132 of the Act for the impugned year. 4. Because the action is being challenged on facts & law for not providing reasonable opportunity of being heard. The assessment order being passed is in violation of the principle of natural justice and without giving adequate time and opportunity to the appellant to present the case. 5. Because the action is being challenged on facts & law for making addition of Rs. 51,18,250/- by treating cash deposit in bank accounts as unexplained credit u/s 68 whereas per assessee, the cash deposits in assessee's bank accounts are part of the books of accounts duly audited ITA No.630 /Del/2022 & Ors Capital Bus Service Pvt. Ltd. vs. DCIT Page 3 of 11 and forming part of already filed income tax return. Alternatively, quantum of addition is challenged. 6. For any consequential relief and/or legal claim arising out of this appeal and for any addition, deletion, amendment and modification in the grounds of appeal before the disposal of the same in the interest of substantial justice to the assessee. ITA No.631/Del/2022 for AY 2013-14 “1. Because the action for initiation, continuation and conclusion of assessment proceedings u/s 153A at an amount of Rs 68,91,000/- is being challenged on facts & law. 2. Because the action is being challenged on facts & law for completing the assessment u/s 153A as the search warrant and Panchnama not in the name of the assessee and consequently, the subsequent proceeding are without jurisdiction. Assessment based on such invalid initiation is a nullity and order u/s 153A has to be quashed. 3. Because the action is being challenged on facts & law for making additions in assessment proceedings u/s 153A when there is no incriminating material/ document found during the course of search u/s 132 of the Act for the impugned year. 4. Because the action is being challenged On facts & law for not providing reasonable opportunity of being heard. The assessment order being passed is in violation of the principle of natural justice and without giving adequate time and opportunity to the appellant to present the case. 5. Because the action is being challenged on facts & law for making addition of Rs. 68,91,000/- by treating cash deposit in bank accounts as unexplained credit u/s 68 whereas per assessee, the cash deposits in assessee's bank accounts are part of the books of accounts duly audited and forming part of already filed income tax return. Alternatively, quantum of addition is challenged. 6. For any consequential relief and/or legal claim arising out of this appeal and for any addition, deletion, amendment and modification in the grounds of appeal before the disposal of the same in the interest of substantial justice to the assessee. ITA No.630 /Del/2022 & Ors Capital Bus Service Pvt. Ltd. vs. DCIT Page 4 of 11 ITA No.633/Del/2022 for AY 2014-15 “1. Because the action for initiation, continuation and conclusion of assessment proceedings u/s 153A at an amount of Rs 1,01,08,000/- is being challenged on facts & law. 2. Because the action is being challenged on facts & law for completing the assessment u/s 153A as the search warrant and Panchnama not in the name of the assessee and consequently, the subsequent proceeding are without jurisdiction. Assessment based on such invalid initiation is a nullity and order u/s 153A has to be quashed. 3. Because the action is being challenged on facts & law for making additions in assessment proceedings u/s 153 A when there is no incriminating material/document found during the course of search u/s 132 of the Act for the impugned year. 4. Because the action is being challenged on facts & law for not providing reasonable opportunity of being heard. The assessment order being passed is in violation of the principle of natural justice and without giving adequate time and opportunity to the appellant to present the case. 5. Because the action is being challenged on facts & law for making addition of Rs. 1,01,08,000/- by treating cash deposit in bank accounts as unexplained credit u/s 68 whereas per assessee, the cash deposits in assessee's bank accounts are part of the books of accounts duly audited and forming part of already filed income tax return. Alternatively, quantum of addition is challenged. 6. For any consequential relief and/or legal claim arising out of this appeal and for any addition, deletion, amendment and modification in the grounds of appeal-before the disposal of the same in the interest of substantial justice to the assessee. ITA No.634/Del/2022 for AY 2015-16 “1. Because the action for initiation, continuation and conclusion of assessment proceedings u/s 153A at an amount of Rs 98,56,260/- is being challenged on facts & law. 2. Because the action is being challenged on facts & law for completing the assessment u/s 153A as the search warrant and Panchnama not in the name of the assessee and consequently, the ITA No.630 /Del/2022 & Ors Capital Bus Service Pvt. Ltd. vs. DCIT Page 5 of 11 subsequent proceeding are without jurisdiction. Assessment based on such invalid initiation is a nullity and order u/s 153A has to be quashed. 3. Because the action is being challenged on facts & law for making additions in assessment proceedings u/s 153 A when there is no incriminating material/document found during the course of search u/s 132 of the Act for the impugned year. 4. Because the action is being challenged on facts & law for not providing reasonable opportunity of being heard. The assessment order being passed is in violation of the principle of natural justice and without giving adequate time and opportunity to the appellant to present the case. 5. Because the action is being challenged on facts & law for making addition of Rs. 98,56,260/- by treating cash deposit in bank accounts as unexplained credit u/s 68 whereas per assessee, the cash deposits in assessee's bank accounts are part of the books of accounts duly audited and forming part of already filed income tax return. Alternatively, quantum of addition is challenged. 6. For any consequential relief and/or legal claim arising out of this appeal and for any addition, deletion, amendment and modification in the grounds of appeal before the disposal of the same in the interest of substantial justice to the assessee.” ITA No.635/Del/2022 for AY 2016-17 “1. Because the action for initiation, continuation and conclusion of assessment proceedings u/s 153A at an amount of Rs 86,55,000/- is being challenged on facts & law. 2. Because the action is being challenged on facts & law for completing the assessment u/s 153A as the search warrant and Panchnama not in the name of the assessee and consequently, the subsequent proceeding are without jurisdiction. Assessment based on such invalid initiation is a nullity and order u/s 153A has to be quashed. 3. Because the action is being challenged on facts & law for making additions in assessment proceedings u/s 153A when there is no incriminating material/document found during the course of search u/s 132 of the Act for the impugned year. 4. Because the action is being challenged on facts & law for not providing reasonable opportunity of being heard. The assessment order ITA No.630 /Del/2022 & Ors Capital Bus Service Pvt. Ltd. vs. DCIT Page 6 of 11 being passed is in violation of the principle of natural justice and without giving adequate time and opportunity to the appellant to present the case. 5. Because the action is being challenged on facts & law for making addition of Rs. 86,55,000/- by treating cash deposit in bank accounts as unexplained credit u/s 68 whereas per assessee, the cash deposits in assessee's bank accounts are part of the books of accounts duly audited and forming part of already filed income tax return. Alternatively, quantum of addition is challenged. 6. For any consequential relief and/or legal claim arising out of this appeal and for any addition, deletion, amendment and modification in the grounds of appeal before the disposal of the same in the interest of substantial justice to the assessee. ITA No.636/Del/2022 for AY 2017-18 “1. Because the action for initiation, continuation and conclusion of assessment proceedings u/s 153A at an amount of Rs 55,01,250/- is being challenged on facts & law. 2. Because the action is being challenged on facts & law for completing the assessment u/s 153A as the search warrant and Panchnama not in the name of the assessee and consequently, the subsequent proceeding are without jurisdiction. Assessment based on such invalid initiation is a nullity and order u/s 153A has to be quashed. 3. Because the action is being challenged on facts & law for not providing reasonable opportunity of being heard. The assessment order being passed is in violation of the principle of natural justice and without giving adequate time and opportunity to the appellant to present the case. 4. Because the action is being challenged on facts & law for making addition of Rs. 55,01,250/- by treating cash deposit in bank accounts as unexplained credit u/s 68 whereas per assessee, there is no incriminating material/document found during the course of search u/s 132 of the Act for the impugned year. 5. Because the action is being challenged on facts & law for making addition of Rs. 55,01,250/- by treating cash deposit in bank accounts as unexplained credit u/s 68 whereas per assessee, the cash deposits in assessee's bank accounts are part of the books of accounts duly audited and forming part of already filed income tax return. Alternatively, quantum of addition is challenged. ITA No.630 /Del/2022 & Ors Capital Bus Service Pvt. Ltd. vs. DCIT Page 7 of 11 6. For any consequential relief and/or legal claim arising out of this appeal and for any addition, deletion, amendment and modification in the grounds of appeal before the disposal of the same in the interest of substantial justice to the assessee. ITA No.637/Del/2022 for AY 2018-19 “1. Because the action for initiation, continuation and conclusion of assessment proceedings u/s 144 at an amount of Rs 80,26,250/- is being challenged on facts & law. 2. Because the action is being challenged on facts & law for not providing reasonable opportunity of being heard. The assessment order being passed is in violation of the principle of natural justice and without giving adequate time and opportunity to the appellant to present the case. 3. Because the action is being challenged on facts & law for making addition of Rs. 80,16,250/- by treating cash deposit in bank accounts as unexplained credit u/s 68 whereas per assessee, there is no incriminating material/document found during the course of search u/s 132 of the Act for the impugned year. 4. Because the action is being challenged on facts & law for making addition of Rs. 80,16,250/- by treating cash deposit in bank accounts as unexplained credit u/s 68 whereas per assessee, the cash deposits in assessee's bank accounts are part of the books of accounts duly audited and forming part of already filed income tax return. Alternatively, quantum of addition is challenged. 5. Because the action is being challenged on facts & law for levying penalty Rs.10,000 u/s 271F in assessment proceedings u/s 143(2)/144 whereas per. assessee, the penalty u/s 271F can be maximum levied upto Rs.5,000 & that too in separate penalty proceedings. 6. For any consequential relief and/or legal claim arising out of this appeal and for any addition, deletion, amendment and modification in the grounds of appeal before the disposal of the same in the interest of substantial justice to the assessee.” (B) For the sake of convenience this batch of appeals is hereby being disposed of through this consolidated order. The Assessing ITA No.630 /Del/2022 & Ors Capital Bus Service Pvt. Ltd. vs. DCIT Page 8 of 11 Officer (“AO” for short) passed separate assessment orders, each dated 29/12/2019, for Assessment Years 2012-13, 2013-14, 2014- 15, 2015-16, 2016-17, 2017-18 and 2018-19. The AO determined assessee’s income at Rs.51,28,250/- for Assessment Year 2012-13, Rs.68,91,000/- for Assessment Year 2013-14, Rs.1,01,08,000/- for Assessment Year 2014-15, Rs.98,56,260/- for Assessment Year 2015-16, Rs.86,55,000/- for Assessment Year 2016-17, Rs.55,01,250/- for Assessment Year 2017-18 and Rs.80,26,250/- for Assessment Year 2018-19. The assessee filed separate appeals in the office of the Ld. CIT(A) against the aforesaid assessment orders for Assessment Years 2012-13, 2013-14, 2014-15, 2015-16, 2016-17, 2017-18 and 2018-19. Vide separate impugned appellate orders, each dated 10/02/20122, the Ld. CIT(A) dismissed the assessee’s appeals. The present batch of appeals before us has been filed by the assessee against the aforesaid impugned appellate orders of the Ld. CIT(A), each dated 10/02/2022. At the time of hearing before us, there was no representation from the appellant assessee’s side. In the absence of any representation from the appellant assessee’s side, we heard the ld. CIT-DR for Revenue. ITA No.630 /Del/2022 & Ors Capital Bus Service Pvt. Ltd. vs. DCIT Page 9 of 11 (B.1) In the grounds of appeal, the appellant assessee has contended that the assessment orders were passed in violation of principle of natural justice and without giving adequate time and opportunity to the appellant assessee, to present the case. On perusal of records, it is found that the assessment orders were passed on 29/12/2019, almost immediately after issue of notices dated 23/12/2019. The notices were accompanied with questionnaires wherein the assessee was asked to file submissions on specific points. The AO took adverse view of the fact that the assessee did not file any reply and proceeded to pass the aforesaid assessment orders ex-parte, qua the assessee. At the time of hearing before us, we sought to ascertain the views of the Ld. CIT- DR for Revenue, whether the Assessing Officer provided reasonable opportunity to the assessee before passing the assessment orders. Ld. CIT-DR for Revenue fairly accepted that the time between issue of aforesaid notices dated 23/12/2019 issued u/s 142(1) of IT Act (along with questionnaires and the date of assessment orders (dated 29/12/2019) was insufficient. She also submitted that the ITA No.630 /Del/2022 & Ors Capital Bus Service Pvt. Ltd. vs. DCIT Page 10 of 11 impugned appellate orders of the Ld. CIT(A) may be set aside, and that the issues in dispute in the present appeals may be restored to the file of the Assessing Officer with the directions to pass denovo assessment orders in accordance with law, after providing reasonable opportunity to the assessee. In view of the foregoing, in the specific facts and circumstances of the appeals before us, and as Ld. CIT-DR is in agreement with this, we hereby set aside the impugned appellate orders, each dated 10/02/2022 of the Ld. CIT(A), and restore all the issues in dispute in the present appeals before us to the file of the Assessing Officer with the direction to pass denovo assessment orders in accordance with law after providing reasonable opportunity to the assessee. All the grounds of appeal are treated as disposed of in accordance with these directions. (C) In the result, for statistical purpose, all the appeals are treated as partly allowed. This order was already pronounced orally on 4 th October, 2022 in Open Court, in the presence of Ld. CIT-DR for Revenue, ITA No.630 /Del/2022 & Ors Capital Bus Service Pvt. Ltd. vs. DCIT Page 11 of 11 after conclusion of the hearing. Now this order in writing is signed today on 11/10/2022. Sd/- Sd/- (CHALLA NAGENDRA PRASAD) (ANADEE NATH MISSHRA) JUDICIAL MEMBER ACCOUNTANT MEMBER Dated: 11/10/2022 Pk Copy forwarded to: 1. Appellant 2. Respondent 3. CIT 4. CIT(Appeals) 5. DR: ITAT ASSISTANT REGISTRAR ITAT NEW, DELHI